Volume 6 — Federal Cases

In bankruptcy. The subject of controversy was the sum of $1,751, which arose from the sale of the greater portion of the bankrupt’s real estate, it having been agreed that the proceeds of the land should be treated as the land itself. All this real estate was bounded by a judgment lien for a debt due the Meck-lenburg Female College to the amount of about $1,350, which contained no waiver of the homestead right.

In bankruptcy. Petition for review of a decision of the district court holding valid a mortgage of personal property given by Joseph Dow, a bankrupt, as security to one of his creditors. [Case No. 11,322.] The petitioner [James H. Coggeshall] was trustee of the bankrupt’s estate, duly appointed under the bankrupt act. The mortgage in question was given by the bankrupt more than four months before, but within six months of, the commencement of the proceedings in bankruptcy.

<p>At law. This was an action against [Cornelius W. Lawrence] the collector of the port of New York, to recover back an excess of duties paid by the plaintiffs .[Henry Coggill and others] under protest on Buenos Ayres sheep-skins. [The action was brought originally in the superior court of the city of New York, and was from there removed to this court.] The article was imported with the wool on the skin, and was not dressed, being in the same condition in which it was when taken from the animal, except that it was dried. By the instructions of the secretary of the treasury the collector directed the wool and the pelt or skin to be appraised separately, and a duty of 30 per cent, ad va-lorem was charged on the former, and of 5 per cent, ad valorem on the latter. The importation was under the tariff act of July 30, 1S46 (9 Stat. 42). At the trial before Mr. Justice Nelson in May, 1849, it appeared by the evidence, that the article was usually described in invoices and shipped as sheepskins, and was known in trade and commerce by that designation; that the wool upon the pelt was worth from fourteen to thirty cents a pound, each skin yielding from half a pound to a pound of wool; that the pelt, when shorn, was worth from four to ten cents, and was tanned and used as leather; that some of the skins were sheared, and some were dressed with the wool on and used for mats, military saddles, soles for the inside of shoes, coverings for the cylinders of rice-mills, men’s caps, sleigh-robes, &c.; that from 50 to 70 per cent, of those imported were shorn for the wool; and that they were sometimes imported without any wool on them, when they were called bazils or pelts, and were tanned or salted before being shipped.</p> <p>The defendant insisted, that the wool upon the skin was “wool, unmanufactured," and chargeable, under Schedule O of the act of 1846, with a duty of 30 per cent, ad valo-rem, on the ground that the chief value of the article consisted in the unmanufactured wool, the skin being of little value. The plaintiffs claimed, that the article was chargeable with a duty of 5 per cent, ad valorem, under Schedule H, as falling within the designation of.“raw hides and skins cf all kinds, whether dried, salted, or pickled, not otherwise provided for,” The court charged the jury, that the article was chargeable with a duty of 20 per cent, ad valorem, under Schedule E, under the head of “skins of all kinds, not otherwise provided for." The jury accordingly found for the plaintiffs, and a motion was now made for a new trial,, on a case.</p>

<p>This was an action originally brought in the superior court of the city of New York, against the defendant [Cornelius W. Lawrence], as collector of the port of New York, to recover the sum of $150, as so much duty charged and received by the defendant on the importation and entry of foreign merchandise by the plaintiffs [Henry Coggill and others] above the amount collectable by law. Under the provisions of the 3d section of the act of March 2, 1833 (4 Stat. 633), the defendant removed the cause into this court, and, on a trial before a jury, the plaintiffs obtained a.verdict for $9.50. [A motion was thereafter made for a new trial, which was denied.] The plaintiffs now moved that full costs of suit, according to the rate of costs in this court, be awarded to them; and the defendant made a counter application that full costs be adjudged to him.</p>

<p>Case Wo. 2,958.</p> <p>Execution — Levt on Equitt op Redemption— Extension—Sheiuff’s Return.</p> <p>1. An attachment of all the right, title, and interest of the defendant in and to any lands in the county, binds his right of redemption of mortgaged land, and not .the fee, and if the execution be extended on the land, the title dates only from the seizure on the execution.</p> <p>[Cited in Wyman v. Babcock, Case No. 18,-113.]</p> <p>2. By the law of Maine a mortgagee may extend on the land mortgaged, an execution issuing on a judgment for the debt secured by the mortgage.</p> <p>3. If an officer’s return can be fairly construed so as to be sufficient in law, it is the duty of the court so to construe it.</p>

[On certificate of register in bankruptcy.] [In bankruptcy. In the matter of Mortimer C. Cogswell.] In this case the register, at the request of the bankrupt, certified the following question for the opinion of the judge: When no creditor attends at the place and time specified in the warrant and notice for the first meeting of creditors, does the law provide for or require the appointment of an assignee of the bankrupt’s estate?

[In admiralty. Libel by Daniel Cohan against the brig Bolling Wave to recover for labor and materials furnished in repairing the brig.]

In bankruptcy. Andrew Barby, claiming to be a creditor of the bankrupt, within the time prescribed by the rules of this court in bankruptcy, in order to show cause why the bankrupt should not be discharged, filed certain allegations, and a day was assigned by the court for the hearing thereof, on which day the bankrupt denied that Barby was a creditor, and contended that, if he was in fact a creditor, he had no right, as such, to appear and show cause why the bankrupt should…

In bankruptcy. Petition of review. Albert Cohen, domiciled in the eastern district of Arkansas, was adjudicated a bankrupt by the district court of that district, on July 26, 1S75.

<p>In bankruptcy.</p>

At a former hearing by Grier, J. an issue was directed by the equity side of this court, on exceptions filed to the master’s report in the above case, for the purpose of determining the value of certain lands in Union and Columbia counties, Pennsylvania.

This was a libel for bottomry. The libellant [Jacob Cohen, Jr.], a citizen of Charleston, S. C., claimed the sum of $1,529.-97, being the amount of a bottomry bond given him, less a credit allowed for freight and commissions on certain goods, which had been transported in the schooner, on his account It appeared that the bond was given in consideration of the libellant becoming liable for certain debts due for necessary repairs to the schooner, and that, after the bond was…

<p>[At law. Action by A. A. Cohen against T. G. Fhelps, collector of the port of San Francisco.]</p>

In admiralty. The libel in this case was ■filed on the 11th of November, 1864, by the appellants [Estate P. Cohen and Andrew J. Cohen], owners of the barque Phantom, to recover damages sustained by said barque coming into collision with the brig Mary T. Wilder, on the night of the 3d of November, 1S34, whilst the said brig was lying at anchor at the mouth of the Patapsco river.

<p>Case No. 2,966.</p> <p>Bankruptcy—Compensation op Assignee por Benefit of Creditors.</p> <p>Assignees under the state law cannot receive allowance for attorneys’ fees, nor compensation for their own services where the debtor has been adjudged a bankrupt.</p> <p>[Cited in Gardner v. Cook, Case No. 5,226; l'latt v. Archer, Id. 11.214; lie Kurth, Id. 7,948; Wehl v. Wald, 3 Fed. 94.]</p>

<p>Case No. 3,967.</p> <p>ACT OF BA.NKKUPTCY—IMPUISONMEXT UNDElt Mesxe Pp.ocess.</p> <p>A was arrested on mesne process issued out of a state court, and actually imprisoned thereon for a period exceeding seven days. The judge of the state court, before whom the matter was afterward brought, decided that the order by the commissioner on which A was imprisoned was improvidently made, and ordered A.'s release on entering common bail, or an appearance to the action. After A had remained imprisoned more than seven days, and before the judge decided the order to have been improperly granted, a petition in bankruptcy was filed against A. Held, that the imprisonment being submitted to for more than seven days before an effort at liberation was made, became an act of bankruptcy.</p>

<p>Case No. 2,968.</p> <p>Patents—Licensor and Licensee — Rights and-Duties.</p> <p>1. Persons duly licensed by the owner of a patent may make, use and vend the patented product within the terms and conditions of their license without hindrance or interruption by the patentee, if they themselves comply with the terms and conditions of the license.</p> <p>2. Licensees will not be permitted to put an end to the contract, or deny the validity of the patent, repudiate the title of their licensor, refuse to pay the stipulated royalty, and, when the validity of the patent is sustained, in spite of their hostilities, set up, as a defense to the charge of infringement, the prior license which they had wrongfully repudiated, and the terms and conditions of which they had refused to aeknowledge and perform, upon the ground that the patent was inoperative, invalid and void.</p> <p>3. Where the licensees repudiate the license, they may be treated by the owner of the patent, at his election, as infringers. He may have his remedy by suit upon the license, or he may treat tile licensees in future as infringers of his exclusive rights under the patent.</p> <p>[Cited in White v. Lee, 3 Fed. 224; Ham-macher v. Wilson, 26 Fed. 240; Starling v. St. Paul Plow-Works, 32 Fed. 291; Heaton Peninsular Button-Fastener Co. v. Dick, 55 Fed. 26. Criticised in Seibert Cylinder Oil-Cup Co. v. Detroit Lubricator Co., 34 Fed. 221.]</p>

<p>[In equity. Bill by Moritz Cohn against the United States Corset Company for relief for infringement of letters patent No. 137,-893, granted to complainant April 15, 1873, for an improvement in corsets.]</p>

In bankruptcy. Petition by one member of a firm of tradesmen for his discharge. A firm creditor objected because the firm did not keep proper books of account.

<p>On motion for new trial.</p>

<p>Case No. 2,972.</p> <p>Master’s Liability for Debts Contracted by Crew.</p> <p>Where the master was arrested for certain debts contracted by his crew, which by their authority he paid: Held, that he was entitled to deduct the amounts so paid from their wages, but not the costs incident to the arrest.</p>

A committee of the Iowa Bar Association presented to the court an information against C. C. Cole, making certain charges of unprofessional conduct against him, and praying his disbarment To this information a demurrer was interposed. The hearing on the demurrer was before Mr. Justice MILLER, who states in his opinion the substance of the allegations of the information. [For the determination of a motion to attach It.

O. Cole, Esq., was of counsel for the Iowa Central Railroad, in a suit in the circuit court of Iowa, to foreclose a mortgage on said road. K. L. Ash-hurst, Esq., was chairman of a committee of stockholders of the road; J. F. Cate was president of the said road; both the latter gentlemen were in frequent confidential communication with Cole, with reference to the litigation and matters connected therewith.

In admiralty. This was a libel [by John Cole, a sailmaker] for work and materials furnished nearly two years before the commencement of suit. The only defence was the lapse of time, and an alleged unwarrantable neglect. cited The Rebecca [Case No. 11,619]; The Mary [Id. 9,ISO]; The Nestor [Id. 10,126]; The Jerusalem [Id. 7,294]; North v. The Eagle [Id. 10,300], cited, in addition, Blaine v. The Charles Carter, 4 Cranch [8 U. S.] 328.

This was a bill in equity [by Samuel J. Cole and wife and others] for a partition.The only question made, was concerning the title of one of the respondents to an undivided eighth part of the land.

<p>Case Wo. 2,978.</p> <p>Remedies in Admiralty— Possessory Action— Foreign Attachment — Sale or Vessel for Debts of Owner — Title of Purchaser.</p> <p>. [1. The remedies in admiralty resemble those of the common law, rather than those in equity, •and in a possessory action for a vessel by one having the legal title the rights of claimants •cannot be adjusted on equitable principles, but restoration must be awarded upon .the legal ■ownership, without regard to collateral equities.]</p> <p>[2. Foreign attachments, though effecting a seizure of property in specie, aré not proceedings in rem. Therefore an adjudication by a foreign tribunal, ordering the sale of an attached vessel for the personal debts of the owner, is not a condemnation of the vessel, so as to give a purchaser at the sale a superior title to that of a prior mortgagee.]</p>

<p>Case No. 2,979.</p> <p>Appeal in Bankkuptcv.</p> <p>Where a person claiming to he a creditor of a bankrupt, after the rejection of his claim by the district court, undertook to appeal from such decision to this court, under section 8 of the bankruptcy act of March 2, 1S07 (14 Stat. 520), but did not comply with tiie provisions of that section in regard to entering his appeal, or with tiie provisions of general order number 20, prescribed by tiie justices of tiie supreme court, in regard to tiling his appeal and setting forth a statement in writing of his claim, this court, on motion of the assignee in bankruptcy, dismissed the attempted appeal.</p> <p>[Followed in Re Dace. Case No. 11.200; Sedgwick v. Krideuborg. Id. 12.0L1. Cited in Fellows v. Burnap, Id. 4,721; Re Mc-Ewou, 4 Fed. 10.]</p>

<p>On habeas corpus.</p>

This was a libel in rem, promoted by Michael B. Kean, owner of the schooner Ayr, for collision. On the 11th day of May, 1872, the schooner Ayr lay aground and helpless on the easterly channel bank of the dredged channel at the mouth of the' Saginaw river. On the same day, while the Ayr so lay aground, and in the day time, the tug Coleman came down the same channel, with the schooner Foster in a tow by a line or lines astern.

<p>Case No. 2,983.</p> <p>Seamen—Double Wages fob Insufficient Provisions.</p> <p>1.Double wages are due by the act of congress in cases of failure of provisions, if the ship sail without the quantity specified in the act.</p> <p>[Cited in Poster v. Sampson, Case No. 4,-982.]</p> <p>[2. Overruled in The Mary Paulina, Case No. 9,224, and Collins, v. Wheeler, Id. 3,018, to the point that one third additional wages is sufficient compensation, where there is a deficiency in but one of the specified articles.]</p>

[In equity. Bills by Robert D. Silliman and by Frederick W. Coleman against the Hudson River Bridge Company, at Albany, to restrain the erection of a bridge across the Hudson river at Albany, as authorized by an act of the legislature of the state of New York, April 9, 1S56. [A provisional injunction was granted (Case No. 12,851), but on the final hearing the judges were opposed in opinion (Id. 12,852), and a division was certified to the supreme court in October, 1S59.

[In equity. Bill by Charles R. Coleman against D. Randolph Martin and others.] This was an application made to the court, by petition, by Charles H. Stewart, who was not a party to the suit, praying… Held: both legally and morally, responsible, pe-cuniarily and personally,- for certain transactions of which the plaintiff complained in his bill; and that the decree of this court in the suit would have “a powerful influence” in contributing to that result.

<p>[In equity. Bill by Charles R. Coleman against D. Randolph Martin and others.]</p>

In admiralty. Action on a policy on the Brothers, on a voyage from a port on the Brazil coast, to Canton, with liberty to touch or stop at the Pegu islands, or any other islands, ports, or places, the master may think proper, to take and trade for refreshments, sandal wood, skins, birds’ nests, or any other articles. Premium 10 per cent., to return 2% on safe arrival; valued at 10,000 dollars; 9,000 insured; warranted American property.

<p>Case No. 2,987.</p> <p>Bridge Bonds—Local Statute—Election.</p> <p>rNOTE. This case is reported in 3 Dill. 391, as a note to Thayer v. Montgomery Co., Case No. 13.S70.J</p>

<p>Case No. 2,989.</p> <p>Parties to Bill before,Service — Effect of Omission on Jurisdiction — Joint Trespasser Omitted — Amendment—Injunction—Incapacity of Corporation no Defense to Trespass— Wrongful Diversion of Water — Preliminary Mandatory Injunction.</p> <p>1. A person residing out of the jurisdiction of the court, though named as defendant in a bill, is, substantially, not a party to the action, till service of process or appearance.</p> <p>2. Whenever the making of a person a party to a bill would oust the jurisdiction of the court, as to other parties, such person, if not an indispensable party, may be omitted, for the purpose of exercising jurisdiction, as to other parties, whose rights can be determined without his presence.</p> <p>3. In an action to restrain the diversion of water by tort-feasors, one of the tort-feasors, who resides out of the jurisdiction of the court, may be omitted.</p> <p>4. The court may permit an amendment to a bill, by omitting a non-resident, named thereon as defendant, but not served, without prejudice to a motion for injunction.</p> <p>5. In an action by a corporation for injuries to property in its possession, the court will not, at the instance of the wrong-doers, enter into any inquiry as to the legal capacity of such corporation to hold the property.</p> <p>[Cited in Southern Pac. R. Go. v. Orton, 32 Fed. 470.]</p> <p>G. Plaintiff, in excavating a tunnel in a mountain to its mining claim, on the public lands of the United States, struck a subterranean flow of water, which it appropriated and enjoyed for several years. Defendants ran a tunnel from a distant point into the mountain, to a point some thirty feet in altitude, directly below the point where the plaintiff obtained the said water; and, thereupon, the water, which before flowed through plaintiff’s tunnel, was intercepted and discharged through defendants’ tunnel, and by them appropriated to their own use. Held, that said diversion and appropriation of the water was wrongful, and that complainant was entitled to an injunction.</p> <p>7. Where defendants, by means of a tunnel run into a mountain at a lower altitude than complainant’s tunnel, wrongfully intercept water appropriated by complainant, flowing in its said tunnel, and divert it therefrom, a preliminary injunction will be granted, restraining the continuance of said diversion, even though an obedience to the injunction should render it necessary for defendants to build a bulkhead, or dam, across the tunnel.</p> <p>[Cited in Portland v. Oregonian Ry. Co., 6 Fed. 324; Hatch v. Wallamet Iron Bridge C'o.. T<1.33S. Distinguished in Mutual Union Tel. Co. v. Chicago, 1C Fed. 313.]</p> <p>[NOTE. Defendant, the water company, subsequently moved on the bill and answer to dissolve the preliminary injunction, and the motion was denied. Case No. 2,990.]</p>

In equity. Motion to dissolve an injunction on bill and answer. The facts sufficiently appear in the opinion, and in the report of the same case before Sawyer, Circuit Judge, on motion for an injunction. [Case No. 2,-989.]

<p>Case No. 2,991.</p> <p>Patents—Adjudication of Validity — Notice— Subsequent Attack — Pm on Publication — PiieliminAitT Injunction—Foitu of Okdeil</p> <p>1. The decision of this court in Colgate v. W. U. Tel. Co. [Case No. 2,995] confirmed.</p> <p>2. The considerations stated which apply to a case where, after a patent has been sustained on final hearing, a new defendant, in a new suit, seeks to attack the patent for want of novelty.</p> <p>3. 'What degree of clearness and certainty of description is required in a prior publication, in order to defeat a patent.</p> <p>4. Where, on a patent issued in 1SG7, a suit was brought, in 1S72, against its most conspicuous and extensive infringer, and was. prosecuted with reasonable diligence, that was sufficient notice to all other infringers that the right conferred by the patent was to be maintained, to require a particular defendant who alleges lach-es in the plaintiff, to show affirmative acquiescence by the plaintiff in the use of the invention by the defendant.</p> <p>[Cited in Green v. Barney, 19 Fed. 421.]</p> <p>5. Form of an order for a preliminary injunction on a patent, in a 'case where the plaintiff exercises his rights by granting licenses.</p> <p>[Cited in Hoe y. Boston Daily Advertiser Corp., 14 Fed. 910; Campbell Printing-Press & Manuf'g Co. v. Manhattan By. Co., 49 Fed. 933.].</p> <p>[NOTE. For other cases involving this patent, see note to Colgate v. W. U. Tel. Co., Case No. 2,995.]</p>

<p>Case No. 2,992.</p> <p>Enjoining Infkingement of Patent — Attachment fob Violation.</p> <p>The defendant company had been enjoined against using the invention owned by the complainant, except the particular wires or cables then in use by it, and against “conferring upon any other person, persons or corporation, either in whole or in part, or alone, or in conjunction, or in connection with the defendant, any use of, or right to use any such wires or cables.” Under an agreement made before the service of the injunction, the defendant company, after such service, furnished a wire containing the patented invention, such wire having been in use by the defendant long before, and at the time of the injunction. Held, that, upon these facts, the defendant was guilty of a violation of the injunction, and an attachment was granted against the defendant, and its president.</p> <p>[NOTE. For other cases involving this patent, see note to Colgate v. Western Union Tel. Co., Case No. 2,995.]</p>

[In equity. Bill by Clinton G. Colgate against the International Ocean Telegraph Company to enjoin infringement of letters patent No. 65,019. granted to George B. Simpson, May 21, 1S67, for an improvement in insulating submarine cables.]

[In equity. Bill by Clinton G. Colgate against the Western Union Telegraph Company to restrain infringement of letters patent No. 65,019, granted to George B. Simpson, May 21, 1S67, for an improvement in insulating submarine cables. There was a decree for complainant (Case No. 2,995), and a motion is now made for an attachment for violation of the injunction therein granted.]

[This was a bill in equity by Clinton G. Colgate, heard on motion for a preliminary injunction.] The claim of the complainant’s patent [No. 65,019], issued to George B. Simpson, May 21st, 1S67, was for “the combination of gutta-percha and metallic wire in such form as to encase a wire or wires, or other conductors of electricity, within the non-conducting substance gutta-percha, making a ‘submarine telegraph cable,’ at once flexible and convenient, which may be suspended on…

<p>[In equity. Bill by Clinton G. Colgate against the Western Union Telegraph Company to enjoin infringement of letters patient No. 65,019).</p>

<p>Case No. 2,996.</p> <p>Salvage.</p> <p>The fact that both vessels belonged to the same owner furnishes no ground of exemption to a claim for salvage compensation by the master and crew of the salving vessel. Proof of a contract, usage, or understanding, that no such claim shall be made will defeat it.</p> <p>[Cited in Re A Lot of Whalebone, 51 Fed. 924.)</p>

A by-law of a corporation provided that, “in case any stock of the corporation is not represented at any meeting of stockholders, either in person or by proxy, such stock may be voted at such meeting… Held: that the prayer of the petition should be denied. In bankruptcy.

<p>Case No. 2,998.</p> <p>Patents—“Billiard Cushions”—Consthcction.</p> <p>Reissued letters patent No. 2,511, granted to Hugh W. Collender, March 19th, 1867, for an .‘•‘improvement in cushions for billiard-tables,” held to be for the process or art of making the cushion, as described, and not for the cushion as an article of manufacture.</p> <p>[NOTE. For another case involving this patent, see Collender v. Came, Case No. 2,999.]</p>

In equity. A patent, in due form [No. 19,-074], was granted to the complainant [Hugh W. Oollender], on the 12th of January, 1858, for a new and useful improvement in uniting comparatively hard substances to elastic foundations of billiard cushions, and the same was surrendered on the 19th of March, 1867, on account of a defective specification, and reissued [on the same day] to the same pat-entee for the same invention [No. 2,511].

<p>Case Wo. 3,000.</p> <p>Patents—“Billiard Tables”—Design—Validity — Suit for Infringement — Testimony as to Prior Use—Infringement of Copyright.</p> <p>1. Under sections 61 and 76 of the act of July 8, 1870 (16 Stat. 208, 210), in a suit in equity for the infringement of a patent for a design, testimony as to the prior knowledge and use of _ the patented design by persons not named in the answer, is incompetent.</p> <p>[Cited in La Baw v. Hawkins, Case No. 7,-960.)</p> <p>2. Billiard tables, and designs therefor, having the sides and ends bevelled, being’ old, a patent for a design having a greater bevel is void, as presenting no feature of invention or discovery.</p> <p>3. A copyright of an engraving of such patented design cannot be used to prevent a person who has the right to make billiard tables in the way he makes them, from advertising them by publishing an engraving of them.</p> <p>[Distinguished in Yuengling v. Schile, 12 Fed. 100.)</p> <p>(NOTE. Complainant, on June 1, 1875, obtained a reissue of the patent (numbered 6,469), andbrought suit against the same defendant for infringement, but the bill was dismissed. Collender v. Griffith, 2 Fed. 206.]</p>

<p>Case No. 3,002.</p> <p>Agreement of Partner to Pay Firm Debts — Transfer of Firm Assets to Partner—Rights of Firm Creditors.</p> <p>1. In the absence of fraud, joint debts may be converted into individual debts by one partner’s undertaking, for a good consideration, to pay them.</p> <p>2. If the partners, more than four months before the commencement of the proceedings in bankruptcy, transferred all their property, both separate and joint, to one partner, who undertook to pay the firm debts, all the assets will be treated as the separate assets of that partner.</p> <p>3. A promise by one partner to pay all the firm debts may be enforced by the firm creditors, although they were not cognizant of the promise when made, and although the consideration did not move from them.</p> <p>4. If there is no joint estate, the firm creditors may share pari passu in the separate estate.</p> <p>[Cited in Re Lloyd, 22 Fed. 90; Re West, 39 Fed. 203.]</p>

Mr. Claudius, residing in Philadelphia, the agent of the plaintiffs, merchants at Rotterdam, was in the habit of procuring consignments to his principals, and of making ad-vanees on the shipments, to the amount of two-thirds of the invoice value, by bills on a house in London. Copies of the invoice and bill of lading, he enclosed to the house in London, as well as to the plaintiffs.

<p>Case No. 3,005.</p> <p>Resale — Expenses op Purchaser—Counsel Fees.</p> <p>1.An assignee in bankruptcy sold at public auction two boilers on which there was a mortgage to their full value. The mortgagee had actual notice of the intended sale, but, by mistake, failed to attend, and the property was sold. On application of the mortgagee, who offered a higher bid, that sale was set aside by the court and a resale ordered, on condition that the mortgagee pay into court $300, to abide the order of the court as to the amount which he must pay to the purchaser and to the assignee. Proof of the facts was then taken before the-register. Held, that the .assignee could not be allowed the expenses of an attempted sale prior to the actual sale, nor for painting and cleaning the boilers.</p> <p>2. A charge for auctioneer’s fees must be disallowed. The mortgagee having objected to the employment of an auctioneer, the approval of the court should have been obtained before incurring the expense.</p> <p>3. Nothing could be allowed for the expense of moving the boilers after a stay of proceedings had been ordered by the court, or for storage made necessary by such removal.</p> <p>4. The assignee could not be allowed for services of counsel in opposing the resale, because it was plainly for the interest of the estate that a resale should be had; but he might be allowed for services of counsel to see that the-estate was properly protected from loss in the order for resale</p> <p>5. The purchaser must be allowed for services of counsel in opposing the resale, but not for such services in attending before the register to prove a bill of charges which were greater than he was entitled to.</p> <p>6. The register’s charges must be borne by the mortgagee.</p>

In bankruptcy.. This was a motion by Charles Botto, a creditor of the bankrupt, a married woman, to set aside and dismiss the bankruptcy proceedings. contended that a claim against a married woman is in the nature of a charge against her estate, not a debt against her, and that she has not the capacity to contract debts; citing Carpenter v. Mitchell, 54 Ill. 127; Parent v. Callerand [64 HI. 97].

In bankruptcy. A petition was presented to the district court by Carston Schomaker, setting forth, that, in May, 1873, he sold and delivered to Charles Collins three locomotive tubular boilers, for the price of $1,500; that, on the 29th of October, 1873, said Collins gave to him a chattel mortgage on said boilers, for $1,448.40, a part of the purchase money of said boilers, which had not been paid; that said chattel mortgage was not filed for record until June 5th, 1874, and…

[On certificate of register in bankruptcy.] I, James M. Fidler, one of the registers of said court in bankruptcy, do hereby certify, that in the course of proceedings in said cause before me, the following question arose, pertinent to the said proceedings: Facts.

<p>Case No. 3,009.</p> <p>Pire Insurance — Election op Insurer to Repair — Estoppel.</p> <p>[1. "When the insurer, after a fire, elects to restore and repair, the policy then becomes a contract to put the house as nearly as possible in its condition before the fire.]</p> <p>[2. Refusal of the insured to furnish a plan of the original house, so that it may be restored according thereto, estops him from complaining that the new part does not exactly correspond with the original.]</p>

<p>, [Aaron L. Collins against the city of Chi- ¡ cago to set aside an alleged illegal assessment of national bank stock.]</p>

[In equity. Bill by George C. Collins and Harvey Farrington, assignees in bankruptcy of John Murdock Mackay and John Neilson, against Richard Bell, Frederick Gundry, and the said bankrupts, to set aside the transfer of certain promissory notes and a bond and mortgage.]

<p>Case No. 3,013.</p> <p>Salvage Agreement—A’alidity — Compensation —AVagks—Repairs—Supplies — Domestic Vessel — Subrogation of Insurance Company — Priority of Liens.</p> <p>1. A salvage service, in raising and preserving a steamboat sunk in the Mississippi river, has a priority of lien over claims for wages earned and supplies furnished before the accident.</p> <p>[Cited in The Lady Boone, 21 Fed. 733.]</p> <p>2. A salvor is favored in law, on the assumption that without his service the res might have been wholly lost.</p> <p>3. If the salvage service is rendered under a previous special agreement, fairly made, stipulating for a compensation contingent on the success of the salvor’s efforts, it will be recognized in admiralty as creating a valid lien.</p> <p>4. But if there are prior lien-holders, not parties to such agreement, they are not concluded as to the amount of compensation agreed to be paid, and a court of admiralty may inquire into the reasonableness of the compensation, and make such allowance as may be equitable.</p> <p>5. The lien of seamen for wages earned prior to the accident is not absolutely extinguished thereby, but continues subject to the salvor’s lien.</p> <p>6. The salvage agreement having stipulated for a compensation of twenty-five per cent, on the value of the boat, assumed in the policy of insurance at 818,000. and it appearing that the actual value did not exceed $9,000, the sum claimed for salvage is unreasonable, under the circumstances of the case, and subject to reduction by the court.</p> <p>7. An insurance company having paid their quota for the salvage service, and having made advances for the necessary repairs of the boat after being raised, the owners having no means or credit by which to make the repairs, have a maritime lien at least to the extent of such repairs.</p> <p>8. A due-bill given by the master in the name of the owners for the amount of such repairs, reciting that they were necessary, and that the advances therefor were on the credit of the boat, is conclusive on the owners, unless impeached for fraud, and constitutes a valid lien.</p> <p>9. Claims for wages earned after the boat was repaired, have an equality of lien with that for advances made for repairs.</p> <p>10. The Fort Wayne having been enrolled at Cincinnati as of that place, and two of the owners residing in the state of Ohio, one of whom was the mannging owner, the boat was properly enrolled there, and that was the home port of the boat, although a majority of the owners resided in the state of Pennsylvania, and claimants, therefore, for stores and supplies furnished at Cincinnati have no lien on the boat therefor.</p> <p>[Cited in The Rapid Transit, 11 Fed. 329.]</p> <p>11. Debts incurred in building a boat are presumed to be based on the personal credit of the owners, and do not import a maritime lien. And this doctrine is not affected by the fact that such debts are declared to be a lien by the law of the state in which the boat was built.</p>

<p>Case No. 3,013.</p> <p>PREFERENCE BT BANKRUPT—RECOVERY BY AS-SIGNEE.</p> <p>1. A preference to a creditor, to be void under either the 35th or the 30th section of the bankruptcy act [of 1867 (14 Stat. 534. 536)], must be made within four months before the filing of the petition in bankruptcy.</p> <p>2. The general language of the 39th section in regard to the recovering back property by the assignee, must be construed in connection with the specific language of the 35th section, prescribing a four months’ limitation to proceedings in respect to preferences to creditors; and there is, in fact, no inconsistency between them.</p> <p>3. Under the circumstances of this case, the bill filed by the assignee in bankruptcy was dismissed, without costs.</p> <p>[Cited in Cookingham v. Perguson, Case No. 3,182.]</p>

<p>[In admiralty. Libel by James Collins against Francis Hathaway and others for wages.]</p>

<p>Case No. 3,015.</p> <p>Transfer of Assets of Insolvent Firm to Individual Member—Distribution of Partnership Assets in Bankruptcy.</p> <p>1. Equity will not sustain an agreement between partners, if the firm be at the time insolvent, by which the whole property and effects of the firm, are transferred to one member; the effect being to, defeat the equitable preference of the firm creditors, and to give the separate creditors of the partner accepting such transfer, a preference to the creditors of the company.</p> <p>[Cited in Re May, Case No. 9,328; Johnston v. Straus, 26 Fed. 63.]</p> <p>2. The provisions of the fourteenth section of the late bankrupt law [5 Stat. 448] directing the mode of settlement and distribution of estates in bankruptcy, in cases of partnerships, are in affirmance of the principles on which courts of equity proceed in the adjustment of the rights of a creditor of a firm, and the separate creditor of each partner.</p> <p>[Cited in Mead v. National Bank of Fayette-ville, Case No. 9,366; Re Johnson, Id. 7,369.]</p> <p>3. The creditors of a firm are entitled to the preference of having their debts paid out of the partnership funds, before the private creditors' of any of the partners.</p> <p>4. The sale and transfer of the partnership, property and effects to one partner in the case before the court, is condemned by the second section of the late bankrupt law, as made in contemplation of bankruptcy, and with a view to ¡i preference of the separate creditors of the individual members of the firm, to the prejudice of- the creditors of the firm.</p>

<p>Error to Clark county circuit court.</p> <p>[At law. Action of debt by Balda C. Johnson against Moses Collins.]</p>

In admiralty. This was a libel for wages, promoted by Collins, a seaman of the brig Bell Marshal, against the owner, Nickerson. It appeared that the libellant had demanded his wages, upon obtaining his discharge, four days after the arrival of the vessel in port; but the respondent refused to pay him, relying upon the statute restricting seamen from libelling the vessel, until the expiration of ten days.

At law. This was an action on the case for the infringement of letters patent. [No. I,396, granted to J. A. Both, October 31, 1S89] for an “improvement in the construction of furnaces extended for seven years from October 31, 1853, for a new and useful improvement in the construction of furnaces for smelting iron ore.” The patent expired October 31, 1860, and suit was brought against the defendant November 12, 1864, to recover damages for the unlawful use of the improvement…

In admiralty. The libellants were seamen of the ship Palmyra, owned by the respondents, on a voyage from Calcutta to Boston. The suit was for short provisions, under Act Cong. 1790, c. 29, § 9 (1 Stat. 135).

[Appeal from the commissioner of patents. [On interference. Application by Samuel W. Collins for a patent for casting tools with iron bodies and steel edges. Interference declared with patent of William White. From a decision of the commissioner of patents rejecting the application, the applicant appeals.]

<p>Case No. 3,020.</p> <p>Service oe Summons on Non-Resident.</p> <p>A person temporarily residing or sojourning at Honolulu, as United States commissioner to the Hawaiian government, is a non-resident of the state, within the meaning of subdivision 3 of section 30 of the Oregon Code of 1854, authorizing the service of summons by publication, in certain cases where the defendant is not a resident of the territory.</p> <p>[Cited in Woolridge v. McICenna, 8 Fed. 084.]</p>

<p>Case Wo. 3,021.</p> <p>SURRENDER OF SECURITY TO ASSIGNEE IN BANKRUPTCY — Subsequent Proof of Debt.</p> <p>A creditor, knowing the bankrupt could not pay his debts without help, loaned him money and left the matter of security to his lawyer and the debtor. The debtor confessed judgment on the debt, and subsequently gave a chattel mortgage of his entire stock of goods to secure payment of the judgment. The creditor surrendered the security to the assignee, and claimed to prove his debt under section twenty-three of the act [14 Stat. 528). Heitl, that formal proof of a debt is prima facie sufficient; that under the provisions of section thirty-nine of the act, the chattel mortgage was a conveyance of property made to a creditor who had good cause to believe the debtor insolvent, and such creditor was not so entitled to prove his debt.</p>

<p>Case No. 3,022.</p> <p>Collision in Slip — Stakting Sckew op Steamship — Lookout.</p> <p>A canal-boat loaded with coal was lying in a slip in which a steamship lay, discharging her -cargo. It became necessary to turn her around in the slip and she was cast loose for that purpose. A line was got out from the stern of the canal-boat to the pier, on which the master of the canal-boat was pulling, with his back to the steamship, when the screw of the steamship was started, and the suction pulled the canal-boat over till she was struck by the screw and so injured that she sank. It was the regular sailing day of the steamship, and the screw was put in motion before starting, as was customary, for the purpose of seeing if the machinery was in order. Before putting the machinery in motion, the officers of the steamship had examined to see if there was any vessel which might be injured by the action of the screw, but some little time had elapsed after that examination, before the screw was put in motion. When 'he master of the canal-boat found that bis boat was being drawn over towards the screw, he called to the steamship to stop her screw, but there was no one on the lookout on board of her and the screw was not stopped: Belli, that the steamship was in fault in not keeping a watch on her stern and in setting her screw in motion when she did, and was liable for the damages</p> <p>[Followed in The City of Macon, 20 Fed. 159.]</p>

<p>Case No. 3,023.</p> <p>Bilí, op Ladino —Stowage — Liabilitt op Cab-kiek foii Negligence op Servants.</p> <p>1. A bill of lading contained a clause excepting “any act, neglect, or default whatsoever” ■of the master or mariners, and a clause against liability for leakage or breakage, “when properly stowed.” The effect of these clauses, taken together, was not to exempt the vessel from responsibility for leakage and breakage occurring as the result of bad stowage by the master or mariners.</p> <p>2. A carrier cannot, by contract, relieve himself from responsibility for the negligence of his servants, because such a contract is unreasonable and contrary to public policy.</p> <p>[Cited in The Montana, 17 Fed. 379.]</p>

<p>Case Wo. 3,024.</p> <p>Salvage — Damaqe to Cargo by Detention — Costs — Parties—Burden of Proof.</p> <p>1. The steamer C., while on a voyage from New York to Colon, became disabled on the 20th of August, 1876, by the breaking of her crankshaft. She was otherwise tight and staunch, was provisioned for several months, and could make some progress under sail. She was then about 200 miles from Nassau, N. P., and about 731 miles from New York, for which port her master determined to make. The weather was fine and the sea smooth. During that afternoon the steamer E., bound from Kingston, Jamaica, to New York, in answer to a signal from the C. came alongside, and an agreement was made between the masters of the two vessels that, the C., having requested to be towed by the E. to New York, the compensation for the assistance rendered should be settled by the companies in interest in New York. Each vessel furnished its hawser for the service, and the E. reached New York in safety with the C. in tow on the morning of August 26th, the weather during the voyage being fine, and the winds favorable. The C. was worth about $230.000, and her cargo was worth about $250,000, and she had 140 passengers. The E. was worth about $120,000. Her cargo was worth about $100,000, and she had thirty-nine passengers. She was detained about two days and a half in rendering the service. No agreement as to the amount of compensation for the services of the E. was arrived at between the owners of the two vessels. Two days after their arrival the owners of the E. demanded $150,000 salvage, and the next day filed their libel and attached the C. and her cargo for that amount. There was some delay in furnishing security, and the transhipment of the cargo of the C. to another vessel of the line to which she belonged, and the sailing of that vessel, were delayed thereby. Part of the cargo of the E. consisted of fruit, and its consignees intervened in the suit, claiming to recover the damages caused to such part of the cargo by the delay. It had been shipped under bills of lading which in terms authorized the E. to tow and assist vessels in all situations. On behalf of the E. it was claimed that she had been put to expense, amounting to $2,340, and that she had lost $2,500 freight on her next trip, but this latter claim was abandoned on the trial: Held, that the service rendered was a salvage service, but that the claim of the E. was exorbitant.</p> <p>[Cited in Brooks v. The Adirondack, 2 Fed. 391; The Persian Monarch, 23 Fed. 822; The Wells City, 57 Fed. 319.]</p> <p>2. The dangers to which both vessels were exposed during the service had been exaggerated.</p> <p>3. The policies of insurance on the E. and her cargo not having been produced, the presumption was that by their terms the E. was authorized to render such services.</p> <p>4. $10,000 was a reasonable compensation to the E. and her ship’s company for the service rendered, $500 of it to be paid to the owners of the E. for expenses, $750 to the master of the E., and the rest, half to the owners of the E. and the other half to be divided among the officers of the E., including the master and her crew, according to their wages.</p> <p>[Cited in The Benison, 36 Fed. 797.]</p> <p>5. The owners of the cargo of the E. who had intervened might also recover the damages which they had sustained by reason of the detention, such damages being the difference between the value of their cargo when delivered and what would have been its value if delivered without detention; and that their right to recover such damages was not affected by the above mentioned clause in the bills of lading-under which the cargo was shipped.</p> <p>6. The libellants should not recover costs, ex-*-cept that the costs of the reference to ascertain, the damage to cargo should abide the event.</p> <p>[NOTE. For decision overruling claimants' exceptions to the commissioner’s report, see Case No. 3,023, next following.]</p>

[In admiralty. Libel by the owners, master, and crew of the steamship Aetna for salvage service. There was a decree for libellants, and a reference to a commissioner to compute the damages. Case No. 3,024. On the coming in of the report, the claimants filed exceptions thereto.]

[In admiralty. Libel by Levy Hayden and others against the brig Col. Howard. Cameron — one of the stipulators for the l claimant-moves to set aside or stay the ex- ; ecution issued on a decree for the libellant.]

<p>Case No. 3,027.</p> <p>Liability of Cabhieb fob Injury to Cargo — Custom and Usage—Duty of Shipper — Measure of Damages.</p> <p>1. A general ship at New Orleans, took 354 barrels of flour for Boston, and also took on board 190 barrels of spirits of turpentine, the effluvium from which injured the flour: Held, that the carrier was responsible.</p> <p>2. If he had shown an established usage to carry those articles, as parts of the same cargo, on such a voyage, he would have been exonerated.</p> <p>3. It is incumbent on the shipper to see that his goods are of such character and condition, as to bear the ordinary and usual treatment of such articles, in the voyage on which he sends them.</p> <p>4. The measure of damages is the difference between the fair market value of the flour, as delivered to the consignee, and what would have been its fair market value, if it had not been injured.</p> <p>See Lamb v. Parkman [Case No. 8,020].</p>

In admiralty. Libel for collision by Elon W. Hudson, owner of the bark H. P. Bridge. The collision occurred between eleven and twelve o’clock at night, on the eleventh day of May, 1869, on the westerly side of Lake Huron, opposite Saginaw bay, and about midway between Point aux Barques and Thunder Bay lights.

In admiralty. The propeller Colorado was libeled by Elon W. Hudson, owner of the bark H. P. Bridge, for collision. The bark was sunk by the collision, and became a total loss, together with her entire cargo, which consisted of 60,000 bricks and 34,000 bushels of oats.

At law. This was an action on the case, tried before Hr. Justice Woodbury and a jury, for the infringement [by the Massachusetts Arms Company] of letters patent for “improvement in fire-arms,” granted to Samuel Colt, February 25, 1S3C, reissued October 24, 184S [No. 124], and extended in 1S49, for seven years, from February 25, 1S5Ü.

<p>Case No. 3,031.</p> <p>Liability of Phi y cipa l for Unauthorized Act of Agent—Provisional Contract—Conflicting Testimony—Duty of Jury.</p> <p>1. When an agent exceeds his-powers in the adjustment of a controversy, his principals, in a reasonable time, after a knowledge of it, should repudiate it. If this be not done, the principals may become bound.</p> <p>2. If an agent entered into an arrangement, notifying the debtor that he would submit it to the creditor for his ratification, unless he shall ratify it, there is no binding obligation.</p> <p>3. When witnesses contradict each other in a material fact, a jury will consider which of the witnesses, from the circumstances connected with the transaction, would be most likely to know and recollect the facts.</p> <p>4. A witness who swears that a certain thing was said or done is entitled to greater weight than a witness who said he did not hear the remark or witness the act. The one is positive, the other negative; and both may be true, on the supposition that the first witness swears truly.</p>

In equity. This was a motion [by Samuel Colt] for a provisional injunction, to restrain the defendants .[Hiram Young and Edward Leavitt] from infringing the first, second, and third claims of letters patent granted to the plaintiff, February 25th, 183G, for an “improvement in fire-arms,” as re-issued to him, on an amended specification, October 24th, 184S [No. 124], and extended by the commissioner of patents on the 10th of March, 1S49, for seven years from the 25th of…

<p>Case No. 3,034.</p> <p>Seaman’s Wages—Disceatíge—Double Pat.</p> <p>Seamen shipped on a vessel in New York, for a voyage to Havana and back to New York. On the return of the vessel to New York, they were discharged without payment of any portion of their wages. There was no dispute as to the amount due them. Within ten days after their discharge, they filed a libel against the vessel to recover the wages and ten days’ double pay, under the 35th section of the act of June 7, 1S72 (17 Stat. 202). Held. that they were entitled to recover double pay for ten days, although the suit was brought before the expiration of ten days from their discharge.</p>

In admiralty. The steamboat Columbia, running between New York and Rockaway Beach, and then on an excursion having about. 1,500 sewing-girls from New York City on board, overtook the schooner Ella Robbins, which was coming in to Barren Island with a catch of menhaden for the fish-oil factory there, and having her seine in two boats towing astern.

<p>Case No. 3,036.</p> <p>Collisiox—Laches—Suboiidixatiox op Claim.</p> <p>A collision between a schooner and a steamer occurred in July, 18CS, whereby the schooner and her cargo sank and were totally lost. The steamer carried the master and crew of the schooner to New York. The libel was verified in July, 1S70, but was not filed until February, 1873. In January, 1S72, a mortgage on the steamer and three other vessels was executed, payable two years after date. It did no): appear that any part of it had been paid. .No excuse was shown for the delay in bringing the suit: Held, that the collision claim must, on account of its staleness, be postponed to the mort-</p> <p>[Cited in Fitzgerald v. The H. A. Richmond, Case No. 4,830; The Bristol, 11 Fed. 1G3; The Martino Cilento, 22 Fed. SUL]</p>

<p>Case No. 3,037.</p> <p>Proof of Debt against Bankrupt Garnishee.</p> <p>1. A. was sued; and B., who owed him a debt, was summoned as his trustee (or garnishee), and defaulted, and afterwards went into bankruptcy, and A. proved the uebt. Ait-erwards the attaching creditors obtained judgment and issued execution against A., and against his funds in the hands of B., and made demand on B. and on his assignees in bankruptcy to pay them the debt towards the satisfaction of the execution, which was refused. They then proved the supposed amount of the debt owed by B. to A. against B.’s estate in bankruptcy. Held, they had no provable debt, and were not creditors of B. at the date of the bankruptcy.</p> <p>2. Whether the lien which they held upon the debt by virtue of their attachment was absolutely dissolved, or might have been availed of in some way by applying to the equitable powers of the court, quaere?</p> <p>S. Whether the first judgment alone, before scire facias brought, would have made them creditors of B., if recovered before the bankruptcy, quaere?</p>

<p>Case No. 3,039.</p> <p>Baxekcptcv — Sale of Encumbered Assets.</p> <p>1. The bankruptcy court has full power to order the sale of encumbered assets in such manner as it chooses to direct.</p> <p>LCited in Giveen v. Smith, Case No. 5,4G7; Re Brinkman, Id. 1,884; Sutherland v. Lake Superior Ship Canal, Railroad & Iron Co., Id. 13,043.]</p> <p>2. Where assignee had commenced suit in the United States district court against lien-holders, the bankruptcy' court ordered the sale jointly by the assignee and the referee, of certain mortgaged property, and the deposit of proceeds in the treasury of the court to await the determination of the suit against the said lien-holders.</p>

[Appeal from the district court of the United States for the southern district of New York.] In admiralty. This was a libel in rem, filed in the district court, against the bark Colum-lio, to recover damages for injury to one of thirteen casks of bristles, shipped by that vessel from Hamburg to New York.

In admiralty. This was a libel in rem by ; Gustavus Loenig and. Charles Schneider ' against the bark Columbus, to recover damages for injuries received by goods shipped on board the bark to the libellants as consignees. A large quantity of corks, amounting to nearly ten thousand gross, were shipped at Bordeaux, pn board the Columbus, consigned to the libellants, at tlie port of New York. The usual bill of lading was signed by the master.

In admiralty. This was a libel in rem by Gustavus Loenig and Charles Schneider against the bark Columbus, to recover damages for injuries received by goods shipped on board the bark to the libellants, as consignees.

In admiralty. This was a libel in rem, filed by the Hoboken Land and Improvement Company, owners of the steam ferry-boat Fairy Queen, against the steamboat Columbus, to recover damages for a collision between the two boats. The collision in question occurred in July, 1848, on the New York side of the river, off the slip of the Fairy Queen, then engaged in plying from New York City to Hoboken. The ferry-boat was so much injured that she sunk immediately.

<p>Case No. 3,044.</p> <p>Domestic Material-Men—Maritime Lien.</p> <p>No lien exists in favor of a domestic material-man who has supplied a vessel in her home port at the request of her master, after having been notified by the owner that she had been let to the master to be run on shares and to be manned and victualled by him, and that if supplies were furnished her, it must be exclusively on his personal credit.</p> <p>[Cited in The S. M. Whipple, 14 Fed. 357; The William Cook, 12 Fed. 920; The Hattie Low, 14 Fed. 8S0; Stephenson v. The Francis, 21 Fed. 720; The Samuel Marshall, 49 Fed. 709.]</p>

<p>Case Wo. 3,045.</p> <p>Obstkdctzon to Navigation by State Authority — Injury to Vessel — Pleading.</p> <p>1. The whole legislation from the ordinance of 1787 to the present time, clearly indicates that congress has intended that the Mississippi and its navigable tributaries should remain free from, all material obstruction to their navigation.</p> <p>[Cited in Hatch v. Wallamet Iron Bridge Co., 6 Fed. 333; Huse v. Glover, 15 Fed. 297.]</p> <p>2. A state cannot authorize any material obstruction to be placed in the channel of a navigable tributary of the Mississippi.</p> <p>3. The declaration alleged that the defendants had placed piers in the principal channel of the river Illinois, so as essentially to obstruct its navigation, and that in consequence of such obstruction a loss was sustained. The defendants pleaded that m placing the piers there they had complied with an act of the legislature of Illinois, authorizing a bridge to be constructed. Held, that the plea was not a good defense to the action, but that it must go further, and deny that the bridge was a material obstruction to the navigation of the river.</p> <p>[Cited in Missouri Kiver Packet Co. v. Hannibal & St. J. B. Co., 2 Fed. 290.]</p> <p>[NOTH Thereafter, by agreement, the Peoria Bridge Association was substituted as defendant in the place of the defendants herein. Defendants had previously amended their pleas by leave of the court, and, issue being joined, there was a trial, but the jury, being unable to agree, were discharged by consent of the parries. The suit was subsequently compromised. See Case No. 3,040.]</p>

<p>Case No. 3,046.</p> <p>Authorization of Bridge by State — Obstruction to Navigation — Construction of Statute-Injury to Vessel.</p> <p>,_1. The principles declared in Columhus Ins. Co. r. t'urlenius [Case No. 3.045J — again affirmed — that the river Illinois is free to all the citizens of the United States. But the legislature had no power to authorize the construction of a bridge which would be a material obstruction to its navigation, nor to declare that a bridge, with a draw of a particular width, was not an obstruction.</p> <p>2. The true construction of the 2nd section of the act of the legislature of Illinois, of the 2Gth of January, 1S47, is, that a space of seventy-five feet, fairly and substantially embracing the principal channel of the river, must be left open, estimating with reference to its •course.</p> <p>[Cited in Assante v. Charleston Bridge Co., 41 Fed. 306; Hannibal & St. J. R. Co. v. Missouri River Packet Co., 125 U. S. 271, S Sup. Ct. S80.]</p> <p>3. The right of the free navigation of the Illinois, is consistent with the right of the state to construct bridges, provided they do not materially obstruct the navigation. They exist together, and neither can be permitted to destroy or essentially impair the other.</p> <p>4. The authority to construct a bridge across a navigable stream, should be so exercised as to interfere as little as possible with the free navigation of the river. Every bridge may in ■one sense be said to be an obstruction; but that delay or risk which is inseparable from the thing which the state has the power to create, •does not make it an obstruction in law.</p> <p>5. The state is to determine when, where, and under what circumstances a bridge shall be constructed; and as a general thing, no third narty can question the authority of the state in this respect.</p> <p>6. If the bridge was an obstruction, the plaintiff cannot recover for the injury, if there was carelessness and negligence in the management of the boat injured.</p>

<p>Case No. 3,047.</p> <p>CONTRACT BETWEEN RaILROAT) COMPANIES — Le-gai.ity — Restraining Breach — Abandonment or Transfer of Franchise.</p> <p>1. When two railroad companies agree to build a road from certain cities, to connect with each other at a given place, and that the charges for transportation shall be regulated by. both companies, and also the meeting of the’ cars, and the through freight cars, if one of the companies shall change its gauge so as to break up the connection contemplated, an injunction will be granted, to prevent the change of gauge.</p> <p>2. A contract entered into to make the gauge, by one of the parties, contrary to the law of the state, such contract is not illegal, if it appear ¡I was made in reference to an alteration of the act. and such alteration was procured, before any part of the track was laid.</p> <p>[Cited in Cook v. Hamilton County Com’rs, Case No. 3,157.]</p> <p>3. To fix the charge for the transportation of passengers and freight, is the exercise of the franchise by each company, and if they agree that both companies shall regulate this, it is no abandonment or transfer of the franchise of either.</p>

[In equity. Bill by Leslie Combs against John L. Hodge, administrator of Andrew Hodge, deceased, William L. Hodge, and James Love, to recover two certificates for a portion of the public debt of the republic of Texas. [The certificates in question were issued to complainant, and were only transferable by him or his attorney, or his representative, on the books of the stock commissioner of the republic.

<p>In admiralty. Hearing upon a libel for collision.</p> <p>The libel in this case was filed by John V. Detlor and others, owners of the Silver Spray, against the Comet, the Lake and River Transportation Company, claimants; and came on for hearing upon the proofs.</p> <p>The question which vessel was in fault for the collision, was closely contested. But as the decision proceeds upon the ground that the evidence did not enable the court to determine this question, and that the damages must be awarded upon the principle applicable to cases of inscrutable fault, that portion of the opinion which relates to the question of fault is omitted.</p>

<p>Case No. 3,051.</p> <p>Collision between Steamers—Lookout—Erroneous Manoeuvre.</p> <p>1. In a collision between two steamers, in the night, the S. and the C., the S. was held in fault for not having any lookout assigned or stationed for the performance of that duty; and for starboarding, instead of porting, when the two steamers were meeting nearly end on; and for starboarding when she saw the red light of the C., a short distance off, a very little on her starboard bow; and for not stopping and reversing.</p> <p>[Applied in The Manitoba, Case No. 9,029. Cited in The Ancon, Id. 34S; The Jay Gould, 19 Fed. 709.]</p> <p>2. It being shown that the S. was negligent, she is to be held to clear proof of contributing negligence or fault in the C.</p> <p>[Cited in The Clarion. 27 Fed. 131; Pierce v. The J. R. P. Moore, 43 Fed. 20S; The Athabasca, Id. 035; The John King, 49 Fed. 474.]</p> <p>3. On the evidence, the C. was held not to have been in fault.</p> <p>[Cited in The Sunnyside, Case No. 13.G20.]</p>

[In admiralty. Libel by E.. D. .Comings against the steamboat Ida Stockdale.] Motion made February 3, 1874, for leave to amend the libel heretofore filed, &c., &c.

At law. This suit was brought, on the :25th January 1S4G, by Robert Comly, a resident of the state of Pennsylvania, to recover damages for seizing, taking and carrying away the plaintiff's goods. The defendants [Alexander Fisher, William D. Miller, and William E. Mayhew, Jr.] pleaded not guilty.

This was an application for admiralty process to issue against the vessel in a cause of subtraction of wages. The voyage was ended on the twenty-eighth of September last. The crew on that day were discharged, and were told to come to the counting-room of the owner, where they would receive their wages.

This was an appeal on the part of the captors from so much of the decree of the district court [of the United States for the district] of Maine, as allowed freight to the owners of this vessel which was restored as Swedish.

This is a motion in a suit to foreclose a mortgage, for the appointment of a receiver. The suit was begun in the state court, March 5, 1S78. On March 11, without first obtaining leave of court, plaintiff [the Commercial & Savings Bank of San Jose] filed certain amendments to the complaint, and served them on attorneys for defendants [Daniel G. Corbett, William H. Corbett, and others). These amendments allege the facts deemed necessary to entitle plaintiff to a receiver.

Suit [by the Commercial & Savings Bank of San Jose] to foreclose a mortgage. Two of the defendants, Daniel G. and Wm. H. Corbett, are brothers, and have been general partners since the year 1860. The property ■covered by the mortgage was bought with partnership funds and held as partnership property. Block 56, the premises in dispute, has for several years been the residence of both partners and their wives and children.

<p>Case No. 3,059.</p> <p>Foreign Corporation — A Citizen op One State Sued as Dependant Who Claims to be a Citizen op Another — Service—Jurisdiction.</p> <p>Where a foreign citizen (corporation) sued a person in the circuit court of the United States, and had service upon him as a citizen of Michigan, when, in fact, it turned out that he was at time of such service a citizen of Illinois: Held, that the service was good, and a demurrer to a plea setting up such defense was sustained.</p>

The petitioner [James Buckner] leased ft store, 133 Gravier street, New Orleans, to the bankrupt, for five years, commencing October 1, 1871, at an annual rent of $3,200, payable in monthly installments of $260.66. The lessee became bankrupt January 9, 1S72, having paid all arrears of rent up to that time. The assignees [W. L. Jewell and E. E. Norton] were appointed in April, and took possession of the premises, and refused to give up possession to the landlord.

This is an action on coupons attached to bonds issued by the city of Iola, in Kansas, under the authority of an act of the legislature of that state. The coupons in suit and the declaration are in the usual form. The declaration avers that the bonds to which the coupons are annexed were issued in pursuance of the act of the legislature, which went into effect February 23,187L The nature of this act appears in the court’s opinion.

<p>[Suit by the Commercial National Bank of Cleveland, Ohio, against John G. Simmons and others.]</p>

[Appeal from the district court of the United States for the district of Rhode Island.] Admiralty appeal in a cause of collision. The libellants and appellees [William Dutton and others] were the owners of the schooner Adelaide, and the appellants of the steamer Falcon. The schooner was lying at anchor in the harbor of Providence, between Crook buoy and Field’s point; the steamer was entering the harbor coming from New York.

This was a suit in chancery, the object of which was to have an account against the defendant [Robert Morris], who was the agent for the complainants, for managing their estates in New Jersey and Pennsylvania; and collecting their debts and rents, and selling their lands in those states, from 1781 to 1802. The only disputed item in the defendant’s account, was the compensation which he claimed for his services.

<p>Case No. 3,069.</p> <p>“Perils op the Seas” — Carrier's Defense.</p> <p>Where the damage to goods shipped under a bill of lading is shown to have been occasioned by leaks in the ship’s decks, and the defense relied on is “perils of the seas,” it is not enough for the carrier to prove the occurrence of sea perils which might have caused the leaks; he must show that they did. This he may do by showing that the peril was of such a character that injury to the vessel was its natural and necessary consequence; or he may prove that the vessel was in fact injured, by the testimony of those who observed the effect of the peril at the time of its occurrence; or he may prove its effect by showing her condition on her arrival; or he may exclude any other hypotheses, by satisfactory proofs that her decks were sound, stanch and well caulked at the commencement of the voyage: Held, under the proofs in this case, that the decks were unseaworthy.</p> <p>[NOTE. The cause was subsequently heard on exceptions to the commissioners’ report. Case No. 3,070, following.]</p>

<p>[In admiralty. Libel for damages to cargo. There was a decree for libellant, and a reference to compute the damages (Case No. 3,0G9, next preceding), and the present hearing is upon exceptions to the commissioner’s report.]</p>

<p>Error to Independence circuit court.</p> <p>[At law. Action by Edward L. Compton against Thomas S. Palmer.]</p>

<p>The register having charge of this case certified to the court as follows:</p> <p>“In the above entitled matter, the bankrupt [Erwin G. Comstock], who, before and at the time of his adjudication, resided in the countj' of Greene, in this district, has removed out of said district, to another state. He now petitions for his discharge, and proposes, for the sake of his personal convenience, to take the oath of conformity, an essential and an indispensable requisite to his discharge, before a register not in charge of the case, and not acting for nor at the request of the register in charge, and at a time and place other than that for which notice of hearing has been published and served on the creditors who have proven debts. A register can pass the last examination of the bankrupt (Rev. St. § 4998, subd. 10), and administer the oath of conformity (section 5113). By section 5007, ‘any register may act in the place of any other register appointed by and for 'the same district court.’ It appears to me, the oath of conformity should be taken before the register in charge of the case, or a register of the same district, acting for him; that, otherwise, a register is unauthorized to act therein, and, therefore, the oath before him would be irregular and void. The remarks of Judge Lowell in Re Hazelton [Case No. 6,287], do not seem to me to harmonize with the requirements of the bankruptcy statutes.”</p>

In bankruptcy. The petitioner [Edson Com-stock] applied to be discharged from imprisonment on an execution issued on a judgment rendered against him by the supreme court of Vermont.

In bankruptcy. [David B.] Comstock, one of the bankrupts, resisted the petition to have himself and [Van E.] Young declared bankrupts, as to himself, employing Rogers & Clay, attorneys, for that purpose. They appeared, and contested the adjudication prayed for as against Comstock. But the court adjudged the parties bankrupt.

[In bankruptcy. In the matter of Eugene Comstock and others.] On the certificate of the register, Hovey K. Clark, Esq., asking instructions as to the allowance of certain items in the assignee’s account.

On December 16, 1873, a petition in bankruptcy was filed in this court against C. B. Comstock & Co., upon which they were adjudged bankrupts on January 9, 1874; which adjudication was affirmed in the circuit court on May 9, thereafter. On January 30, the Bank of British Columbia proved a ddbt against the estate, of $6,620.28, to which the assignee, on June 10, filed objections.

<p>In bankruptcy. This case came before the court on exceptions to the assignee’s report, setting apart necessaries, &c., to the bankrupt [E. D. Comstock], because the assignee had refused to include in property set apart a pew in the Madison-Street Church.</p>

Objection to proof of debt—On September 20, 1874, tlio Bank of British Columbia filed an amended proof of debt against the estate of C. B. Comstock & Co., for the sum of $6,G20.8S. On September 26, the assignee filed an objection to such amended proof to the effect that such bank was a foreign corporation, and had never complied with sections S and 9 of the act of the state, of October 24, 1SG4, requiring a foreign corporation before transacting business in this state, to…

<p>Case No. 3,079.</p> <p>Purchase and Sale op Wheat — Settlement between Debtor asd Creditor—Preference.</p> <p>1. Where L. & G.. of Portland. Oregon, sold wheat to M. & H., of San Francisco, to be delivered on shipboard, at Portland, at $1.83 per cental, and then made a contract with C. & Co., wheat buyers, to purchase said wheat on joint account, each party to furnish one-half of the money necessary to make the purchase, and to receive one-half of the profits, if any: Held, that the joint venture and the interest of C. & Co. in the wheat ended with the delivery of the same on shipboard, and that thereafter the wheat belonged to M. & H.. subject to the power of L. & G. ns sellers of the same, to exercise the right of stoppage in transitu, and that when, upon the failure of M. & H., said L. & G. exercised said right and took said wheat into their own possession, it was for their own benefit as sellers of the same, and not that of C. & Co., who were not the sellers of the wheat to M. & H., and had no power over it or interest in it.</p> <p>2. A mere accounting or settlement between an insolvent debtor and creditor, not followed by any actual change or transfer of property, rights or credits, to the prejudice of other creditors, is not contrary to the bankrupt act [of ISO" (14 Stat. 517)], but the assignee of such debtor is not bound by such settlement, but may show that it is erroneous or fraudulent.</p> <p>3. A preference will not bar the proof of a debt, unless it was given and received by the parties to such debt, and therefore where a creditor received a preference from the firm of A., B. & C., he is not barred from proving another debt against the firm of B. & C.</p>

[The bank, on January 30th, proved a debt ■against the estate, to which the assignee filed objections. The bank moved to strike out the objections, for want of jurisdiction, .and the motion was denied. Case No. 3,077. Subsequently, another motion was made to strike out objections of the assignee to the proof, and the motion was likewise denied, and the objection sustained. Case No. 3,-078.] ■

At law. This was an action of trover brought to recover the value of certain property seized by the defendant [Thomas] Carnley, as sheriff, by virtue of a process of attachment issued out of a staté court, against one Darius 0. Jackson, in favor of the defendant [Don Alonzo] Cushman. [Addison J.] Comstock, the plaintiff in this suit, claimed to have been the owner of the property.

[In equity. Bill by Theodore Comstock and others against the Sandusky Seat Company and others for alleged infringement of reissued letters patent No. 4,7S0, original patent numbered 95.466.]

<p>Case No. 3,086.</p> <p>Limitation of Suits against Assignee in Bane-isuptcy.</p> <p>1. The two years’ limitation in regard to the bringing of suits by or against an assignee of a bankrupt, prescribed in the Sth section of the bankruptcy act of August 19, 1841 (5 Stat. 44G), applies only to suits growing out of disputes in respect to property and rights of property of the bankrupt, which come to the hands of the assignee, and to which adverse claims existed while in the hands of the bankrupt and before the assignment.</p> <p>LCited in Smith v. Crawford. Case No. 13,-030; Walker v. Towner, Id. 17,0S9.]</p> <p>2. Such limitation has no reference to suits growing out of the dealings of the assignee with the estate after it comes into his hands.</p> <p>[Cited in Phelan v. O’Brien, 13 Fed. 657.]</p> <p>[NOTE. The decree of the district court subsequently made [July 7, 1SG2) vacated the order directing the assignee to sell, also the assignee’s deed to the purchaser, and directed the deed to be delivered up for cancellation. See Case No. 8,0S5, next preceding.]</p>

<p>[Action at law by Conant against Wills and Bradley.]</p>

In admiralty. Libel; “To the Honourable Robert Troup, Esquire, Judge of the District Court of New York.—The Libel of Richard Conklin, Owner ■of a Moiety of the Sloop Betsey, and Master of the said Sloop, Strong Conklin, Owner of the other Moiety, and Mate of the said Sloop, Enoch Conklin and Nathan Smith, Mariners on Board the said Sloop, against the Brigantine Harmony, her Tackle, Apparel, Furniture and Cargo.

<p>In admiralty. This was a libel filed to recover the price of lumber furnished by the libelant to F. I. A. & L. H. Boole in July, 1S3U, and applied by them in building the steamboat at Mott Haven, in Westchester county. The steamboat was built under a contract between L. H. Boole and the claimants, the Mew York and Harlem Navigation Company, by which the hull and .ioiner work were to be completed before August 17, and to be delivered at a wharf in New York City. The hull of the boat was taken to New York August 22, and after receiving her machinery and making a trial trip or two she returned to Mott Haven, October 23, and on November 10 began her regular trips between Harlem and New York. On November 5 the builder was paid the contract price in full. The lumber was not sold to or for the vessel, and the charges on the libelant's books were to the firm alone, not naming the boat. This suit was commenced November 23, 1830. No specification of lien was filed in the county clerk’s office of Westchester or New York.</p> <p>[The lien was claimed under 3 Rev. St N. Y. p. 493, tit. 8, c. S, which provides as follows: “Section 1. Whenever a debt amounting to fifty dollars or upwards, shall be contracted by the master, owner, or his agent builder or consignee of any ship or vessel within the state, for either of the following purposes: On account of any work done, or materials or articles furnished in this state, for or towards the building, repairing, fitting, furnishing or equipping such ship or vessel; * * * such debt shall be a lien upon such ship or vessel, her tackle, apparel and furniture; and shall be preferred to all other liens except mariner’s wages.”</p> <p>[“Sec. 2. When the ship or vessel shall depart from the port at which she was when the debt was contracted, such debt shall cease to be a lien at the expiration of CO days after the return of such vessel to such port, and in all cases such lien shall cease immediately after such vessel shall have left such port, unless the person having such lien shall, within 10 days after such departure, cause to be drawn up specifications of his lien, the correctness of which is to be sworn to by such person, his agent, or his legal representatives, and filed in the county clerk’s office of the county in which such lien shall be created.”]</p>

<p>[In admiralty. Libel by Anthony Pent and others against the ship Concordia, her cargo, etc., for salvage services.]</p>

<p>Case No. 3,098.</p> <p>Internal Revenue — Corporate Securities — Repeal op Income Tax.</p> <p>The tax on bonds, coupons, interest, dividends and profits of railroads and other corporations has in all the enactments since 1861 been kept entirely distinct and separate from the income-tax proper, and the act of 1867 [14 Stat. 480], terminating the income tax with the year 1S70, does not, therefore, apply to the former tax, which continued in force until the 1st day of August, as provided by the 17th section of the act of July 14, 1870 [16 Stat. 261],</p>

<p>Case No. 3;094.</p> <p>Discharge in Bankruptcy—Specifications.</p> <p>1. A specification which charges the offence in the words of the act is too vague and general. The particulars in which the bankrupt has offended should be so set forth that he may be apprised of the precise matters wherein it is claimed he has transgressed.</p> <p>[Cited in Re Graves, 24 Fed. 551.]</p> <p>2. A specification which simply charges the bankrupt with having concealed his estate and effects, and with having concealed, removed, altered, and destroyed the books and writings relating thereto, is insufficient for want of an averment that such acts were done with intent to defraud creditors, and in not more particularly specifying what property was concealed. or what books and writings were destroyed.</p>

[In equity. Bills by Henry D. Cone against the Morgan Envelope Company, by same against the Whiting Paper Company, and by same against Lewis J. Powers, to restrain infringement of patent.]

In bankruptcy. This was an application for an order to show cause why the debtors should not be adjudged bankrupts.

Heard on appeals from and writs of error to the district court for the district of Louisiana. [Libels of information by the United States to condemn and forfeit certain property of John Slidell and of Charles M. Conrad and of Francis H. Hatch, under the act of congress of July 17, 1862 (12 Stat. 5S9). [On the presentation of the libel of information in the Slidell Case, the district court directed a warrant to issue to the marshal, commanding him to seize the property…

In a'.tmiralty. This libel is for general average contribution.

<p>Case No. 3,099a.</p> <p>Presumption of Validity op Patent—Infringement—Enjoining Patentee—Act of 1S36.</p>

<p>Case No. 3,100.</p> <p>Receiver—Jurisdiction to Compel Accounting.</p> <p>1. A receiver cannot be called on to account before any court but that which appointed him.</p> <p>2. Where a state court, on a petition under the Indiana statutes to dissolve a corporation, has taken jurisdiction, thereby decreed a dissolution of the corporation, appointed a receiver, and taken the custody of the assets, no national court can take jurisdiction of a bill to call on the receiver to render an account, and to collect the assets under the direction of the United States court.</p> <p>[Cited in Walker v. Flint, 7 Fed. 43G.]</p> <p>Consult, also, Aston v. Heron. 2 Mylne & K. 390; Chalie v. Pickering, 1 Keen, 749. The same principle is held in reference to executors, that they cannot be proceeded against outside of the jurisdiction by which they were appointed. Security Ins. Co. v. Taylor [Case Ño. 12,007].</p>

<p>Case Wo. 3,103.</p> <p>Seamen’s Wages—Freight—Irregular Practice.</p> <p>1. A libel was filed against a cargo of coal on board of a canal-boat and against her master, to enforce a lien for seaman’s wages, upon freight money alleged to be due from E. & M. on the cargo. The cargo was seized, and was claimed by the C. S. Company. But the only answer put in was one by E. & M. It appeared that E. & M. had chartered the boat of her master for a specified rate, and that, before the commencement of the action, and without notice of the libellant’s demand, they had paid to the master all the money due from them under the charter. It also appeared that the cargo was shipped by the C. S. Co. under an agreement with E, & M. for freight payable to E. & M., which was due and unpaid at the filing of the libel. Bold, that the practice had been irregular, but the irregularity would not be noticed, as no objection had been taken to it.</p> <p>2. It was not necessary to determine whether the libellant could maintain an action to charge the charter money payable by E. & M. with a lien for wages, as such charter money had been paid over to the master without notice before the commencement of the suit.</p> <p>3. The freight money due from the C. S. Co. to E. & M. could not be held, because the libellant had not in his libel sought to charge it.</p> <p>4. The libellant was entitled to a decree against the master.</p>

[On habeas corpus. Application for the discharge of Michael .1.

<p>[In equity. Bill by Daniel Conn, Francis Grove, Isaac Grove, and others against John Penn and William Penn.]</p>

[In equity. Bill by Daniel Conn, Francis Grove, Isaac Grove, and others a gainst William Penn and John Penn, for conveyances of the legal title to lands claimed by complainants under equitable titles. [There was an interlocutory decree directing certain proofs and appearances before commissioners, and, certain of the complainants refusing to comply with the requirements of the decree, the bill was dismissed as to them.

<p>[Actions at law by the Connecticut Mutual Life Insurance Company against James H. Bowler, and by the same plaintiff against Patience C. B. Plummer.]</p>

<p>Case No. 3,107.</p> <p>Cancellation' of Life Ixsckaxce Polict.</p> <p>1. A mutual life insurance company issued to B. and to H. a policy insuring the life of B. tor the benefit of H., for a premium to be paid on a specified day, annually. By the policy, it was to become void if B. should become so far intemperate as to impair his health. The premiums were paid for six years. Two months after the last payment the company c-.'ncelled the policy because it learned that B. had become so far intemperate as to impair his health, and notified H. of such cancellation, and offered to pay the surrender value of the policy. H. refused to recognize such cancellation, or to surrender the policy, and tendered to the company the annual premium every year, the tender being always refused. The company filed a bill in equity against H., praying that the policy be declared null, and be surrendered on payment of its surrender value. On demurrer: Held, that the bill would lie.</p> <p>2. A court of equity will exercise its power of setting aside contracts for defects not apparent on their face, although such defects arose after the execution of the contracts, in cases where special circumstances render it inequitable or unjust, or a hardship, to compel the plaintiff to await a suit at law at the instance of the other party.</p> <p>3. The rule, that a court of equity will not aid to enforce a forfeiture, or to divest an estate for breach of covenant or condition subsequent, is not applicable to the cancellation of a policy of insurance on the life of a living person.</p>

<p>Case No. 3,109.</p> <p>Assumption op Mortgage by Grantee—Liabi]> itx for Deficiency.</p> <p>1. An assignment by the mortgagor of his interest in the mortgaged premises, to a third party, who agrees to pay off the mortgage, will not prevent a deficiency decree being entered against him unless he has been released by the mortgagee.</p> <p>[Cited in Jarboe v. Templer, 38 Fed. 210.]</p> <p>2. And the acceptance by the mortgagee of a second mortgage upon the same premises, from such assignee, would not constitute a release of the first mortgagor from his personal liability to .pay a deficiency.</p>

John Connelly applied to the Hon. J. S.. Morsell, one of the judges of this court, on the 22d of November, 1823, for the benefit of the insolvent act of the 3d of March, 1S03-(2 Stat 237), and the usual notice was given for the creditors to attend on the first Monday of December, when Michael Murray, one of the creditors of the insolvent, filed allegations under the 7th section of the act, charging, 1. “That the said Connelly was refused heretofore, namely, on the first…

<p>Case No. 3,110.</p> <p>DISCHARGE IN BANKRUPTCY — OMISSION IN SCHEDULES.</p> <p>Where a bankrupt had omitted to include in Schedule B statement of an interest in an estate in expectancy under a will, held, discharge must be denied until the same be amended, for which leave is granted, with reference to the register for that purpose.</p>

<p>[In admiralty. Proceeding by Commodore David Conner and others to condemn the bark Coosa as prize.]</p>

At law. Assumpsit, by [Owen Conner] the mate of the ship, [against Septimus Levering. master], for his wages. Defence, that a bale of goods was lost.

<p>[In admiralty. Libel by James Conner and William C. Conner against the steamship Sarah Sands to recover upon a contract of affreightment.]</p>

In bankruptcy. The facts in this case were that the bankrupts, retail dealers in trimmings, &c., borrowed several sums of money of one Sanborn, in June, July, October, and November, 1869, and gave their notes payable on demand, with an oral agreement that they would give a mortgage of their stock, if requested.

This is an action brought in the circuit, court of the state of Arkansas, in Little River county, to enforce a vendor’s lien upon land in the possession of defendant Scott, arising upon two notes, amounting to upwards of 820,000, executed by James M. Carr to Benjamin F. Ryburn, for the purchase money of the tract of land sued for. George S. Scott claims the land by virtue of a deed from John Wassell, assignee of James M. Carr in bankruptcy.

In equity. This was a final bearing, on pleadings and proofs, on a bill [by Jacob A. Conover against John H. Dohrman and John H. Peipho], founded on letters patent [No. 12,857], for a machine for splitting wood, issued to the plaintiff on the 13th of May, 1855. In the body of the specification, the machine was called a machine for splitting kindling wood, and this was the particular work for which it was fitted.

The defendant [John Conover], through an agency in Missouri, issued a policy for $5,000 upon the life of Eli Barnum, the plaintiff’s intestate, dated June 10, 1871, and which stated that “this policy is made and accepted upon the following conditions: In case the statements made by, or on behalf of, or -with the knowledge of, the said assured to the said company, as the basis of, or in the negotiations for, this contract, shall be found in any respect untrue, this policy…

[In equity. Hearing on exceptions to master’s report. Suit brought [by Jacob A. Con-over against Henry Mers] upon letters patent [No. 12,857] granted to Jacob A. Conover, May 15, 1855, for a “machine for splitting kindling-wood.” The case is a continuation of the case of Conover v. Mers [Case No. 3.123], where there is a full description of the patented machine [and in which case a provisional injunction was granted].

In equity. This was a motion for a provisional injunction to restrain defendant [Henry Mers] from infringing letters patent [No. 12,857] granted to complainant [Jacob A Conover] May 15, 1855, and more particularly referred to in the case of Conover v. Dohrman [Case No. 3,120].

At law. This was an action on the case [by Jacob A. Conover against Peter It. R :ach and others], tried before Judge Hall, and a jury, to recover damages for the infringement of letters patent [No. 12,S57], for an “improved machine for splitting wood,” granted to plaintiff, May 15,1855. The mode of operation of the machine was substantially as follows: The blocks of wood were placed upright on an endless movable bed.

In equity. Promissory notes were drawn by Flues & Schatte, residents of Philadelphia, for the accommodation of Peter Conrad, also a resident of that city, who en dorsed said notes, and had them discounted at usurious rates of interest, by Flues & Co., of New York, receiving the money from them by checks of the latter firm upon a New York bank.

On the 18th of Hay, 18GS, the plaintiffs, who were merchants of Janesville, Wisconsin, purchased in New York, of the defendants, who were wholesale merchants in that city, four hogsheads of prime St. Croix sugar, at fourteen cents a pound, as by sample shown.

These actions [by Consequa against Wil-lings and Francis and others, and by Wil-lings and Francis against Consequa] were tried in 1S15, at the October sessions of this court, and verdicts were given in favour of the claims of Messrs. Willings and Francis ■and others, and against those of Consequa, a Hong merchant of Canton; although, upon adjusting the accounts between the parties, according to the verdicts, a balance of fivo thousand dollars was due to Consequa.

<p>Case No. 3,128a.</p> <p>Maritime Lien for Supplies.</p> <p>[Coal delivered to a foreign vessel in pursuance of an agreement with, and on the credit of, her charterers, is not furnished on the credit of the ship.]</p> <p>In admiralty. Libel in rem by the Con•solidated Coal Company of Maryland against the steamship Secret for supplies.</p>

<p>Case No. 3,129.</p> <p>Trade-Mark — Represen-tino Article to be Protected by Patent When Patent has been Declared Void.</p> <p>1. Complainants used, to distinguish jars, the designation “Mason’s Patent, Nov. 30th, lSoS,” “Mason’s Improved,” “The Mason Jar of 1858.” It appeared that the jars had been protected by a patent that had been adjudged to be invalid. Held, that the designation had a tendency to mislead the public, and could not, therefore, be protected as trade-marks.</p> <p>[Followed in Fairbanks v. Jacobus, Case No. 4,008.]</p> <p>[See Allegheny Fertilizer Co. v. Woodside, Case No. 206.]</p> <p>2. In respect of the designation “The Mason Jar of 1872,” the objection held not to be applicable.</p>

<p>Case No. 3,130.</p> <p>Practice — Final Decree.</p> <p>[Since the amendment of equity rule 18, a final decree may be taken at any time after 30 days after the bill is taken pro confesso.]</p>

<p>Case No. 3,131.</p> <p>. Infrinsement op Trade-Mark — Preliminary Injunction — Laches.</p> <p>1. An infringement of a trade-mark is not necessarily an exact imitation. No matter how vague the resemblance, if the imitation is so close that by the form, marks, contrasts, or their special arrangement, purchasers exercising ordinary caution are liable to be misled by it, it is a case of infringement.</p> <p>2. The device used by the Hero Glassware Works held to be an infringement of the trademark of the complainants.</p> <p>3. Delay in making the application is no bar to a preliminary injunction, although it may preclude the complainant from obtaining past profits.</p>

[In equity. On bill filed [by the Consolidated Fruit-Jar Company] for an account, and to restrain defendants [Thomas W. Whitney and others] from the use of letters patent No. 131,695, granted to John L. Mason Sept 24,1S72, under a license alleged to have been fraudulently granted, an injunction order was made by virtue of the 7th section of the act to further the administration of justice, approved June 1st, 1S72 (17 Stat. 197), enjoining the defendants from making or…

<p>Case No. 3,133.</p> <p>CONTRACTS UNDER PATENTS — JURISDICTION — RES Judicata — Judgment or State Court — Lis Pendens.</p> <p>1. Where the controversy does not involve the validity of letters patent, but turns upon the force and effect of some contract under them, the state courts are the proper tribunals for the adjudication, and the federal courts cannot properly assert jurisdiction, unless the residence or citizenship of the parties confers it.</p> <p>2. The application of the doctrine of res ad-judieata to parties to former actions and their privies, considered.</p> <p>3. A suit against three of the defendants in the court of common pleas of the city and county of New York resulted in a decree that two licenses under letters patent were fraudulent and void. Held, that these defendants were estopped from denying in a suit by the same complainant in a federal court brought for the infringement of the letters patent, that the licenses were fraudulent and void. Held, also, that the decree of the state court was res ad-judieata against all the privies of the said defendants, whose rights were acquired from them after the making of said decree.</p> <p>4.In cases where the law of lis pendens can be applied, it is limited in its application to parties whose rights were acquired after the suit was instituted against the grantors or vendors under whom they claim.</p> <p>[Cited in Bate Refrigerating Co. v. Gillett, 30 Fed. 687.]</p> <p>[NOTE. On the final hearing the court directed a decree in favor of complainant for a perpetual injunction against all the defendants, and a reference for an account against the defendants Whitney, and for damages. Case No. 3,134.]</p>

<p>[In equity. Bill by the Consolidated Fruit-Jar Company against Thomas H. Whitney, Samuel A. Whitney, John L. Mason, and the-Standard Union Manufacturing Company.]</p>

<p>[In equity. Bill by the Consolidated Fruit-Jar Company against James T. Wright.]</p>

Constant and others, including the captain of it, Bowman, were owners of a steamboat, upon which they were about to make an insurance. One Springer was a correspondent of the Allegheny Insurance Company of Pittsburg, the defendant in the case, and in the habit of getting customers for it, which he had authority to do, but he had no authority to make contracts for the company.

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

The bill states that the Spanish felucca La Nostra Signora, the property of the subjects of his most catholic majesty, was discovered, chased, attacked, fired upon and brought in here By his Britannic majesty’s ship of war Meleager, on the open seas, and was sent into this port on the tenth day of May instant as a prize to his Britannic majesty’s said ship of war Meleager, and advertised for sale in the Gazette of this city.

Ejectment for a tract of land called “Argyle, Cowell, and Lawn.” The plaintiff, to support his title, produced a patent from Lord Baltimore, dated December 8, 1722, to Randal Black, and a deed from John Bradford to Richard Lee, for the same land, dated August 3, 1737, but did not produce any deed from Black to Bradford.

[Appeal from the district court of the United States for the district of Connecticut.] In admiralty. The libel in this ease was filed by [the New Haven Steam Transportation Company], the owners of the steam propeller Northampton, against the steamboat Continental [the New Haven Steamboat Company, claimant], to recover for the damages sustained by the libellants, by a collision between the two vessels in the night, off me harbor of New Haven.

[In equity. This was a bill in equity filed to restrain the defendants from infringing letters patent (No. 87,628) for “improvement' in wind-wheel,” granted to Addison P. Brown, March 9, 1869, and alleged to have been -assigned to complainants. The defendants claimed to be the owners of the patented invention, under a state of facts fully set forth in the opinion.] 2

[At law. Action by W. W. Conver, administrator of John Hope, deceased, against the Phoenix Mutual Life Insurance Company on a policy of life insurance.] There was evidence given to show that Hope, whose life was insured, was stricken down on the night of December 27, 1871, and remained in an apparently unconscious state for some time. Physicians were called! to attend him.

[Bill by E. K. Converse and others against John W. Cannon and others to restrain infringement of a patent.] This was a cause in equity, heard for final decree upon the pleadings and evidence.

<p>Case Wo. 3,148.</p> <p>Jurisdiction—Citizenship—Third Persons.</p> <p>1. It is a general rule that, to give the United States courts jurisdiction of a cause, the plaintiffs and defendants must be citizens of different states. But to this rule there are several exceptions.</p> <p>2. In a cause over which a national court has acquired jurisdiction solely by reason of the citizenship of the parties, if the rights and interests of third persons should become complicated with the litigation, either' as to the original judgment, or any property in the custody of the court, or any abuse or misapplication of its process; and if no state court has power to guard and determine those rights and interests without a conflict of authority with the national court, the latter court will, from the necessity of the case and to prevent a failure of justice, give such third persons a hearing without regard to their citizenship, so far as to protect their rights and interests relating to such judgment or property, and so far as to correct any abuse or misapplication of its process, and no farther. The court will not entertain jurisdiction on behalf of a citizen of the state to litigate new or original matters, or any which might be settled in a state court without interfering with the jurisdiction already attached.</p> <p>[Approved in Re Sabin, ' Case No. 12,105. Cited in McBee v. Marietta & N. G. Ry. Co., 48 Fed. 240; Central Trust Co. v. Bridges, 57 Fed. 702, 6 C. C. A. 039.]</p>

A bill in equity [by Conyers and another against William Ennis and others, administrators of Lewis Rousmaniere, for the payment of the cost of a quantity of rice purchased by the intestate, out of the proceeds of the rice in the hands of defendants] which was set. down by consent for a hearing upon the bill and answer.

This was a petition by Clara M. Davis, to obtain satisfaction, out or funds in the hands of the assignee, of a judgment recovered by her against Charles R. Gleason, one of the bankrupts. The facts appear fully in the opinion.

This was an application by divers mechanics and others who claimed liens for their work upon and materials used in a certain store lately erected by the bankrupts, for which they had not been paid at the commencement of proceedings in bankruptcy. They went on and finished, or claimed to finish the building after the proceedings in bankruptcy were commenced.

This case was adjourned in the circuit court upon the following statement of facts: The president, directors, and company of the Charlestown Bank, a corporation, created by a law of the commonwealth of Massachusetts, and having its place of business in ■Charlestown, in the said commonwealth, heretofore sued out three several writs of attachment against the said Enoch Cook, upon which personal property was attached, and which was returnable to the court of ■common pleas for…

In equity. Motion for provisional injunction. Suit brought [by Frederic Cook and James J. MeComb], upon letters patent [No. 19,490], for “improvement in metallic ties for cotton-bales,” granted Frederic Cook, March 2, 185S.- and extended for seveu years from March 2, 1872, an equitable interest in which was conveyed to James Jennings MeComb.

<p>Case No. 3,156a.</p> <p>Record ox Appeal — Promissory; Notes—Days op Grace—Consideration.</p> <p>1. A note sued on is not part, of the record, unless produced on oyer.</p> <p>2. Days of grace are not allowed on promissory notes.</p> <p>3. The case of Fisher v. Reider [Case No. 4,-S22a] cited and approved.</p> <p>4. A note imports' a consideration.</p>

<p>Case No. 3,167.</p> <p>Contract op Countv Commissioners — Legislative Sanction — Abrogation — Insufficient Appropriation.</p> <p>1. By the act of 1831 [49 Laws Ohio, 130] the commissioners of Hamilton county were authorized to construct all such suitable build-fngs for the said county, upon the old court house lot. in Cincinnati, upon such plan and of such materials as to them shall seem proper, under which they made a contract to build a court house which covered the entire lot referred to. In the same contract the contractors agreed to build a jail, on such lot, within certain limits, as the legislature might authorize. Although the law contemplated all the buildings for the county should be placed on the court house lot, yet the contract for budding the jail on another lot is not illegal, on the condition expressed.</p> <p>[Cited in McLean v. Commissioners Hamilton Co., Case No. 8,881.]</p> <p>2. It is made valid and binding by the sanction of the legislature. The contracts to build the court house and the jail, were separate and distinct, although included in the same instrument. The provision that both buildings should be erected on the same lot, is explained by a subsequent provision, that another lot should be procured for the jail.</p> <p>S. To justify the party In putting an end to a contract, the contractor must in effect abandon it, or refuse to carry out the plan or act in bad faith, so as to show that he does not or cannot complete it within the time limited.</p> <p>4. Where there is not in the law an express limitation to the power given to do a certain thing, an inference cannot be made or sustained, which will defeat the object of the law.</p> <p>5. Where two hundred thousand dollars were appropriated to construct county buildings, which must cost three times that sum, the appropriation imposes no limitation as to expenditures.</p> <p>[NOTE. On the trial the plaintiffs secured a judgment for $45,000. Case No. 3,15S.]</p>

[The plaintiffs demurred to pleas interposed by defendants, and the demurrers were sustained, except that the question of the validity of the contract under the act of 1S51 was left undecided, and by agreement the parties went to trial on the general issue, leaving the undecided point open for consideration thereon. Case No. 3,157.]

<p>Case No. 3,159.</p> <p>Descent of Reversions and Remainders.</p> <p>1. By the Massachusetts statutes of descent, reversions and remainders after life estates vested by descent in the intestate, pass to his heirs, without any regard to the ancestor from whom he inherited, in the same manner as estates in possession.</p> <p>[Cited in Stoddard v. Gibbs, Case No. 13,-468.]</p> <p>2. The common law in such case is different, and gives the estate in reversion to the heir of -the first purchaser or reversioner, who is heir • at the time when the life estate expires.</p> <p>. 3. Under the act of 17S3, c. 36 [1 Laws Mass. T05], the eldest son took a double portion in re■mainders and reversions as well as in estates in .possession. ■</p>

This was a bill in equity filed [by James M. Cook] to restrain the defendants [George E. Howard and others] from infringing letters patent [No. 13,G76] for an “improved dust deflector for the windows of railroad cars, granted to complainant October 1G, 1855, and extended for seven years from October 10,18G9. The invention consisted in a semicircular deflector fastened to an annulus by a rod passing through the deflector and annulus, and serving to turn both at option.

<p>Case No. 3,163.</p>

<p>Case No. 3,162.</p> <p>Assignee in Bankruptcy— Suit by Bankrupt— Plea in Abatement.</p> <p>1. Under the bankrupt law [of 1841 (5 Stat. 448)], all the interests and effects of a bankrupt may pass to his assignee, and suits should be brought in his name, or for the benefit of the creditors whom he represents.</p> <p>2. To a suit in the name of the bankrupt the defendant may plead the bankruptcy, and the appointment of an assignee, in abatement.</p>

<p>This was an appeal from the bankrupt court [of the United States] for the southern district of Georgia.</p>

This case came up on demurrers by the plaintiff to forty-seven special pleas put in by the defendants to the declaration, which was for a libel. The declaration contained eight counts. The first charged the defendants with wickedly composing and publishing the libel, setting it out in haec verba.

[At law. Action by J. Reese Cook against Benjamin D. Whitney (Klein, garnishee) to recover on promissory notes.] Heard upon motion to remand the cause to the state court from which it had been removed.

<p>Case No. 3,167.</p> <p>Receivek in Baxkbuptct.</p> <p>[Where there is delay in the prosecution of proceedings in bankruptcy, a receiver may be appointed to conserve the estate.]</p>

[In the matter of Jay Cooke & Co., bankrupts. [Certificate of Joseph Mason, Register in Bankruptcy:] To the Honorable John Cadwalader, Judge of said court: I, the undersigned, one of the registers of said court in bankruptcy, and to whom the above matter has been referred, do hereby certify that, in the course of the proceedings in said case before me, the following question arose pertinent to the said proceedings, and was stated and agreed to by the counsel for the opposing…

[Petition to review an order of the district court of the United States for the eastern district of Pennsylvania.] and Samuel Dickson and J. C. Bullitt, for committee, submitted the following argument, which we publish at length, believing the profession will welcome this carefully prepared review of the history of the 43d section, to which so much additional importance has been given by the recent amendment.

[Certificate of Joseph Mason, Register in Bankruptcy:] To the Honorable John Cadwalader, Judge of the Said Court: I, the undersigned register in bankruptcy, to whom the above matter was referred, respectfully report: That, on the 17th day of March, 1S74, on behalf of Jay Cooke, McCulloch & Co., and certain other banking houses composing a copartnership or association, known by the name of “syndicate,” a deposition was made for the proof of a claim against the estate of the…

This cause came up on motion to remand the same to the state court The action was commenced [by W. H. Cooke against C. C. Ford and H. T. Arnold] in the circuit court of Warren county, Kentucky, January 7, 1874, but was subsequently transferred to the common pleas of the same county. Ford, one defendant, made no defense, and judgment was consequently, entered up against him by default, which was according to the practice in this state.

[Petition to review an order of the district ■court of the United States for the eastern district of Pennsylvania. [In bankruptcy.

[In equity. Suit by Charles L. Cooke and others against the New York Central & Hudson River Railroad Company to restrain alleged infringement of reissued letters patent No. 7,090,' granted to plaintiffs May 22, 1877. The original patent was granted to C. L. Cooke November 21, 1S71, and is numbered 121,158.]

<p>Case No. 3,178.</p> <p>Redemption of Forged Treasury Notes — Recovery- Back ey the United States — Estop-pel — Act op Assistant Treasurer.</p> <p>1. The act of April 12th, 1SC0 (14 Stat 31), authorized ¡'the secretary of the treasury to dispose of • any bonds authorized by the act of March 3d, 1SC5 (13 Stat. 46S), “for lawful money of the United States, or for any treasury notes * * * issued under any act of congress, the proceeds thereof to be used only for retiring treasury notes, or other obligations, issued under any act of congress, but nothing herein contained shall be construed to authorize any increase of the public debt.” Under the act of 1865, treasury notes were issued, dated June 15th, 1S65, payable June 15th, 186S. In October, 1867, the assistant treasurer of the United States, at New York, paid out money of the United States in the purchase, from J., of what purported to be some of such treasury notes, but which were afterwards pronounced, at the treasury, not to be genuine and not to have been issued by the United States. Suit was, before June 15th, 1S6S, brought against J., by the United States, in the district court, to recover back the money so paid, and they had a verdict and judgment. The treasury notes so issued were printed from engraved plates, with the engraved signatures of the proper officers, and were stamped with the proper seal, and were lettered and numbered by a machine, and no writing appeared on them. On a writ of error, held, if the notes were in fact wholly forged and counterfeit, the assistant treasurer had no authority to purchase them, and the plaintiffs were entitled to recover.</p> <p>2. The government is not estopped, by the! purchase and payment, from recovering back the money’ net only because the government is not. in general, bound by the negligence of its officers, acting under a limited authority, but also because the defendants could, by refunding the money, be placed in the same situation as they were before the transaction.</p> <p>3. The ease bears no just analogy to the acceptance or payment of a forged bill of exchange by the drawee thereof, in which case the holder acts in faith of tbe drawee’s acceptance or payment, and is disarmed of his usual recourse to prior parties. There, the drawee is estopped from setting up a state of facts which would practically operate as a fraud on the holder.</p> <p>4. The decision in Bank of U. S. v. Bank of Georgia, 10 Wheat. [23 U. S.] 333, holding a bank concluded by receiving its own bank bills, which, had been fraudulently altered, and crediting them as cash, seems to have depended upon the special circumstances of that case.</p> <p>5. Neither that nor other cases establish, that an agent, having authority to retire genuine notes of his principal, not yet due, can conclude his principal by purchasing forged notes; still less, that the government can be concluded by such an unauthorized act of a subordinate of-fleer.</p> <p>0. There is no material difference, in this re.spect, between this case and any other purchase by an agent, where a mutual mistake of fact is discovered after payment of the consideration.</p> <p>7. The questions, whether the government is liable on its commercial paper precisely as an individual. and whether it may be bound to pay, at maturity, treasury notes printed from genuine plates, sealed with the genuine seal, and complete in form, even though fraudulently abstracted and put into negotiation, when presented by bona fide holders for value without notice, discussed.</p> <p>8. But the charge to the jury in this case was 'based on the proposition, that the assistant treasurer had no authority, under the act, to retire any notes, however printed, not actually issued, as a “physical fact,” by the authority of the government. This construction Of the act is sustained by considerations of such force, that this court deems it its duty to affirm the judgment of the court below in favor of the government.</p> <p>[See note at end of ease.]</p> <p>[NOTE. The rule of the commercial law, that if one accepts forged paper purporting to be his own, and pays it to a holder for value, he cannot recall the payment, is applicable as well to the United -States as to individuals.</p> <p>[If the notes were in fact counterfeit, their receipt by the assistant treasurer, and his payment therefor, did not preclude the United States from receiving back the money paid.</p> <p>[If the notes were printed by the treasury department, and all ready for issue, yet, if they were not in fact issued, the United States could recover. The issue to bind the government must be the physical act of an authorized offi-</p> <p>act of April 12, 18GG (14 Stat. 31), authorized the retirement of all outstanding notes of the class in question which the government would be required to meet at maturity.</p> <p>[Synopsis of the opinion of the majority of the supreme court, delivered by Mr. Chief Justice Waite, reversing the circuit court decree on the writ of enor brought by the defendants. Cooke v. U. S., 91 U. S. 3S9.]</p>

<p>objected, but THE COURT (Dem. con.) permitted the evidence to be given. See Peake, Ev. (2d. Am. Ed.) 287.</p>

offered a paper signed by J. Withers, not under seal, witnessed by one subscribing witness, purporting to be a mortgage of goods, and acknowledged in ojien court to be his act and deed. A mortgage of chattels must be under seal, and executed before three witnesses, and recorded according to Act Assem. Va. Dec. 13, 1792, p. 157,'§ 4. PER CURIAM. The paper is not evidence.

<p>Case Wo. 3,182.</p> <p>Suit by Assignee in Bankhuptcy to Set Aside Conveyance — Pauties—Limitations — Intent to Defhaud.</p> <p>1.Whether an assignee in bankruptcy can, in a suit in equity against the bankrupt and an alleged fraudulent grantee of his, of real estate, set aside the grant, as void, without making parties to the suit persons to whom such grantee executed mortgages on the premises subsequently to the making of the grant, quere.</p> <p>2. Whether an assignee in bankruptcy can assail a conveyance, as fraudulent against creditors, made by the bankrupt two years before the petition in bankruptcy was filed, quere.</p> <p>3. Whether the limitations as to time, prescribed in the 35th and 39th sections ■ of the bankruptcy act of March 2, 1867 <J4 Star. 5rf4, 536), apply to all conveyances which the bankrupt himself could not impeach as fraudulent as against creditors, quere.</p> <p>4. An intent on the part of a debtor to prefer his individual, creditors over persons who might charge him with a statutory liability for the debts of a corporation of which he is a stockholder, is not an intent to defraud creditors.</p> <p>' 5. A transfer of real estate was made by A. to his son, in March, 1866. In January, 1868, A. was adjudged' a bankrupt. The assignee in bankruptcy brought this suit against A. and his son, to set aside the transfer, as fraudulent, as against the creditors of A., on the ground that the transfer was a sham sale, that the price was inadequate, and that A. continued to use and possess the property, after the sale. On the facts of the case, the bill was dismissed, with costs.</p>

[In equity. Suit by Henry J. Cookingham and others against Sewell S. Morgan and others to set aside a transfer as in fraud of the bankrupt act.]

<p>Case No. 3,184.</p> <p>Assignment por Benefit op Creditors—Statu-Toitr Construction by State Court.</p> <p>1. In Ohio, a failing debtor may prefer creditors by assignment or otherwise, if done under circumstances which repel the inference of a fraudulent purpose.</p> <p>2. If the construction of a state statute has been settled by the decision of the highest court of the state, the courts of the United States uniformly adopt such construction.</p> <p>3. The supreme court of Ohio have decided that the act of March 14, 1853, “declaring the effect of assignments to trustees, in contemplation of insolvency, and the statute of 1S38, of the same import, do not affect assignments or transfers made for the sole benefit of the assignees or transferees; but if made trustees for other parties, the statute applies, and the property is held for the equal benefit of all the creditors.”</p> <p>4. But no trust .will be implied merely from the fact that an assignment or transfer has been made by an insolvent debtor to indemnify a surety for such debtor, if no more property has been assigned than was necessary for that purpose and the facts warrant the presumption that nothing was designed but the bona fide indemnity of the surety.</p> <p>f). Although such surety may be liable to respond to the creditors not provided for, for any surplus after paying the debts for which he was bound, he is not a trustee within the contemplation of the statute referred to.</p>

2 [At law. This was an action of trover brought to recover the value of cotton mentioned in the plaintiff’s declaration. The defendant pleaded the general issue.

In equity. The plaintiff [C. C. Coolidge] is assignee of a patent issued to one Belknap, for a combination of certain shoes and dies, and beveled bars, used in amalgamating pans for the amalgamation of silver ores. The defendant [John McCone], a foundry-man, is charged with making and selling the invention in violation of plaintiff’s rights.

<p>[In equity. Bill by Griffith Coombe against Thomas Meade and others to enforce a judgment.]</p>

<p>Case No. 3,189.</p> <p>Demurrage — Bill op Lading — Due Diligence— Epidemic among Houses.</p> <p>1. A load of granite blocks was brought to New York in a schooner, under a bill of lading, which contained no special clause as to the delivery. They could not be discharged without the aid of horses, and, owing to the prevalence of an epidemic among horses, the consignees of the goods were not able to obtain horses for the discharge for several days. The owners of the vessel filed a libel against the consignees to recover demurrage for the detention of the vessel during the delay. Held, that under the bill of lading, the consignees were bound to discharge the cargo in the usual way, with reasonable diligence.</p> <p>[Cited in Bowen v. Decker, 18 Fed. 752; House v. Woodruff, 19 Fed. 137; Addicks v. Three Hundred and Fifty-Four Tons Crude Kainit, 23 Fed. 730; The J. E. Owen, 34 Fed. 187.]</p> <p>2. Under the circumstances, the consignees had used reasonable diligence in the discharge, and were not liable for demurrage.</p> <p>[Cited in Henley v. Brooklyn lee Co., Case No. 6,303; One Hundred and Seventy-Five Tons of Coal, Id. 10.522; Addicks v. Three Hundred and Fifty-Four Tons Crude Kainit, 23 Fod. 729.]</p>

On petition of assignee for an injunction restraining the prosecuting of a suit in the state court.

<p>Case No. 3,191.</p> <p>Specific Performance—Disaffirmance of Contract—Tender—Laches.</p> <p>1. A court of equity will not decree a specific performance of a contract, at the instance of the vendor, where he has been guilty of a gross negligence, and the property has greatly deteriorated in value.</p> <p>2. The consideration of the purchase having been paid to the vendee, in case of his death, his representatives are bound to use, at least, reasonable diligence in executing a conveyance.</p> <p>3. Where the vendor has been so negligent as to have no claim on a court of equity, for a specific performance, the vendee may disaffirm the contract, and recover back the money paid, in an action for money had and received.</p> <p>[Cited in Dudley v. Hayward, 11 Bed. 546.]</p> <p>4. The vendor is bound to make and tender the deed.</p> <p>5. Where a specific .performance can not be-enforced by the vendor, by reason of his own Inches, it would seem that a demand for a deed, by the vendee, can not be necessary, before bringing of the action for the consideration money.</p> <p>6. It is not perceived why the bringing of the-action, in such a case, by the Tendee, is not, of itself, a disaffirmance of the contract. In this case, however, there was a demand.</p> <p>[Cited in Hoffman v. John Hancock Mut. Life Ins. Co., 92 U. S. 165.]</p>

This was an ejectment for land in the ■county of Northumberland, called the Limestone Lick tract. This land was purchased at sheriff’s sale by George Lang, on the 17th. of November 1807, under a venditioni ex-ponas, and by regular conveyances, the title to the said land became vested in the lessor of the plaintiff.

<p>[Action by George Cooper against David A. Dungler.]</p>

[At law. Action by James F. Cooper against George C. Gibbs, J. Wright Gordon, and - Sanford as joint indorsers of a promissory note. The defendant Sanford was not served with process, and the other defendants pleaded that fact in abatement. Plaintiff replied, and the demurrer of defendants to the reply was overruled. Case No. 3,195, next following.]

<p>Case No. 3,195.</p> <p>-Jurisdiction—Action against Joint Indorsers —Service op Process—Plea in Abatement.</p> <p>1. Where there are three joint indorsers,' and •the process is served on two of them, under the act of 1S39 [5 Stat. 321], the suit may be prosecuted against the two.</p> <p>2. A plea in abatement can not be retained, • on the ground that the other joint indorser is a citizen of another district.</p> <p>[NOTE. On the trial of the action, the jury were unable to agree. See Case No. 3,194.]</p>

<p>Case No. 3,197.</p>

This was an action by [Tunis Cooper] the indorsee of a promissory note given by the defendant [Jacob Laber] on the 6th day of May. 183(1, for the sum of thirty-seven hundred dollars, to the Racine and Mississippi Railroad Company, and payable with ten per cent, interest, at the office of the company, in Racine. Wisconsin, on the 10th day of May. 1S01.

On motion for an injunction to restrain the infringement of a patent [granted to I. Cooper, October 25, 1832], after bill filed and suit at law commenced at the same time.

[At law. Action of ejectment by James M. Cooper against Enoch C. Roberts to recover a part of section 16, in township 50 north, range 39 west, lying within the mineral district south of Lake Superior, in the state of Michigan. The plaintiff claims under the state, and the defendant claims through the Minnesota Mining Company, under a right of pre-emption from the United States.]

[Action by Joseph P. Cooper against the town of Thompson on coupons of municipal aid bonds issued by defendant. There was a verdict for plaintiff, and defendant moves for a new trial.]

Action for money had and received by the defendants for the use of the plaintiffs, who were joint partners under the name of Clement T. Coote & Co. The bank had paid out the funds of the firm upon the individual check of C. T. Coote, who had an account open in the bank in his own njime, but had no funds.

Assumpsit, against the indorser of Houston’s note for $500, due July 7, 1829. offered evidence of a subsequent agreement between the plaintiff and the maker of the note, that the latter should assign ten dollars a month of his pay as a clerk in the treasury department in payment of the note; and that the plaintiff should wait for payment in that manner.

<p>Case No. 3,207.</p> <p>Fixtures—Mortgagor and Mortgagee.</p> <p>The mortgagee may remove that which is not a fixture, and which was placed or constructed on the ground, after the mortgage was executed, This is especially the case where the purchaser had no notice, and acted bona fide.</p>

<p>Bill in equity to obtain the surrender and cancellation of a deed.</p>

Heard on motion of plaintiff [Lizzie Copeland] to remand the cause to the state court. Held: and give notice thereof in one or more newspapers published in north Alabama, and said elections shall be held at the same time, both in this state and in Tennessee. “Sec. 5.

Tliese were actions upon policies of insurance [by John 6. Copeland or Copelin]. They were, upon the stipulation of the parties, tried and determined by the court without the intervention of a jury, under section 4 of the act of March 3, 1865 (13 Stat. 501)-. [The actions were originally brought in the St. Louis circuit court, but were removed to this court on motion of defendants.] The facts appear in the opinion.

<p>Case No. 3,311.</p> <p>•Stale Claims in Equity — Pleading — Multi-pariousness—Amendment.</p> <p>1. A demurrer to a bill in equity will be sustained on the ground of the staleness of the ■claim of title set up to land, when" it appears by the averments of the bill that the complainants have slept upon their rights from the year 1810 until the year 1859.</p> <p>2. Where such complainants file an amended bill, alleging that for a long time after their rights accrued they were minors residing in different parts of the state of Virginia, and had no knowledge of their rights ñor the location of the land until about the year 1841,- and were unable until some time after that year to take any steps in the assertion of their rights, such allegations are sufficient to relieve the claim of title of staleness, and to put the complainants on proof of their allegations in that regard.</p> <p>3. A bill in equity praying that the equitable title to land may be adjudged to be in the complainant, and that he is entitled to a patent, and also that a certain person may be made a defendant to the bill and may be compelled to disclose the nature of his claim to the land, and by what authority he is in possession, and to account for rents and profits, is liable to the objection of multifariousness in seeking to obtain two distinct objects by the same decree.</p> <p>4. In chanceiy no material fact which has accrued since filing the original bill can be introduced in an amended bill, and a party can only avail himself of such fact by filing a supplemental bill.</p> <p>5. Where such new matter is introduced in an amended bill, it is a cause of demurrer.</p>

This is an action of replevin for seventy-three casks of Teneriffe wine, of the value of $216S. 10 cents.

This was a suit brought by the plaintiff against the defendant corporation to recover fifty thousand dollars damages for a malicious prosecution.

<p>Case No. 3,214.</p> <p>Ejectmext — Title to Support.</p> <p>A warrant and survey, and consideration money paid, is sufficient title to maintain ejectment in this court; but no proof of payment appearing, the plaintiff was nonsuited.</p> <p>[Cited in Cawley v. Johnson, 21 Fed. 495; Herron v. Dater, 320 U. S. 472, 7 Sup. Ct. 020.]</p> <p>NOTE. In this case, the doctrine of prior possession, giving a right to recover in ejectment, was mentioned, but though not decided, was discountenanced by what fell from the court. In support of the doctrine, Vaughan, Oro. Eliz.; 2 Saund. Ill: 1 Hawk. P. 0. 64, 154; 16 Vin. Abr. 457, pi. 3,—were cited.</p>

This was a hearing upon an order to show cause why the prayer of the petitioners, the De Castro & Donner Sugar Refining Company should not be granted, on the facts stated in the opinion of the court.

<p>Case No. 3,216.</p> <p>Practice—Continuance.</p> <p>[The Ohio statute allowing service of a notice by defendant, requiring service of copies of all writings upon which the declaration is founded, comprehends actions on contract only, and not an action of ejectment; consequently the failure to respond to a notice given in such an action is no ground for a continuance.]</p>

<p>[In equity. Bill by Conrad Coppenbusen to restrain the infringement of certain patents by the defendants, Oscar Folke, Eber-hard Faber, Edward Simon, and others.]</p>

The bill in this case was filed by Cunningham Corbet and others, assignees of Ninian Minzies, against the heirs and devisees of Edward Johnson, deceased, and also against William Wiseham, executor of Andrew Ronald, who was the surviving executor of Edward Johnson, to compel the payment of two bonds, executed by the said Johnson, in his life time, to Minzies, which bonds were assigned by Minzies to the plaintiffs, for the benefit of his creditors.

<p>Case No. 3,219.</p> <p>Habeas- Cokpos—Consthuction or Abticles or Wab.</p> <p>Article 70 of the articles of war [which provides that “no officer or soldier shall be continued in confinement more than eight days, or until such time as a court-martial can be assembled”] was not intended to apply to the confinement of soldiers during trial and awaiting judgment. The article applies solely to confinement preliminary to trial.</p>

This is an order obtained by the assignee requiring the bankrupts to show cause why certain personal property should not be ordered to be delivered by them to the as-signee. The contest is in reference to certain articles of furniture which before the bankryptcy belonged to the “Corbett Brothers” as partners, and were used in a hotel kept by them, as hotel furniture.

<p>[This was an action by John J. Corbett against Horatio G. Gibson.]</p> <p>[For decision of a motion to strike out a subpoena duces tecum, see Case No. 3,221.]</p>

<p>Case No. 3,221.</p> <p>Subpcexa Duces Tecum—Public Documents.</p> <p>The major general commanding the department of the east, in the army of the United States, was served with a subpoena duces te-cum, in this suit, requiring him to produce in court official papers on file in the office of the headquarters of such department. A motion was made that such subpoena be set aside. It appearing that copies of such papers could be read in evidence, and it not appearing that the originals would serve a different purpose from the copies, or that the copies could not be procured, held, that the motion must be granted.</p> <p>[NOTE. For denial of a motion to compel the plaintiff’s attorney to furnish a sworn statement of the residence, occupation, and address-of the plaintiff, see Case No. 3,222.]</p>

<p>Case No. 3,223.</p> <p>Assignment of Mortgage — Cokpokation—Meet-ing of — Indorser, Liability and Preference —Bond, Liability of Surety on — Mortgage for Loan with Intent to Prefer Mortgagee —Directors of Corporation are Trustees— Illegal Consideration.</p> <p>1. A mortgage is a mere chose in action, and is not negotiable under the law-merchant, and therefore the assignee of such an instrument takes it subject to the equities between the mortgagor and mortgagee, and with the same and no other rights than his assignor had.</p> <p>2. Where the by-laws of a corporation authorized the president thereof to call special meetings of the directors upon giving notice of the time and place thereof, and such place was not prescribed by the by-laws, the president may-call such meeting at a place other than the principal place of business of- the corporation.</p> <p>3. G. indorsed the note of S., and upon its maturity waived demand and notice; at the same time O., who was indebted to S., with the knowledge and assent of G. guaranteed the payment of the note to the holder in sixty days, and afterwards, being insolvent, paid it: Reid, 1. That G. was not under any liability for O., and that therefore the payment of said note by O. was not a payment for the benefit of G. within the purview of section 35 of the bankrupt act; 2. That the liability of G. upon said note after the waiver of demand and notice became fixed, and was not discharged by the agreement between S. and O; 3. That an indorser or surety is not discharged from his liability by an extension of time to the principal before maturity of the note, if made without consideration to the holder of the note from the principal, or with the assent of the surety or indorser.</p> <p>4. A surety on a bond for the construction of a revenue cutter, is not, prior to the forfeiture of such bond, under a liability for his principal within the meaning of section 35, of the bankrupt act.</p> <p>5. A mortgage by nn insolvent corporation to secure a loan, obtained with the intent to give the mortgagee an unlawful preference, is not affected by that fact, if such intent was not carried out, and the money was otherwise applied.</p> <p>G. The directors of a corporation are trustees for the stockholders and creditors; and where a director by means of his power, as such, secures to himself any advantage over other stockholders, or creditors, equity will treat the transaction as void, or charge him as trustee fot the benefit of the injured parties; nor can such director, as to such parties, claim to have acted in ignorance of what it was his duty to know concerning the conduct and condition of the affairs of the corporation.</p> <p>[Cited in Lippincott v. Shaw Carriage Co., 25 Fed. 586; Adams v. Iiehlor Milling Co., 35 Fed. 435.]</p> <p>7. Where a mortgage is given partly upon a legal and partly upon an illegal consideration, and the one is clearly separable from the other, it will be held valid as to the former and void as to the residue.</p>

[Appeal from the district court of the United States for the southern district of New York.) This was a libel in rem, filed in the district court, against the ship Cordillera, to recover damages for the loss of two tierces of lard, which fell from the slings while they were being hoisted into the ship, by a tackle, from a lighter. The district court decreed for the libellants [case unreported], and the claimants appealed to this court.

This was an action of trespass for seizing, taking and carrying away, and converting to the defendant’s use, a certain vessel, the property of the plaintiff, called the Hiram. Plea not guilty, with leave to justify. The case, as proved at the trial, was as follows: The plaintiff purchased the Hiram from one De Silver, in February 1819, and ■obtained a bill of sale of her, which, with her coasting license, was on board at the time of the alleged trespass.

<p>This was an action at law against [Hugh Maxwell] the collector of the port of New York, to recover back certain sums of money paid by the plaintiff [John Corkle] and one Jackson jointly, to the defendant as such collector. The suit was originally brought in the supreme court of New York, and was removed into this court by the defendant. Before the commencement of the suit, Jackson assigned all his interest in the claim to the plaintiff, and the suit was, under the laws of New York, brought in the name of the plaintiff, without joining Jackson as a party.</p>

[In admiralty. libel by Isaac Corks, owner of the sloop Hoaxer, against the steamboat Belle, for damages sustained by collision.]

[In the matter of Joseph W. Corlies’ bail for James Bottomly, Jr. Heard on motion to vacate an order forfeiting the recognizances, to have the recognizances delivered up and cancelled, and to compel Mr. Wad-dell, ex marshal, to refund the amount of the recognizances.)

<p>This was a bill in equity filed to restrain the infringement of letters patent. for “improvement in cut-off and working the valves of steam engines,” granted to the complainant [George H. Corliss] March 10, 1849, and reissued May 13, 1851, and again, in six divisions, July 12, 1859; and, also, of letters patent for “improved cut-off gear,” granted to him July 29, 1851, and reissued July 20, 1S59. The claims of the original patents are given below; those of the reissues will be found in the opinion of the court.</p> <p>Patent of March 10, 1849: “What I claim as my invention, and desire to secure by letters patent, is, First The method, substantially as described, of operating the slide valves of steam engines, by connecting the valves, that govern the ports at opposite ends of the cylinder, with separate arms of the rock shaft, or the mechanical equivalents thereof, so that, from the motion thereof, the valve that keeps, its port or ports closed shall move over a less space, while its port of ports are closed, than the one that is opening or closing its port or ports, and vice versa, while, at the same time, the two arms by which they are operated have the same range of motion, as described, whereby 1 am enabled to save much of the power heretofore required to work the slide valves of steam engines, and by which, also, I am enabled to give a greater range of motion to the valves at the periods of opening and closing the ports to facilitate the induction and eduction of steam, as specified. And lastly, I claim the method of regulating the motion of steam engines by means of the centrifugal regu-tator, by combining the said regulator with the catches that liberate the steam valves, by means of movable cams or stops, substantially as described.”</p> <p>1‘atent of July 29, 1851: “I claim the arrangement of the lifting rods, and the method •of operating them by the disc plate, as represented in the accompanying drawings, is peculiarly suited to this method of effecting the disengagement of the valves from the mechanism by which they are opened, for the disc plate imparts a transverse motion to the connecting rods, which causes them to rock upon the stops, and thus slide off their respective toes on the rock-shaft arms. But while I prefer this arrangement of eccentric gear, I wish it to be understood that I do not restrict myself to its employment, as my improvement may be applied to many other systems of mechanism by which valves are opened. As such systems may not possess the peculiar rocking motion I have mentioned, it will be necessary, in some cases, to disengage the lifting rods by some moving ■ member of the engine, through the combination of any convenient and suitable mechanical device. In combination with the reciprocating motions communicated to the lifting rods by the eccentric gear, I claim imparting a lateral movement to the free extremities of said lifting rods, to disconnect them from the valves and permit the latter to close, to cut off the steam or other expansible fluid by which the engine may be driven, whereby these rods are made to perform their usual dirty of opening the valves, and, in addition, that of catches or latches in alternately cón-necting the valves with, and disconnecting them from, the mechanism by which they are opened, thus greatly simplifying the construction of the valve gear, rendering the same more durable and less liable to get out of order.”</p>

<p>Case No. 3,234.</p> <p>Seaman’s Wages — Mate—Disobedience to UNREASONABLE ORDER — WRONGFUL DISCHARGE.</p> <p>The mate of a schooner had been on duty while the vessel was in port, from 5 a. m. on Saturday to nearly 2 a. m. on Sunday. Having then got the vessel ready to be towed out of port in the morning, he went to bed. About half past 3 the master called him to turn out, to help take the vessel out of port. The mate refused, and the master himself cast the schooner off from the dock, and a tug towed her out of port, and the vessel sailed, the mate doing duty, without further disobedience, till she arrived in the port for which she was bound, when the master discharged him, offering to pay his wages up to the time of his discharge if he would give a receipt in full. The mate obtained some employment after his discharge, but for short periods and at a less rate of wages, and filed a libel against the vessel to recover wages up to the end of the month during which he was discharged. His disobedience was set up as a defence. Held, that the mate was disobedient, but his offence was a very slight and venial one, not justifying his discharge, and that he was entitled to some indemnity, to be fixed by the discretion of the court; that he must be allowed full wages up to the end of one half month after his discharge, and wages at one-third of the agreed rate up till the end of the month in which he was discharged, and his expenses of travel from the port where he was discharged to the port where he was shipped.</p> <p>[Cited in The Superior, 22 Fed. 928.]</p>

This was a libel in rem, by Elias S. Bloomfield, owner of the sloop Grocers, against the steamboat Cornelius C. Vanderbilt, to recover damages for a collision between the two vessels.

In equity. The bill in these cases was filed [by George B. Cornell against the Downer & Bemis Brewing Company and others, and against the American Bush Company and others] upon the re-issues A and B, dated August Gth, 1872, of the original patent of Lacy & [G. B.] Cornell, of August 29th, 1S71 [No. 118,G17], for an improvement in bushes, and wrenches for their insertion in beer barrels.

<p>Case No. 3,237.</p> <p>Positive and Negative Evidence — Patents — Interference Proceedings — Evidence of Prioritt.</p> <p>1. The rule that where witnesses are equally credible, the testimony of one that he saw or heard a fact, is of no more weight than the testimony of another that he did not see or hear it, must be taken with the qualification that the positive can be reconciled with the negative without violence or constraint: and this depends on whether, under the particular circumstances, the negative testimony can be attributed to inattention, error, or defect of memory.</p> <p>2. Priority of invention will not be adjudged on testimony which is vague and wanting in precision in respect to the essential features of the device for which priority is claimed.</p> <p>[NOTE. Por another case involving this patent, see Lake v. Fitzgerald, Case No. 7,903.]</p>

<p>[This was a bill in equity by George B. Cornell against Lomax Littlejohn for infringement of patents.]</p>

<p>Libel sustained [by Thomas Cornell] against a schooner for damages for running into a propeller lying at a wharf.</p>

This was an action against [Cornelius W. Lawrence] the collector of the port of New York, to recover back an alleged excess of duties paid him. A verdict was taken for the plaintiffs [Henry T. Cornett and Horatio R. Nightingale], subject to the opinion of the court.

[This was a bill in equity by Emile Comely ¡against Norbert J. Henderiekx to restrain infringement of a patent. Complainant moved for a preliminary injunction, which motion was granted, and the following order was made:]

[Appeal from the district court of the United States for the eastern district of Wisconsin.] In bankruptcy. The warden of the state-penitentiary received from the treasurer of the state, upon the oi’der of the directors of the penitentiaiy, $10,000, and deposited it in the Corn Exchange Bank at Wnupun, where-the penitentiary was situated, in his name as warden.

On the first day of October, 1875, the state of Wisconsin made and filed proof of a claim, to the amount of nine thousand six hundred and eighty-one dollars, and twenty cents, against the estate of the bankrupt This proof was made by E. N. Smith; the., warden of the state prison, for and in behalf of the state; Upon application of the as-signee the register expunged the claim.

<p>and against master’s report.</p> <p>judgment creditors.</p>

This was an action [by Jean H. Cornier against Simon Sawyer, master of the schooner Frederick Reed] for assault and personal damage.

<p>Case No. 3,246.</p> <p>Alias Execution — Satisfaction of Judgment by Levy — Malfeasance of Marshal — False Return.</p> <p>1. An alias execution can not be issued until the return of the first execution.</p> <p>2. If such execution should be shown to have been lost or destroyed, the court might order an alias.</p> <p>3. When personal property has been levied on, sufficient to satisfy the judgment, it is presumed to be satisfied. But, if such property, on being sold, should not be sufficient, an alias may issue.</p> <p>4. An officer is liable for malfeasance where he disposes of the property, to the injury of the defendant, without complying with the requisites of the law.</p> <p>5. The officer will always be presumed to have done his duty.</p> <p>G. The remedy against him is, by an action for a false return.</p>

<p>Case No. 3,248.</p> <p>Collision’ at Piek—Exposed Positiox.</p> <p>A bark was placed alongside of pier 17, North river, so that her stern extended beyond the end of the pier, her master having notice that a steamship, so long as to cover three piers, was coming into her berth at pier IS. The steamship worked slowly and cautiously into her berth, and in so doing came in contact with the projecting stern of the bark and did her some damage: Hchl, that the steamship was not guilty of negligence in thus coming in contact with the bark, and that she was not liable for the damages.</p> <p>[Distinguished in The Canima, 17 Fed. 272; Shields v. Mayor, Aldermen, etc., IS Fed. 749.]</p>

<p>[In admiralty. Libel by the mayor, aider-men, and commonalty of the city of New York against the steamship Cornwall.]</p>

This was a petition by Nathaniel O. Cornwall for the review and reversal of an order of the district court [of the United States, for the district of Connecticut] dismissing his petition, as a creditor of David Cornwall, for an adjudication, declaring the latter a bankrupt. [Case No. 3,251.]

<p>Case No. 3,251.</p> <p>Consideration op Promissory Note — Gift— Bankruptcy.</p> <p>A gift is not in itself a sufficient consideration to support a promise of payment, even if expressed in a note, neither is a mere moral consideration sufficient to support a promise to pay. A note given in place of a lost note, if there was no consideration for the making of the original (or lost) note, whether a voluntary gift, is not a sufficient claim on which to base a petition for bankruptcy proceedings.</p> <p>[NOTE. Nathaniel O. Cornwall petitioned the circuit court for the review and reversal of the order herein, and the order dismissing the petition was affirmed. Case No. 3,250.]</p>

This suit was brought to recover from the defendants, Robinson & M’Clure, the amount of one out of three notes, due from Barker & Annesley, for ninety-six hogsheads of tobacco, sold to them by the plaintiffs, upon the ground that the defendants were dormant partners with Barker & Annesley in that purchase, and were to share in profit and loss. The two first notes were paid by Barker & Annesley, before their failure.

The first entitled action [D. J. Correy and Cunningham Haizlette against B. H. Lake and J. R. Lake] was brought upon a judgment given against the defendants by confession of attorney, in the court of common pleas for Hancock county, Ohio, on November 15, 1S67, for 81,052.08, with interest and costs.

<p>[In bankruptcy. In the matter of Barney Corse.]</p>

The case was as follows. In December, 1799, Philips & Corser, of Curraeoa, being indebted to Petit & Bayard, in a considerable sum, transmitted them a bill of exchange, drawn by 'Chanceaulm, in favour of Philips & Corser, on John Craig of Philadelphia, endorsed by Philips & Corser, for 3450 dollars, in part discharge of this debt, as they expressly state in their letter to Petit & Bayard, dated the 22d March, 1800.

[Appeal from the district court of the United States for the southern district of New York.] This was a libel in rem, filed in the district court, by [Samuel Schuyler] the owner of the steamer America, against the propeller Corsica, to recover for the damages caused to the America by a collision which occurred between the two vessels, in the harbor of New York, off the Battery, in the North river, near the Jersey shore, or about one-third of the way from it across the river,…

Action [at law by Cort and Edwards] on a policy of insurance, dated the 18th of July 1808, on the schooner Triumph, at and from New York to Campeachy, and to three other ports in the bay of Campeachy, and back to New York; vessel valued at 1500 dollars, insured at 1000 dollars; premium, 10 per cent, to return one for each of the three ports to which she should not go.

<p>[Bill in equity by Cory, assignee of Watson & Twitchell, bankrupts, against Clark, praying the appointment of a receiver and for an account]</p>

This was a libel in admiralty by William Price, who alleged that he shipped on the Cortes in New York for a voyage to New Orleans and back; that, after the vessel had started on her return voyage, he fell from the yard and broke his arm, and was sent to a hospital in New Orleans, and, after a few days, was brought to New York in another steamer and. sent to the hospital in New York; and he claimed to recover $18, a balance of wages due, and $400 damages for the broken arm.

[Libel in admiralty by Hackfield & Co. against the steamer Costa Rica for damages due to the injury of certain goods shipped on the Costa Rica.]

<p>Case No. 3,262.</p> <p>Salvage — Towage.</p> <p>Tsa thousand dollars awarded as salvage compensation.</p> <p>[Applied in The Sirius, 6 C. C. A. 021, 57 Fed. 858.]</p>

This was a case agreed, which stated, that in 1805, an order for insurance of goods on board the ship Draper, at and from New-York to Amsterdam, was given by the plaintiff’s agent to the defendants; in which it was stated the same were to be free of average under ten per cent.

In bankruptcy. The bankrupt’s discharge was opposed on the ground, that, being a tradesman, he had not kept proper books of account. The evidence tended to show that he was a farmer, and conducted his farm chiefly through his hired men; that several times in each year he visited Canada, and he then usually bought horses or cattle, and sometimes hay, partly for use on his farm and party for sale. His dealings in these articles were for cash.

This was an action of debt on bond dated the 17th of April, 17S0, the condition of which was that [Stephen] Payne should carry on the business of distilling brands' from cider, and should continue to do so for seven years and three months from the date of the bond, and should keep an exact account, during that term, of all -brandy or other spirits distilled from cider by him, or on his account, or should deliver to [Grant] Cottle, when demanded, one tenth part of all such…

This was a voluntary application for the benefit of the bankrupt act [of 1841 (5 Stat. 440)], presented on the 4th day of February, 1843. The petitioner [Samuel S. Cotton], being a minor under the age of 21 years, presented his petition by Joseph Cotton, his parent and natural guardian. There were only two debts stated in his list, one to Harriet Francis, and the other to John Francis.

[Appeal from the district court of the United States for the district of New York. [Libel in admiralty by the United States against .the ship Cotton Planter (Benjamin Morris and Benjamin Chase, owners).]

<p>Case No. 3,271.</p> <p>Internal Revenue—Corporations — Appeal to • .Commissioner—When Perfected.</p> <p>L An incorporated company, whose business is to make gain by compressing cotton, is not required to pay a tax on its dividends by section 120 of the act of June 30, 1804 (13 Stat. 283).</p> <p>2. An appeal to the commissioner of internal revenue, for the refunding of a tax illegally collected by the collector of internal revenue, bates from the time the application to have the tax refunded is filed in the office of the commissioner, and not from the time it is lodged with the collector of internal revenue.</p>

This was an action of ejectment brought by the plaintiff as assignee of a certain mortgage given by the defendant, John Adams, to the Kenosha & Rockford Railroad Company for the premises in question. The mortgage was in due form, and, with the assignment thereof, was the only title which the plaintiff presented. No exception was. TSken by the defendant to the mortgage or assignment, but it was claimed that they did not make out such a legal title as authorizes, a recovery.

[Libel in admiralty by Paul Coulon against John Jolly, Richard Keys, and William Manson, owners of the brig Neptune, for salvage.] Decree: The brig Neptune, being American property, belonging to the… Held: at sea, on board the capturing cruizer, by General De Noailles, then in the service of France, and some officers of a tribunal which had been established in St. Domingo. The brig, by this self-created court, was condemned.

Suit in equity [by Teresa E. Coulson Against Byron Z. Holmes, Alice J. Strow-bridge, and Mary A. Hueston] to establish And declare a trust in real property. [Heard on exceptions to the answer of the ■defendant Holmes.]

This suit is brought [by Henry and Theresa Coulson against the city of Portland, Hamilton Boyd, William S. Caldwell, C. P. Ferry, and others] to enjoin the defendants from countersigning and issuing the interest coupons to the bonds of the Oregon Central Railroad Company, and from levying and collecting a tax upon the real property of the complainants, within the corporate limits of the city of Portland, for the purpose of paying such interest coupons as they become due.

<p>[In the matter of J. M. Coulter, a bankrupt.]</p>

<p>Case No. 3,377.</p> <p>Proceeds of Sale ix Admiralty.</p> <p>Money or goods in the hands of the marshal by order of this court are subject to any further order of court; and claim may be made to the same, after a decree. Not so, if the money has been paid over.</p> <p>[Cited in British Consul y. Thompson, Case No. 1,899; Leland v. The Medora, Id. 8,237.)</p>

In admiralty. This suit was brought [by Richard Wells Councer against the steam-tug A. L. Griffin] to recover the damages sustained by the libellant in the loss of the scow Andrew Murray, on the Niagara river, at the mouth of Chippewa creek, in Canada West, on the 14th day of December, 1863.

<p>Case No. 3,280.</p> <p>Seaman’s Wages — -Waiver of Lien — Presumption — Lex Contractus.</p> <p>1. C. signed shipping articles at Cobourg, Canada, to go on board of a yacht as sailing master, on a voyage to Philadelphia, at a rate of wages of $1 a day. Subsequently, but on the same day, an agreement was made between C., G and B., which, after setting forth that C. had begun to build the yacht, but had not been able to finish her, and had put the title in G., provided that G. should hold the yacht in trust for C., B. and G. himself; that G. should manage her, and after she had gone to New York and Philadelphia, should sell her, and from the proceeds, after paying all debts- due, should pay certain sums to B., C. and himself, and «that C. should go as sailing master at $60 a month. The yacht having come to New York, C. filed a libel against her for wages: Eeld, that the right of C. must be governed by the agreement and not by the articles: that under that agreement C. must be held to have waived any right of lien on the vessel for wages.</p> <p>2. As the vessel was a foreign vessel and the contract was made in a foreign port, section 4535, Rev. St. U. S., could have no effect in the ease.</p> <p>3. The court could not presume that the statutory law of the dominion of Canada is the same as that of the United States.</p> <p>4. In the absence of any evidence as to the law of the place where the contract was made and to be in a substantial part performed, the law maritime will be presumed to be the law controlling the mariner's contract. By that law it is competent for the mariner, by his agreement understanding^ made in a proper case, to waive his lien for wages.</p>

In October, 1812, the defendant, a merchant of Philadelphia, consigned to the plaintiff, a merchant of Bourdeaux, forty bags of coffee, weighing betwen five and six thousand pounds, which were accompanied by a letter of advice, apprizing him of the consignment, and containing the following order, viz. “You will please to make sale of the coffee immediately on arrival, and forward the returns in the articles undermentioned, by tbe same schooner.” The vessel was compelled to…

<p>[In admiralty. Libel by Latham Fitch against the French brig Courier de Vera Cruz and cargo for salvage service.]</p>

<p>Case No. 3,284.</p> <p>Motion by Petitioner to Set Aside Adjudication in Bankruptcy.</p> <p>C. joined in a voluntary petition with his partners and participated actively in the proceedings. After the lapse of about five months he moved to set aside the adjudication on the ground that he was induced to join in the petition by fraudulent misrepresentations of his co-partners and the attorney who prepared the petition and schedules, that the firm was not in fact insolvent and that the proceedings were carried on in the interest of his copartners for the purpose of depriving him of his property. Held, that, upon the bare possibility that C. might, against all his laches and against all his acts of acquiescence, prove the fraud alleged, substantial justice does not require that the creditors whose rights have become fixed through his voluntary acts should be subjected to the delay and expense incident to such an investigation.</p> <p>[Cited in Re Lalor. Case No. 8.001; Re Meade, Case No. 9,370.]</p>

subject to the opinion of the court upon the following questions: —1. Whether the defendant, who obtained letters of administration in Fairfax county, before its separation from Virginia, can maintain the plea of “never administrator.” 2. Whether it was necessary, under the statute of frauds, that the promise alleged in the 2d count should be in writing. The 1st count was upon the promise of the intestate.

The plaintiff and defendant having been once subjects of the French government, and residents at Point Petre, in Guadaloupe, the defendant gave his note, 12th April, 1793, promising to pay to the order of plaintiff, 7,812 livres, 16 sous, in sugar, as money, value received. The defendant is now a naturalized citizen of the United States.

[This was a bill in equity by Lucius H. Couse and others against Grove H. Johnson and others to restrain the alleged infringement of letters patent No. 45,957, granted to W. B. Billings, January 17,1865.]

This was an action of account, which, by the agreement of the attorneys, was referred to auditors named by themselves, to examine the accounts of the parties as under the judgment quod computet, with all the powers and rights that would belong to auditors appointed by the court. The auditors reported, “that after hearing the parties, and examining the vouchers produced, they award that the plaintiff has no legal demand at present against the defendant.”

This was a libel, by [Levi Coverdale[ a dis-sentient part owner, late master, praying for possession of his share of the schooner North America, and for security for her safe return from a voyage projected by the other part owner. The libellant’s part ownership was denied by the respondent [Martha Russel, owner of the other moiety of the vessel]. The case came on for a hearing,- on the 27th March, 1841, and was argued by:

<p>Case No. 3,290.</p> <p>Suicide of Insured — Insanitt—Burden of Proof.</p> <p>1. Held, that to make the insurer liable, the mind of the deceased must have been so far deranged that he was incapable of using a rational judgment in regard to the act of self-destruction.</p> <p>2. Held, that if the insured was impelled by an insane impulse which his remaining reason did not enable him to resist, or if his reasoning powers were so far overthrown that be was unable to exercise them on the act he was about to perform, the company is liable.</p> <p>3. Held, that there is no presumption of law that self-destruction arises from insanity, and if, by reason of sickness, or distress of mind, or a desire to provide for his family, the insured takes his own life in the exercise of his usual reasoning faculties, the company is not liable.</p> <p>[Cited in Wolff v. Connecticut Mut. Life Ins. Co., Case No. 17,929.]</p> <p>4. Held, that the burden of proof lies upon the company to show that the death was caused by suicide, and not by accident.</p>

Action by the indorsee against the administrator of the indorser of two promissory notes. The plaintiff demurs to the second and third pleas, each being a plea of plene administravit.

This was an action on an inland bill of exchange, brought to April sessions, 17; S. The defendant pleaded, 1st Non assumpsit. 2nd. Held: that if a man has a debt due to him by note or a book debt, and has made no demand of it for six years, so that he is barred by the statute; yet if the debtor, after the six years, puts out an advertisement in the Gazette, or any other newspaper, “that all persons having any debts owing to them by him, will apply to such a place, and…

[There was a decree of foreclosure in] the' principal case in this suit. [Each of the parties appealed therefrom to the supreme ■court.

<p>Case No. 3,394.</p> <p>Salvage Agreement—Vessel in Distress.</p> <p>Agreement, made in distress at sea, void. Salvage due, and quantum fixed by court.</p>

<p>Case No. 3,296.</p> <p>Action fob Infsingement of Patent—Measure of Damages—New Trial—Reduction of Damages.</p> <p>1. In an action on the case for the infringement of letters patent, it is erroneous to instruct the jury that the true rule in regard to damages is the profits made by the defendant by the infringement.</p> <p>[Cited in Smith v. Baker, Case No. 13,010; Putnam v. Sudhoff, Id. 11,483; Magic Ruffle Co. v. Elm City Co., Id. 8,949 and S.950; Mulford v. Pearce, Id. 9,90S; Vaughan v. Central Pac. R. Co., Id. 16,897; Knox v. Great Western Quicksilver Min. Co., Id. 7,907; Sayies v. Richmond, F. & P. R. Co., Id. 12.424.]</p> <p>2. The true rule is, what the plaintiff has lost, And not what the defendant has gained. .</p> <p>[Cited in Atwood v. Portland Co., 10 Fed. 2S5; Royer v. Shultz Belting Co., 45 Fed. 52.]</p> <p>3. Where, under such an erroneous instruction, the plaintiff obtained a verdict for $750 damages, and the defendant moved for a new trial, on a case, because of such instruction, a new trial was denied, in case the plaintiff should consent that the verdict be reduced to nominal •damages, but, otherwise, a new trial was ordered, the costs to abide the event.</p> <p>[Cited in Roberts v. Schuyler, Case No. U,-915.]</p>

In bankruptcy. In this case a petition was filed by S. G. Renick, president of the First National Bank of Hastings, against the said [Walter C.] Cowles, alleging the commission of various acts of bankruptcy, and praying that he should be adjudged a bankrupt by the court. A day was fixed to show cause, a denial of the acts was filed, and by agreement the issues were tried by the court.

The commissioner of patents refused to grant a patent to George C. Cowperthwaite, assignee of William Fosket, the appellant, for Fosket’s invention in the new and useful improvement in a machine for the manu-i facture of hat bodies. [The application was contested by Ira Gill and Elbridge Brown.]

A judgment had been entered in this case, which was one of a class of cases known as “charges and commissions” cases, against the defendant, as a collector of customs, for duties overpaid, under protest. The amount of the judgment not having been paid by the treasury department, the plaintiff issued an execution against the property of the defendant.

<p>Case No. 3,299.</p> <p>Interest on Promissory Note.</p> <p>The court allowed the interest customary at Canton upon a note executed there.</p>

<p>Case No. 3,301.</p> <p>MORTGAGE BY CORPOltATION' — EVASION OF General Manufacturing Act of New York — Liability of Stockholder for Debts.</p> <p>1. A corporation formed under the general manufacturing law of New York, passed February 17, 1848 (Laws 1S48, c. 40), is, by the 2d section of that act, authorized to purchase, by its corporate name, such real estate as is necessary to enable it to carry on its operations, but is forbidden, by the same section, to “mortgage the same or give any lien thereon.” Where such a corporation authorizes its agent to make such purchase for its benefit and on its account,, and the real estate is conveyed to the agent, and he gives a bond and a mortgage on it in his own name, for the purpose of evading the provisions of such 2d section, the statute is violated, and an agreement by the company to indemnify the agent against all liability by reason of the transaction, is void as against an innocent stockholder in the company.</p> <p>2. Under the 24th section of the said act, which provides that “no stockholder shall be personally liable for the payment of any debt contracted by any company formed under this-act, which is not to be paid within one year from the time the debt is contracted.” if such agreement by the company to indemnify the agent, and the payment of money by the agent on his bond, constitute the agent a creditor holding a debt which may be enforced against an individual stockholder, such debt was contracted not when such payment was made by the agent, but when such agreement to indemnify was made by the company.</p>

<p>Case No. 3,302.</p> <p>Priority op Claim to Invention—“Useful” Defined—Infringement.</p> <p>1. It is the right and privilege of a party, when an idea enters his mind in the essential form of invention, to perfect by experiment his original idea, so as not to be deprived of the fruit of his skill and labor by a prior patent, if he is the first inventor; but there must be a reasonable diligence, looking at all the facts of the case.</p> <p>[Cited in National Filtering Oil Co. v. Arctic Oil Co., Case No. 10,042; Christie v. Sey-bold, 55 Fed. 77.]</p> <p>2. It is necessary, in order to prevent a man from having the benefit of his patent, that another should have first discovered the thing and reduced it to actual practice.</p> <p>[Cited in Webb v. Quintard, Case No. 17,-324.]</p> <p>3. If two persons are jointly experimenting and equally meritorious, a doubt should be solved in favor of him who first obtains a patent.</p> <p>4. “Useful,” in the patent law, is in contradistinction to “mischievous:” the invention should be of some benefit.</p> <p>[Cited in Cook v. Ernest, Case No. 3,155; Converse v. Cannon, Id. 3,144.]</p> <p>5. The question, as to infringement, is not whether the defendant’s machine works the best, but, does it use the plaintiff's invention?</p>

This was a libel in personam, by Henry Cox against Richard Murray, to recover for services rendered by the libellant to the respondent. The libellant was a stevedore. The respondent was master of the Gem, a. British brig owned in Glasgow.

<p>Case No. 3,305.</p> <p>Patents —“ Boot-Tre es ” — Valí dity — Infringement.</p> <p>Letters patent No. 170,462, dated November-30, 1875, for boot-trees, and letters patent No. 170,980, dated December 14, 1875, for boring-, machines, both granted to George W. Badger, held valid, and infringed by the defendants.</p>

This is an appeal from a decree of the district court for the eastern district of Missouri. [Case No. 3,309.] Cox is the assignee in bankruptcy of Sauer. Sauer and wife made a conveyance of the farm of Sauer, on which he and his family resided, to Wilder, within six months of the bankruptcy.

The bill states that Sauer, the bankrupt, made a deed to Wilder to defraud his (Sauer’s) creditors, for the nominal consideration of five thousand dollars, but really without any value consideration; that after said deed was executed by him and his wife and duly acknowledged, it was lodged in the proper office for record; that thereupon some -of Sauer's creditors sued out attachments on the ground that said deed was made to defraud creditors, and then said deed was withdrawn…

[This was a bill in equity by Alfred C. Coxe and others against Nelson B. Hale and others to set aside a conveyance as fraudulent]

<p>Case No. 3,311.</p> <p>Internal Revenue — Dutt ox Sugar.</p> <p>Whether, under the provisions of the act of congress of 5th June, 1701, sugars, remaining in the place in which they were refine'd. when the law was repealed, were liable to pay the duties.</p> <p>[See note at end of case.]</p> <p>This case was taken by writ of error to the supreme court of the United States, and the judgment of the circuit court was reversed [Pen-ington v. Coxe] 2 Cranch [0 U. S.] 33 [the court holding, Mr. Chief Justice Marshall delivering the opinion, that sugar sent out of the factory prior to July 1, 1S02, but not sold, was not liable to the duty].</p>

<p>Case Ho. 3,312a.</p> <p>Maritime Liens — Stevedores.</p> <p>[Stevedores have no lien on a vessel for stowing or discharging a cargo.]</p>

On certificate of register in bankruptcy. I, Prank S. Hesseltine, register of said court in bankruptcy, do hereby certify that in the course of the proceedings in said cause the following question pertinent to the same arose, and was stated by Lyon de Graf-fenreid and Irwin, counsel for S. P. Lassiter, a creditor of the said bankrupt: S. P. Las-siter proved a claim against the bankrupt on a judgment obtained in the superior court of Lee county, Georgia, at the March term,…

This was a libel for damages in the nature •of freight. The libellant [Enoch Crabtree], by a charter-party,, agreed with respondents [Arthur P. Clark and othersj to receive on board the brig Carniola, of which he was master, at Buen Ayre, a cargo of salt, and to bring it to Boston. The respondents stipulated “to furnish at Buen Ayre, a full cargo of salt,” and to pay freight upon it at fourteen cents per bushel.

<p>[Action by John Crabtree against the executors of William Neff.]</p>

<p>[Petition for an adjudication to declare Asa W. Craft an involuntary bankrupt.]</p>

This was a petition filed under the second section of the bankruptcy act of 1867 (14 Stat 518), for the purpose of reviewing an order of the district court [Case No. 3,316], Allowing, nunc pro tunc, an amendment of a petition in involuntary bankruptcy, filed by •creditors, under the thirty-ninth section of that act.

In equity. This was a bill of peace to May term, 1851, in which the facts were essentially these: Steele Semple, Esquire, being in debt, died in 1813, the owner of a piece of land. Held: had shown in the state courts, and where, this. court, Mr. Justice Grier now presiding here, having charged against him, he suffered a nonsuit. Being thus out of court, and at liberty to begin anew, the same Lathrop in 1850 brought another ejectment against Craft.

Writ of error to the district court for the district of Iowa. Alonzo Cragin, the defendant in error, is the assignee in bankruptcy of Smith Patterson, lately a merchant at Tama City, Iowa. The plaintiffs in error, Carmiehael, Brooks & Co., were bankers -at the same place, and held a chattel mortgage upon the stock in trade of Patterson, the validity of which was contested by the assignee.

This is a writ of error to the district court for the district of Iowa. The plaintiff is' the assignee in bankruptcy of the late firm of S. & B. Stern, and the defendant was the assignee in a deed of voluntary assignment made by the said firm before they were proceeded against in bankruptcy. The present; action is in the nature of trover for the value of the property assigned to the defendant.

<p>A rule was granted upon the mayor of the city of Philadelphia, on the motion of the prisoner, to show cause why he should not deliver to the prisoner certain bank notes of the Bank of the United States, alleged to be genuine, to the value and amount of $1,-550, which the mayor had taken from the person of the prisoner upon his examination upon a charge of forgery. The mayor appeared by counsel to show cause, and admitted the notes to be genuine; but denied the right of the court to interfere in a summary way in a matter of this kind.</p>

<p>Case No. 3,323.</p> <p>Examination of Bankrupt.</p> <p>1. Where the bankrupt on his examination declines answering questions relative to his wife’s property, held, that the same were pertinent and proper.</p> <p>2. Where the wife of a bankrupt on examination before a register declines to answer because the matters enquired of are her private business, held, that the same were pertinent and proper.</p> <p>(NOTE. Por the examination of Helena Craig* wife of the bankrupt, see Case No. 3,324, next following.]</p>

The declaration recited that E. Brown w as-attached to answer the plaintiff; and then proceeded to declare against him, as Elisha Brown, on a protested bill of exchange, drawn by him in favour of the plaintiff.

Rule to show cause why the defendant [Elijah Brown] should not be discharged on common bail, on the ground of the defendant having been discharged from all his debts under the insolvent law of the state of Louisiana, formerly the territory of Orleans.

This was an action [by Lewis Craig against Elijah Brown] on a bill of exchange against the drawer. The pleas were non assumpsit, and non assumpsit infra sex annos.

This was an action [by Lewis Craig against Elijah Brown] on a bill of exchange, dated 11th July, 1807, drawn at New-Orleans, on James Brown & Co. of Philadelphia, at sixty days after sight, by the defendant, Elijah Brown, in favour of the plaintiff.

<p>Case No. 3,331.</p> <p>JURISDICTION — DIVERSE CITIZENSHIP — ACTION against Joint Debtors.</p> <p>1. Action by Craig, a citizen of Kentucky, against J. P., a citizen of New-Orleans, and Cummings, a citizen of Pennsylvania, upon whom only the process was served, and non est inventus returned by the marshal as to J. P. Cummings entered a plea to the jurisdiction, stating that 3. P. was not a citizen of Pennsylvania, but was a citizen of New-Orleans; to which there was a general demurrer by the plaintiff.</p> <p>[Cited in Shute v. Davis, Case No. 12.S2S; Morrison v. Bennet, Id. 9.S43; Nesmith v. Calvert. Id 10.123; Wiggins v. Railway Co., Id. 17,620.]</p> <p>2. By the law and practice of Pennsylvania, if the sheriff return non est inventus as to one defendant, and service of the writ on the other, the plaintiff may proceed against the latter on a joint contract, stating in the declaration the return of the writ.</p> <p>[Cited in Picquet v. Swan, Case No. 11,134.]</p> <p>3. The defendant who has been served with process, cannot avail himself of the want of jurisdiction in the court, as to a person who is severed from him, and is no longer to be considered a defendant in the cause.</p>

<p>Proceeding [by R. R. Craig and others against F. H. Fisher] for contempt in violating an injunction.</p>

In admiralty. A decree was rendered by the court in this case, on the 25th October, 1S56 [case unreported]. Nb appeal having been perfected within ten days after the decree rendered, execution has been sued out A motion is now made to stay the said execution, and arrest all proceedings thereon, upon the alleged ground that the said decree was an interlocutory, and not a final one.

<p>This was an action [by William Craig and Charles M. Dutilh against Hugh Maxwell] to recover back an alleged excess of duties paid to the defendant, as collector of the port of New York. A verdict was taken for the plaintiffs, subject to the opinion of the court.</p>

Bills in equity [by Craig & Clark against J. W. Pollock, and. against Cones and against Campbell, and also by Walter Craig against Pollock & Cones] to cancel tax-sale certificates held by the respective defendants. The bills make no tender of any taxes, but proceed upon the ground that the tax certificates held by the defendants are wholly void, and that the plaintiffs are entitled to a decree annulling them and quieting their title.

Assumpsit for money had and received. The defendant was indorser of Robert Alexander’s note. Suit had been brought against Alexander in the Dumfries district court in Virginia, and execution returned nulla bona. and that the original note was by him filed in that cause in the district court at Dumfries.

<p>A decree was entered in this =suit at the June term, 1873, sustaining the plaintiff’s patent [Case No. 3,33SJ. A bill of review was filed, and issue taken thereon, and a large amount of additional evidence was produced. In this shape the cause now came before the court.</p>

<p>Case No. 3,340.</p> <p>Marine Insurance—Warrant?.</p> <p>1. Every warranty in a policy of insurance, whether express or implied, constitutes a condition precedent, and the assured cannot recover from the underwriters, without first averring and proving performance of such stipulations.</p> <p>2. Sailing under a British license, during the war between the United States and England, was illegal.</p> <p>3. A contract of insurance, made on a voyage which is opposed to the common, statute or maritime laws of the country where it is effected, is void.</p> <p>[Cited in Tufts v. Tufts, Case No. 14,233.]</p>

James G. Craigie died in Otter Tail county, in the state of Minnesota, September 8, 1872, leaving real and personal estate, and on petition of Annie McArthur letters of administration were granted to her March 13, 1876, by the probate court of that county.

In bankruptcy. The Casco National Bank, the holder of certain promissory notes amounting to about $S0,O00, given by the Portland Shovel Company, indorsed by the bankrupt [Nathaniel O. Cram], and protested for non-payment, sought to prove them in bankruptcy against his estate before Mr. Register Fessenden. The notes were secured by two mortgages from the maker, one upon its real estate not foreclosed, and the other upon its chattels and foreclosed. The creditors objected.

<p>In bankruptcy. Kiefer & Heck, creditors of the bankrupt, made a settlement with him just previous to his bankruptcy, and received in full credit for their account certain merchandise and notes [to the full value of their claim].2 The assignee in bankruptcy demanded the property from Kiefer & Heck, and upon a refusal to deliver commenced a suit against them, alleging a fraudulent conveyance and preference, contrary to the terms of the bankrupt act [of 1867 (14 Stat 534)]. Upon a trial before a jury, the as-signee recovered a judgment. Kiefer & Heck now seek to prove their claim before the register. Objection is made by the assignee, and the matter comes before the court for settlement.</p>

In admiralty. This was a libel in' per-sonam, filed in the district court, by [Richard W. Cramer] the owner of a scow against [William W. Allen and others] the owners of the steam tug Griffen, to recover damages for the loss of the scow. The district court apportioned the damages [case unreported], «md the respondents appealed to this court.

[In admiralty. Libel by Jonathan Crammer et al. against the ship Fair American, Haga, owner, Fraily, master, for wages.] Embezzlement was charged on five of the libellants, to repel their claim for wages.

<p>Case No. 3,349.</p> <p>Mortgage to Secure Future Advances — Fraud-' ui,ent Conveyance of Personae Property — Change of Possession —Lease by Mortgagee Out of Possession.</p> <p>[1. A mortgage to secure future advances is ■operative as to all advances made in good faith' more than two months before the filing of a petition in bankruptcy, and as to those made in good faith within that time.]</p> <p>[2. By the laws of Vermont, a conveyance of personal property will not pass the title, without change of possession, as against creditors.]</p> <p>[3. A change in the title to real estate on which personalty is situated is insufficient to show a change of possession as to the person-' alty. There must be some actual, observable change in control.]</p> <p>[4; A lease by a mortgagee out of possession, haying the apparent legal title, creates the relation of landlord and tenant between the mortgagor in possession and the lessee.]</p> <p>[5. A mortgage to secure, among other things, a loan to a bankrupt, made to enable the mortgagee to get possession of attached goods, and hold them as a preference over other creditors, is void to the extent of such loan, but will not taint the security as to other advances made in good faith.]</p> <p>[Distinguished in Crampton v. Jerkowski, 2 Fed. 493.]</p>

<p>Case No. 3,350.</p> <p>[See U. S. v. Crandell, Case No. 14,885.]</p>

<p>[On certificate of register in bankruptcy.]</p> <p>Pursuant to special order made at the April term of this honorable court hereto appended, referring the claim of George G. Baggerly, for seventy-three days’ per diem service in attending before the undersigned register as ’a witness in the above'matter, I do hereby certify that in the course of the proceedings in said matter the following question arose :and issue made, whether or not the said witness was entitled to receive pay for the whole number of days which he claims; and the following proceedings were had: On the day appointed for the hearing of said claim Horace W. Chilton, Esq., appeared as counsel tor said claimant, and Sawnie Robertson, Esq., appeared as counsel for the assignees of said bankrupt estate. The following witnesses were examined, to wit: G. G. Baggerly, in support of his claim, who also introduced two letters, and A. J. Swann and Joseph Elsasser were examined as witnesses on behalf of the estate; the attorney for the as-signee also introduced in evidence the mem-oranda or minutes of the register, copies of which are made a part of the testimony in said matter, in connection with the depositions of the witnesses, which are herewith submitted and made a part of this certificate. Upon review of the testimony, after argument of counsel, I approved.and allowed the claim for seven days, at one dollar and fifty cents per day, making the sum of ten dollars and fifty cents ($10.50), to which decision of the register the said claimant Bag-gerly, by his attorney, excepted, and desired that the question and issue made be certified to this honorable court for review, which is accordingly done. I further certify that the costs of this certificate have not been paid by the party requesting the same; and I would respectfully submit and ask your honor, for my guidance in future, as cases may and will frequently occur, whether or not the register in any case will be required to make a certificate of reference until the cost has been paid. Rule No. 8, General Orders in Bankruptcy, I think, requires the payment of the cost' of a certificate to the register before he can be required to make and forward it S. T. Newton, Register of said District at Tyler.</p> <p>By S. T. NEWTON, Register: The issues presented for review by my decision, as shown in the foregoing certificate, involve two principal inquiries:</p> <p>First Is the certificate of the clerk of the court of the number of days which the party swears he attended before the register as a witness conclusive evidence of the fact? I think not The clerk of the court is but a ministerial officer, and is not invested with any power by law to inquire into the truth of any fact stated in it When a party appears before him as a witness and makes the affidavit required by law, he has no discretion but to issue the certificate embodying the statements of the party as to the number of days, and the distance traveled. The certificate is obtained upon an ex parte affidavit and I think is only prima facie evidence of the facts stated in it and I am of the opinion that when those facts are contested and put in issue, the court may go behind the certificate and investigate the truth of the matter stated in it Crawford v. Crain, 19 Tex. 146; Gause v. Edminston, 35 Tex. 73.</p> <p>The second inquiry is, does- the testimony in the case entitle the party to receive compensation for the whole number of days which he states in his certificate he attended before the register as a witness? I see nothing in the evidence which in my opinion establishes his right to it When the certificate was first presented to me for my approval by the claimant, I approved it for two days’ attendance only, being governed by the memoranda on my docket, as proof of the number of days which the claimant, George Baggerly, actually attended before me as a witness in said matter. At the hearing pursuant to the special order of this honorable court, these memoranda were offered in evidence by the attorney for the assignee, in proof of the number of days which the claimant attended before the register, and the compensation to which he was entitled by law, to which evidence the attorney for claimant objected, on the ground that these memo-randa were not the records of the case, which objection I overruled, and allowed them to be read. (I was not asked by the attorney objecting to certify my ruling upon this question to the court). While I do not hold that the memoranda or entries made by the register form the record of a bankrupt case, I think they may be referred to, for the purpose bf enabling him to know and determine what proceedings have been had before him in any particular case. They do not make the whole, but a part of the record in a case, and I think may be used by him as evidence of his own acts in any matter that has come before him judicially. These memoranda, together with the minutes and entries made by the clerk of the court, form and constitute the record.</p> <p>By section four thousand nine hundred and ninety-eight (Rev. St.) of the bankrupt act of the 2d of March, 18G7 [14 Srat. 517], the register is empowered to make adjudications in bankruptcy, and by section five thousand and .thirty-four (Id.) of said act, he is invested with power of appoint ng assignees in uncontested cases when the creditors fail to elect. In the case of Babbitt v. Walburn & Co., Case No. 095, it was held by the court that these orders were admissible in evidence to establish those facts when put in issue; if, then, the register being empowered by law to make such orders, and they being allowed as proof to establish them, I am unable to see why they should be of less weight, or not be equally valid to prove any other fact which is put in issue before the register judicially in any matter where he is by law authorized to act. The claimant Baggerly in h's testimony does not, in any manner, contradict these entries as to the number of days which is shown by them he actually attended as a witness. He says he went up to the register’s office on the 21st and 22d days of January, that he inquired of the register on one or two other occasions, and also inquired of the assignee when he would be examined; but these inquiries were made after he had been told by the assignee that if he wanted to examine him he would let him know, and he nowhere states that he attended at the register’s office in obedience to the subpoena except on the two days above stated.</p> <p>The letters introduced in evidence by the claimant, written from Wills Point, purporting to be answers to letters of said claimant which were not shown or offered in evidence, I think, in consideration of this Case, are not entitled to much weight; they show a loose correspondence, and no proposition made or accepted by either party; nor does he state that he at any time advised the assignee that the situation he claims to have lost was ever offered to him, nor that he was detained from going by reason of the subpoena. His declarations to others as to his obtaining or getting a situation at that place could not have the effect of making the assignee responsible, or charging the estate of the bankrupt with .the loss of it. Further, it is not shown by the testimony of the claimant or by Mr. Elsassar, in whose employment he was at the time, that he lost any time from his employment, not even on the two days that it is shown he actually attended at the office of the register.</p> <p>The testimony of the assignee, Mr. Swann at whose instance the claimant was subpoenaed, shows that on the next day, or day after the witness was discharged, he met him and told him that if he wanted to examine him he would let him know. This information by the party who subpoenaed him, it seems to me. was sufficient for him not to have given himself further trouble about his examination. The witness, in his testimony, explains, to some extent, what he meant in his affidavit, in procuring his certificate for seventy-three days, that what he meant by attendance on the court was that he was ready to attend. This was but a conclusion, the mere understanding of the witness, which does not in law entitle him to compensation for the days not actually attended. The law allows fees to witnesses who actually, and not speculatively, attend in obedience to her mandate. At the hearing of said matter, and upon a review of the testimony, I allowed the claimant for seven days’- attendance, which I thought was authorized by the testimony of the assignee, and it appears to me to be all that he can justly claim. Inasmuch as my official acts form a part of the testimony in this matter, I decline to express any opinion as to the question of taxing the costs occasioned by this appeal from my decision, including the certificate and other costs, which is respectfully submitted to your honor.</p>

Action in damages for an alleged libellous publication. A demurrer was interposed which presented the question whether as matter of law the publication was libellous.

This was a suit in equity [by John Crane against Benjamin Cowell and wife and others], in which the construction of the will of Waite Smith came in question.

<p>Case No. 3,354.</p> <p>In.ii: sctton — Remedy at Law — Interference by Sheriff with Marshal — Marshal’s Return— Replevin — Concurrent Jurisdiction — Receiver.</p> <p>1. It is not enough to defeat jurisdiction in equity that there was a remedy at law: the remedy must be complete, prompt, and efficient.</p> <p>2. A chancellor in the exercise of a just discretion, upon an application for an injunction, may properly take into consideration the existence of an actual conflict or imminent danger of a violent collision between two authorities, in determining the expediency of awarding this preventive process.</p> <p>3. If the rights of a party can only be enforced at law by long continued, strenuous, and expensive litigation, and those rights can be more promptly and efficiently asserted in equity, a stringent reason is offered for the application of its power.</p> <p>4. The sheriff of a county has no right to disturb or in any way interfere with the possession of property legally in the possession of an United States marshal.</p> <p>5. The return of an United States marshal is conclusive of the facts which it sets forth, and its truth can not be collaterally impeached.</p> <p>0. Property which has been replevied, does not pass into the possession of the plaintiff after he has given a bond which has been accepted by the officer, until there is a formal delivery of the property by the officer.</p> <p>7. Where there is concurrent jurisdiction in courts, the tribunal first obtaining jurisdiction of the subject or person shall retain it.</p> <p>[Cited in Bruce v. Manchester & K. R. Co., 19 Fed. 345.]</p> <p>8. The application for the appointment of a receiver is always addressed to the sound discretion of the court to which it is made. As a general rule, such appointment will be made in all cases where the interests of parties seem to require it.</p>

<p>Case No. 8,355.</p> <p>Dissolution of Partnership—Conversion— Rights of Separate Creditors.</p> <p>Where A. and B., partners in trade, dissolved the partnership, and divided the joint property between them, each partner assuming and agreeing to pay the debts contracted in respect of the property of which he became the separate owner, and subsequently B. entered into a partnership with C., to whom he sold a third interest in his share of the former joint property of A. & B., and the firm of B. & C. contracted debts, and became bankrupt; but before the adjudication their joint property was attached at the suit of an alleged firm creditor of A. & B.: Held, that only the balance of the firm property of B. & C., after satisfying the firm debts, and adjusting the accounts between the partners, was subject to the attachment, and that the assignee in bankruptcy was enti-(led to the possession of the joint property of B. & C., for the benefit of the joint creditors of the firm.</p>

<p>Motion to remand cause to state court</p>

[In admiralty. .Libel by Joseph A. Crane and others against the steamboat Samson, for collision. Decree was entered for libel-ants (case unreported), and the cause is now heard on exceptions by both parties to the commissioner’s report.]

<p>Case No. 3,359.</p> <p>Seamen's Wages — Capture op Vessel — Port or Delivery — Blockade.</p> <p>1. Claim of wages by seamen belonging to a ship which had been captured on her kome-ward voyage. The port to which a vessel may proceed and land her cargo after being turned off from her port of destination in consequence of its being blockaded, to be considered the port of delivery.</p> <p>2. When a cargo is purchased at several neighbouring ports and the vessel proceeds to each of them to receive it, the last port of lading is that to which wages should be paid.</p> <p>[Explained in Thompson v. Faussat, Case No. 13.954. Criticised in Bronde v. Haven, Id. 1.924. Cited in Pitman v. Hooper, Id. 11,-186.]</p>

<p>Case No. 3,360.</p> <p>Action for Personal Injury — Survival in Admiralty — State Statute — Breach of Contract ■with Seaman.</p> <p>1. Actions in the admiralty, for mere personal torts, do not survive the death of the person injured.</p> <p>[Cited in American Steamboat Co. v. Chace, 16 Wall. (83 U. S.) 632; The City of Brussels, Case No. 2,745; The Epsilon, Id. 4,-506; The Harrisburg, 119 U. S. 206, 7 Sup. Ct. 143. Criticised in The Charles Morgan, Id. 2,618; The Garland, 5 Fed. 926; The Manhasset, IS Fed. 924.]</p> <p>2. A state statute will not enable an administrator to maintain an action, in the district court, for such tort committed on the high seas.</p> <p>[Cited in Re Lone Island, etc., Transportation Co., 5 Fed. 608.]</p> <p>3. Wrongfully withholding suitable medicines from a seaman, or wrongfully setting him ashore in a foreign country, are violations of the contract of hiring.</p>

[In admiralty. Libel by William TV. Crapo, assignee of a charter party, against the cargo of the ship Arctic, to recover freight and expenditures under the charter party. The American Guano Company, charterer, makes no defense, and the hearing is now on the intervention of the United States Guano Company.]

[On certificate of register in bankruptcy.] At Detroit, in said district, on the 2Sth April, 1870. Before Mr. Hovey K. Clarke, Register: I, the above named register, do hereby certify that in the course of proceedings before'me at this date, in the above bankruptcy, Milton H. Butler offered his deposition to prove his claim against said bankrupt’s estate.

On questions arising upon the claim of Josiah F. Mann, against the said bankrupt’s estate, certified by the register, Hovey K. Clarke, Esq., (together with his opinion that ■the claim ought to be allowed), the same having been adjourned into court for decision. The claim is against the bankrupt [Francis Crawford] as endorser of a promissory note payable on demand. No demand was made until more than four years after the note was given.

[In admiralty. Libel by Hugh Crawford, owner of the schooner Mary, against the steamboat Buffalo, for damages sustained by collision.

This was an action of ejectment brought to recover certain lands in the eastern district of Michigan. The plaintiff claimed the title to the same in fee. The declaration claimed $10,000 damages, and was framed under the statute of Michigan (section 4500). The value of the land was not stated therein. Defendants pleaded the general issue, and a jury being waived, the parties proceeded to trial on the issue at June term, 1871.

Suit on a bond, the facts being as follows: Dexter being a sub-mail contractor under one Adam E. Smith, made a contract with John S. Ullrick, whose assignee in bankruptcy the plaintiff [Israel Crawford] is, and one H. C. Wright, whose interest was transferred to Ullrick before his bankruptcy, by which contract Dexter agreed to pay Ullrick and Wright eighteen hundred dollars per an-num for carrying the mail once a week from Aurora, Nevada, to Independence, California, and…

<p>This action was commenced on May 13, 1SG8, and on the 23d of the same month, the ■defendants [Thomas] Smith and [R. H.] Tapp were duly served with a summons, but the defendant [F. M.] Johnson was not found. On June 11, Smith entered an appearance by his attorneys, and on the 13th of the same month filed a motion to dismiss the action as to him, because "the court has no jurisdiction of the person of the said defendant or of the subject matter of the said action;” and on September 7, the plaintiff [Medorum Crawford] filed a motion “for judgment for want of an answer or other pleading within the tiine allowed by law and the rules of this court.” The two motions were argued to-1 gether and the former disallowed, on the I ground that objection to the jurisdiction cannot be made otherwise than by plea or de- • murrer, and the latter continued. On September 9, the motion for judgment was allowed as against Tapp, and the defendant Smith had leave to file a demurrer to the complaint, objecting that the court had not jurisdiction of the subject matter of the action, and that the facts stated do not constitute a cause of action, which ivas then argued and submitted.</p>

<p>Action by Alien Enemy.</p> <p>■ 1. The general rule of the common law of England is, that an alien enemy cannot maintain an action, in the courts of that country, in his own name, during the war.</p> <p>2. A person beneficially interested in a suit, if alien enemy, cannot support a suit in the name of his trustee, who is not an alien.</p> <p>3. It is otherwise, if the contract upon which suit is brought, arises out of a trade licensed by the government in whose courts redress is sought; and enemy interest, will not defeat such a suit.</p> <p>This was a libel in the district court, on an hypothecation of this vessel, given at Jamaica, for repairs made on her, and advances for her outfit, to enable her to perform her voyage to the United States. The owner of the ship was admitted to. claim; and he pleaded, that the instrument of hypothecation was executed during war; and that the libellants [Crawford and McClean] are alien enemies, residing in Jamaica. The replication stated, that the vessel was employed, by the United States, as a cartel, to bring to the United States, from Jamaica, a number •of American prisoners; and having, as such, commenced her voyage, was compelled by stress of weather to put back to refit, and procure provisions; on which account these advances were made, and without which she would not have performed her voyage. To this replication, there was a demurrer and joinder by the libellants. The district court dismissed the libel, from which decision, the cause came by appeal to this court.</p> <p>contended: that alien enemy is not, per se, a bar to a suit, in cases where the reason of the rule, which produced the disability, has ceased; as, if the alien came into the country by license; or, being in the country at the breaking out of the war, is permitted to continue; or, in cases where the trade, on account of which the contract is made, is licensed; and, in this latter case, all the means necessary to effect the end so legitimated, are also protected. That a cartel, divests the vessel, and all parties connected with her, of their hostile character; so that not only are all contracts, made in relation to the service she is engaged in, lawful; but the parties are to be considered, pro hac vice, as friends; at all events, in a court of the law of nations. 11 Johns. G9,117; 1 Comyn. 3S7; 3 Rob. Adm. & Pr. (Am. Ed.) 11G; 4 C. Rob. Adm. 2S9; 5 C. Rob. Adm. 1S3; G C. Rob. Adm. 336; 1 C. Rob. Adm. 1GS; ±Jynk. 55; 13 East, 332; 1 Ed. Raym. 2S2; Salk. 42; 3 Burrows, 1734; Doug. 041; S Term R. 1GG; S East, 273; 15 East, 419.</p> <p>argued: -that the validity of the contract, does not remove the legal disability of the party to sue; and, that in none of the cases cited, was the suit brought in the name of the alien enemy, unless he was commorant in England, or unless the war was over. The case from 2 Douglass, 641, was overruled in the exchequer chamber, as appears by a note in that book. Anthon v. Fisher, p. 649.</p>

In this case, which was heard at April term, 1815, on plea, replication, and demurrer — see Pet. C. C. 10G [Case No. 3,372] — the court overruled the plea, and ordered the respondent to answer the libel. The respondent afterwards filed a number of pleas; but the third gave rise to the principal subject of controversy.

This was a bill in equity by Scott Cray, receiver of the Ocmulgee Bank of Georgia, against the Hartford Fire Insurance Company to recover upon a policy of fire imrirance.

This was a bill in equity [by Scott Cray, receiver of the Ocmulgee Bank of Georgia] to recover the amount of a policy of insurance. The defendants pleaded in bar the following clause in the policy: “14th.

Assumpsit against a negro for the money lent and advanced by the plaintiff to the defendant to enable him to purchase his freedom, the defendant having thereby obtained a deed of emancipation. prayed the court to instruct the jury, in effect, that the defendant, being a slave when the money was advanced, is not answerable in this action unless the defendant has since promised upon that consideration, and that those facts may be given in evidence and avail the defendant upon…

This cause was tried at November term, 1S07, — 1 Cranch, 448 [Case No. 3,37G], — when a special verdict was found. It was an action brought against a free negro for money lent to him while a slave, to enable him to purchase his freedom.

<p>[In bankruptcy.]</p>

The creditors of Cozzens & Hall filed théir petition, praying that the debtors might be •adjudged bankrupts, setting forth several -and distinct acts of bankruptcy, and in their petition they also alleged that the debtors had fraudulently transferred and conveyed goods to one McCreery, who had them in possession, and was disposing of them in fraud •of the creditors; and praying an injunction against McCreery to restrain him from making any transfer or disposition of the…

<p>Case No. 3,380.</p> <p>Naturalization.</p> <p>A court of record, without any clerk or pro-thonotary, or other recording officer, distinct from the judge of such court, is not competent, under the act of April 14, 1802 (2 Stat. 153), to receive an alien’s preliminary declaration of his intention to become naturalized.</p> <p>[Cited in U. S. v. Power, Case No. 1C,080; Ex parte Tweedy, 22 Fed. 85.]</p>

This was an action of assumpsit, brought by the plaintiff as surviving partner of Thomas Theodore Cremer of Rotterdam, who had carried on business there, under the firm of Thomas and Adrian Cremer, against Stephen Higginson and Samuel G. Perkins, surviving partners of George Higginson of Boston, who had transacted business in Boston, under the firm of Stephen Higginson and Co. upon a letter of guaranty, bearing date December 15, ISOS, and given by Stephen Hig-ginson and Co.…

<p>Case No. 3,381.</p> <p>Infringement of Patent — Power—Improvements.</p>

<p>Case No. 3,384.</p> <p>Prize — Disposition op Cargo Pending- Appeal.</p> <p>In this ease the cargo of the prize vessel, consisting of tobacco, was suffering damage from exposure to the weather and from confinement in the hold of the vessel, and the price of the article had increased since the capture. The cargo having been condemned in the district court, the claimants, after appealing to this court, applied to this court for the delivery of the cargo to them on the usual stipulation. The court denied this application, but appointed commissioners to appraise the cargo, and ordered it to be sold and the proceeds to be brought into court.</p> <p>[NOTE. For subsequent proceedings relating to the condemnation of this vessel and her cargo, see note at. the end of The Hiawatha, Case No. 6,401.] '</p>

In equity. Heard upon motion for an injunction pendente lite.

<p>Case No. 3,389.</p> <p>Cox ST RUCTION’ OF VT ILL — CHARITABLE USE.</p> <p>1. Testator, domiciled at Philadelphia, devised certain lands in Pennsylvania to twelve trustees “in trust for the formation and support of a home for the aged, infirm or invalid gentlemen and merchants, where they may enjoy the comforts of an asylum — not eleemosynary, but, as far as may be, by the addition of their own means, and by reference to the Prytaneum of ancient Athens, an honorable home — with the hope that it may be perpetuated and enlarged by the bequests of its grateful inmates, until it shall become worthy of the city of Penn, and a blessing to a class whose wants have hitherto been overlooked; leaving to my trustees full power to conduct and carry out this institution on the best possible plan, and to provide for its permanent usefulness in or near my native city.”</p> <p>2. On bill filed and claim made by the residuary devisees under the will, and by the heirs at law of the testator, to have the devise declared invalid, inoperative and void: Held, that the devise was good under the laws of Pennsylvania, and was valid as a charitable use.</p> <p>3. Whether independent of the charitable character of the devise it could be sustained as a trust, quaere?</p>

<p>Case No. 3,390.</p> <p>Discharge op Bankrupt.</p> <p>1. A specification filed in opposition to a bankrupt’s discharge will not be stricken out because all the transactions therein alleged as the grounds of opposition occurred long before the passage of the bankrupt act [of 1807 (14 Stat. 517)].</p> <p>[Cited in Re Seeley, Case No. 12,62S; Re-Wolfskill, Id. 17,930.]</p> <p>2. There is nothing in the language of the twenty-ninth section of said act which indicates an intention to confine the operations of its provisions to transactions occurring after the passage of the act. In re Rosenfeld [Case No. 12,058], considered and overruled.</p> <p>[Cited in Re Signer, 20 Fed. 237.]</p>

In equity. This bill is brought by the complainants [John H. Mudd and Emily Mudd], through their next friend [Wm. McL. Cripps], and prays that the defendant [Ignatius Mudd] be ordered to execute a conveyance of certain negroes in trust for the benefit of the complainants, and for other relief.

Bill [by Joseph Crisp and others against Robert M. Proud, United States collector of internal revenue for the district of Maryland] to restrain the collector from making seizures.

[Crittenden, marshal of the district of Kentucky, jiresented his accounts for approval in the several cases hereinbefore specified.] The facts are fully detailed in each case.

Motion determined before JOHNSON, ESK-RIDGE, and CROSS, Judges. Robert Crittenden, an attorney of the court, moved that Samuel C. Roane, the United States attorney for Arkansas territory, be prohibited from being and conferring with the grand jury, during the deliberation of thatbody; but THE COURT denied the motion giving it as their opinion, that it was legal and proper for him to do so, whenever he might deem it necessary. Motion overruled.2

<p>Case No. 3,393b.</p> <p>Cuke of Defective Venue.</p> <p>Either a verdict or judgment cures a defective venue.</p>

This was an appeal from decrees in admiralty by the district court for the Cape Pear district of North Carolina [case unreported]. It appears that Braham and others filed a libel in the district court against the steamer Croatan, her tackle, apparel, and furniture, and that shortly afterwards Cassidy and Beery filed another libel in the same court against her and her appurtenances also. She was accordingly taken possession of by the marshal.

This was an action of covenant broken, brought by the plaintiff [Uriel Crocker] as the last survivor of three trustees, appointed under an indenture made between William J. Walker, of the first part, and the said three trustees, and Mrs. Eliza Walker, wife of said William J. Walker, of the second part, dated February 24, 184C, against the defendants [I. S. Beal and others] as executors of the will of said William.

This is an action by an assignee in bankruptcy, brought in 1S75, to recover from the defendant [the First National Bank of Che-topa], a bank organized under the act of congress commonly known as the national banking act, double the amount of interest which he charges was taken from the bankrupts by the defendants upon numerous transactions after 1S72 and prior to the bankruptcy.

This was a libel, on behalf of the owners of the bark La Grange, against the respondent, a consignee of part of the cargo, to recover a contribution for damage sustained by the voluntary stranding of that vessel, near Provincetown, during a gale. The respondent was insured by the Merchants’ Insurance Company, and the defence was made in their behalf.

<p>This was an action [by Uriel Crocker and others against William Lewis] on the case for an alleged fraud in the sale of a part of a township of land in the county of Kenne-bec, sold by the defendant to the plaintiffs. Plea, the general issue.</p> <p>The declaration in substance stated that the said Lewis, at Portland, in the state of Maine, had contracted to purchase of one John Dunlap a part of a certain township of land, situated in the said st.ate of Maine, to the amount of one half part thereof, and had contracted with the said John Dunlap to pay him therefor the sum of three dollars and thirty-seven cents per acre and no more, aft-erwards, to wit, on the eighteenth day of July, in the year of our Lord one thousand eight hundred and thirty-five, at Boston aforesaid, to wit, at said Bangor entered into and held with the said plaintiffs a conversation relative to the purchase of one third of said township, and with the fraudulent design and intention to induce the said plaintiffs to purchase and pay for at a large price, to wit, for the sum of five dollars and twenty-five cents per acre, one-third part of said township, then and there did wickedly, falsely, and fraudulently represent and declare to said plaintiffs, that he had contracted to purchase said township or a part thereof, and had given therefor the ■ sum of five dollars and upwards per acre, and that said township was of great value, and that he the said Lewis did not wish to retain the whole of said purchase, and that he would sell and cause to be conveyed to the plaintiffs one undivided third part of said township at the ■price aforesaid, to wit, for the sum of live dollars and twenty-five cents per acre, and did with the corrupt design aforesaid, and with the intent aforesaid, falsely and fraudulently further affirm to the plaintiffs and represent that he had explored said township, and that it would be for the plaintiffs a great bargain to purchase said one-third part of said township at the price aforesaid, to wit, five dollars and twenty-five cents, which was the same amount he, said Lewis, falsely and fraudulently affirmed and declared to the plaintiffs he had contracted to give therefor, and no more. And the plaintiffs aver, that, trusting to, and believing in, and relying on said false, fraudulent, and deceitful representations and declarations of the said Lewis as true, they did then and there contract with said Lewis to purchase one-third part of said towmship, at the price of five dollars and twenty-five cents per acre, amounting in all to the sum of twenty-nine thousand one hundred and forty-one dollars and fifty cents, and then and there in pursuance aforesaid and in fulfilment of said contract, into which the said plaintiffs were induced, by said false and fraudulent representations and declarations so as aforesaid made by said Lewis, to enter, they the said plaintiffs then and there paid to said Lewis the sum aforesaid. By means of which false and fraudulent misrepresentations and declarations so as aforesaid made by said Lewis to the plaintiffs, he the said Lewis has cheated and defrauded the said plaintiffs of a large sum of money, to wit, of the sum of eleven thousand one hundred and one dollars and fifty cents, being the difference between what he gave therefor and the sum of five dollars and twenty-five cents which by reason of said false and fraudulent misrepresentations and declarations so made as aforesaid, the plaintiffs were induced and persuaded to give therefor.</p> <p>At the trial before Ware, District Judge, at the last May term, at Portland, a verdict was found for the plaintiffs. A motion was afterwards made by the defendant for a new trial; and which was now argued by Rogers for the new trial and by Deblois and Sprague against it. The questions argued respected the admission or rejection of certain evidence hereinafter stated; and it is not necessary therefore to report the other evidence in the cause.</p> <p>At the trial, the plaintiffs offered in evidence the deposition of Gordon Winslow, of which the following is the most important part: “About the fifth day of May, 1S3Ü, I was recommended to call on Mr. William Lewis, the defendant, in, relation to timber lands in Maine, "as a suitable person to give me information on the subject. I asked him about a certain tract of land which I had in view and ho said he knew nothing of that from his own knowledge, and then on the map he pointed to ■ the. Bow' township and slated he had it in view or had the refusal of it, I am not positive which, and if he could, get enough to join him he should like to get the whole of it, as he thought it a great bargain, or words to that effect; he said he was not able to take the whole of it alone, he thought it the best bargain in the market. He said, if I was willing to take a portion of' it, I might have it at the same price at which he obtained it. This was the substance of the conversation at that time. I gave no encouragement that I should take any part. I next met Mr. Lewis at Bangor about the 15th day of June, 1835. There I had some conversation with him in regard to the Bow township, and concluded to go on with him and see it. He gave me to understand that he had the refusal of it, in some way. We were-on the township one night and one day, together with a person employed to explore it. I agreed to take a quarter of the township at six dollars an acre, that being the price which he gave me to understand he paid for it. This agreement was made at the township. We returned to Bangor, and bonds were made out, one bond for a deed of one quarter, and one bond for a quarter which I was at liberty to decline if I was inclined. This was about the 22d day of June. On this day I gave a note at fifty days for the first payment of one quarter of the township. Mr. Winslow here exhibited the note to the magistrate. I objected to paying interest on the note, but Mr. Lewis said he was paying interest and that I ought to pay interest, as I was to have the lands on the same terms he was; and the note was accordingly made with interest. I left Bangor soon after, expecting to dispose of the other bond which I had to a friend in New York, but he did not take it On my return from New York I believe I -met Messrs. Crocker and Brewster at Mr. Lewis’s office in Boston, and offered them the bond at the same price at which X had it, they paying one half of my expenses in travelling and exploring; they did take it. Some time after Mr. Crocker mentioned tome that he understood that Mr. Lewis had bought the land at a less price than six dollars an acre. I had represented to them that I had obtained the bond on the same terms that Mr. Lewis had the land, as Mr. Lewis, had previously - stated to me. I told Mr. Crocker that that must be a mistake, and that I would see Mr. Lewis immediately. X went to his office and saw him, and stated to him what Mr. Crocker had said, and wished him to meet with Mr. Crocker and myself and talk the business over, that there might be a fair and full understanding. We met accordingly, I believe at Mr. Lewis's. . The result of that conversation was that Mr. liewis represented to us that the land cost him between five dollars and five dollars and a quarter an acre. That since his first representation he had got a deduction on the land. I told Mr. Lewis that for my part, if the land cost him over five dollars and within a fraction of live dollars and a quarter, I should be willing to take a portion at five and a quarter. Mr. Lewis said if I would take one third and Mr. Crocker one third he would put it to us on those conditions in order that it might be in as few hands as possible. To this I agreed and wrote a memorandum of the agreement which was ‘that we hereby agree to purchase each one third' of the Bow township of Mr. William Lewis at five dollars and a quarter per aere.’ I signed this the same evening. Mr. Crocker wished to see his partner before signing it, and as I have been told, he signed it the next morning. Mr. Crocker said, he was entirely unacquainted with timber land, and that he relied upon the judgment of Mr. Lewis and those who had explored the township. I distinctly understood from Mr. Crocker he expected to purchase the land on the same terms Mr. Lewis had, and that he did purchase it on those terms. At the same time I drew up the above memorandum I also drew up another paper in which Mr. Lewis agreed, to sell to Crocker and Brewster and myself at five dollars and a quarter an acre, one third each of the Bow township. That was signed by Mr. Lewis the same night. Mr. Lewis, in the course of the conversation, stated that he had been put to more trouble than we, and that he ought to make a little something, and we accordingly threw in the fraction, giving him the full sum of five dollars and a quarter per -acre. I understood Mr. Lewis that he should make little or nothing. This was about the middle of July. Mr. Crocker and myself agreed to meet Mr. Lewis at Skowhegan Falls in Maine. We went with Mr. Lewis to the township and made a thorough exploration of it. We were there about the 20th of July. We met in Portland afterwards, and the writings were drawn. My deed was from Henry Ilsley of one third. I was informed by Mr. Lewis that Mr. Crocker’s deed was from Mr. Dunlap. I learned that there was some difference between the dates and times of payment in Mr. Crocker’s notes and mine, and when I spoke to Mr. Lewis about it he said it was because Mr. Dunlap had consented to it. My notes were dated the 22d day of June, agreeably to the first bond and to the agreement which was written at Mr. Lewis’s counting-room.”</p> <p>The defendant objected to so much of this deposition as stated the conversations and negotiations between Winslow and Lewis on the 5th of May and the 35th of June, 3S35. antecedent to the final agreement between Winslow and the plaintiffs, and Lewis, in which the plaintiffs were to purchase one third and Winslow one third of the land. The court overruled the objection and the whole deposition was read to the jury. Aft- ■ erwards, in the progress of the trial, the defendant. Lewis, offered in evidence a letter from Winslow to him. dated Milford, July 5, 1S30, in order to affect the credibility of the deposition of Winslow. The letter was as follows:—</p> <p>“Dear Sir: — I wish to inquire of you concerning a point upon which Mr. Crocker and myself do not now entertain the same impressions. I will put my inquiries in a direct form, that they may be the better understood and answered without much trouble to yourself. 1. Did not Mr. Crocker, yourself, and myself, agree together to give, and did we not give to General Kinsman a verbal refusal of a certain portion of our parts of the Bow township at six dollars per acre, provided he should meet us at Portland, prepared to make payment at the time agreed upon? 2. If he had the land, was he not to return the money paid to him for exploring? 3. When we bonded the township at eight dollars per acre on our passage to Portland, did not Mr. Crocker very frequently and in strong terms express his regrets that we had given the general any encouragement to let him have a portion at six dollars? 4. Did he not say many times in your hearing that he hoped the general would not be able to get the money so as to be in Portland in season to claim his promise, as he had rather retain the land than dispose of it at six dollars? 5.- Did not Mr. C. hasten to have the writing drawn within the given time and executed so that he might be off, saying the general might come afterward and claim his promised portion at six dollars? 0. Finally, was not six dollars per acre the price and the only price which Mr. Crocker, yourself and myself agreed upon, at which we were to let the general have a portion? I know not how it happens, but Mr. Crocker now talks on this subject very differently from what he ever did in my hearing when the agreement was made. If I rightly understood him — seems to think you had all to say and do and he did and safd nothing himself, whereas if I rightly remember, he talked as fast and said as much as any one. He denies that he ever expected to receive six dollars per acre of the general if he met us at Portland, as per agreement. Doubtless he has reasons for rendering such testimony just at this time. I do not know, however, what they are. If you will express to me your views on this subject in answer to these questions, you will confer a favor on, yours, &c. [Signed] Gordon Winslow.</p> <p>“P. S. Please send your reply by the first mail, if convenient. Yours, &c. G. W.”</p> <p>The plaintiffs objected to the admission of this letter; and it was rejected by the court. The ruling of the court upon these points constituted the grounds for a new trial'upon which the argument was had.</p>

<p>Case No. 8,400.</p> <p>Customs Duties—“Coins”—Recovery Back— Protest—Voluntary Payment.</p> <p>1. Chinese coin, known in China as “copper cash,” composed of copper and lead, and copper and nickel, and used in China as money by count, is not entitled to be imported into , this country free of duty, under Schedule I of the tariff act of July 30, 1S46 (9 Stat. 49), as “coins, gold, silver and copper,” unless it is imported to be used as a part of the currency of this country, or is, at the time of its importation, a part -of such currency.</p> <p>2. Otherwise, it is chargeable with a duty of five per cent., under Schedule H of said act, as “copper, when old, and fit only to be re-manu-faetured.”</p> <p>3. Where money is paid for duties on imports, before a protest against such payment is made, the duties cannot be recovered back.</p> <p>4. And, where money is deposited with a collector of customs, wherewith to pay the duties when they shall be ascertained, and the duties •are afterwards ascertained, and then a protest is made against the payment, the protest is too late, the money not having been paid compulsorily, in order to get possession of the goods.</p>

[In bankruptcy. In the matter of the petition of Joseph D. Crockett and Christian F. Schramm for an adjudication of bankruptcy of themselves and James C. Jewett, as their copartner.]

<p>This was a suit by [Jonathan Crocket, Jr.] the master against [John H. Brower] the consignee for freight of goods from New Orleans to New York. The usual bills of lading were signed for the goods, which were found to be damaged on their arrival here. There were two surveys, one on the part of the master, by the port-wardens, which certified that the goods were well stowed, and injured by the perils of the sea; the other on the part of the consignee, by the marine surveyors appointed by the chamber of commerce and board of underwriters, which certified that the goods were badly and improperly stowed. The certificates of surveyors were objected to as evidence, and the court decided they were not evidence in themselves; that the state of the cargo must be proved, like other facts, by witnesses; and that the persons making the survey would be entitled to such weight as their knowledge, character, and experience deserved, and no more.</p> <p>Moffat and Kittle, two of the port-wardens, testified they made a survey of the whiskey in question, and found it well stowed, so far as they examined; that they saw no sugar stowed on the whiskey. Hogsheads of sugar on barrels of whiskey would be bad stowage. Captains Drinkwater and Hopkins, ship-masters, testified that they would stow sugar on whiskey; considered it good stowage.. Barrels of whiskey are stronger than hogsheads of sugar. Messrs. Candler and Tink-ham, two of the marine surveyors, testified that they made a survey of the whiskey, and the same was very badly stowed. Hogsheads of sugar were stowed on barrels of whiskey, without being dunnaged-;and .bed-.;, ded; the barrels were pressed down or crushed, so that the liquor ran out Hogsheads on barrels is bad stowage. Messrs. Spear, Kennedy, Bergeny, coopers, testified that they coopered twenty nine casks,, which-were in very bad order. The biiges, were flattened from bad stowage, so as to leak; they were well made casks; appeared to have been stowed under sugar. Mr. Dick, a carman, saw the whiskey in the vessel and on the dock; sugar, lard, and lead were stowed atop of it; the bilges were very much flattened. The barrels had no dunnage under them at all. Mr. Dunlap, a clerk of consignee, testified the casks were so much flattened that you could run your hand under the quarter hoops. The whiskey which the coopers worked at was the lot in question. The whiskey was stowed with heavy weight on it. Mr. Waring, inspector of the Atlantic Company, Mr. Ricketson, inspector of the Sun. Company, and Mr. Thompson, inspector of the Alliance, testified that they had had thirty, thirty five, and forty years’ experience; such stowage is decidedly bad. Hogsheads on barrels, and barrels on the bottom, without beds and dunnage, is very bad stowage.</p>

<p>[In admiralty. Libel by Levi B. Crockett against Thomas Riley for damages sustained by a collision.]</p>

<p>In bankruptcy.</p>

This was a motion by Charles and Amelia Cromie, defendants in a suit pending in the circuit court of Lee county, for a writ of mandamus against the,-¡state court to compel a removal of the cause'into this court.

This was a bill in equity [by George Cromp-ton against the Belknap Mills and others] filed to restrain the defendants from infringing letters patent [No. 6,939] for “an improvement in looms for weaving figured fabrics,” granted to Moses Marshall, December 11,1S-1-Í), assigned to complainant May 5,1859, reissued to complainant April 24, I860 [No. 947], and extended to the inventor for seven years from December 11, 1803, and assigned to complainant for the extended term,…

<p>[At law. Action by John Crompton and John C. Dickinson, as assignees in bankruptcy of Almon Miller & Co., against Gur-don Conkling, Jr., and Harriet Goetschius, to recover upon two promissory notes made by the defendants, composing the firm of G. Conkling, Jr., & Co., to the bankrupts. There was a judgment against the defendant Conic-ling (Oase No. 3,408), and he now moves for a new trial.]</p>

Action [by John- Crompton and John C. Dickinson, as assignees, etc.] on two promissory notes, amounting to ten thousand four hundred and thirteen dollars and thirty-nine cents, made by the firm of G. Conkling, Jr., & Co., consisting of the defendants Gurdon Conkling, Jr., and Hannah [Harriet] Goetchi-us. The notes were payable to the order of Almon Miller & Co., who furnished the consideration, in money, to the makers.

Thomas Cromwell being seised of a large tract of land near Pittsburg, mortgaged it in fee, in May, 1S19, to the Bank..of Pittsburg. A scire facias (equivalent ’to the equity bill of foreclosure,) having issued in August, 1820, upon the mortgage, service was accepted by Cromwell, and the writ regularly returned.

[Appeal from the district court of the United States for the district of Massachusetts.] This, like the two preceding cases [i. e. Adams v. Island City, Case No. 55, and Norris v. Same, Id. 10,300, which were claims for services rendered to the same vessel], was a libel [by Henry B. Cromwell and others, owners, etc., of the steamship Westemport] claiming to recover for a salvage service, and was also certified to this court The circumstances under which the service was…

The libel in this case alleged, that one Feaney was the owner of a canal-boat, and brought a cargo of coal in her for [Lewis] Audenreid & Co., the respondents, on which the freight was $158 38, which they had not paid, and that Feaney had assigned the claim to the libellant [John Crook], who sought to recover it in this suit The answer set up, that, previous to the assignment by Feaney and the filing of the libel, the freight in the hands of Audenreid & Co. was attached at…

This action was brought to trial on the 20th of February, inst.

This was a motion by the plaintiff to set aside a judgment recovered in this suit on the 30th of September, 1S02, the suit having been commenced in July, 1S60, against the collector of the port of New York, to recover back moneys alleged to have been illegally exacted by him as duties upon various goods imported from England and Wales, into the port of New York.

This was a suit in equity by two partners, to enjoin the creditor of one of them, and also the sheriff, from laying or continuing an attachment on property of the firm. The bill was demurred to.

Action on a bill against the payee, who en•dorsed it to one B., in blank, who endorsed it -in full to the plaintiff. The defendant offer■ed B., to prove that he is the real owner of ■this bill, in order to show a want of jurisdiction in the court; B. being a citizen of this state.

The libellant [Elias Cropsey] obtained a decree in this court, on appeal from the district court, in a suit in personam, in admiralty, against the respondent [Joshua Crandall] and one [Charles) Cleaveland, his stipulator. The decree was duly docketed in this court, and an execution was issued upon it against Cleaveland, on which real estate of his, situated in Williamsburgh, Kings county, was about to be sold.

<p>Case No. 3,419.</p> <p>War — Liabilitt of Arar Officer for Seizurr and Arrest.</p> <p>[Act March 3. 1863 (12 Stat. 7561. provides that any order of the president, or under his authority, made during the existence of the Rebellion, shall be a defense to any action for acts done under or by virtue of such order. Held, that a general in the army was not liable for a seizure and arrests' made by him during the Rebellion in pursuance of instructions from the secretary of war; the instructions of the secretary being, in that behalf, the act of the president.]</p>

At law. The action was trover against ■four persons. No pleas were filed until October term, 1S33; no motion or call was made by the plaintiff for pleas; and no objection was made to the pleas, when filed by the plaintiff. The cause proceeded to the jury, and the plaintiff [John Crosby, Jr.] went through their side of the cause.

This action was brought by [Joshua Crosby] the master of the brig Frederick against [Moses H. Grinnell and others] the consignees of certain hides and coffee shipped under two bills of lading. The bill of lading was special, and without the usual exception of “perils of the sea.” The cargo was well stowed, and came out in good order, with the exception of about one hundred hides, which were wet.

In equity. .The object of the bill filed in this case was, to restrain the defendants [A. P. Lapouraille and William H. Maughline], by injunction, from an alleged infringement of a patent for a saw-mill [granted to N. & -Pearson Crosby, March 27, 1835]. The case was submitted and argued upon bill and answer.

<p>[In admiralty. Libels by Seth Crosby and others against the brig Oriental, Alexander M. Andrews, claimant, to enforce certain maritime liens.]</p>

<p>[In admiralty. Libels by James W. El-well and others against the steamer Prince Albert, and' by Philander Crosby against the same. On taxation of the fee bill of Mr. White, United States commissioner, for his services as referee.]</p>

<p>Case No. 3,426.</p> <p>Mortgage op Homestead—Waiver.</p> <p>1. Under the statutes of Nebraska the husband and wife may make a valid mortgage of the homestead property.</p> <p>[Cited in Connecticut Mut. Life Ins. Co. v. Jones, S Fed. 305.]</p> <p>2. An express waiver of the homestead right is not essential to the validity of such a mortgage.</p> <p>NOTE [from original report]. The cases on the subject of the homestead exemption down to 1S62 will be found collected in 1 Am. Law Reg. <N. S.) pp. 641. 705. See, also, Cox v. Wilder [Case No. 3,308], and cases cited in note [In re Hook, Case No. 6,671; Smith v. Kehr, Id. 13,071; In re Cross, Id. 3.426: Rix v. Capitol Bank, Id. 11,869; In re Tertelling, Id. 13.842; In re Jones, Id. 7,445]; Bartholomew v. West [Id. 1,071].</p> <p>An express relinquishment of the homestead right held not necessary, where it was not required by the statute. Babcock v. Hoey, 11 Iowa, 375: Pfeiffer v. Reihn, 13 Cal. G43.</p> <p>But formal release or waiver is in some states required. Kitchell v. Burgwin, 21 Ill. 40, explained 23 Ill. 536; 26 Ill. 107, 150; 1 Am. Law Reg. (N. S.) 706, note.</p>

<p>Case No. 3,437.</p> <p>Application by Bankrupt por Discharge.</p> <p>The bankrupt must apply for his discharge before the final report and discharge of the as-signee.</p>

The ship Bellona, of New York, sailed from Cadiz on the 2d September last, with a cargo of wine. She encountered several violent storms, in which she was dismasted, and had her rudder irons knocked off. In this state, with three feet water in the hold, she met at sea a schooner bound to Boston, from which they could obtain no supply of provisions, nor other assistance. But the master offered to take them into his schooner, and to land them in one of the ports to the eastward.

The complainant in this case [George W. Cross] was the devisee of certain property described in the will of Thomas Lloyd Halsley, of Providence, under certain contingencies specified in the will of the testator.

This was a bill by George W. Cross, a citizen of the state of Louisiana, the scope of which is to obtain a construction of the will of the late Thomas Lloyd Halsey of the city of Providence, and a decision respecting the legal effect of its provisions.

[Error to the district court of the United States for the district of Massachusetts. [Action by the United States against Thomas Cross to recover a penalty under the embargo act of 1808.]

<p>Case No. 3,432.</p> <p>Recaptured Vessel — Ascertainment op Salvage.</p> <p>In case of recapture by a public vessel of war, the salvage can only be ascertained by sale of the recaptured property, unless both parties consent to an appraisement.</p>

Creditors commenced proceedings for adjudication. Debtors resisted on the ground that the requisite number and amount had not joined, and filed a list of their creditors and debts. Held: first, that secured creditors were not to be reckoned as having provable debts within amended section 39 of the bankrupt act; and second, that a release of security-after petition filed did not change the rule on the Questions of adjudication.

<p>Case No. 3,436.</p> <p>Possession—Release.</p> <p>1. Two parties; J. and C., were interested in the building of a steam-tug, but the vessel was enrolled in the name of C. alone, and was run for their joint benefit. C. died, and a suit was brought by J., against the administratrix of C., to have a receiver of the boat appointed, and the boat sold and the accounts adjusted. That suit was settled by the payment by J., to the administratrix, of a sum of money, on the receipt of which she executed to J. a general release of all claims and demands which C. had against J. in connection .with the boat. Afterwards, the administratrix brought this possessory action to recover the boat: Beld, that the burden of proof was on the libel-lant, to show that she did not understand the transaction in which she gave the general release.</p> <p>2. The libellant had failed to establish that fact, and was, therefore, not entitled to the possession of the boat.</p>

<p>Case No. 3,438.</p> <p>Patents—Shawl-Straps—Validity — Utility — Novelty—Evidence—Bouden op Proof.</p> <p>1. The test whether an invention is useful in the sense of the law, is not whether it is not mischievous, or hurtful, or insignificant, but whether it is capable of use for a purpose from which some advantage can be derived. If it be useful in this sense, the degree or extent of its usefulness, is altogether unimportant. It is not necessary that it should be the best means of producing a desirable result, but a means, although inferior to others, of producing it.</p> <p>2. A rigid cross-bar connecting the ends of the handle of a shawl-strap, and provided with loops for the straps, is a patentable invention.</p> <p>3. Where witnesses are called to prove want of novelty in the invention, of whom notice was not given, in the answer, the evidence of such witnesses, if objected to, will not be consid-'‘”-'.1 in determining the question of novelty. When, however, the evidence is taken without objection, the defect of want of notice is deemed waived, and the evidence cannot afterward be objected to on that ground. A patent is prima facie evidence that the patentee was the original and first inventor, and any one, who controverts this, assumes the burden of ¡ •proof, and undertakes to show affirmatively that there was a prior knowledge and use of the alleged invention, tmder such circumstances as to give to the public the right to its continued use as against the patentee.</p> <p>[Gited in Hawes v. Antisdel, Case No. 0,234; Crouch v. Koemer, Id. 3,437; Kogers v. Beecher, 3 Ned. 040.]</p> <p>4. The burden of proof is on the defendant, to show want of novelty in an invention; and where the defendant’s testimony is inconsistent, and contradictory, and there is a reasonable doubt as to its correctness, the complainant’s prima facie case, even if uncorroborated, must prevail.</p> <p>5. The reissue patent, granted to George Crouch, March 7, 1871, for improvement in shawl-straps, held valid.</p>

<p>[In. equity. Bill by George Crouch against William Roemer for infringement of patent]</p>

At law. Assumpsit, on a policy of insurance on the cargo of the brig Fame, from Alexandria, to, at, and from Barbadoes. and four other ports in the West Indies, and back to Alexandria; captured by the British ship Centaur, and condemned at Barbadoes, by a British vice-admiralty court, for attempting to break the blockade of Martinique. after stating that the law was not yet conclusively settled in the courts of the United States, upon the question whether the sentence of a…

<p>[In the matter of James Croughwell.</p> <p>[Petition by the sheriff of the county of New York for the delivery of certain of the bankrupt estate, or for sufficient of the proceeds thereof to satisfy an execution in his hands.]</p>

In equity. This was a motion to dissolve u preliminary injunction restraining the defendant, the manager of a theater in Chica.go, from producing a play, the copyright of which was owned by complainant

<p>Case No. 3,442.</p> <p>Colusión — Sailing Vessels — Rules op Navigation-Salvage.</p> <p>1. A schooner was heading southwest by south, a bark north-northwest, with the wind west. The bark was close-hauled on the wind, the schooner running six points off, having the wind somewhat free. The bark was seen from the schooner when at a distance of about two miles, off the weather bow, at which time the helm was hove up and the vessel kept off. The schooner was discovered from the bark when the vessels were about seven or eight hundred yards apart, three points on the bark’s weather bow, at which time her helm was put hard up. When the vessels came together the schooner was heading east, the bark northeast or east-northeast. The bow of the bark struck the schooner by the main rigging, on the starboard side. Held, that the bark was responsible for the damages occasioned by the collision.</p> <p>2. The rule applicable to this case is, that when two vessels are approaching each other from opposite directions, that one which has the wind free, or is sailing before or with the wind, must keep out of the way, and the one close-hauled must keep her course.</p> <p>3. Where, in consequence of. a collision, the injured vessel' drifted ashore, and 81.600 was paid to salvors, the decree of the district court in awarding $4S3 on account of salvage was sustained.</p>

[Appeal from the district court of the United States for the eastern district of Pennsylvania. [In admiralty. Libel by the master of the steamship Norman against a chain and anchor.]

Libel for wages on a cod-fishing voyage from Marblehead to the Grand Banks, and elsewhere, during the season of 1S72. The libellants [Coleman Crowell and others] were two of the four “sharesmen,” the defendant [George Knight] was the owner of the vessel.

<p>Case No. 3,444.</p> <p>Infringement of Patent—Curing and Putting up Fish—Injunction.</p> <p>The complainant’s patent was for a process of curing and putting up fish, which in the claim was described to be to take out the principal bones and fins while the fish is fresh, and, when partly cured and dried, to remove the skin and with it the entire mucous membrane, and to pack in boxes of convenient size. The novelty consisted in the removal of the mucous membrane. Upon an application for a preliminary injunction, the evidence of infringement was very meagre, and quite insufficient, unless it was aided-by the affidavit of the defendant himself, who said he prepared the fish by removing the skin, and then the bones, and then packed it in boxes. He did not say whether he removed the mucous membrane or not, and there was no evidence whether in removing the skin the membrane was necessarily removed; but he denied the novelty of the invention. Held, that the application must be denied.</p> <p>[NOTE. On the final hearing on the merits, there was a decree for the complainant in both cases. Crowell v. Harlow, 1 Fed. 140.]</p>

[Error to the district court of the United States for the district of Massachusetts. [Action at law brought by the United States against David Crowell to recover back moneys received by defendant as fishing bounty. There was a judgment for plaintiff, and defendant brings error.]

<p>Case No. 3,446.</p> <p>Infringement by Licensee—Injunction.</p> <p>1. Where the complainant licensed the defendant, and, as a part of the contract, agreed that he would sell no licenses for less than a certain price, and the defendant having failed to pay his royalties, the complainant filed his bill for infringement, and moved for a preliminary injunction, upon which motion, it was shown that the complainant had granted licenses for a less consideration and in such a way as to injure the defendant: Held, that the injunction should be refused.</p> <p>2. Under such circumstances, a court of equity will not grant an injunction to the complainant in advance of the trial or hearing at which the accounts and damages may be properly adjusted between the parties.</p>

This was an action [by William Crowley] against [Hugh Maxwell] the collector of the port of New York, to recover back an excess of duties and a penalty. The jury found a verdict for the plaintiffs, subject to the opinion of the court on a case.

This was an action [by William Crowley and others] against [Hugh Maxwell] the collector of the port of New York, to recover back an excess of duties, and a penalty for undervaluation, paid by the plaintiffs on a -quantity of needles imported by them from England in January, 1851.

[In admiralty. Libel by Richard Curry and others against the cargo and materials of the British ship Crown for salvage service. Also, petition of Rollins, master of the steamer Isabel, to share in the salvage.]

<p>Assumpsit upon a special written contract for keeping 100 sheep of the plaintiff [Richard Crowninshield] for one year at a stipulated price. The breach alleged that by reason of the negligence of the defendants [David Robinson and others], &c., the sheep were greatly injured, and some died. The cause was tried upon the general issue, and at the trial the principal controversy was as to the facts.</p> <p>however, contended that, if the jury should be satisfied that the plaintiff was entitled to damages, they ought to deduct from such damages the amount which, under a quantum meruit, or by the stipulations of the contract, the defendants would be entitled to recover for the keeping of the sheep, and, if this sum was equal to the damages sustained, they ought to return a verdict for the defendants. He further stated that an action was now pending in the state court by the defendants against the plaintiff, founded on ■such quantum meruit.</p> <p>on the other hand, contended that the jury were bound to give the full damages, without any refer•ence to any supposed right of the defendants to be asserted under the quantum meruit for the keeping of the sheep.</p>

This case — 2 Wash. C. C. 202 [Case No. 3,453] — was tried again in this court, and argued upon the same evidence, much as on the former trial; except that on the part of the defendant, it was contended that it did not appear by any evidence in the cause, that the loss of the mate and men took place after the cargo was taken on board, and consequently while the property was at the risk of the underwriters.

<p>Case No. 3,453.</p> <p>Marine Insurance — Deviation—UnseaworthiNESS.</p> <p>Insurance on the Jefferson, at and from St. Lucia to New-York, with liberty to touch and trade at St. Kitt's. The vessel, having lost some of her men at St. Lucia, went into St. Bartholomew’s to supply the loss, and sustained an injury on her return voyage, she being run foul of by another vessel, the damages from which exceeded fifty per cent. The underwriters claimed to be discharged, on the ground of deviation, and sailing from St. Lucia without being sufficiently manned, which was unseaworthiness. If the accident happen whilst the property is at the risk of the underwriters, and cannot be repaired at the port^of departure, the vessel may go to the nearest port for that purpose; and she continues in the same situation as to the insurance, as if she had been repaired at the port of departure. The insured are bound to prove, that it was necessary to proceed to another port, and that the vessel went to the nearest port, at which her wants could be supplied.</p> <p>[NOTE. For the charge to the jury upon the new trial, see the next preceding case, Ño. 3,452.]</p>

<p>Case Nb. 3,454.</p> <p>Promissory Note—Partnership Liability.</p> <p>Goods were purchased by one of the defendants, for which a promissory note was given; afterwards he entered into partnership with the other defendant, and by the consent of both partners and the holder of the note, the words, “and company.” were added to make the note stand against the firm; lidd, the note was binding on the company.</p>

<p>Case No. 3,455.</p> <p>Fraudulent Conveyances — Bill to Set.Aside bt Assignee in Bankruptcy — Pleading and Proof.</p> <p>I. A bill in equity brought to set aside a sale as fraudulent, under sections 512S and 5129 of the Revised Statutes of the United States, as amended June 22. 1S74 [18 Stat. 180]. must charge that the defendant knew that the sale was in fraud of the provisions of the bankruptcy act, and this knowledge must be proved in evidence.</p> <p>. 2. Where such an averment and such proof are wanting, the bill will be dismissed.</p>

This .was a suit for subtraction of wages by Charles Sweetsir, mate of the schooner Crusader.

The master of the prize schooner Cuba, Dominick Querin, filed a petition, sustained by an affidavit, stating that he desired to claim the vessel and her cargo in behalf of the owner, pne John McLarnand, a British subject residing in Havana, and praying for leave to inspect the ship’s papers, and other documents taken by the captors, and in the custody of the court, to enable him to state the claim correctly. relied on The Port Mary, 3 C. Rob.

<p>Case No. 3,458.</p> <p>Fueight— Nox-Deliveut — Daxgeks of the Seas —Special Coxtiuct.</p> <p>1. By the general maritime law, the contract for freight is an entirety, and includes both carriage and delivery.</p> <p>2. The exception, dangers of the seas, excuses . the master for a non-delivery, but does not authorize a demand of freight.</p> <p>3. By a special contract, by which the amount of freight was made to depend on the gross gauge of the casks delivered, it is immaterial how the loss was occasioned, whether by ordinary leakage or the dangers of the seas.</p>

[Appeal from the district court of the United States for the district of Louisiana. [In admiralty. Libel by Andreas Culberg and others to recover damages sustained by collision. There was a decree for libelants in the district court, and the claimants of the Continental appeal.]

[This was an action by Samuel Culbertson against Abner T. Ellis and others to recover for damages sustained by reason ,of the forfeiture of a contract.]

[In admiralty. Libel by William B. Culbertson, owner of the flat-boat Rainbow, against the steamboat Southern Belle (Henry B. Shaw, William M. Shaw, Elam Bowman, Sidney A. Lacoste, and John D. Sebastian, claimants) to recover damages sustained by collision.]

This was an action of debt, brought the •9th December, 1844, upon a bond executed by the defendant Thomas Chambers, whose assignee in bankruptcy [Samuel D. Culbertson] was the plaintiff in the suit.

<p>[At law. Action by Samuel Culbertson against the Wabash Navigation Company to-recover for a breach of contract.]</p>

This case [brought by Harriet E. Cully] was one of eighteen suits brought against the company in which each of the plaintiffs sought to recover the penalty of $500 imposed by the supplemental civil rights act' of 1S75, on the ground that the company had discriminated against them on account of their color by refusing them admission to a car with white passengers, but compelling them to occupy a separate and inferior car.

<p>Case. No. 3,468.</p> <p>Jüiíisoiutiox of United States Ciucuit Courts —Amount in Dispute.</p> <p>1. To give the circuit court jurisdiction, the matter in dispute must. exceed, exclusive of costs, the sum of $500, and, in actions upon a money demand, the court, in passing on the question of jurisdiction, will look to the amount stated in the body of the complaint, and will not be governed alone by the amount in the prayer for judgment.</p> <p>2. In a suit seeking to recover an amount that is not fixed, and which amount can be ascertained only by trial, the plaintiff can obtain a standing in court by laying his damages at the requisite sum.</p>

The plaintiffs in this cause [Culver, Page, Hoyne & Co.] file their motion for an order transferring this case to the district court of ilu United States for the eastern district of Arkansas, for the reason that the county defendant has, by act of congress, been transferred to said eastern district.

<p>Case No. 3,472.</p> <p>Collision in Hampton Roads between Steamers — Parallel Courses — Lookout.</p> <p>L Where two steamers, the P. bound into Hampton Roads, and the C. bound out, were approaching a guardship at which each was required to report, both vessels heading on courses nearly parallel with the keel of the guardship, and the C. had the guardship on her starboard side, and made the white and red' lights of the P. on her port bow. and the F. then changed her course, by starboarding, and slowed and stopped her engine for the purpose of speaking the guardship, and blew two blasts of her whistle, but the C. kept on, and struck the P. on her starboard side and sank her: Held, that the F. was in fault in not keeping a proper lookout, and also in changing her course across the bows of the C.</p> <p>2. It was her duty to pass to the right, and let the C. pass between her and the guardship.</p>

Several witnesses for the defendants [the Akron Cement & Plaster Company] attended on the trial of this cause, without having been served with a subpoena by the marshal or his deputy, and it was on that ground insisted, that the fees of such witnesses could not be taxed against the plaintiffs [Uriah Cummings and others].

Case to recover damages for personal injuries sustained by the plaintiff [Oliver P. Cummings] from the defendant’s negligence, while acting as its servant in driving an engine upon its railway. At the return of the writ, defendant moved that it abate for want of jurisdiction by the court over the defendant, an alien corporation created by the laws of Canada.

<p>[This was a bill in equity by Patrick Cummings and William Murray against William D. Mead.]</p>

<p>Case No. 3,477.</p> <p>Positive and Cikcemstantiai, Evidence.</p> <p>[Circumstantial evidence tending to raise doubts as to the time of invention is overcome by positive testimony fixing the time definiteiy.l</p> <p>[NOTE. Patent No. 4,023 was granted to Stephen R. Parkhurst, May 1, 1845; reissued February 12, 1861 (No. 1,137). For other cases involving this patent, see note to Parkhurst v. Kinsman, Case No. 10,757.]</p>

<p>Case No. 3,478.</p> <p>Gahxishmext — Custodia Legis.</p> <p>The rule that money in custodia legis is not subject to process is applicable to the case of funds in the hands of an assignee in bankruptcy. which another is attempting to secure by garnishment.</p> <p>[Cited in Re Chisholm, 4 Fed. 527.]</p>

Assumpsit brought by the plaintiffs ]Jolm A. Cunningham and William J. Loring], who are merchants in Boston, Massachusetts, against the defendants (James C. Bell and others], who are merchants in Leghorn, in Tuscany, for breach of orders as factors and commission merchants. The declaration contained various counts. Plea, the general issue.

<p>[Petition by John Cunningham for an adjudication in bankruptcy against Alson Cady.]</p>

This was an appeal from a decree of the district court [of the United States for the district of Massachusetts] sitting in admiralty. A libel in personam was filed by [J. H. Cunningham and others] the purchasers and owners of the ship Flying Chil-ders, to recover compensation for damages and expenses of repairs, alleged to have resulted from the non-completion of the ship, by the respondent [Samuel Hall] according to the terms of a written contract between the parties.

<p>[In admiralty. Libel in personam by J. H. Cunningham and others against Samuel Hall to recover damages for a breach of contract.]</p>

In equity. Heard on demurrer of Alfred H. Colquitt to the bill of complaint.

<p>Case No. 3,485.</p> <p>Commissions to Take Testimony Abroad—Practice in Granting.</p> <p>Practice as to granting commissions to take evidence in foreign countries. See 1 Greenl. Ev. §§ 320-320.</p>

This was a libel in personam by Peter -Cure, ass'.gneo of Benson F. Town, libellant,; against William A. Bullus, to recover for-supplies furnished by libellant’s assignor to a vessel owned by respondent Tho defendant was arrested in the cause .-on a warrant against his person, pursuant to •the rules of the supreme court applicable to cases of like description, and one Farnham,. a resident of the village of Newburgh, be-camo fidei jussor, or stipulator, for the respondent…

[Petition to review the action of the district court of the United States for the western district of Michigan, sitting in bankruptcy. [Curran, Goodwin, Walker & Co. petitioned the district court for an adjudication in bankruptcy against the firm of Munger & Cham-plin. The petition was dismissed (In re Mun-ger, Case No. 9,923), and the matter now comes before the circuit court on a petition for review.]

<p>Case No. 3,488.</p> <p>CONTRACTS BETWEEN MASTER AND'SLAVE.</p> <p>1. One held in slavery abroad, and who becomes free by being brought into the United States, in violation of the acts of congress, and afterwards remains in the service of his previous owner, cannot recover a compensation for such service upon an implied promise, but only upon an express promise to pay.</p> <p>2. But if under an agreement to purchase his freedom after his arrival in this country, he has paid money to his previous owner for that purpose, he may recover back such money as having been paid without consideration.</p> <p>•3. The plaintiff, when brought into this country, was eleven years of age, and remained in the service of his previous owner, the defendant, nntil he was - years of age; at the age of twenty-five he made an agreement to purchase his freedom, and paid three hundred and twenty-five dollars towards it. Held, that he could recover hack the money, but not for his services rendered after he was twenty-one years of age.</p> <p>4. But held, that as this was an equitable action, and as the money was paid by the plaintiff and received by the defendant, under the impression and belief that the defendant had a right to ■ claim the plaintiff as her slave, the latter ought not to recover interest for the money he had paid.</p> <p>5. The sum recovered being under five hundred dollars, costs allowed to neither party. [Cited in Hamilton v. Baldwin, 41 Fed. 430.]</p> <p>NOTE [from original report]. After emancipation the slave is free ns against the emancipator and ad the world beside, excepting only bona fide creditors of some other person who had a better right to the slave than the emancipator. Ferguson v. Sarah. 4 .1. .T. Marsh. 105. Bights of creditors do not nullify the act of emancipation nor otherwise affect it. further than as a lien for the ultimate security of their debts. Id. A slave emancipated forms no part of assets in the bauds of the administrator of the emancipator. The administrator has no right, either for the purpose of paying the debts or any other cause, to the possession or control of the slaves emancipated by his intestate. Id. The act of 1798 saves the rights of the creditor of the emancipator only as the statute of frauds protects the rights of the creditors. Therefore, if a creditor consents to, and urges the emancipation of a slave, he waives his right to subject him after emancipation, to the satisfaction of his debt. Id. 100. In a suit for slaves, if it be proved, whether alleged or not. that the persons in contest are free, the claimant fails. Bush v. White. 3 T. B. Mon. 105. If a fact be stated in a bill which shows that ihe persons claimed as slaves are free, it will be fatal, though the defendants also claim them as their property. Id. If the persons sued for as slaves, are proved to be free, and the suit fails, as to them there can be no hire recovered. Id. 100. In Massachusetts, a negro boy eight years old, who was born and reared a slave in Arkansas, came into this state with the consent of his master, as a personal attendant of his master’s wife, who was here on a visit to her friends. On his being brought before the court, by habeas corpus. it appeared that the master's wife did not claim the custody of the boy as a slave here, nor intend to carry him . back to Arkansas against his will, but did intend to carry him back if be should consent to go. The court held, that the consent of so young a child would not authorize his removal into a state of slavery, and ordered him to be delivered to the guardians wbo had been appointed for him. by the judge of probate, under the Revised Statutes, p. 79, § 1. Com. v. Taylor, 3 Mete. [Mass.] 72. The act of South Carolina, of 1841. rendering void any bequest, &c.. of slaves to be removed without the state, with a view to their emancipation; held, not to destroy the legal title of a legatee vested in slaves previous to its passage; but only to render void the condition of the bequest, that he should remove them into a free state at a period subsequent to its passage. Finley v. Hunter, 2 Strob. Eq. 2US. It is competent for a slaveholder of Mississippi, during liis lifetime, to take his slaves to Liberia, or elsewhere without the state, there to remain free from the condition of servitude. Ross v. Duncan, 1 Freem. Ch. 5S7. The statute of Mississippi, regulating the manumission of slaves, does not prohibit, either in letter or spirit, a citizen from directing by will, that his slaves should be removed out of the state to Liberia or el-ewhere, even though the consequence or avowed design may be emancipation. The right to manumit slaves is not thereby taken away; its exercise within the limits of the state only is qualified. Id. Where white persons, or native American Indians, or their descendants in the maternal line, are claimed as slaves, the onus probandi lies on the claimant: but it is otherwise in respect to native Africans and their descendants who have been and are now held as slaves. Hudgins v. Wrights, 1 Hen. & M. 133. It seems that no native American Indian could be made a slave under the laws of Yirgina, since the year 1691. Id. If a female ancestor of a person asserting a right to freedom, is found to have been an Indian, it seems incumbent on those who claim such person as a slave, to show that such ancestor, or some female from whom she descended, was brought into Virginia between the years of 1(179 and 1091. and under circumstances which, accord'ng to the laws then in force, created a right to hold her in slavery. Id.</p>

<p>Case Mo. 3,490.</p> <p>Jurisdiction.</p> <p>If the verdict be for less than twenty dollars, in assumpsit, a nonsuit must be entered.</p> <p>[Cited in Hays v. Bell, Case No. G,270.]</p>

<p>Case Mo. 3,491.</p> <p>Redemption—Fuaudulent Confession of Judgment.</p> <p>Where a judgment creditor, to protect bis interest, has purchased the property on foreclosure of a prior mortgage, and the debtor had fraudulently confessed a judgment to enable a third party to redeem the property for his benefit. this court has jurisdiction of a bill for relief filed by tlie creditor.</p>

<p>Case Mo. 3,491a.</p> <p>Parties — Inhabitants of States in Rebellion —Suspension of Suit.</p> <p>[1. The proclamation of tlie president, issued under authority of congress, declaring the inhabitants of certain states in rebellion to be in a state of insurrection, and forbidding all commercial intercourse with them, is binding on the federal courts, and will prevent such inhabitants maintaining suits therein.]</p> <p>[2. Where, in case of cross libels for collision, the owners of one of the vessels are citizens of n state which afterwards enters into rebellion, the court will suspend the case until after the government of the United States is re-established in such state.]</p>

<p>Case No. 3,492.</p> <p>Baxki5cptcv—Fufvehuep CaETUTor.—SmmENnzn —Pkoof of Di:et.</p> <p>1. The claim of a preferred creditor is not to be reckoned in determining whether or not the requisite proportion of creditors have joined in an involuntary petition.</p> <p>2. A preferred creditor cannot prove his debt, or any part of it, until he has voluntarily' or by compulsion surrendered his preference.</p> <p>[Cited in lie Broicli. Case No. 1,021; Be Aspinwall, 11 Fed. 138.]</p> <p>[3. Followed in Be Beed, 3 Fed. 790, in respect to the statement that under the amendment of 1874 (18 Stat. 181), relating to proofs by creditors whose preferences have been set aside, such a creditor may prove his whole debt after recovery against him for the preference, in the abseuse of actual fraud.]</p> <p>4. A mere repayment to the debtor, after a petition in bankruptcy is tiled, cannot, for this purpose, take the place of a surrender to the assignee.</p> <p>5. A preferred creditor cannot proceed for adjudication against his debtor for the act of preference to which he was a party, and therefore ought not to be reckoned in computing the number or amount of those who have or have not petitioned.</p> <p>[Cited in Be Saunders, Case No. 12,371; Be Bouton, Id. 1,700.]</p> <p>C. An involuntary petition must be signed by one-third in value of all the creditors, and by one-fourth in number of creditors whose debts exceed $250; if there are none such, or if a sufficient number of them do not petition, the one-fourth in number may be made up from the smaller creditors.</p> <p>[Followed in Be Woodford, Case No. 17.972. Cited in Be Broicli, Id. 1.021: Be Lloyd, id. S.420. Approved in Be Hall, Id. 5,023.]</p> <p>7. It is not necessary that the larger creditors should refuse to sign; it is enough that they do not sign.</p> <p>[Approved in Be Hall, Case No. 5,023.]</p>

In equity. This was an application for a provisional injunction, to restrain the defend■ants from further prosecuting the construction of an elevated railway in the city of ■New York, in and through the length of Greenwich street, northerly, to the Ninth -avenue, and thence, northerly, through the ■Ninth avenue, to the Harlem river; and from interfering, in any manner, with the “enjoyment” of the plaintiff [John A. Currier] “in his possession” of “two lots on Greenwich…

[In admiralty. Libels by John Curry and others, by Thomas Blake and others, and by Richard Warfield against the schooner H. J. May for salvage services.]

<p>Case No. 3,495.</p> <p>Salvage — Pilotage—Compensation.</p> <p>[1. Salvors are not entitled to compensation for unsuccessful effort.]</p> <p>[2. The fact that the salvors, in bad weather, did all in their power, though to no purpose, may be considered in determining the amount of compensation to be awarded for actual services thereafter rendered to the vessel.]</p> <p>13. Services rendered a vessel which had worked off a shoal, and was in imminent danger of again stranding, by piloting her for about 10 miles through a narrow and intricate channel, unmarked by reliable beacons, to open water, and in pumping during the passage, are in the nature of salvage services, and should be compensated as such. The nature of the service only affects the amount of compensation, which should be less than for strictly salvage service.]</p> <p>[4. The value of the ship and cargo being between $125,000 and $175,000, an award of $2,-500 is proper under the circumstances.]</p>

<p>Case Wo. 3,496.</p> <p>Execution—Subsequent Judgment.</p> <p>It is no bar to execution upon a supersedeas in Washington county, that the plaintiff has recovered another judgment in Alexandria county upon the same cause of action, if it be not satisfied.</p>

In equity. The facts were that on the Gth of April, 1804, Alexander Roulstone, one of the defendants, shipped at New Orleans in the barge called Deborah, Lindsey Shannon master, a quantity of goods for account and risk of Col. Charles Lynch, of Shelby county, Kentucky, another of the defendants; to be delivered to the said Lynch or his assigns, he or they paying freight at the port of Louisville on the Ohio.

[This action was brought by Lewis Curtis against the administrators of John B. Bowrie, deceased, upon a joint and several note executed by the decedent.]

<p>Case No. 3,499.</p> <p>Patents—“ Cjiicui.au Saws 'Validity-.</p> <p>The reissued letters patent No. 8.07G. granted to James K. Lockwood, February 5th, 1878, for improvement in circular saws (the original patent having been dated Nov. 12, 1SG7, and numbered 70.72S), being for an invention different fx-om the original patent, held, void.</p>

[This was an action by Jacob E. Curtis against the county of Butler upon certain bonds and coupons issued by the county to aid in building a railroad.] The county of Butler, through its commissioners, pursuant to an act of the legislature, and on a recommendation of the grand jury of the county, subscribed 5250,000 to the stock of the North Western Railroad Company, a concern of little or no value, paying for the stock in the county bonds.

<p>Case No. 3,601.</p> <p>Fueadixg — Deposition's — Adoption of State Practice — Carriers of Passengers — Negligence.</p> <p>1. A special plea which amounts to the gen: eral issue is demurrable.</p> <p>2. A plea which states facts in bar to the-piaintiff's demand, is not good, if the facts so-stated do not constitute a bar.</p> <p>3. The law and practice of the state having been adopted in regard to the taking of depositions, a subsequent modification of the law,, which was followed for a long time, will be considered as adopted by usage.</p> <p>4. But the law of the state can make no-change in the act of congress, as to the circumstances under which depositions may be taken. The person whose deposition is taken, under the act of congress, must reside more than a hundred miles from the place of holding the court.</p> <p>[Cited in Warren v. Younger, IS Fed. SG1.1</p> <p>5. A conductor of a train of cars is engaged in an important business, and is bound to use reasonable care for the safety of passengers. And at cross roads, or where the tracks lie very near each other, a more than ordinary degree of care is requisite.</p> <p>G. Any carelessness in loading a freight train of cars, or in not attending to the adjustment of the load of lumber, by which an injury is done to a passenger in another train, will make the owners of the freight train responsible.</p>

[Action by Curtis and others against Victor Feste to recover a debt. On motion to discharge the debtor from imprisonment for want of jurisdiction.]

This was an action by Orlando Curtis [against the Home Insurance Company of New Haven, Conn.] on a policy of insurance for two thousand dollars, dated April 8th, 1861, on what were called the “Keeler Saw Mills,” in Marathon county, Wisconsin. The policy was originally for a year, and was renewed for a second year in April, 1802. The property was destroyed by fire on the 14th day of October, 1SC2.

This was an action at law [by Joseph Curtis, trastee, against Haskell G. Smith, administrator, etc., of Cicero Collins, deceased] for an account, tided before the court, without a jury.

This was a libel for salvage on a quantity of wearing apparel picked up derelict at sea in boxes by the libelants, Peter Curtis and others, the master and crew of the schooner J. T. Williams, in September, 1857. No one appeared for the goods, and they were sold for $250. The schooner and cargo were worth about $12,000. The salvage was made in a heavy sea, and under considerable risk and exertions on the part of the libelants and the schooner.

<p>Case No. 3,507.</p> <p>Agent cannot Acquike Adveksb Titi.e — Bona Fide Piikcuasek — Must uave Obtained the Lega i. Estate.</p> <p>1. An agent to pay taxes on the lands of his principal, cannot acquire a valid tax deed on the same when they have been sold for taxes.</p> <p>2. AYhere an agent had acquired a tax deed on the lands of his principal, and had contract-ted to sell the same to a third party, who had no notice of the fraud, but his agent, in making the purchase, had such knowledge, and such purchaser had received a contract only for a deed, and had paid two-thirds of the purchase-money, held, that the fact that the agent of such purchaser had had knowledge of such fraud, was not sufficient to affect his principal, unless the facts and circumstances were sucn as to show that he had the same in mind at the time of the transaction of the purchase; but that the right of such purchaser to call for a conveyance from the fraudulent grantee in the tax deed, was an equitable right merely, and that the right of the original owner being the oldest equity, must prevail.</p> <p>3. A purchaser under a contract for a deed, though he may have paid all of the purchase-money is not protected ns a bona fide purchaser: nor, if he has not obtained a conveyance of the legal estate, can he insist on the re-payment of what he has paid on the contract as a condition of surrendering his claim. He must rely on the responsibility of his vendor.</p> <p>[See Baker v. Whiting, Case No. 787.]</p> <p>4. A purchaser without notice will not be protected against the superior equity of an adverse claim, and where a party had purchased what in reality was only a tax title, he must be held as having assumed the burden of maintaining that such tax title had extinguished the patent title, and which, as to him, was an adverse one. • ■</p>

This was a cause of spoliation and damage, civil and maritime. The libellants [John N. Cushing and others] claimed to recover from the respondent [John Laird], as damages, $89,044, for the destruction of their ship, .the.' Sonora, by the Alabama. The libel was refiled twice in an amended form.

The question in this case was, whether the libellants [John N. Cushing and others], under the attachments issued herein, and levied on certain moneys in the hands… Held: that the sentence of a prize court was not conclusive on a question of title arising in a subsequent proceeding. It is also laid down, in Phillips on Evidence, that the decision of a prize court is an es-toppel only as to the point put in issue and directly determined., 1 Phil. Ev. p. 334, and note 027. 2.

<p>These were appeals by Foster and Thomson, from two decrees of the district court,— 6 Ben. 408 [Cushing v. Laird, Case No. 3,509], — one requiring them to pay into court a certain fund, and the other subjecting it to the payment of the amount found due to the libellants from the respondent. This court found the following facts:</p> <p>“The steamer Wren was built at Birken-head, England, in the year 1804. by Laird Brothers, and registered at Liverpool, England, in accordance with the laws of Great Britain, December 24th, 1SG4, in the name of John Laird, Jr., as owner. A certificate of this registry was issued in due form, and the vessel sailed from Liverpool, having the certificate on board, as part of her ship’s papers. On the 3d of January, 1SG5, after the vessel had left Liverpool, John Laird, Jr., executed and delivered a .bill of sale, in due form of law, whereby he conveyed her, with her tackle, &c., to Charles Kuhn Prioleau, of Liverpool, a member of the firm of Frazer, Trenholm & Co., for the consideration of £15,450, and, on the first of May, 1SG5, this bill of sale was duly entered at the custom house in Liverpool, and the vessel registered in the name of Prioleau, as owner. On the 13th of June, 18G5, while on a voyage from Havana to Liverpool, by the way of Halifax, Nova Scotia, a portion of the crew took forcible possession of the vessel, overcame her officers and ran her into Key West, where they delivered her to the naval authorities of the United States. On the 16th of the same month of June, the attorney of the United States for the southern district of Florida filed in the district court for that district a libel of information against the steamer, as prize of war, in the words and figures following, to wit: ‘District Court of the United States for the Southern District of Florida, in Admiralty. The United States v. The Steamer Wren and Cargo. Prize. To the Honorable Thomas J. Boynton, Judge of the District Court of the United States for the Southern District of Florida. The libel of Homer G. Plantz, attorney of the United States for the southern district of Florida, who libels for the United States and for all parties in interest against the steamer Wren and cargo, in a cause of prize, alleges, that Charles W. Gilley and other citizens of the United States did, on tlie twelfth day of June, in the year of our Lord one thousand eight hundred and sixty-five, subdue, seize, and capture on the high seas, as a prize of war, the said steamer Wren and cargo, and that said captured property has been brought into the port and harbor of Key West, in the state of Florida, where the same now is, within the jurisdiction of this honorable court, and that the same is lawful prize of war and subject to condemnation and forfeiture as such — wherefore the said attorney prays that the usual process of attachment in prize causes may issue against said captured property; that monition may issue citing all parties having or claiming any interest or property in said captured property to appear and claim the same; that the nature, amount, and valué of the said property may be determined; that due and proper proofs may be taken and heard; and that, all due and proper proceedings being had, the said captured property may, on the final hearing of this cause, by the definite sentence of this court, be condemned, forfeited, and sold, and the proceeds distributed according to law. Homer G. Plantz, U. S. Attorney, Southern District of Florida.’ On the same day, the court ordered that attachment and monition be issued as prayed, returnable on Tuesday, June 27th, 1865, and, under this order, the vessel, her tackle, &c., were taken into the custody of the marshal for the district and held for condemnation, and all persons interested were cited to appear on the day named and show cause, if any they had. against such a decree. On the 26th of June, Edward C. Stiles, master of the vessel, appeared in court and filed a claim to the vessel, &c., in the words and figures following, to wit: ‘United States District Court, Southern District of Florida, in Admiralty. United States vs. Steamer Wren and Cargo. Prize. And now comes Edward C. Stiles and says, that he is the master of the said steamer Wren, and, as such, is the lawful bailee of said steamer, her tackle, apparel, and furniture, and claims the same for the owner thereof. And he further says, that John Laird, a lawful British subject, residing in England, is the true and bona fide owner of said steamer, and that, no other person is the owner thereof, as appears by the register of said steamer now in the possession of the court, and as he is informed and believes. And he further says, that the said steamer had no cargo, when seized. And he further says, that he denies that said steamer is a prize of war. And he further prays restitution of said steamer, her tackle, apparel, and furniture, and that this honorable court will award such damages as shall appear to have been incurred and suffered by reason of the unlawful seizure and detention of the same, and grant such other and further relief as to the court may seem meet and just. And he will ever pray, &c. Edward C. Stiles, Master British Steamer Wren. Samuel Walker, Proctor. Sworn and subscribed before me this 26th day of June, 1865. George D. Allen, Clerk. Southern District of New York, ss.: Edward C. Stiles, being duly sworn, deposes and says, that he is the master of the British steamer Wren, and is the claimant named in the above claim; that he knows the contents thereof, and that the matters and allegations therein contained are true in manner and form as therein set forth, and that his knowledge of the same was acquired by his relationship to said steamer as master thereof; that, on the 12th day of June, A. D. 1865, the said steamer left the port of Havana, Cuba, bound to Liverpool, England, via Halifax, Nova Scotia; that, while on the voyage to the said port, about 1% o’clock a. m., June 13th, a portion of the crew of said steamer mutinied, and this claimant was put in irons by the mutineers, two of whom entered his room when he was asleep and overpowered him, one holding a pistol to his head; that, about the same time, as he is informed and believes, his first and second officers were also put in irons and the purser arrested, and that, when the mutiny occurred, Mr. Duggan, the third officer, and Mr. Wilson, the third engineer, were on duty; that this claimant and the said steamer were then brought into the port of Key West, where the said steamer was delivered over to the prize court by a Mr. Gilley, who at the same time took from the person of this claimant the ship's papers; that this claimant, his first and second-officers and purser, were then taken from the said steamer and imprisoned in Fort Taylor; that this claimant was afterwards taken before the prize commissioner and required to give evidence; and that he answered under protest. Edward C. Stiles, Master Steamer Wren. Sworn and subscribed before me this 26th day of June, 1S65. George D. Alien, Clerk.’ On the 17th, 19th. and 20th days-of June the depositions of the master of the vessel, Stiles, the purser, M’Gahan, the first mate, Long, and the third mate, Duggan, were taken in preparatorio. On the 27th of June, Stiles, by his proctor, moved the court to strike out the deposition of Duggan, as he was named as one of the captors, in the letter of the captors addressed to the admiral commanding at Key West, and filed in the cause. This being refused, the court proceeded to hear the cause ‘upon the allegations and pleadings, the depositions taken in preparatorio, and the papers, letters and writings found on board the vessel.’ On the 29th of June, the court, upon its own motion, directed the prize commissioner to take immediately the testimony of the master, purser and first mate of the vessel, and of any other witnesses that might be produced by the claimant from the persons on board the vessel, upon certain specific interrogatories; of Charles W. Gilley and John Howard, and any other witnesses produced by the captors, from persons on board, upon tbe first two of tbe interrogatories to be ■ propounded to tbe witnesses produced from those on board by tbe claimant; and of any witnesses produced either by tbe government or tbe claimant, from persons not on board, upon certain other interrogatories. Two days were allowed tbe parties to produce witnesses. Testimony was taken under tbe authority of this order, and on tbe 3d of July, tbe court resumed tbe bearing ‘upon tbe allegations and pleadings, tbe depositions taken in pre-paratorio, and tbe papers, letters, and writings found on board * * * and depositions under orders allowing further proof.’ Tbe only certificate of registry found on board was of that granted December 24tb, 186-1, upon which were noted, at tbe British consulate, Havana, changes of masters, March 24th, I860, and June 10th, 1865. At tbe foot of this certificate was a note as follows: ‘Note. A certificate of tbe registry granted under the “merchant shipping act, 1854,” is not a document or title. It does not necessarily contain notice of all changes of ownership, and in no case does it contain an official record of any mortgage affecting tbe ship.’</p> <p>“On tbe 8th of July the court ‘announced its opinion in this (the) case, and condemnation of vessel and cargo’ [see Case No. 16,-786], but, exceptions having been taken to certain rulings, the decree in form was delayed until August loth, when it was duly entered in the words and figures following, to wit: ‘District Court of the United States, Southern District of Florida, in Admiralty. The United States vs. Tbe Steamer Wren and Cargo. Prize. A claim having been interposed for this vessel and cargo by Edward C. Stiles, master of said vessel, for and on account of John Laird, the younger, a British subject, and this cause having been heard on the libel and proofs and testimony taken in preparatorio, and pleadings of the claimant, and all due proceedings having been bad, and the court being fully advised in tbe premises, and it appearing to the court that, the said steamer Wren, her tackle, apparel, furniture and cargo were, at the time of capture, the property of enemies of the United States, it is now ordered, adjudged, and decreed, that tbe said steamer Wren, her tackle, apparel, furniture and cargo be condemned and forfeited to the United States, as lawful prize of war. And it is further ordered, that the clerk of this court issue a writ of vendi-tioni exponas to the maishal of the district, for the sale of said steamer Wren, her tackle, apparel, furniture and cargo, and that the marshal make return of sale and expenses to tbe court, and deposit tbe proceeds of such sale with tbe assistant treasurer of the United States, subject to tbe order of this court, as required by law. Thomas J. Boynton, U. S. D. Judge.’ From this decree an appeal by tbe claimant to the supreme court was in due form allowed, and the requisite security given, August 25th. Afterwards, on process duly issued, the vessel was sold, and the proceeds of the sale, amounting to 837,108.06, deposited with the assistant treasurer of the United States in the city of New York, subject to the order of the court. Subsequent to this time, Prioleau, still residing in England, retained Foster and Thomson, the garnishees in this case and attorneys and coun-sellors at law, doing business in the city of New York, as his counsel, to do whatever might be necessary for the protection of his interests. It does not appear that he had any actual knowledge of the proceedings for condemnation until after the decree was entered. As soon after their retainer as it could be done, Foster and Thomson procured a copy of the record in the district court, and had the appeal docketed in the supreme court, February 7th, 1866, they furnishing the necessary security for that purpose. They also employed additional counsel, who argued the case upon the record sent up from the district court. No additional testimony was taken, and no change in the pleadings made or applied for. Upon the argument in the supreme court, it was insisted by the attorney-general, on behalf of the government, that it appeared from the evidence that the steamer was the public property of rebel enemies at the time of the capture; and, in support of this position, reference was made to the testimony of witnesses who swore that Frazer, Trenholm & Oo. were the owners. In opposition to this, it was contended by the counsel for the appellant, that there was ‘not a particle of evidence to show that the steamer was ever enemies’ property, but the evidence is (was) conclusive that she was at all times the property of a British neutral,’ evidently referring to Laird. At the December term, 1867, of tbe supreme court (The Wren, 6 Wall. [73 U. S.] 582), tbe decree of the district court was reversed, and an order entered to the effect that the cause. be remanded, with directions to restore the vessel and her cargo to the claimant, without costs, In the opinion filed at the time of tbe rendition of the judgment in the supreme court, it was said, that tbe only question in the case was, whether the vessel was the property of the enemies of the United States. In discussing this question, the late Justice Nelson, who delivered the opinion, says: ‘It'is quite apparent, therefore, upon the proofs, that the claimant not only built tbe vessel, but put his master in command in this, her first, voyage, and the presumption would seem to be very strong, if not irresistible, (nothing else in the case,) that he continued tbe owner for tbe short period of six months which elapsed after she was built and before the seizure took place. In addition to this, she was in tbe command of a master claiming to represent Laird, as owner. These acts, in connection with the registry, afford strong evidence that tbe title of tbe vessel was in the claimant Now, most of the proofs relied on to disprove this evidence are wholly inadmissible and incompetent as testimony in a court of justice. We cannot think that it needs any argument to show that they do •not rise to the character or dignity of testimony, in any court that respects the law of evidence.’ Then, after stating that it was not unnatural to suspect, from the surrounding facts and circumstances, ‘that the so called Confederate States, or their agents, had some connection, if not interested in her,’ he concludes: ‘But, in the view we have taken of the case, there is no foundation of legal proof of the ownership of the vessel in the Confederate States, on which these circumstances can rest, or be attached, as auxiliary considerations to influence the judgment of a court Our conclusion is, that the decree below must be reversed and the vessel restored, but without costs.’</p> <p>“After the judgment of the supreme court was entered, Foster and Thomson made a draft of a power of attorney to be executed by Laird, Jr., and Stiles, and sent it forward to Prioleau. In due time they received from Prioleau a power of attorney, in all substantial respects like their draft, properly executed, a copy of which is as follows: ‘Know all men by these presents, that we, John Laird, the younger, of Birken-head, in the county of Chester, ship-builder, and Edward Copeland Stiles, of 14 Delamere street, Upper Westbourne Terrace, London, master mariner, do, by these presents, nominate, constitute and appoint J. P. Giraud Foster and James Thomson, both of New York, in the United States of America, solicitors, jointly and each of them' severally, to be the true and lawful attorneys and attorney of us, and of each of us, for us and each of us, and in our and each of our names or name, or otherwise, to receive and collect from the United States government, or any branch or officer thereof, or any depository thereof, any and all moneys, the avails or proceeds of the sale of the steamer Wren and her cargo, sold under decree of the district or circuit court of the United States, at Key West, in the southern district of Florida, by the marshal of the United States for the said district, the said decree having been reversed by the supreme court of the United States on appeal, and this power having been given to our said attorneys for receiving restitution of the avails of the said steamer Wren and cargo, with full power to give any receipts or discharges for the same, and generally to make, do, and execute all such further and other acts, deeds, matters and things in the premises, as amply as we or either of us could do if personally present, and one or more attorneys or attorney under them or him from time to time to substitute and appoint, and such appointments at pleasure to revoke, and another or others again to substitute and appoint, we and each of us hereby binding ourselves and each of us to ratify and confirm whatever shall be lawfully done by our said attorneys or either of them by virtue hereof. In witness whereof we have hereunto set our hands and seals this second day of July, one thousand eight hundred and sixty-eight. John Laird, Jr. (L. S.) Edw’d C. Stiles. (L. S.) Signed, sealed and delivered by the above named John Laird, the younger, in the presence of Wm. Stone, atty. at law, Liverpool. Signed, sealed and delivered by the above Edward G. Stiles in the presence of E. L. Rowcliffe, solicitor, 1 Bedford Row, London. I, William Henry Fletcher, notary public by royal authority, admitted and sworn, practising in Liverpool, in the county of Lancaster, in England, do hereby certify and attest unto all it shall or may concern, that the signature “John Laird, Jr.,” set and subscribed opposite the first seal at foot of the power of attorney hereunto annexed, is the real signature and proper handwriting of John Laird, the younger, therein named and described, who signed the same in my presence, and in presence of Wm. Stone, Esquire,’ attorney at law, Liverpool. Whereof an act being required, I, the said notary, have granted these presents under my notarial form and seal of office, to serve and avail as occasion shall or may require. Done and passed in Liverpool, this fourth day of July, one thousand eight hundred and sixty-eight. In testimonium veritatis, W. Henry Fletcher, Notary Public. (Notarial Seal.) I, the undersigned, consul of the United States of America, for the port of Liverpool and its dependencies, do certify and make known to whom these presents shall come, that William H. Fletcher, whose true signature and notarial seal are subscribed and affixed to the annexed certificate, is a notary public duly authorized, admitted and sworn, residing and practis-ing in Liverpool, to whose acts as such full faith and credit are due. Given under my hand and seal of office, at Liverpool, the 8th day of July, and year of our Lord one thousand eight hundred and sixty-eight F. H. Morse. (Consular Seal.) I, John Newton, notary public by royal authority, admitted and sworn, practising in London, do hereby certify and attest unto all whom it shall or may concern, that the signature “Edw’d O. Stiles,” set and subscribed opposite the second seal at foot of the power of attorney hereunto annexed, is the real signature and proper handwriting of Edward Copeland Stiles therein named and described, who signed the same in my presence and in presence of E. L. Rowcliffe, Esquire, solicitor. No. 1 Bedford Row, London. Whereof an act being required, I, the said notary, have granted these presents under my notarial form and seal of office, to serve and avail as occasion shall or may require. Done and passed in London this second day of July, one thousand eight hundred and sixty-eight. In testimonium veritatis, John Newton, Not’y Public. (Notarial Seal.) Consulate of the United States of America, at London. I, Freeman H. Morse, consul of the United States of America, for London and the dependencies thereof, do hereby make known and certify to all whom it may concern, that John Newton, who hath signed the annexed certificate, is a notary public, duly admitted and sworn, and practising in the city of London aforesaid, and that to all acts by him so done full faith and credit are and ought to be given, in judicature and thereout In testimony whereof, I have hereunto set my hand and affixed the seal of the consulate of the United States at London aforesaid, this second day of July, in the year of our Lord, one thousand eight hundred and sixty-eight, and in the ninety-second year of the independence of the United States. F. H. Morse. (Consulate Seal.)’ Having received this power of attorney, Foster and Thomson obtained a mandate from the supreme court, and sent it, together with a copy of their authority, to the United States attorney for the southern district of Florida, requesting him to see that the appropriate decree was entered in the cause, and a draft, to their order, upon the assistant treasurer in New York, for the money, was transmitted to them by the judge. Afterwards, January 5th, 1869, they employed F. A. Dockray, Esq., to aid them in procuring the money from the registry of the court, advising him that the mandate, and the power of attorney under which they were acting, had already been forwarded to the court. They did not, in any of their letters to the district-attorney, or to Dockray, make mention of the fact that any other person than Laird was, or pretended to be, the owner of the fund in court.</p> <p>“On the 28th of December, 18CS, certain of the libellants in this cause, and the owners of one-half the ship Sonora, filed their libel in the district court for the southern district of Florida, against John Laird, Jr., in per-sonam, to recover for the same identical wrong and injury which is in this suit complained of, and prayed, among other things, ‘that his (Laird’s) credits and effects in the registry of this (the) court, known as the proceeds of the steamer Wren, may (might) be attached to the amount sued for and costs.’ On the 6th of January, 1869, the following order was entered in that cause: ‘District Court of the United States, Southern District of Florida, in Admiralty. John N. Cushing and William Cushing, Executors of Nicholas Johnson, Deceased, Mary A. Johnson, Executrix of Henry Johnson, ■ Deceased, Keturah M. Pritchard, Administra-trix of Thomas Pritchard, Jr., Deceased, and Elizabeth H. Pritchard, Executrix of William Pritchard, Deceased, vs. John Laird, the Younger. Cause of Spoliation and Damage, Civil and Maritime. A libel having been filed in said court, in the above entitled cause, praying for a warrant of arrest against the defendant, the said John Laird, the younger, and that he may be required to appear and answer on oath the aforesaid libel, and all and singular the matters aforesaid, and, if he cannot be found, that his goods and chattels, and, if none be found, that his credits and effects in the registry of this honorable court, or elsewhere within the jurisdiction of said court, known as the proceeds of the steamer Wren or otherwise, may be attached to answer said libellants, it is, therefore, ordered, that process issue as prayed for in said libel, returnable on the third day of May, A. D. 1869. Thomas J. Boynton, Judge.’ On the 7th of the same month of January, an attachment, in the usual form, was issued to the marshal of that district, against the person of Laird, and, on the same day, the marshal returned that Laird was not found in his district, and, therefore, no service could be had. On the 20th of February, 1869, another attachment was issued to the same marshal, directing him to attach and take into his custody the proceeds of the sale of the steamer Wren, then on deposit with the assistant treasurer of the United States in the city of New York, and subject to the order of this court, wheresoever the same might be found in his precinct. To this writ the marshal made return, that he had executed the same, by serving a copy thereof by mail on the assistant treasurer of the United States in New York. It also appears that the copy was received by the assistant treasurer on or before March 4th, 1869. A monition was also issued in the cause, February 20th, returnable May 3d, and served by publication in the Key West Dispatch, once a week for six weeks, to wit, from February 27th to April 3d, and also by posting two copies in the city of Key West. On the 24th of February, 1S09, Foster and Thomson, in New York, addressed J. Langdon Ward, Esq., the proctor for the libellants in this cause, in writing, as follows: ‘In the Matter of the Wren. Office of Foster & Thomson, Attorneys & Counsellors, 69 Wall St., New York, Feb. 24, 1869. J. Langdon Ward, Esq. Dear Sir: Our suggestion is, that the district judge in Florida forward to us his cheque on the assistant treasurer for the proceeds of the Wren, and that we draw the funds under our authority from the claimants Laird and Stiles, and keep the proceeds in our hands sufficiently long to enable you to serve upon us any process or papers as you may be advised. Should this suggestion be satisfactory to you, we give you our personal assurance that the funds will be so retained by us. Yours truly, Foster & Thomson.’ This proposition was accepted by Mr. Ward, and, March 12th, he instructed the counsel in Florida having the matter in charge, to make no objection to the transmission of a check to Foster and Thomson for the money, in the manner proposed. In the course of the negotiations which preceded the arrangement, Mr. Ward was in no manner given to understand tliat there was any ownership, or ■claim of ownership, of the fund, other than such as appeared on the face of the record and the power of attorney filed with the mandate, and, in point of fact, he did not know, or have any reason to believe, that Foster & Thomson were acting in any other capacity than as attorneys for Laird and Stiles, representing their several interests as disclosed by the record in the supreme court. On the Sth of May, Dockray, acting under his employment by Foster & Thomson, and having no other authority, entered the general appearance of Laird to thd libel filed in Florida against him, claimed the proceeds of the Wren in the registry of the court, and moved to dismiss the attachment. This being done, the proctors for the libellants, under their instructions from Mr. Ward, consented to the granting of the motion, and, May 10th, the necessary order to that effect was entered. On the same day, Dockray exhibited to the court the mandate of the supreme court, and, upon his motion, the following decree was entered in that cause: ‘In the District Court of the U. S., Southern District of Florida, in Admiralty. The United States vs. The Steamer Wren. John Laird, Claimant. Prize. A final decree of condemnation and forfeiture of the steamer Wren having been pronounced in this cause, and an appeal having been taken to the supreme court of the United States, and the final decree having been reversed, and the property ordered to be restored to the claimant herein, and the mandate of the supreme court having been filed in this court, and it further appearing that the costs, charges and expenses in this proceeding, amounting to the sum of five thousand six hundred and sixty-six dollars and eighty-eight cents ($3,066.88.). have been taxed and paid to the officers of the court severally entitled thereto, out of the proceeds of the sale of the steamer Wren, now, therefore, on motion of F. A. Dockray, Attorney and Proctor of John Laird, claimant, it is ordered, adjudged, and decreed, that the remainder of the proceeds of the steamer Wren, amounting to the sum of thirty-one thousand four hundred and forty-one dollars and sixt.v-two cents ($31,441.62), now on deposit with the assistant treasurer of the United States, at New York, and subject to the order of the court, be paid to the said John Laird, claimant; and it further appearing to this court that Foster & Thomson, of the city of New York, are the lawfully authorized attorneys in fact of the said John Laird, claimant, it is ordered, adjudged, and decreed that the said proceeds be paid to the said Foster & Thomson. Thos. J. Boyn-ton, Judge.’ Whereupon, checks No. 199, for 829.869.62, and No. 200, for $1,572, were drawn in favor of Foster & Thomson, of New York, attorneys for Laird and Stiles, as against the proceeds of steamer Wren, on deposit with the assistant treasurer of the United States, at New York, which checks were delivered to F. A. Dockray, Esquire, attorney for Foster & Thomson, and attorney in fact for John Laird, and his receipt therefor taken, in the words and figures following, to wit: ‘In the District Court of the U. S., Southern District of Florida, in Admiralty. The United States v. The Wren, John Laird, Claimant. Prize. ($31,441.G2.) Beceived of the Hon. Thomas J. Boynton, U. S. Judge Southern District of Florida, his check for the sum of fifteen hundred and seventy-two dollars; also his check for the sum of twenty-nine thousand eight hundred and sixty-nine and 02-100 dollars, drawn on the assistant treasurer of the U. S., at New York, and payable to the order of Foster & Thomson. F. A. Dockray, attorney for Foster & Thomson, attorneys in fact for John Laird, claimant.’</p> <p>“The next day after the transmission of the drafts, to wit, May 11th, Mr. Dockray wrote Foster & Thomson as follows, ‘Office of the U. S. Attorney, Southern District of Florida. Ivey West, May 11th, 1869. Messrs. Foster & Thomson, 69 Wall Street, New York. Dear Sirs: On the 29th day of April I filed a motion in the case of Cushing vs. Laird, to dismiss the libel and attachment for want of jurisdiction. Premising that Mr. Mallory intended to contest the motion to the fullest extent, I prepared to argue my motion very thoroughly, on my arrival here. When I reached here, Mr. Bethel manifested some alarm at my energy and confidence in the case, and telegraphed to Mr. Mallory at Pensacola to come here at once, when I found that he intended to oppose my motion with an elaborate argument, which (on the part of both of us) would necessarily involve the merits of the case. Pending this argument, I informed them of my instructions to obtain the proceeds, and of the acquiescence of Mr. Langdon Ward in the terms agreed upon. Mallory and Bethel, however, would not consent without stipulation, and telegraphed to Mr. Ward at the time I also telegraphed you to see him. Ward replied, to “consent absolutely, without bond or stipulation,” to the payment of the proceeds to your order. M. and B. were not fully satisfied by this, of the intention of Cushing et al., and did not imagine that the parties libellant would consent to a dissolution of the attachment without security. as Mr. Ward had lately written them to keep the suit in court by all means in their power. I succeeded finally in inducing them to consent in writing to my motion for dissolution, if I would enter a general appearance for Laird, which I hazarded nothing in doing. I was willing for these reasons and on this defence, viz.: 1. That the dissolution of the attachment left the court free to decree upon the mandate of the supreme court and restore the proceeds to you as Laird’s attys. in fact. 2. The attachment being dissolved and the money paid to you, the libellants have no case in •court, even If they had before. 3. The voluntary general appearance of Laird has no legal importance, because, the court having no jurisdiction, no voluntary act of either "party can give it jurisdiction. 4. The libel-lants reside in one judicial district and bring suit in a second against a party in a third, or an alien domiciled abroad, which •ousts the jurisdiction. 5. Even allowing or ■admitting the jurisdiction, (if so,) the most the libellants are able to do is to obtain .judgment against Laird, and suggest it in an English court of competent jurisdiction. Meanwhile, the claim of Cushing et al. for the Sonora is pending as one of the Alabama •claims, and is more than likely to be adjusted before any United States court could -come to judgment on this case, and before •any English court would finally afford process of execution. I send you enclosed a ■certified copy of the late proceedings in the matter. A copy of the decree and order •of dissolution of attachment has been transmitted to the asst, treasr. of U. S. at New York, by the clerk of the court. The judge's checks, one for $29,869.62, and one for $1,-672, total $31,441.62, cover the entire proceeds on deposit with the asst, treasurer. They are forwarded to you through John ■Jay Philbrick, Esq., British vice consul, through his house in New York, Messrs. C. & E. Howe. 71 Broadway. I have drawn •on you through him for $1,071, at sight, covering my fee and expenses, ($71.) of which I enclose a memo., and which dft he has cashed to me. There may be a little difficulty at the asst, treasury, owing to an error (not yet fully rectified) in its ac. with the court here. The error amounts to about $600. I suggest that you present the check for $29.869.62 before that of $1.672, delaying tb.e latter a' few days. But you will ascertain more fully of the asst, treasr. about this. I leave for Jacksonville on Thursday, 13th, where I shall be glad to hear from you. I am, yours truly, &c., E. A. Dockray, Atty.’ In due course of mail, Foster and Thomson received the drafts and the foregoing letter ■of Mr. Dockray. The drafts were not collected until after the letter was received. The money was collected upon the drafts in due course of business, and Foster & Thomson have paid on account of the same as follows: To Mr. Dockray, for his services and expenses, $1,171; to the counsel who argued the prize cause in the supreme court, $2,000. They have also a claim against the fund, for their own professional services in the supreme court and in the proceeding in Florida, amounting to $2,500. The balance of the amount collected, over the payments made as above, is still in their hands, and is the subject-matter of the controversy upon this appeal. Foster & Thomson never had any personal communication with Laird, and never received any instructions from him in regard to their acts in the premises. They were actually employed by Prioleau and communicated with Laird only through him. All that was done in Florida, after the arrangement between Mr. Ward and Foster & Thomson, in New York, was with a view of transferring the litigation to New York, where it could be carried on by both parties more conveniently than in Florida. As soon as the drafts were sent to Foster & Thomson from Florida, .Mr. Ward was duly advised and he caused the attachment to be issued, under which the present proceeding is had, and which was duly served May 18th. It does not appear from the evidence, that the Wren ever entered a British port after leaving Liverpool, in December, 1864, and previous to her capture. It does not appear from the evidence, that Laird exercised any acts of ownership over the Wren, after the execution of his bill of sale, and she was actually employed nearly or quite all the time before her seizure, in running between Havana and Galveston, breaking the blockade at Galveston. At the time of the commencement of this action, all the libellants were citizens of the state of Massachusetts, and Laird was a subject of Great Britain, residing at Birkenhead, England. On the 19th of November, 1864, the libellants, or those whom they represent, caused their memorial and protests to be filed in the office of the secretary of state of the United States, in which they asked the intervention of the United States to obtain reparation from the government of Great Britain for the same identical cause of action set forth in their libel in this suit Their claim, as filed, was as follows: Loss of vessel, above insurance, $20,800; loss of charter, $33,244.44; insurers of vessel, $30,000. The claim thus filed was included among those presented by the agent of the United States to the tribunal of arbitration, under the provisions of the treaty between the United States and Great Britain, concluded May Sth, 1871, known as the ‘Treaty of Washington.’ In or about the month of November, 1S74, after the establishment by congress of the court of Alabama claims, these libellants, or their legal representatives, presented to that tribunal their petition, in which they demanded judgment against the United States for $134.S93.34, including value of ship ($115,869.50, less* insurance, $30,000,) $85.869.50, net freight, $44,-094.33 and stores, $4,929.51, and afterwards such proceedings were had upon this petition that judgment was rendered against the United States, for damages, $33.334.30; interest, $15,286.02; in all $48,620.32; which was paid in full, October 19th, 1S77.”</p>

Bill in equity. The bill set forth, in substance. that on April 13th, 1820, Jacob Cutter assigned to Clement Storer, James Shap-ley, Charles W. Cutter, and Charles Cushing, {the plaintiff), all his property in trust for the payment of his debts, as stated in a schedule annexed to the assignment, and that by virtue thereof, a large amount of property and effects came into the hands of the said assignees, for which they have never accounted.

<p>Case No. 3,512.</p> <p>Discharge—Omission- op Outlawed Debts.</p> <p>A bankrupt omitted from his schedule certain debts, and the creditors holding them had no-notice of the bankruptcy proceedings. He claimed that the debts were outlawed: Held, that the bankrupt had not conformed to the requirements of the act [of 1867 (14 Stat. 517)]; that his discharge could not now be granted; and that the case must be referred back to the register for further proceedings.</p>

Suit in the admiralty in a cause of damage. The libel in substance stated as follows; That in July, 1839, the libellant, Michael Ryan, shipped on board the ship Arab, ■of which the respondent, Benjamin Cush-man, was master, being then on a whaling voyage.

This was an action of assault and battery, plea not guilty, issue, &e. The plaintiff was a schoolmaster in Trenton, under whose care the defendant had placed one of his sons, who had been severely punished by the plaintiff for some offences. He was seen by his father immediately afterwards, when the appearance of the boy indicated the infliction of serious injury.

This was a motion for an injunction and a receiver on behalf of the plaintiff [John C. Gutter], who, as assignee of Mary Irving and Benjamin H. Irving, filed a bill in equity against the defendant [Peter M. Dingee], by which he sought to setiaside the purchase of certain real estate by the defendant, referred to in Re Irving [Case No. 7,073], in foreclosure proceedings instituted by him in a state court, and to set aside the mortgage on which such foreclosure proceedings…

<p>Case No. 3,519.</p> <p>tUTEUXAL REVENUE—ReSTUATNING COLLECTION— Parties—Jurisdiction—Remedt at Law.</p> <p>1.A bill of peace, founded on the idea that all persons charged with a tax under the 99th section of the internal revenue act of June 30, 1SC4 (13 Stat. 273), have such a unity of interest in contesting the tax, that they may join as plaintiffs in a bill to restrain the assessment and collection of such tax, and that a determinate number of such persons may appear in the name of themselves and for the rest, will not lie.</p> <p>[Approved in Georgia v. Atkins, Case No. 5,350.]</p> <p>2. To authorize such a joinder of plaintiffs, their interest must be not only one in the question, but one in common in the subject matter of the suit.</p> <p>3. By virtue of the 2d section of the act of March 2, 1S33 (4 Stat. C32), and the 50th section of the act of June 30. 1S04 (13 Stat. 241), the proper court of the United States has power to prevent, by injunction, the imposition of an illegal tax under the latter act.</p> <p>[Approved in Georgia v. Atkins, Case No. 5,-350.]</p> <p>4. Where the remedy at law is adequate, an injunction is always refused. It will be granted to prevent a multiplicity of suits and vexatious litigation, where the right has been established at law; and, where the right .is plain, and the remedy at law is not adequate, it will oftentimes be granted without even a trial at law.</p> <p>[Cited in Sehulenberg-Boeckeler Lumber Co. v. Town of Hayward, 20 Fed. 425.]</p> <p>5. A tax payer, under the internal revenue laws, has a remedy, by an action at law, against an assessor, who makes an assessment on property or business not liable to the tax, where the property or business is disturbed by pretence of the authority.</p> <p>[Approved in Georgia v. Atkins. Case No. 5.-350. Cited in U. S. v. Sclilesinger, 14 Fed. 684.]</p> <p>6. Where a great number of persons are affected by a tax, and the remedy by separate suits in equity will involve onerous and vexatious litigation, the court will not interfere by injunction in any suit.</p> <p>[NOTE. The right of the government to collect this tax of the complainants was upheld by the supreme court in U. S. v. Cutting, 3 Wall. (70 U. S.) 441.]</p>

<p>Case No. 3,620.</p> <p>Actions foe Infringement of Patents — Declaration — Necessary Averments — Demurrer.</p> <p>1. The declaration in a patent cause need not state that the stages preliminary to the issuing of a patent were observed. What is required to be stated in such a declaration.</p> <p>[Explained in Yan Hook v. Wood, Case No. ie,S54.]</p> <p>2. The declaration must set forth the attestation of the president of the United States, and that the patent was delivered; and the want of a statement of either is a cause for general demurrer.</p> <p>[Cited in Dobson v. Campbell, Case No. 3,-945; Nathan Manuf’g Co. v. Craig, 47 Fed. 524.]</p> <p>3. It is no cause of demurrer to such a declaration that neither the patent, nor the declaration states in what the improvement consists. If the defendant wants the specification inserted on the record, he must crave oyer of it.</p> <p>4. In what manner and form the breach in actions on patents must be laid.</p>

<p>Case No. 3,521.</p> <p>ADMiRAL.Tr Jurisdiction—Action for Wrongful Death.</p> <p>1. Where a minor left his father’s service and went to a port where he was a stranger, and there shipped as of full age, for a whaling voyage, during which he perished: Held, that the father could not maintain an action for the loss of the services and society of the son arising from his death, unless the person who shipped him knew that he was a minor.</p> <p>[Cited in The G. H. Starbuek, Case No. 5,-37S: The Epsilon, Id. 4,506: Baird v. Daly, 57 N. Y. 248; The Sea Gull, Case No. 12,-578; Holmes v. Oregon & C. Ry. Co., 5 Ped. SO; The Garland, Id. 926; The Hattie Low, 14 Fed. 880; The Manhasset, 18 Fed. 925; The Columbia, 27 Fed. 720.]</p> <p>2. It cannot be considered as settled law, that no action can be maintained for damages occurring from the death of a human being.</p> <p>[Cited in American Steamboat Co. v. Chace, 16 Wall. (83 U. S.) 532; The Towanda, Case Ño. 14,109; The Charles Morgan, Id. 2,618; Hollyday y. The David Beeves, Id. 6,625; The Garland, 5 Fed. 926; Re Long Island N. S. P. & F. Transp. Co., Id. 608; The E. B. Ward, 17 Fed. 458; The Max Morris, 28 Fed. 884; The Harrisburg, 119 U. S. 206, 7 Sup. Ct. 144.)</p> <p>[See note at end of case.]</p> <p>[NOTE. In the ease of The Harrisburg, 119 IT. S. 20G, 7 Sup. Ct. 144, it was settled that a suit in admiralty cannot be maintained in the courts of the United States to recover damages for the death of a human being, independently of •statute.]</p>

An action of debt was brought in the district court of Maine, to recover the amount of two bonds, given by [Joseph Cutts] the plaintiff in error, to the United States, to secure the payment of duties. The declaration alleged, that the originals were lost, and made profert of copies. To this declaration the paintiff in error pleaded: 1. Non est fac-tum, and 2. payment; upon which pleas, issues to the country were joined.

<p>Case No. 3,523.</p> <p>Payment in Confederate Notes — Jurisdiction —Bona Fide Pubohaseus.</p> <p>1. The definition of a vested remainder given in Doe v. Considine, 6 Wall. [73 U. S.] 458,— viz.: “a vested remainder is where a present interest passes to a certain and definite person, but to be enjoyed in future,”— approved and applied.</p> <p>2. A payment of purchase money made in “Confederate notes,” although made while the Civil War of 1801-65 was still pending, and in one of the so-called Confederate States, where such notes were then the usual currency, and although the notes were accepted as money, can not constitute the party making the payment a bona fide purchaser for value, so as to entitle him to equitable protection or relief in the circuit court.</p> <p>[Explained in Bailey v. Milner, Case No. 740.]</p> <p>3. Where a purchaser has notice of the facts upon which an adverse claim depends, he is deemed to have notice of the consequences of those facts.</p> <p>[Cited in Van Epps v. Walsh, Case No. 16,-850.]</p> <p>4. The courts of the United States will take judicial notice of the existence of the Civil War of 1801-G5; and of the facts of public history connected with its origin and progress.</p> <p>5. During the Civil War of 1861-65, some of the devisees of lands lying in Georgia, commenced proceedings for a partition of the lands, in one of the courts of Georgia. A partition was ordered and a sale made. At the time when the proceedings were pending one of the-devisees was in the discharge of his duties as a surgeon in the United States army; and was prevented from communication with the state of Georgia, by the war. Held, that the proceedings of the Georgia court were void, as against such devisee, for want of jurisdiction.</p> <p>[Cited in Kanawha Coal Co. v. Kanawha & O. Coal Co., Case No. 7,606; French v. Tumlin, Id. 5,104.]</p> <p>6. The rule asserted by some authorities, that a bill in equity for partition should be dismissed where the title is denied, or an adverse possession asserted, and the parties left to establish their rights at law, — questioned.</p> <p>[Cited in Weston v. Stoddard, 137 N. Y. 126, 33 N. E. 62.]</p>

<p>Case No. 3,624</p> <p>Collision in North River — Too and Tow — Conflict of Evidence.</p> <p>Where a canal-boat, in a tow coming down the North river, was sunk and' the insurance ’ company who paid the loss libelled the steamboat towing the canal-boats and a tug which was helping her, and the owner of the cargo on board the sunken boat also libelled them, both claiming that the sinking was in consequence of a collision between the sunken boat and another boat in the tow, by the fault of the steamboats, held, that the only question was whether there was any collision at all, and the conflict of evidence being too great to warrant a finding in favor of the libellants, the libels must be dismissed with costs.</p>

<p>Case No. 8,525.</p> <p>Salvage—Distribution.</p> <p>A brig loaded with 600 bales of cotton, which had lost her anchors and masts in a storm at sea, and was sailing in distress near a lee shore with a jury-mast under a foretop-stay-sail, hailed a large steamer for a tow, and was taken into port in seven hours, the storm having abated and weather growing calmer during the tow. The steamer was worth $140,000, her cargo was worth $250,000, and her engines $25,000. On a libel for salvage, held, that out of the salvage-money decreed, the owners of the steamer should receive three-fifths, and the master, oificers, and crew two-fifths.</p> <p>[Cited in The Pomona, 37 Fed. 810.]</p>

<p>Case No. 3,537.</p> <p>Coujsiox—Towboat.</p> <p>1. Where a steam-tug took in tow a schooner, to tow her out from a pier, next to which was a high balance dock, which shut off the view to the west, and, when the schooner got just clear of the pier, another tug was seen coming from the west with a barge in tow, which came in collision with the schooner: Held, that the tug having the schooner in tow was negligent, and liable for the collision.</p> <p>2. That, even if the other tug and the barge were in fault, that would not diminish the liability of this tug, especially as those vessels were not joined in this action.</p>

This was a libel in a case of collision, in which S. G. Nicoll was the libelant, and W. McClure the respondent. The principles upon which this case was decided were chiefly of a nautical character, but may be found important in many cases of collision; and in guiding masters and officers in the management of vessels which are approaching each other at sea.

[This was a libel for seaman’s wages, in which Martin was libellant, and McClure respondent. The amount of wages was adjusted between the counsel, with the agreement that one item should be left to the decision of the court, the point being a rebate arising under a recent statute of Louisiana. Stat. 1842, No. 123.]2

<p>This was a libel in rem to recover seamen’s wages. The libellants shipped in Maine, on the Sth of October, 182S, on a trading voyage for nine months, as they alleged. The vessel entered the port of New-York from Europe in September, 1S29, and discharged her cargo. The libellants alleged that she was about to proceed to sea again forthwith, and that they were discharged by the master, their wages remaining unpaid. The master answered, denying that wages were due, and also alleging that the libellants left the ship without his consent, and before their term of service had expired. The proofs on the part of the claimants were the skipping articles, and three depositions taken in the state of Maine, one of the person who filled up the shipping articles and saw two of the libellants subscribe them, and the other two of sailors who shipped at the same time. The evidence for the libellants was the deposition of each libellant for the others. Objections- to the admissibility of the proofs were taken on both sides. The remaining .facts necessary to the understanding of the ease are set forth in the opinion of the court.</p>

<p>Case No. 3,531.</p> <p>Salvage Compensation.</p> <p>Amounts decreed salvors for bringing into port a vessel found without a navigator in the middle of the Atlantic ocean.</p> <p>[Cited in The J. L. Bowen, Case No. 7,322; The Marie Anne, 48 Fed. 748.]</p>

In this case the petition stated that the defendants had been partners with one Patrick Rogers, deceased, in the business of docking and repairing vessels; that by the terms of the partnership articles the partnership was not to be dissolved by the death of any of the partners, but that the business should be carried on and continued by the personal representative in conjunction with the surviving partners; that P. Rogers died in Ohio, leaving a will, appointing J. Rogers…

[Petition to review a decision of the district court of the United States for the eastern district of Missouri, sitting in bankruptcy.]

In equity. Heard upon pleadings and evidence for final decree.

This was an action of trover against the defendants [Elihu Frazer and others], nineteen citizens of Salem, Henry county, in this state. The declaration contained three counts.

<p>[In bankruptcy. In the matter of Daniel J. Dakin.]</p>

In July, 18G7, Griffiths lived and had his principal place of business in Boston, and had a factory in the adjoining city of Rox-bury, which has since been annexed to Boston.

<p>Case No. 3,541.</p>

[Appeal from the district court of the United States for the eastern district of Pennsylvania. [This was a bill in equity, by George M. Dallas, trustee of the estate of Peter Conrad, a bankrupt, against Flues & Co., to recover collaterals held by the defendants for claims which were disallowed in proof.]

This was an action against [Henry A. Smythe] the collector of the port of New York, to recover back certain duties alleged to have been illegally exacted. It was tried before the court, without a jury, upon an agreed statement of facts and oral evidence. The facts were as follows; The plaintiff [James Dallet] imported an article known as “Angostura Bitters,” put up in black glass bottles, each containing less than a quart.

At law. The plaintiff in this case is a citizen of the western district of Missouri, and the defendant is a corporation created under the laws of the state of Ohio.

- This was an action of ejectment brought [by Dallum’s lessee]. to recover a tract of land on the south side of Duck river.

<p>[This was a bill in equity by Joseph Dalton against Abraham G. Jennings to restrain infringement of letters patent No. 124,340, granted to complainant March 5, 1872.]</p>

[This was a suit in equity, brought by I Henry L. Dalton and others against Charles Nelson and others, for alleged infringement of a patent.]

[This was an action by A. J. Dalton, administrator of Stephen Campbell, against the receivers of the Atlantic, Mississippi & Ohio Railroad Company, to recover damages for the death of said Campbell.]

<p>Case No. 3,553.</p> <p>Copyright— “Dramatic Compositions” Defined —Pantomime—Infringement—Sale of Infringing Plat.</p> <p>1. What is meant by the provision in the copyright act of August IS, 1S56 (11 Stat. 13S), which confers on the author or proprietor of a copyrighted dramatic composition, designed or suited for public representation, along with the sole right to print and publish, it, the sole right to act, perform or represent it on a stage or public place, defined.</p> <p>2. A written play, consisting of directions for its representation by action, without the use of spoken language by the characters, is a dramatic composition, within that act.</p> <p>[Cited in Carte v. Duff, 25 Fed. 187.]</p> <p>3. The question of infringement of a copyrighted dramatic composition, considered.</p> <p>4. The case of D’Almaine v. Boosey, 1 Younge & C. 28S, cited and applied.</p> <p>5. Under the act of 1856. the author of a copyrighted dramatic composition is entitled to be protected against piracy, in whole or in part, by representation.</p> <p>[Cited in Henderson v. Tompkins, 60 Fed. 704.]</p> <p>6. Where all that was substantial and material in a scene of a copyrighted play, a great part of such’ scene being represented by actions and not by spoken language, was used in the same order and sequence of events, and in a manner to convey the same sensations and impressions to those who saw it represented, held, that there was an infringement.</p> <p>[Cited in Serrana v. Jefferson, 33 Fed. 348; Fuller v. Bemis, 50 Fed. 928. Followed in Daly v. Webster, 4 C. C. A. 10, 56 Fed. 483.]</p> <p>7. The true test of piracy, in respect to a copyright, defined.</p> <p>8. The sale of an infringing play to another, with a view to its public representation, tnakes the seller a participant in causing the play to be publicly represented.</p>

<p>Case No. 3,553.</p> <p>Injunction — Remedy at Law — Restraining Execution Sale — Indemnity Bond — Enjoining State Codhts.</p> <p>1. The property of A., consisting of a lease and stock of goods, was seized by the sheriff to satisfy an execution issued out of a state court against the property of B., and on the demand of the sheriff, an indemnity bond for the benefit of A. was furnished by the execution creditor; held, that an action on such bond, or an action of trespass against the sheriff, is not ■such an adequate and complete remedy at law ■as would oust the jurisdiction of- a court of •equity of a bill filed to restrain the sale of the property of A. by the sheriff.</p> <p>2. But a federal court cannot interfere by injunction to restrain a sale of the property of A. on an execution issued out of a state court against the property of B.</p> <p>[Cited in Perry v. Sharpe. S Fed. 23; American Ass’n v. Hurst, 59 Fed. 4.]</p>

This was an application to the district judge to issue a warrant to the marshal of this district to remove Charles A. Dana to the District of Columbia for trial, for an alleged criminal offence.

<p>Case No. 3,655.</p> <p>Appeals fuom Land Commissioners.</p> <p>Objections removed by further testimony tak- . en in this court.</p>

<p>Case No. 3,556.</p> <p>Admiralty Pract.ob— Marshaling op Assets— Lies under State Law.</p> <p>1. The lien of a material man for repairs, arising under the law of the state of New York, held entitled to priority of payment out of the proceeds of the sale of a vessel under order of court, over a claim for towage services.</p> <p>2. The present rules and the decisions of the supreme court create no distinction between the liens on a domestic vessel given by the local law, and liens under the general maritime law.</p>

In equity. Bill for an accounting and to restrain alleged infringement of the Gersten patent for “lantern deflector.” The bill of complainant sets forth that on the 25th of January, 1859, a patent [No. 22,723] was duly issued from the United States patent office to Conrad Gersten for an improvement in lanterns; that said Gersten afterwards duly assigned the said patent to the complainants, Dane & Westlake; that after receiving said assignment, said Dane & Westlake…

Final hearing on pleadings and proofs. Suit brought upon letters patent [No. 42,-520] for improvement in lanterns, granted to William Westlake, April 2G, 18G4, assigned to complainants, and reissued to them November 23, 1SG9 [No. 3,747], The claims of the patent, which were involved in the suit, will be found in the opinion. The engravings Nos. 1 and 2 represent the Westlake lantern.

with whom was H. Binuey, Jr., Esq., on behalf of the witness, stated that the inquiry might prejudice the witness’s rights in an action which, thereafter, might bo brought by the bankrupt’s assignee against the witness to recover the assigned property.

<p>Bill in equity [by Otis Daniel against William C. Mitchell and others] to rescind a contract for the purchase and sale of timber-lands in the state of Maine, to set aside the conveyance thereof, to recover back the consideration paid in money, and to have the notes given for the balance delivered up. The bill set forth, that William C. Mitchell, Tristram G. Mitchell, David Wescott, William Wescott, Erastus Hayes, Israel Water-house, Thomas Warren, and William B. Gooch, claimed to be the owners of certain undivided portions of a tract of land in the state of Maine, called the Ford tract, situated upon the upper Austin stream, being a part of the Bingham Kennebec purchase, in the county of Somerset; that they employed James Todd-as their agent, to contract for the sale of the tract, and gave him a bond by which he was authorized to dispose of it as he should see fit, and delivered to him certain certificates of the quantity of timber thereon, &c.; and that Todd employed one Thomas W. Haskins to aid him in effecting a sale, representing and authorizing him to represent, that the tract contained pine timber sufficient to make sixty millions feet of boards, and that there was a suitable stream for floating and getting the logs out into the Kennebec. That upon such representations and assurances, the plaintiff, in connexion with other persons, was induced to purchase three undivided sixteenth parts of the tract, and subsequently seven sixteenths more, making in the whole, ten sixteenth parts of said tract, at the price of foiu dollars per acre; for which he paid one fourth part in cash, and gave his notes, secured by mortgage, for tlie other three fourths, payable in one, two, and three years. The money was paid to Todd, and the notes taken by him, on his own account, so far as he was concerned, and as agent, and for the benefit of the other defendants, who received and appropriated the cash and notes to their own use, according to agreement among themselves. The bill complained, that practices and artifices had been used to produce an erroneous and exaggerated estimate of the quantity of pine timber upon the land, and of the facilities for floating it, and getting it out by water; and alleged, that in an exploration of the tract, which was made previous to completing the contract, in which Haskins was employed as an agent for the plaintiff, and the other proposed purchasers, he and others with him, on the part of the purchasers, were so guided and deceived, as to be carried through the same births or glades of pine timber several times, as though they were distinct and different, and thus great quantities of good pine timber were exhibited to them as standing on that tract, when they were in fact standing on adjacent lands; and further, that the tract did not contain nearly so much pine timber as was represented, nor in fact more than enough to make five millions feet of boards; that it was worth very much less than it was represented; and that the plaintiff had requested the defendants to rescind the purchase, and restore the money, and give up the notes; but they had refused to comply. The bill called upon the defendants to set forth their respective interests in the tract at the time of the sale; and what portion of the consideration each received; and how the distribution was made among them; and prayed, that the contract might be rescinded and annulled, the money might be repaid, and the notes discharged and cancelled, or compensation made, and the plaintiff indemnified. It also prayed for general relief. William Wescott died without putting in an answer, and the suit was discontinued in regard to him. David Wes-cott and Israel Waterhouse died after making answers, and the bill was revived against their representatives.</p> <p>The answer of Todd recited a verbal agreement, made between him and another person, to join in obtaining a bond for the sale of some good timber tract, for the purpose of disposing of it again at a profit; and that upon hearing of the Ford tract as one of that description, in which several persons -were interested, they applied to the Wescotts for information respecting it; that learning it was estimated to contain from fifty to seventy millions feet of pine timber, and that there were undoubted certificates of its containing from fifty to sixty millions, they first took a bond from the Wescotts, for the conveyance of six thousand acres, at four dollar’s an acre; the Wescotts having obtained the consent of some of the owners, provided efforts were made to sell without loss of time; that the bond was dated about the last of Hay, 1835, and was to run ten days; that failing to make a sale, this bond expired; that finding-the Wescotts had the disposal of about ten thousand or twelve thousand acres of the-tract, a new bond was procured from them June 9th, 1835, for the conveyance thereof, in common and undivided, on the payment of' four dollars an acre in thirty days, one quarter in cash, and the rest in notes at one, ttvo, and three years; and that, upon performance-of the new agreement, the Wescotts were to cause a deed of the title derived from Massachusetts, to be made by Mason Greenwood. At the same time it was agreed, that tile-holders of the bond should go to Boston immediately, and endeavour to effect a sale; and if they did not succeed in getting up a company in ten days, who should undertake to explore it with a view to purchase, the bond should be given up. That Todd having delayed to proceed to Boston, and the Mitch-ells having objected to his going on with the business any further; and William Wescott having, on the 15th of June, disposed of his interest in the ten sixteenths mentioned in the bond, to the Mitchells, it was at length arranged, that one week from that time should be allowed to afford an opportunity to get up such a company; provided, that, if said Todd should succeed in so making a sale, they, who were interested in the tract should also have one half of what it should sell for, per acre, over the four dollars, the price fixed in the bond. That about the same time, the Wescotts put into the hands of Todd and his partner, sundry letters and certificates, containing the opinions of the signers thereto, in regard to the character of the tract as timber land, and of the streams, which ran through it, and the quantity of timber upon it. That the defendants never authorized Todd to exhibit the certificates and letters as certainly true and correct, but only that they fully believed them to be so; that when he went to Boston, whicli he did accordingly within the week, he placed these papers in the hands of Haskins, to be exhibited by him to whomsoever he pleased; and that he (Todd) himself believed, and so stated to Haskins, that the statements were in his opinion- correct and conformable to fact; but that he did not authorize Haskins to represent, that they were absolutely free from error or mistake, nor to undertake to guaranty to that effect, because he was not authorized to do so, and had made up his mind not to do so; the intention being, that whoever should purchase, should not do so merely on- the faith of those certificates, but should take their own steps to satisfy themselves of the truth of the statements. That he, Todd, employed Haskins to assist him in hunting up purchasers and getting up a company for the purpose; for which. Haskins was to receive a certain compensation, as was known to the plaintiff. He denies, that he gave Haskins power to make any absolute assurances; but be admits, that he believed there were at least sixty millions of pine timber on the tract, besides other timber, and that the streams running through it were sufficient, with an ordinary freshet, to float the timber, when cut into logs, into the Ken-nebec river; and that Haskins was authorized to represent, that, in the opinion of those interested in the sale, there was that or a greater amount of timber, and that such was the nature of the streams. But that this was a matter of opinion merely, on their own part, of the correctness of which the purchasers must inform and satisfy themselves. That Haskins did interest himself accordingly, in finding purchasers, and getting up a company, consisting of the plaintiff and others, who, on the 18th of June, 1835, entered into articles of agreement for the purchase; and that, previous to that time, he, Todd, conversed with the complainant, and repeated to him substantially what he had said to Haskins, concerning the tract, and the certificates, &e. concerning it. He, Todd, admits, that he stated to Haskins, and also to the plaintiff, that he had but a week to make up his company; that the time limited would then expire; and that the owners then would not sell at so low a rate as four dollars and a half per acre as they all believed, that timber lands were rising; that he himself had not, and did not profess to have, any personal or practical knowledge of the tract, or of the subject, but merely expressed his own actual and honest opinion, founded on, and referring to, the sources, whence it was derived, leaving it entirely for the intended purchasers to ascertain the actual truth of facts in regard to the premises, which they were to take upon themselves; for which purpose, they were to take such means, and appoint such persons to go and examine as they should think proper, he stipulating to pay the expense of one person, at any rate, and also of another to be sent by the purchasers, in case the result should not turn out as represented. That the purchasers accordingly selected Haskins as their agent for this purpose, and that he, Todd, taking up William Weseott by the way, accompanied him to the Ford tract, to show it to them, being informed, as he also informed Haskins, that William Weseott had sold out his interest in the ten sixteenths, although he retained an interest in another undivided portion of the same tract; that William Weseott recommended one Luther Moore as a person accustomed to traversing the woods, and well acquainted with the tract, and that he, Todd, employed him as a guide in making the exploration, and for nothing else, as he was only a hunter, and not a getter of timber. That Haskins also employed one Thomas Chase to assist in exploring and making the estimate, for which ho, Todd, believed him to be perfectly competent; and they were also accompanied by Mollineaux, one of the company of purchasers; that every thing in relation to the business of the exploration was conducted fairly, and without any wish or attempt to mislead, deceive, or influence Haskins, or any other person engaged in forming an estimate, or in making their report; that they arrived on the ground on the evening of the 22d of June, and having spent two days in the exploration, and Chase having made the quantity of timber on the tract to be seventy millions, and Haskins and Mollineaux declaring their satisfaction therewith, Haskins informed him, Todd, on the 24th of June, that he, as agent, concluded to complete the purchase, as he was authorized to do, and that he should explore the tract no further; that on the 25th they all left the tract on their return; that at the request of Haskins, on the next day, the certificates were signed at Bingham, by Weseott, Moore, and.himself, stating the result of the exploration, which he, Todd, signed, after making some objections to them, both as being mere matters of opinion, based upon the opinions of others, and, also, as being too general in its terms. But, he says, that in company with Haskins, he did see on the tract much pine timber of a large size, and apparently of the first quality; ancf so far as he could judge, he did believe, that the tract contained the full quantity of pine timber which had been represented; and that every one of them did believe, that there was more than seventy millions of pine timber upon the tract, and that the streams were such as set forth in the certificate of Chase; that Weseott and Moore went with Haskins, Mollineaux, and Chase to visit the Austin stream, and that Haskins sent Chase and Moore to visit parts of the Ford tract not explored by Haskins, and they reported to him; and that William Weseott stated to Haskins, that there was a glade of pine timber on the northwest side of it, and that he was not acquainted with a certain other part of it, called the L part. That having been so informed, the parties, who employed Haskins, concluded to take the land and make the purchase, and that a deed of warranty was procured from Mason Greenwood, according to the bond, and accepted by the parties, as a full compliance with whatever was to be done on his part. That the plaintiff and the other parties to the purchase thereupon paid him $12.500, being one quarter of the price, and gave their several promissory notes for the remainder, according to the terms of agreement, amounting to $37,500. of which he, Todd, paid over to the other defendants $11,250 in money, and delivered to them all the notes, which were divided and distributed among them in their several proportions, retaining $1250, and taking back from some of the defendants their several notes, and from others two of the notes of one of the purchasers, in full of the share of the purchase money, belonging to himself and his partner, amounting to $3750.</p> <p>David Wescott’s answer stated, that he had originally purchased part of the Ford tract ■with William Wescott, his brother, who had employed one Jonas Brown to explore and estimate the timber, accompanied by Luther Moore, a hunter, who had traversed the tract. That Brown said, that there was nearer eighty millions than fifty; and that Brown, Moore, and William Wescott made a certificate of there being fifty millions. That he first agreed to take three thousand acres at one dollar and sixty-seven cents per acre, and afterwards agreed with William to take three thousand more, at an increased price of over forty cents per acre. That the certificate was delivered by William Wescott, deceased, to Todd and his associate, at their request; but that no farther use was to be made of it, than to invite purchasers to look and examine. No representations whatever were authorized, but the defendants offered to pay the expenses of any person sent to explore, if there did not prove to be fifty millions. Weseott’s answer denied any knowledge, or belief, that any means were made use of to mislead or deceive the agent sent by the proposed purchasers, or that any artifices were practised to influence the result of the exploration, or to raise the estimate of the quantity of timber upon the tract, or that the plaintiff was induced to purchase upon the report of the agent. It averred, that they all believed, that the tract contained good pine timber enough to make sixty millions feet of boards, and that they were not apprized of any grounds for concluding that it only contained a less quantity.</p> <p>The joint answer of the Mitchells, stated their own original purchase of four thousand acres of the tract, and that William C. Mitchell purchased one thousand acres separately; that one of the Wescotts applied to them for leave to include a portion of their interest in a bond to be made to Todd and another, setting forth that circumstance in a manner similar to the statement in the answer of David Wescott. That they had letters and certificate of one Hill in-relation to-the timber on the tract, which were put into the hands of Todd; and that William Wescott delivered to Todd the certificate of the exploration made with Brown and Moore. That none of the defendants meant to authorize Todd to guaranty the statements in letters or certificate as free from error of judgment, or as being founded on certain and correct information as to the quantity of timber; but that they were only intended to recommend the tract, as an object of attention, to any persons who should wish to purchase, and to induce such persons to inquire and satisfy themselves; and they advised Todd to make it the condition, that they should do so. They denied knowledge of any particulars in regard to the explorations or proceedings attributed to Todd and William Wescott, or of the original certificates, and they disbelieved that any such artifices were practised, as supposed; that they did believe, that the proceedings were conducted in perfect good faith, and without any fraudulent intent; and they denied, that they represented Brown, William Wescott, and Hill, to be men of character and acquainted with timber; but stated, that William Wescott was a man of integrity, and Brown was a judge of timber; that all the signers of the certificates were disinterested persons, without any inducement to make an exaggerated report; and that William Wescott actually rated the quantity less than he believed there was on the tract. That they themselves did verily believe, that the Ford tract contained more than sufficient to make sixty millions feet of boards, and never had any reason to suppose it contained less, nor heard of any lower estimate, excepting the certificate of Brown; and that all the defendants believed that the tract contained sixty millions.</p> <p>The answers of the other defendants set forth their several relations to the transaction, and the manner in which they became possessed of, or concerned in, their respective proportions of the tract. They denied authorizing, or that they knew of the delivery of certificates, or authorized Todd to make any representations concerning the quantity of the timber, the character of the stream, or the facilities of conveyance; they averred that the defendants generally thought it to be a well timbered tract, and believed, that it contained not less than from fifty to sixty millions of pine timber; and one of them added, that the streams were sufficient, with an ordinary freshet, to float it into the Kennebec. They denied any knowledge or participation in any fraudulent or improper practices in regard to the procurement or use of the certificates, or any belief, that any such were used to falsify or affect the exploration. or effect a sale. They averred, that the object was to enable Haskins to satisfy himself, by means of the exploration, in such a manner, and to such an extent, as he should think for the interest of his employers. They avouched for tho general good character and respectability of the signers of the certificates and explorers, and expressed the belief, that all the proceedings in respect to the exploration were conducted with perfect fairness and good faith. An agreement was entered into on the 22d of July, 1833, between the Wescotts, Mitchell, Warren, Wa-terhouse, Hayes, and Gooch, who were jointly concerned in the sale of the ten sixteenths, which recited the conveyance to the plaintiff and others, and the receiving of the notes of the purchasers in payment of their respective shares, secured by mortgage, and set forth the proportions, in which the parties to this agreement were interested in the land, of which the fee was in said Greenwood, and in which they had consequently become the holders of the notes, and interested or accountable as such. By this agreement they stipulated with each other, that in case any of the promissors should become insolvent, before the notes should become payable, so that any loss should arise, or in case of any loss on the same, arising from any cause other than the negligence of the holders, such loss should he borne by all the parties, in the proportion of their respective interests; and the holder of any note who should experience any such loss, should, after notice and request, have his right of a remedy for contribution against any other of said parties refusing to pay his proportion of such loss, •either by action of assumpsit, or on the agreement.</p> <p>The certificates referred to, were in the following terms:</p> <p>“Bingham, May 13, 1S33. We, the subscribers, do hereby certify that we have this day returned of exploring the Ford tract, and our estimation is, that there is fifty millions, to speak within bounds, of prime pine timber, that is to say, as good as any on the Kennebec waters; and we have also examined the Austin stream, and find sufficient to run the above timber in the main Kenne-bec river. Jonas Brown, Luther Moore, William Wescott.”</p> <p>“This is to certify, .that from the knowledge I have of the Ford tract, it is unquestionably one of the best timber tracts upon the Kenne-bec waters. And I would-also state, that I have just sold my interest in the Saco tract, being on part of the same stream, at seven dollars and fifty cents per acre. John Hill.”</p> <p>“Bingham. June 23, 1S33. I, the subscriber, hereby certify, that I have this day returned from an exploration of the Ford tract, and having been also frequently over the tract in hunting, I am fully satisfied, that the estimation made by Jonas Brown, William Wescott, and myself, in May, 1S33. will fail short of the quantity of timber; and that the one made this date by Mr. Xnomas Chase, is within bounds. Tim reason they fell short was, that they did not explore at that time the part called the L, which we have dene this time, and find more timber on it than was anticipated. And I also certify, that I have been well acquainted with the stream called the Austin stream, for these twenty years past, and consider it good and sufficient to run logs to the main Kennebec river; and the north and south branches of it on the tract sufficient to run them into the main Austin stream with a common freshet after building one, and repairing two, dams on the said streams, or even without a freshet. Luther Moore.”</p> <p>“I hereby certify, that I agree to the above, and consider it perfectly true. William Wescott.”</p> <p>“Bingham, June 26,1S33. I, the subscriber, do hereby certify, that I have this day returned from exploring the Ford tract, in company with It. W. Mollineaux and Tin mas Haskins of Boston. Massachusetts, and my estimation is, that tl}e Ford tract, it is unquestionably one of the best timber there is not less Ilian four and a half thousands to the acre, on an average, of prime pine timber, as good as any on the Kennebec waters, and one and a half thousands of good spruce timber, worth as much as pine, also to the acre,— and have also, explored the stream called the Austin stream, which runs through the tract, and do certify, that I consider it a good and sufficient stream to run logs to the main Kennebec river. Thomas Chase.”</p> <p>“I hereby certify, that I was also with Mr. Thomas Chase, in exploring the Ford tract, and was fully satisfied, that the estimation is within bounds, and the quality of the timber is the first, and the stream is as represented, and that it may be made, with very little expense, so as to run logs even without a freshet. James Todd.”</p> <p>It appeared from the proof, that the land was purchased as a timber tract, and principally with reference to the quantity of timber upon the tract, and that the purchasers relied upon the representation made to them in that respect. In pursuance of the agreement, Haskins and Mollineaux, one of the purchasers, were carried on to the land by Todd, accompanied by William Wescott, and taking Moore and Chase with them as guides, to explore it. They were emp’oyed two or three days, exploring different parts together; but having become fatigued, and their provisions having given out. they concluded to finish the business, and leave Chase and Moore upon the land to report the result, to which they had then arrived, as exhibited in the certificates, and with which Haskins was, at the time, understood to be satisfied. From a subsequent survey of the tract, pursuing the route of the recent exploration, it appeared, that in the course of that exploration, Haskins and others had, by some means, been led off from it, and that timber had been shown, as being upon land, that was not included in the tract, but which lay adjacent to it; and that there was a considerable quantity of timber upon the contiguous tract, and upon different borders of the Ford tract. Certain persons were after-wards sent to examine the tract; and the defendant being previously requested to join them, who estimated, that at the time of ihe sale, in 1S35, the quantity of timber, suitable to be sawed into boards, did not exceed three and a half millions feet. Snne of the witnesses, who examined it afterwards, w'th a view of making a more accurate estimate, made it less. But from the testimony of Samuel Homans, who, some time after the purchase, was employed in driving the logs cut off the Ford tract, out of the Austin stream, it might be inferred, that the tract contained fully that quantity. And from the testimony of Samuel Chamberla'n, that there might have been more, but not much! There was evidence, also, that there were same spruce and cedar upon the Ford tract. Jonas Brown, one of the signers of the original certificate of May, 1S33. who was examined for the defendants, testified, that the usual course of explorers Was to go to y high ridge or elevation on the tract, to take a compass and mount with it to the top of a tree, where the timber could he seen to a considerable distance, there to set their compass, and take the bearings of the several glades of timber in sight; then to go to the glades, and make a general estimate, according to tlieir best judgment, as to the quantify and quality of the timber, without actually counting, scaling, or measuring. He thought it would have taken six months to make an exact estimate of the quantity of timber in this tract at the time when he explored it in 1833. He was the agent for the Wescotts in lumbering on it in the winter of 1838-4, and cut two millions four hundred thousand feet. He did not remember giving any certificate of the quantity of timber on the Ford tract, when he explored it with Wescott in 1S33; but, if he did give a certificate, that there were “fifty millions of good pine timber.” the words, “and spruce,” were, or ought to have been, inserted after the word “pine.” He believed, that more than half of that quantity of timber was pine. He did not estimate the pine separately from the spruce, and in his opinion, there was about an equal quantity of each upon the tract None of the witnesses examined for the defendants undertook to make any precise estimate of the actual quantity of pine timber upon the tract at the time of purchase. Thomas Chare, who was one of the explorers, and signed one of the certificates, June 26th, 1S33, testified, that according to his best recollection, he estimated the whole at four awl a half thousand feet to the acre, including pine and spruce.</p> <p>A cross bill was filed by the defendants in the original suit, upon the alleged ground, that during the pendency of that suit a com-promiso and adjustment of it had taken place, by virtue of which, the original defendants (now plaintiffs) had agreed to receive, and had accepted fifty per cent, upon the notes given for the balance of the price of the land, in addition to the first payment of money, and had thereby been discharged from any further claim or prosecution of the former suit. The cross Dill charged, that all the original purchasers of the ten sixteenths had a common interest and concern, which induced them to unite together as in one cause, and they had authorized the original plaintiff fDniiiel) to compound and settle the whole matter. That it was mutually agreed between the parties to the suit, that the notes given for the balance of the consideration of the land, should be given up on payment, or securing the payment of fifty per cent., and that the suit should thereupon be finally compromised and settled. And it was particularly alleged, that, during the course of negotiation to this end, Daniel assigned and urged as a reason for not consenting to pay any larger amount upon the notes, that he himself and the other parties concerned in the purchase, had been put to much trouble, and had incurred great expense in prosecuting their bill, which they should lose by adjusting and taking up the notes. The bill thereupon prayed for an injunction against Daniel, and- a dismissal of his suit. The answer of Daniel contained a positive denial of the principal allegations of the cross bill. Only one witness, Greenwood, testified upon the subject.</p>

<p>Case No. 3,563.</p> <p>•Equity— Reiiearings after Decree—Newi.t-Dis-covered Evidence —Confessions—Discretion of Court.</p> <p>1. Rehearings in equity after a decree are not a matter of right, but rest in the sound discretion of the court.</p> <p>[Cited in Dogsrett v. Emerson, Case No. 8,901; Steines v. Franklin Co., 14 Wall. (SI U. S.) 22; Reeves v. Keystone Bridge Co., Case No. 11,CGI; American Diamond Rock Boring Co. t. Sheldon, 1 Fed. 870; Bentley v. Phelps, Case Ño. 1,332.)</p> <p>2. Where a rehearing is applied for upon the ground of newly discovered evidence, the application is mainly governed by the same considerations as apply to cases, where leave is asked to file a supplemental bill after the publication of the testimony, taken on a cause, and before the hearing, in order to bring newly discovered evidence before the court; or where leave is asked, after a decree, to file a bill of review upon the ground of the like evidence.</p> <p>3. Quere, whether the court will grant any such application after a decree, where the newly discovered evidence consists wholly of confessions made by the plaintiff since the decree, and affecting the merits of the original bill.</p> <p>4. If the court will grant any such application, it will grant it only when the confessions are of the most full and direct character, and are proved by disinterested testimony, and are not susceptible of different interpretations.</p> <p>5. A fortiori, the application will be more diffi- ' cult to be maintained (if it can be maintained at all) where the supposed confessions made by the plaintiff are directly contradictory to the answer of the plaintiff to a cross bill filed in the same cause for the very purpose of obtaining an admission of the same facts, as the confessions purport to state, and are also contradicted by the plaintiff by his affidavit, filed upon the application for the rehearing.</p>

The steamer Daniel Ball was libelled for want of inspection and license under the navigation laws. The owners set up by way of defense that the Ball was not, by law, required to be inspected or licensed. The facts agreed upon were as follows: The Ball was a steamer of 123 tons burden, drawing about two feet of water, running on Grand river, a river entirely within the state of Michigan.

<p>Case No. 3,565.</p> <p>Shipping — Navigation op Hudson River — Steamer Passing Tug with Tows—Swells.</p> <p>1.The Hudson river is a national highway, upon which steamtugs with their tows, and steam passenger boats, are equally at liberty to travel. Each class of boats may occupy the river with their boats of such size and construction as they may choose, and at the speed they may think fit, subject to the qualification, that the rights and interests of others are not unreasonably impaired.</p> <p>[Cited in The Rhode Island, 24 Fed. 205; The New York, 34 Fed. 75S.]</p> <p>2. There is no absolute rule of law which limits the space a boat or its accompaniments may occupy upon a public river, or which prescribes the speed it may use, or the swell it may make, or how near it may come to another boat. It depends upon the reasonableness of the thing done, under all the circumstances of each particular case. It is not the rule, that, in the event of an injury from a swell, the boat causing the swell is at all events responsible.</p> <p>3. The steamtug Ohio, with one boat at her side, and a tow of twenty boats, in five tiers, at her stern, was passed by the steam passenger boat Daniel Drew, in deep water and with a light wind, and, by the swell and motion caused by the Drew, and by the slacking of the tug’s hawser, the boats in the tow were thrown against each other, and the libellant's boat was injured. It appeared that the speed was that usually kept up in passing a tow in deep water, that the swell made was not unusual, that neither those on the Ohio nor those on the Drew apprehended danger at the time from passing at the speed kepi up, that the boats in the tow were not well arranged, and that the Drew exercised reasonable care and diligence: Held, that the Drew was not liable for an injury to one of the boats in the tow, from the collision mentioned. .</p> <p>[Cited in The Morrisania, Case No. 9,838; The Drew, 22 Fed. S53.]</p> <p>4. The accident was in part, at least, attributable to the fact that the tiers of boats were towed by lines only six or eight feet in length, with nothing to prevent their coming together when operated upon by a force in,the rear, and with a slackened hawser from “the tug.</p> <p>5. The English cases on the subject examined.</p>

In bankruptcy. This was an application on the part of the assignee of said bankrupt [John H. Daniels] to expunge a claim filed for between fourteen and fifteen thousand dollars, by the firm of F. B. Wallace & Co., of New York City.

Assumpsit for goods sold and delivered. Facts agreed. Plaintiffs [Nathaniel A. Daniels and others] were citizens of Massachusetts, and the defendant [Michael McCabe] a citizen of New Hampshire. The agreed statement showed that the amount claimed was for liquors sold, which were not imported. They were sold by the plaintiffs at their store in Boston, in December, 1803, and by them delivered to the defendant at the depot of the Boston and Maine Railroad in that city.

<p>This was an action [by Samuel It. Daniels and Selden W. Lackor] against [Henry F. Tarbox] a collector of internal revenue, to recover back money paid as an internal revenue tax upon the plaintiffs, as distillers, under the name and firm of S. W. Lackor & Co.</p>

<p>Case No. 3,569.</p> <p>Corporations — Ultra Vires Contract? — Rights up Stockholders — Acquiescence — Who are Stockholders.</p> <p>[1. One purchasing shares of stock standing on the corporate books in the name of a third person, who holds them as security for a debt due from the seller, and, without obtaining any transfer, certificate, or other evidence of title, immediately pledges the stock to such third person, who continues to holds it( is not in a position to maintain a suit to enjoin the corporation from carrying out an alleged illegal contracts</p> <p>[2. It was not unlawful for the original directors of the Louisiana Lottery Company, who were its incorporators, and at the time the owners of all its stock, to make a contract in its behalf granting to certain individuals the right to exercise for 24 out of 23 years (the term of the charter) all the lottery rights, privileges, and franchises belonging to the company, and retaining merely a right to share in the profits and superintend the drawings.]</p> <p>[3. A contract made by a corporation cannot be attacked as unauthorized, by a stockholder whose stock was derived from persons who had long acquiesced in such contract, and received profits thereunder.]</p>

Tke questions submitted to the court involve the course of proceedings under section 43 of the bankrupt act, the terms of which are very obscure.

The complainants are trustees, under the 43d section of the bankrupt act of 1867 [14 Stat. 538], of John F. Darby, who was decreed a bankrupt on the 2d day of July, 1809. After stating that Darby was decreed a bankrupt, and Park and Tiffany appointed his trustees, the bill avers that Darby had for a long time prior to October, 1868, been doing -an unprofitable business as a private banker, which defendant well knew.

<p>Case No. 3,672.</p> <p>Baxkkcptct — Preferences—Knowledge or Cueditok.</p> <p>A creditor who has reasonable cause to believe his debtor insolvent, and who receives payment of his debt or security, necessarily knows or has reasonable cause to believe that he is thereby obtaining a preference which is forbidden by law; but persons other than creditors dealing with an insolvent, even if they have reasonable cause to believe him insolvent, are not on the same footing, inasmuch as they do not necessarily enable the debtor to contravene the act, or defeat any of its requirements.</p> <p>[See Alderdice v. State Bank of Virginia, Case No. 154.]</p> <p>[See note at end of case.]</p> <p>[NOTE. The hill having been dismissed, pursuant to the above opinion, complainants appealed to the circuit court, where the decree was. affirmed on substantially the same grounds. Case No. 3,573. Complainants then took an appeal to the supreme court, which in turn affirmed the judgment of the circuit court on like-grounds. Tiffany v. Lucas, 15 Wall. (S2 U. S.). 410.]</p>

. [Appeal from the district court of the United States for the eastern district of Missouri.] On the 24th day of April, 1SG9, John F. Darby, who was then, and for many years, had been a private banker, made to defendant, Lucas, a deed for a certain building and grounds in St. Louis, situate at the corner of 5th and Olive streets.

<p>In equity. [Bill by Abraham Darby and others against John C. Wright, comptroller of the state of New York, and others.] This was a motion to dissolve an injunction that had been granted by Mr. Justice NELSON. The facts sufficiently appear in the opinion of the court.</p>

Debt on a bond. Oyer and plea of payment contended that the plaintiff was obliged to produce the original bond at the trial, and cited Act Assem. [1792] p. 89, § 33; Drummond y. Crutcher, 2 Wash. [Va.] 218; Taylor v. Peyton, 1 Wash. [Va.] 252; Evans y. Smith, 1' Wash. [Va.] 72; Act Assem. p. 11; Peter v. Cooke, 1 Wash. [Va.] 257; Governor of Virginia v. Turner’s Securities [Cases Nos. 16,970, 16,971]; Gordon v. Frazier, 2 Wash. [Va.] 130.

The facts, as agreed upon, are these: 1.That this action is brought for the collection of interest coupons originally attached to bonds of… Held: and no by-laws were adopted or subscription books opened, nor subscriptions made to the stock of said company, and the records or minutes of said meeting are .not known to exist at present That from the first Monday of June, 18G0, to the first Mo:i-.day of June, 18G9, no meeting was held to organize a board of directors, and no…

<p>Case No. 3,579.</p> <p>Admiralty Pleading — Amendment of Lidel— Rights of Sureties.</p> <p>[The obligations of the sureties of a vessel are not increased by amending the libel against her by increasing the amount claimed.]</p> <p>[NOTE. Defendant took the case, on writ of error, to the supreme court, which affirmed the judgment on the ground that a person in custody under process of a federal court could not legally be discharged by a state officer acting under a state insolvent law. 1 How. (42 U. S.) 301.]</p>

The plaintiff in this ease [Isaac Darst] having a judgment in this court against Jacob-Roth, on which there was a balance due of $2,000.43, took out a capias ad satisfacien-dum against the defendant in the judgment. [Andrew Duncan], who resided in York county, Pa. He was arrested by the United States marshal for that district on the 6th of December, 1832, and committed to jail in York county, and on the day following was at large.

The plaintiff in this case [Isaac Darst], having a judgment in this court against Jacob Roth, on which there was a balance due of $2,000.43, took out a capias ad satisfaciendum against the defendant in the judgment, who' resided in York county, Pa. He was arrested by the United States marshal for that district, on the 6th of December, 1S32, and committed to jail in York county, and on the day following was at large.

The declaration is in the name of Henry Darst and two others of the same surname, and sets forth, that “they, by the name and description of Henry Darst & Co. and the defendant, entered into an agreement under their respective hands and seals,” whereof profert is made, whereby they agreed to sell to the defendant certain lands in the state of Ohio, for which the defendant was to pay a certain sum of money, for the breach of which contract this suit is brought.