Volume 7 — Federal Cases

<p>Case No. 8,583.</p> <p>Removal of Causes—Time op Removal—Practice and Forms.</p> <p>1.- A judgment was rendered, in a state court, on the report of a referee, in favor of the plaintiff, against two defendants. The judgment wns reversed, and a new trial was granted. After that, one of the defendants, before another trial, applied to the state court, under the act of July 27, 1866 (14 Stat. 306), for the removal of the' suit, as against him, into this court. ' The state court ordered the removal, holding that the case stood for trial as if no former trial had oc-cured. The plaintiff then moved, in this court, that the cause be remanded to the state court: Brhl, that, as the act gave the right of removal “at any time before the trial or final hearing of the cause,” the cause was properly removed.</p> <p>[Cited in Kellogg v. Hughes, Case No. 7,662; Fisk v. Henarie, 32 Fed. 425.]</p> <p>2. Form of the order of this court, on the filing of the papers from the state court.</p> <p>3. In the case o"f a removal, by one of two defendants, under the said act of 1866, after the cause is at issue, in the state court, on pleadings, there is no need of any new pleadings in this court, provided they are in a proper shape for a trial, as between the plaintiff and such defendant. ’</p> <p>[Cited in McCallon v. Waterman, Case No. 8,-675.]</p>

In August, 1814, the private armed brjg Dash [Porter and others, owners] captured the ship live Sisters, and having taken out her cargo, brought it into Portland, where it was duly libelled in the district court and condemned, and sold by the marshal for the benefit of the captors. Ross and Slater were officers, and Marshall, a seaman, belonging to the Dash at the time of the capture aforesaid.

<p>Case No. 3,585.</p> <p>Trade Mark:—Infringement.</p> <p>1. A registered trade-mark for plug-tobacco, consisting of one longitudinal line dividing the plug into equal parts and a series of transverse lines crossing the plug at right angles with the longitudinal line, and at equal distances from each other, will not prevent the use of a trademark for tobacco, consisting of a series of seven Greek crosses stamped on the center of the surface of the plug at equal distances from each other and a series of half crosses on the margin opposite the full crosses, as guides for cutting the plug into pieces.</p> <p>2. Every manufacturer has the right to indicate points or lines of division by marks upon his goods or packages.</p>

<p>Case No. 3,687.</p> <p>Bankruptcy—Fees or Assignee—Counsel Fees.</p> <p>1. Assignee has no authority to make specific charges for making and setting aside certificate of exempted property; drafting acceptance and notice of appointment for publication; drafting petition for sale of property, or drafting application for order of compromise. For such acts and services the court may allow reasonable compensation in its discretion, and allows ten dollars therefor.</p> <p>[Cited in Re Cook, 17 Fed. 329.]</p> <p>2. A charge of court fees in drafting an order of compromise is correct, if fees were actually paid. A charge of eight dollars for one day’s service in preparing advertisements is disallowed as unauthorized. A fee of three dollars allowed. A charge of seven dollars for one day’s service by assignee in ascertaining value of property, allowed. Charge of five dollars for writing and delivering deed, disallowed as improper.</p> <p>3. An assignee has a right to seek professional .advice and to employ counsel in necessary and proper cases. Charge of seventy-five dollars for counsel fees in simply compromising an inconsiderable debt with a lien creditor, under an order of court, questioned and suspended. Referee ordered to take testimony.</p> <p>4. Assignee can only properly charge commission on the amount of debt canceled by compromise with a lien-holder.</p>

<p>Case No. 3,680.</p> <p>Bankruptcy—Proof op Claims—Assigned Claims.</p> <p>1. The assignee of a chose in action not negotiable, may prove it against the estate of the debtor in bankruptcy upon his own deposition, without adding the deposition of his assignor.</p> <p>[Cited in Re Strachan, Case No. 13,519.]</p> <p>2. The deposition should show the name of the original creditor, in order to enable the assignee in bankruptcy to compare the debt with the books and accounts of the bankrupt.</p> <p>3. If, as matter of form, the proof should stand in the name of the assignor, the assignee has all the rights of a creditor in the bankruptcy, including the right to take any action in the name of his assignor, but at his own expense, that may be necessary.</p>

This was a petition filed by[T. H.] Davenport against the receivers of the Alabama & Chattanooga Railroad, in the principal cause, which was entitled John C. Stanton and others, Trustees, v. the Alabama & Chattanooga •Railroad Company and others. [Case No. 13,296; Id. 13,297.] The original bill was filed by the trustees to foreclose the first mortgage on the road, and other property of the railroad company. The court made a de-cretal order, appointing Lewis Rice and Wm.

<p>Case No. 3,589.</p> <p>Makitime Lieks—Advances and Repairs—Waiver—Bona Fide Purchaser.</p> <p>[A lien arising upon advances made to pay for salvage and repairs is waived, as against a subsequent bona fide purchaser without notice, by taking a time draft duly accepted.]</p>

<p>Motion [by Margaret, Frank, and Agnes Davey, by Catherine Shehan, their guardian ad litem] for judgment upon special verdict</p>

<p>Case No. 3,591.</p> <p>Salvage Sekvices bt City Firemex.</p> <p>Firemen employed and paid under a city ordinance are not entitled to salvage for vessels saved while lying at their wharves, as their services are simply in the line of their duty.</p>

[Appeal from the district court of the United States for the eastern district of Texas.] This was.an attempt of firemen to recover salvage of a vessel for extinguishing a fire which broke out in her while lying at the wharf of GalveRton. cited Spencer v. The Ch. Avery [Case No. 13,232]; The Tees, Lush. 505; 2 Pars.

<p>Case No. 3,594.</p> <p>Forfeitures — Intercourse with Insurrection art States — Contraband Goods—Clearance Papers—Estoppel.</p> <p>1. A vessel was chartered in November, 1862, for the purpose of carrying goods to Newbern, North Carolina. It being uncertain whether a permit could be obtained to go to Newbern, a license and a clearance were taken for Beaufort, with the alternative intent, on failure of obtaining a permit at Hatteras Inlet to proceed to Newbern, of Sanding the goods at Beaufort, and transporting them by rail to Newbern, their destination. The vessel sailed November 14, 1862, and whan about two miles down the harbor of Boston was seized, and there were found on board, besides the cargo of ice and other merchandise, three barrels, of spirits marked “cider vinegar.” Held, that under the statute of July 13, 186Í [12 Stat. 257], forbidding all intercourse with the states and parts of states which the president should declare to be in a state of insurrection, and the proclamation of the president dated August 161 h, 1861 [12 Stat. 1262], and the regulations of the treasury department established August 2S. 1S62. the claimants were not estopped by their license and clearance from showing that the primary destination of the voyage was to Newbern, and that by the setting sail on the voyage which might end at Beaufort with contraband articles on board, the condition of the license was not broken, and the vessel and cargo not forfeited;to the United States, although the claimant of the cargo knew the spirits were on board, and had been declared contraband by the secretary of the treasury.</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, to recover damages for injury to a cargo of fire-clay retorts shipped from Antwerp to New York by the brig David & Caroline. The district court dismissed the libel, and the libellants appealed to this court.

This case came up on a motion by the claimants of the schooner David Faust, to ■dismiss a libel against her, which was filed by David Bailey, to recover wages due him for services on board of her on a voyage from New York to Galveston and back. The motion was made and opposed on affidavits, the facts of which sufficiently appear in the opinion of the court

Libel for towing. The libel alleged the towing of the bark by libellant’s tug, the I. U. Masters, from Lake Huron to Lake Brie, August 30th, 1808, and claimed seventy dollars for that service.

This case was formerly before the court and was argued on an exception to the libel in the nature of a demurrer. In its original form the libel united a cause of damage for an assault and battery and imprisonment, with a cause of substruction of wages. The ground of exception was that the libel was multifarious, embracing distinct and independent causes of action, which could not be united in the same proceedings.

This was a motion for an order directing the assignee in bankruptcy to surrender the possession of certain coal, held by him as part of the property of one George J. G. Davidson, a bankrupt. It appeared from the papers that the coal in question, when in possession of Davidson, was levied on by the ■sheriff, by virtue of an execution against Davidson.

<p>Case No. 3,599.</p> <p>Bankruptcy—Void Judgment—Forfeiture of Debt—Duty of Ckeditok.</p> <p>1. M. a creditor of D. an insolvent, knowing that he was insolvent, commenced an action against him in a state court, and, without opposition, obtained a judgment against him and issued an execution, under which the sheriff levied on and sold D’s. property. A few days after the levy, creditors of D. filed a petition against him in involuntary bankruptcy, on the ground of his having so suffered his property to be taken on legal process, with intent to give a preference to M. D. denied the act of bankruptcy, but, before the matter was tried, he filed a petition to be declared a bankrupt and an adjudication of bankruptcy was made against him. The as-signee in bankruptcy, having been chosen, filed a petition to have the judgment in favor of M. against D. set aside, to have M. pay over to the assignee the money which he had received from the sheriff on the execution, and to have the sheriff also pay over the amount remaining in his hands, and to have the proof of debt filed by M. in the bankruptcy proceedings disallowed and stricken out: Ecld, that M. had reasonable cause to believe that D. was insolvent, and that a fraud on the bankruptcy act was intended within the 35th and 39th sections [14 Stat. 534].</p> <p>[Cited in Be Tonkin, Case No. 14.094; Has-kell v. Ingalls, Id. 6,193; Be Hunt, Id. 6,-882.]</p> <p>2. As M. had not availed himself of the locus penitentiae given to him by the 23d section of the act, but had resisted the claim of the as-signee, he must pay the penalty imposed by the 39th section of the act.</p> <p>[Cited in Be Dunkle, Case No. 4,160; Be Beece, Id. 11,633; Be Stephens, Id. 13,365; Be Leland, Id. 8,230; Be Baxter, 25 Fed. 701.]</p> <p>3. M., after taking possession of the property of D. under his judgment, should have thrown D. into bankruptcy for that act, and then have turned the property over to the assignee.</p> <p>4. The prayer of the petition must be granted.</p>

A receiver of rents and income was appointed, pending the foreclosure of a mortgage on productive real estate.

Debt, on bond, conditioned to pay $460, on 1st January, 1804; $460, on 1st January, 1805; $460, on 1st January, 1806; and $460. on 1st January, 1807. The writ issued in June, 1804. The trial was in August, 1805. Plea, payment, and issue. See the act of assembly of Maryland, 17S5, e. 80, § 13.

In this case suit was brought [by Edward F. Davidson against Simeon Draper, late collector of the port of New York] in the circuit •court, for the district of New York, to recover duties exacted upon wool imported from Buenos Ayres in May, 1865. One invoice of .224 bales was purchased there December 9, 1864, and shipped February 1, 1865. The •other invoice, of 100 bales, was purchased there January 13, 1865, and shipped February 10, 1865.

This was a suit on the equity side of the court, to reform a policy of insurance, effected by the Phoenix Insurance Company, of Hartford, Connecticut, upon property of plaintiff [Mayer Davidson], and to compel the payment of the amount for which the policy was issued. It was heard on demurrer to the bill at the June term of 1867.

This action was founded on a record of a judgment rendered in the circuit court of the United States, for the northern district of Illinois, July term, 1855, against the defendant, as a citizen of the state of Wisconsin, and in favor of the plaintiffs as citizens of Illinois. That suit was upon a record of a judgment in favor of the plaintiffs against the defendant rendered in September, 1854, in the supreme court of the state of New ' York, for the county of Chautauqua.

<p>This cause was heard upon a motion for a new trial made by defendant.</p>

[Action by John M. Davies and others against Chester A. Arthur, collector of the port of New York, to recover exces'ive duties levied by defendant on certa.n articles imported by plaintiffs.]

<p>On the 17th August an application was made to Judge CONKLING, in behalf of the petitioner [John Davis], for a writ of habeas corpus ad subjiciendum, to be directed to Mr. George B. Gates, one of the deputy marshals of this district, in whose custody the petitioner was alleged to be, at the city of Buffalo. The petition alleged that the petitioner was restrained of his liberty in the custody of the above-mentioned officer, under pre-tence that he was a fugitive from labor, and in virtue of a warrant, a copy of which was annexed to the petition; wherefore he prayed a writ of habeas corpus to discharge him from custody, on the ground that, as he was advised by his counsel, and believed, his imprisonment was illegal, that he was a free man, and that the commissioner, by whom the warrant was issued, had no jurisdiction to issue the same. Annexed to the petition, was a copy of a warrant issued by H. K. Smith, Esq., a commissioner of the circuit court of the United States, purporting to have been granted on the application of Benjamin S. Rust, the duly authorized agent and attorney of George J. Moore, of Louisville, in the state of Kentucky, alleging that the petitioner owed labor and service, to the said Moore, and that he was a fugitive therefrom. By an indorsement on the warrant, it appeared that the same had been executed and returned and that the deputy marshal had the petitioner in custody, in virtue thereof. The petition contained no allegation of irregularity in the proceedings before the commissioner, nor was it alleged in the petition, or -by the counsel for the petitioner, that there was any insufficiency in the warrant, apparent upon its face. This application was denied by the judge, on the ground of want of probable cause; it being, as he stated, a settled rule both in England, and, in the absence of any statute injunction to the contrary, in this country also, that the writ of habeas corpus was not grantable of mere course, nor without probable cause shown. It was an extraordinary remedy for unlawful restraint of personal liberty, and no court or judge had authority to allow it, except in cases apparently of this nature. It was not enough for the petitioner to allege, in general terms, that his confinement was illegal; he was required to show that it probably, was so in fact. In the case before him, conceding the validity of the statute under which the commissioner had acted, not only had the petitioner failed to fulfill this requirement, but, on the contrary, it expressly appeared that the commissioner, in causing his arrest and detention, had only discharged an imperative duty enjoined upon him by law; and with regard to the act, the judge said he did not consider himself at liberty to treat its constitutionality as any longer an open question. Nearly a year had elapsed since it received the sanction of the two houses of congress, and, in accordance with the official opinion of the attorney general of the United States, the approval of the president No act of the national government had ever more strongly arrested the attention of the American people, or been more closely scrutinized. It had been repeatedly brought under discussion and consideration before the judges and judicial tribunals of the country, both state and national, and in every instance its constitutionality had been unequivocally asserted and maintained. Among those by whom this opinion had either directly or indirectly been declared, are, at least, three of the judges of the supreme court of the United States, all of whom, moreover, are citizens of states in which slavery does not exist. Under these circumstances, Judge CONKLING said, it was, in his judgment, wholly unnecessary, and would be scarcely decorous, for him to enter upon the examination of the question at all. At an earlier period it would have been his duty to do so, and to be governed by his own independent conclusions; and this duty, he should not, for a moment, have hesitated to perform.</p> <p>The motion for a habeas corpus, having for these reasons been denied' a second petition was presented on the 19th, on which the motion was renewed. The petitioner states that he is still restrained of his liberty, in the custody of Mr. Gates, the deputy marshal; that after his arrest, in virtue of the warrant mentioned in his first petition, having been brought before the said commissioner, he, the said commissioner, made out a certificate, direefing the petitioner to be taken to the state ■of Kentucky, whence, as it was alleged,' he had escaped, and where he still owed service. ■ The petitioner further alleges that as he is advised by counsel, and verily believes, the proceedings before the commissioner are null and void, for want of jurisdiction in the said commissioner to make the said certificate, because there was no evidence before him that he, the petitioner, was a slave, but that, on the contrary, the proof, as the petitioner was further advised, established his freedom; that the said proceedings were founded upon an alleged record of the county court of Jefferson county, in the state of Kentucky, which* record is not exemplified under the seal of the said court, in pursuance of the act of congress in such case made and provided, wherefore, as the petitioner is further advised, the said pretended record is void, and the commissioner acquired no jurisdiction under the same; that there was no other proof before the commissioner, aside from such pretended record, that the petitioner owed service to the claimant, Moore, but, on the contrary, there was proof that the claimant brought and permitted the petitioner to come to Cincinnati, in the state of Ohio, whereby, as he is further advised, and believes, he acquired his freedom. And the petitioner further states that, to the best of his knowledge and belief, there was not before the commissioner any evidence, except the same pretended record of the fact of his escape from Kentucky; and lastly, that, .to the best of- his •knowledge and belief, he is not detained for any other cause. The petition, for reasons stated in the affidavit, is verified by the oath of Mr. Love, acting as the counsel of the petitioner. On this petition, Judge CONKLING granted an order nisi, returnable bn the 26th day of August. On that, and the following day, the case was ably argued by Mr. Talcott for the petitioner, and Mr. Foster for the claimant.</p> <p>In opposition to the rule, the counsel for i the claimant read an affidavit made by Mr. j Gates, the depxity marshal, setting forth the : proceedings before the commissioner, and incorporating the certificate granted by him. Appended to the certificate, as forming a part thereof, was the petition of the claimant’s agent and attorney, and the power of attorney under which he acted; the warrant of arrest; the transcript of a record of the county court of Jefferson county,' in the state of Kentucky, authenticated by the attestation of the clerk, and.an impression of the seal of the court thereon, stating it had been proved to the satisfaction of that court, by the affidavits of two persons therein named, that the petitioner owed service to the claimant, and that he had, on or about the 25th day of August, 1S50, escaped therefrom into the state of Ohio, which record was referred to, in the certificate, as the evidence by which the facts therein stated were established before the commissioner; and the affidavit of the agent, of his apprehension of a rescue. At the close of the argument, on Wednesday, the 27th of August, Judge CONKLING said he did not believe he should be able to decide the case before the morning of the second day thereafter, but that he should endeavor to do it at that time, which, he accordingly did, by delivering the following judgment:</p>

This was a hearing on a petition for involuntary bankruptcy before the court without a jury.

In bankruptcy. Petition by attaching creditor to be allowed his expenses of attachment from the bankrupt’s estate. The assignee objected. The attachment was made within four months of the commencement of bankruptcy proceedings and thereby dissolved.

Demurrer to bill in equity to set aside sale under deed of trust of certain real estate aft■er the bankruptcy of Bittel, without having proved the debt of the cestui que trust, under the bankrupt act [of 1867 (14 Stat. 517)]. The facts were that [Joseph] Bittel filed petition for bankruptcy on the 21st day of February.

<p>Case No. 3,620.</p> <p>Bankruptcy—Jurisdiction of Ordinary Tribunals.</p> <p>The ordinary tribunals are not deprived, by mere force of an adjudication in bankruptcy, of jurisdiction over suits against the bankrupt. The proceedings in such suits may be arrested or controlled by the bankruptcy court, when necessary for the purposes of justice; but in. the absence of such interference, the jurisdiction of the ordinary tribunals remains unimpaired and their judgments are valid.</p> <p>[Cited in Hudson v. Schwab, Case No. 6,835; Kimberling v. Hartly, 1 Fed. 575.]</p>

<p>Case No. 3,621.</p> <p>Exemption in Bankbuptct.</p> <p>The bankrupt is entitled, under the proviso to-the fourteenth section of the bankrupt act [of 1867 (14 Stat. 522)], to retain all his necessary household and kitchen furniture, of the kind and to the amount exempted by the law of the state from forced sale.</p>

<p>Case No. 3,622.</p> <p>Partnership Note—Action on—Pleading.</p> <p>1. Where a note was given by Abbott and Layton, it is unnecessary, in the declaration, to aver a partnership.</p> <p>2. The instrument shows a joint liability: and the declaration states the names of the defendants in full, and alleges that they, by the name and description of Abbott and Layton, executed the note. This, though not very technical, is sufficient.</p>

<p>Case No. 3,623.</p> <p>Bankruptcy—Secured Creditors — Execution Sale op Lands—Jurisdiction op Bankruptcy Court — Recording Register’s Assignment-Limitations — Sale Free of Incumbrances— Creditor’s Rights.</p> <p>1. Creditors of bankrupt having security, whether by judgment, mortgage or otherwise, must prove their debts against the bankrupt and foreclose their liens under the authority of the court in bankruptcy, or they may not only be barred of their debt, but may also lose the benefit of their securities.</p> <p>[Applied in Re Anderson, 23 Fed. 500.]</p> <p>2. A sale of the debtor’s land by virtue of an execution issued and levied after the filing of the petition in bankruptcy, will not pass the title to the land as against the assignee, although the judgment was entered and the lien created prior to the bankruptcy.</p> <p>[Cited in Re Hufnagel. Case No. 6,837; Pickett v. McGavick. Id. 11.126.]</p> <p>3. After the commencement of the proceedings in bankruptcy, all the property and assets of the bankrupt are in custodia legis, within the control of the bankrupt court only, and no other tribunal can interfere with its process.</p> <p>4. It is not essential to the title of the assignee that the assignment to him by the register should be recorded within six months from its date. The title of the assignee takes effect by relation from the commencement of the proceedings in bankruptcy, and the recording is not required for the mere purpose of giving notice to purchasers.</p> <p>5. The limitation of two years in section two of the bankrupt act [of 1807 (14 Stat. 518)] np-lies only to property held adversely to the ankrupt and his assignee.</p> <p>[Cited in Re Brinkman. Case No. 1,SS4: Smith v. Crawford, Id. 13,030; Andrews v. Dole, Id. 373; Taylor v. Irwin, 20 Fed. 017.]</p> <p>6. Where the bankrupt fraudulently conveyed his lands to avoid a judgment, a purchaser under the judgment and a sale made under execution after proceedings in bankruptcy commenced, cannot defend on the ground that the assignee did not commence suit to set aside the execution sale and deed within two years after the assignment No cause of action accrued to the assignee against such purchaser until he acquired his title under the judgment and execution sale.</p> <p>7. The bankrupt court may order a sale of the bankrupt’s property free and clear of encumbrances, and the secured creditor will then have his remedy only against the fund in court. If the secured creditor fails to prove his debt and proceeds against the fund, he does so at his peril.</p> <p>[Cited in Phelps v. Selliek, Case Xo. 11,070; Sutherland v. Lake Superior Ship Canal R. & I. Co., Id. 13.643; Re Hufnagel. Id. 0,837. Quoted in Re Brunquest, Id. 2,055.]</p>

<p>[Petition in bankruptcy by Davis.& Green against F. M. Armstrong.]</p>

<p>Case No. 3,625.</p> <p>Slavery—Filing List with County Clerk.</p> <p>The list of slaves required by the law of Maryland, 1796, e. 67. must be delivered to the clerk of the county into which they shall be first brought, and within three months thereafter.</p>

<p>[This action was brought by Davis & Lockwood against the Bank ol Biver Raisin.)</p>

The substance of this case, as stated in the libel, is as follows: On the 29th of March, 1837, Child & Dole, being the owners of the schooner Sultan, let her on shares to one Prince B. Lewis, to be employed in the coasting trade. He proceeded in the vessel to the southern states, and employed her until the 13th of October, 1838, when the owners, having become dissatisfied, employed Jacob B. Stanwood to proceed to New Orleans, to take possession of the vessel for them.

<p>Case No. 3,630.</p> <p>Conflict op Laws—Usurious Contract—Accommodation Paper—Place op Negotiation.</p> <p>Clemson, a citizen of Ohio, drew a bill on Suydam & Co., of New York, for their accommodation, and after indorsing it forwarded it to them. They accepted the bill, and negotiated it with the plaintiffs, citizens of New York, for a usurious consideration, by the laws of New York. An action being brought against the drawer, the usury was pleaded, under the laws of New York, which, for usury, avoids the contract. Bchl that the laws of New York governed the contract, and that the assignment to the plaintiffs, being usurious, avoided the contract.</p> <p>[Applied in Re Conrad, Case No. 3,126.]</p>

<p>Case No. 3,631.</p> <p>Equur Pleading—Joint Answer—Signature op Counsel.</p> <p>1. A joint answer is sufficient, all the parties swearing to it.</p> <p>2. Answers to bills are generally drawn jointly and severally.</p> <p>3. In a joint answer, each individual is liable to be indicted for perjury, if he swear falsely.</p> <p>4. An answer must be signed by counsel, in order that the counsel may be held responsible to the court for the contents of the answer.</p> <p>5. If the answer be taken by commissioners, the signature of counsel is not required.</p>

<p>[Libel by Henry Davis against the ship Erie for expense of being cured of an injury.]</p>

<p>[Libel by Joseph Davis against the lake boat Enterprise for seaman’s wages.]</p>

<p>Case No. 3,632b.</p> <p>Seamen's Wages—Wreck—MasteR’s Negligence —Evioence—Shipping Articles.</p> <p>[1. Wreck and loss of freight caused by a master’s negligence does not free the owners from liability for seamen’s wages.]</p> <p>[2. It is negligent for a master not to be prompt in changing his course when the lead shows a rapid shoaling of the water near dangerous and well-known shoals.]</p> <p>[3. Where the negligence of a master is in issue, the failure to show or account for the chart used by him raises an inference that the shoal where the vessel was wrecked was set down thereon.]</p> <p>[4. Liability for wages of seamen duly discharged in a home port after a wreck exists, notwithstanding general maritime law, when the shipping articles promise wages unless forfeited by misconduct.]</p>

[Appeal from the district court of the United States for the southern district of New Xork. [Libel in rem by Ira B. Davis and others, against 574 bags of coffee for freight due under a charter party. Troost, Schroeder & Go. appeared as claimants. A decree was entered for libellants (case unreported), and claimants appealed.]

Indebitatus assumpsit for work and labor by the plaintiff [Thomas Davis] as a blacksmith; plea, non assumpsit and issue. 1st count, a certain sum. 2d, quantum meruit. 3d, insimul eomputasset.

This was a suit by Julian J. Davis, as the holder of a number of coupons attached to a series of bonds amounting to $83,000, issued by the defendant to the Grand Rapids and Indiana Railroad Company in payment for a subscription of stock to a like amount made by the city.

<p>This was a libel in personam, by Thomas Davis against John Leslie, master of the ship Virginius, to recover seaman’s wages, and the value of wearing apparel lost in the wreck of the ship. There were six other suits arising out of the same facts, and involving the same questions. Five of the seven suits were brought against the master, and two against the owner of the Virginius.</p> <p>1.This is the case of a British vessel, commanded by a British master, manned by British seamen, and sailing under the British flag, and lost in British seas. The men are entitled to the benefit of British laws, and in particular to the privileges given by 7 & 8 Viet c. 112, § 17, which provides that in case a vessel is wrecked or lost at sea, the men may recover their wages up to the time of the loss.</p> <p>2. The law of a place where a contract is made or to be performed is to govern as to the nature, validity, and effect of such contract; that being valid in such place, it is to be considered equally valid and to be enforced everywhere, with the exception of cases in which the contract is immoral, unjust, or where the enforcing of it would be injurious to the rights of our own citizens. Lodge v. Phelps, 1 Johns. Cas. 139; Smith v. Smith, 2 Johns. 235; Ruggles v. Keeler, 3 Johns. 263; Thompson v. Ketcham, 4 Johns. 285; Sherrill v.- Hopkins, 1 Cow. 103, and cases cited, Id. 105-109; Van Schaick v. Edwards, 2 Johns. Cas. 355; Masson v. Lake, 4 How. [45 U. S.] 262; Alexandria Canal Co. v. Swan, 5 How. [46 TJ. S.] 87. Thus a contract of marriage, though invalid by our laws, will be held valid here if valid by the law of the place where made, and if not contrary to the laws of God. Decouche v. Saverier, 3 Johns. Ch. 190. So, if one lawfully sell goods in a foreign country, in a manner or on grounds not lawful here, our courts will uphold the sale. Grant v. McLaehlin, 4 Johns. 34. So the rate of interest is governed by law of place. Fanning v. Ccnsequa, 17 Johns. 511. So of the liability of a party to negotiable paper. Hicks v. Brown, 12 Johns. 142. See, further, Masson v. Lake, 4 How. [45 TJ. S.J 262; Alexandria Canal Co. v. Swan, 5 How. [46 TJ. S.] 87. The general rule upon this subject is, that the law of the place where the contract is made, is to control its construction, unless it appear on the face of it that it was to be performed at some other place, or was made with reference to the laws of some other place; and the reason of the rule is the supposed reference which every contract has to the laws of the state or country where it is made, or where it is to be executed, whether the parties are citizens of that state or country, or not. Sherrill v. Hopkins, 1 Cow. 108. The libellant asks the court to decide these two sets of causes according to the British law, and not according to the decisions of causes in the United States courts;— they ask the benefit of the lex loci contractus.</p> <p>3. The British statute being thus shown to be applicable, ought to receive an equitable construction. By equitable construction a statute may be applied to a case not wiihin its letter, but within its meaning, on the ground that the case is within the mischief for which it was intended to provide a remedy. Platt v. Sheriffs of London, Piowd. 33; Eyston v. Studd, Id. 467. A remedial statute may be applied by equitable construction whenever it was manifestly the intention of the law-givers to embrace within the operation of the statute such a case as that in question. Remedial statutes should be construed liberally. 3 Co. Inst. 381; Van Hook v. Whitlock, 2 Edw. Ch. 304; St Peter’s of York v. Middleburgh, 2 Younge & J. 196.</p> <p>4. The mischief sought to be remedied by the British statute was two fold. (1) Although the seamen might perform their duty faithfully, yet when the vessel was lost on the voyage, the whole of their wages were lost This led to carelessness and indifference on the part of seamen, and often to total loss of the vessel and cargo. To remedy this evil, and give the mariner what he had honestly worked for, and of which he should not be deprived, except for his own act, this statute was passed. It still requires him to exert himself to the utmost and in such exertion he risks his life momentarily; but it gives him, while thus working, the knowledge that if he is not able, though willing to save his employer’s property, he will not be deprived of the fruit of his honest labor and peril, unless for his own conduct In the present case the men did every thing that could be done;, they were placed, by the negligence of the owners, under a captain who, as the testimony shows, was at least careless in preparing for sea, and who, on the appearance of danger, left his crew at the first opportunity, to straggle through the danger as best they might. (2) Seamen cannot insure their wages, but an owner may his ship and freight, (out of which the men are paid,) thus making it for his advantage that the vessel should be lost This statute certainly removes this temptation, and diminishes the temptation to destroy the ship for the insurance upon her, and in that view is certainly for the benefit of all concerned; it leaves the risk of the voyage with the party who may insure it, and relieves the generally penniless sailor of the risk, that after working and per-illing his life for six months or longer, his money may go into the owner’s pocket, in the shape of insurance, without the opportunity of making such owner respond for the services and risks he has undergone.</p> <p>5. The seamen ought not to lose the remedy given them by the act, by reason of their inability to procure the certificate of the master to their faithful service, as prescribed, even if the production of such certificate is to be regarded as a condition precedent to the right to the relief granted. A party is not to be deprived of a right, by failure to perform a condition, where such performance is .out of his power, especially where, as here, the condition is substantially though not literally performed; the deposition of the master to the faithful service of the crew being as reliable evidence as his certificate could be. Thus the act of God will excuse the. performance of a condition. Hughes v. Edwards, 9 Wheat. [22 U. S.] 345; Merrill v. Emory, Id. 489; 8 Cow. 299; 10 Pick. [Mass.] 507; Rolle, Abr. 450. So he who prevents the performance of a condition cannot take advantage of its non-performance. Williams v. Bank of U. S., 2 Pet. [27 U. S.] 102; 1 Bibb, 380; 2 Bibb, 437.</p> <p>6.Independently of the British act cited, .the libellant might recover under the general maritime law. Abb. Shipp. 750; Col. Laws Mass. 1668; Laws of Oleron; Laws of Wis-buy; Laws of the Hanse Towns.</p> <p>1. A total loss of the vessel being established, this court has decided that, by the law maritime, the claim for wages is gone by a misfortune common to all concerned.</p> <p>2. The statute of Victoria, relied on, is a matter of fact of which no proof is given, and of which this court, without consent or evidence, cannot take cognizance. A commission or evidence might show that it was repealed or inoperative.</p> <p>3. All navigation laws are enacted for the benefit of commerce. This case of a total, hopeless loss, when the vessel was “waterlogged” in the ocean, “off the banks of Newfoundland,” and “loaded with timber,” no hope of saving any thing from the wreck being proved, the defendant having even “lost his clothes,” cannot come within the policy or scope of the statute.</p> <p>4. But at all events, no force of construction can apply this statute in a personal action against the master. He is liable under his contract only, and the statute is silent as to him. There is a certificate required, which is not produced; and the statute requisition shows it applies to owners only.</p>

<p>Case No. 3,640.</p> <p>Action on Bill of Exchange—Pakties—De-fenses.</p> <p>1. Under certain circumstances, a suit may be prosecuted by the drawer of a bill of exchange, in the name of the payees, for the benefit of the ■drawer.</p> <p>2. In such a case, payment of the bill by the drawer to the payees, is no bar.</p> <p>3. The drawer having paid the bill to the payees, after the acceptors refused to pay it, had a right to sue the acceptors.</p>

<p>Case No. 3,642.</p> <p>Life Insurance — Power of Agent to Waive Conditions—Payment of Premiums.</p> <p>.</p> <p>1.A policy of life insurance by a company, on the life of S., declared that it was issued and accepted upon the express conditions, that it “shall not take effect until the advance premium hereon shall have been paid during the lifetime of the person whose life is hereby insured; that no premium, or instalment of premium, hereon, shall be considered as paid, unless a receipt shall have been given therefor at the time of payment, duly signed by the president or secretary of said company; that no agent of the company shall make any contract binding the company, nor alter or change any condition of the policy, nor waive forfeiture of this policy.” The policy was put into the hands of S., by an agent of the company, who informed S., at the time, that there was no hurry about his paying the premium. Thereafter S. died, still retaining the policy, but without having paid the premium. and without any receipt for the premium having been given to him: Held, it is to be inferred, from the fact that S. retained the policy, without objection, that he accepted its terms and provisions.</p> <p>2. The premium was not paid, as between S. and the company.</p> <p>3. The agent attempted to give a credit to S. for the amount of the premium, in violation of the conditions of the policy.</p> <p>4. l?he attempted waiver by the agent was not effectual, and the policy never took effect.</p>

William S. Davis and George W. Lehman filed a libel in the district court o£ the United States for the eastern district of Pennsylvania, against a new brig, not completely finished and ready for sea.

[This was an action at law by William P. Davis, assignee of Sloman Davis, against the New York Life Insurance Company.] Upon a motion for a new trial. The jury in this case rendered a verdict for the plaintiff for $1,615.47, with interest thereon from April 17th, 1865, till paid. This verdict was rendered in response to a claim on the part of the plaintiff for the equitable value of a certain policy for $10,000 on the life of Sloman Davis.

The plaintiff, Gideon Davis, brought his several actions on the case against the defendants, to recover. treble damages under .the statute, for an alleged violation of the plaintiff’s patent-rights, as the inventor of certain new and valuable improvements in the plough.

<p>[Libel for demurrage by 'William R. Davis and others against Charles H. Pendergast and others.]</p>

[Appeal from the district court of the United States for the southern district of New York.] This was a libel in personam, filed in the district court, in admiralty. That court dismissed the libel [Case No. 3,646], and the libellants [William R. Davis and others] appealed to this court.

<p>Case No. 3,647a.</p> <p>.Damages for Trespass—Province op Court and Jury—Justice op the Peace C^ses—Pleadings.</p> <p>1. In actions of trespass, where the damages are uncertain, it is the province of the jury to ascertain them; and the court should not interfere, unless the damages are outrageously ex cessive, and disproportionate to the injury.</p> <p>2. In suits originating before justices of the peace, no formal pleadings are necessary.</p>

On the 1st of -June, 1867, Davis and Jan-don, trustees of the first mortgage of the Alabama & Florida Railroad Company, filed a bill to foreclose the same in the Escambia county court, of the state of Florida, which court on the 11th of July following, appointed Bushnell receiver, who took possession of the ' .railroad and property mortgaged.

On the 5th December, 1828. the complainants in this case [Davis and Brooks] filed their petition, setting forth the following facts: That the petitioners are owners of one half part of the brig Seneca, now lying in this port; that the remaining half part belongs to Captain Henry Levely, who has had possession of the brig for several months, with the sole control of her: that he has proceeded on several voyages to the loss and dissatisfaction of the late owners, from whom the…

On the 27th December. Mr. Wharton,' of counsel for [Davis and Brooks] the complainants in this case, moved for leave to enter, an appeal from the decree of the court, rendered on the 23d of December. [Case No. 3,-650.] Mr. Chauncey, for [Henry Levely] the captain and part owner, opposed the appeal. The complainants must show that the decree made in this case is a final decree, coming within the act of congress.

<p>Case No. 3,652.</p> <p>Slander—Pi.EA.mxG and Evidence—Service op Attachment.</p> <p>1. Words spoken of one of the plaintiffs cannot be given in evidence to support an averment of words spoken of both plaintiffs; nor can words spoken by each defendant separately, and out of the presence of each other, be given in evidence to support an averment of words spoken jointly by the defendants.</p> <p>2. An attachment cannot be served in court.</p> <p>Slander. The declaration charges, that the defendants jointly said the plaintiffs were robbers, or thieves.</p>

[This is an action by Theodore M. Davis, receiver of the Ocean National Bank, in the city of New York, against Calvin A. Stevens, as executor of Calvin Stevens, deceased. The district-court directed a verdict in favor of defendant; and, to review the judgment entered thereon, plaintiff sued ont this writ of error.]

Bill of review. The question in this case was as to the validity of a lien for five thousand dollars on bankrupt’s real estate. The facts in the cáse are as follows: Henry M. Stitzer was adjudicated a bankrupt on the 6th of April, 3876. A few weeks previous to his adjudication an execution was issued on a certain judgment, entered of record October 31, 1871, in favor of William lvightlinger, to amount of five thousand dollars, and levy made.

At law. Assumpsit against the maker of a note. The defendant pleaded the statute of limitations. Upon the trial the plaintiff proved that within three years the defendant promised to pay when he should be able. contended that the plaintiff must prove that the defendant is or has been, since the promise, able to pay.

Admiralty appeal. Libel [by Samuel L. Dar vis against William W. Wallace] for demur-rage. The schooner Samuel Fish was chartered by the libellant to the respondents, to bring a cargo of coal from Georgetown or Baltimore, as they might elect, to Boston, at a certain freight per ton, and it was agreed that the respondents should have three working days to load at Georgetown, and quick despatch in discharging at Boston.

Attachment under the act of 1795, c. 56. The justice certified that William Davis made oath that the defendant is bona fide indebted to him in the sum of $92.50, &c., according to the act, and that William Davis at the same time produced before him a memorandum of a settlement betwixt the said Uriah Wyer and Jacob Todhunter, which memorandum was assigned to the aforementioned William Davis, by which it appeared that the said Uriah Wyer is indebted as aforesaid, and upon…

<p>Case No. 3,661.</p> <p>Salvage — Property Rescued prom Pirates — “Pikact” Defined — Admiralty Jurisdiction —Seizure by United States Officer in Foreign Territory—Admiralty Appeals.</p> <p>1. Salvage is demandable, of right, upon property taken from pirates. But to entitle a party to salvage in such case, the taking must have been lawful and meritorious.</p> <p>2. A pirate is one who acts solely on his own authority, without any commission or authority, from a sovereign state, seizing by force, and appropriating to himself without discrimination, every vessel he meets with.</p> <p>[Cited in Dole v. New England Mut. Marine Ins. Co., Case No. 3,9tíü; The Ambrose Light, 25 Fed. 423.]</p> <p>3. Robbery on the high seas is piracy. But to constitute the offence the taking must be felonious; and the quo animo may be inquired into.</p> <p>[Cited in The Ambrose Light, 25 Fed. 426.]</p> <p>4. If a court of admiralty has cognizance of the principal thing, it has also of the incident, though that incident would not, of itself and if it stood alone, be within the admiralty jurisdiction. Therefore, in the case of a piratical taking, the court may have jurisdiction, although the retaking was upon land. And for the same reason, goods taken by pirates and sold upon land, may be recovered from the vendee, by suit in the admiralty.</p> <p>5. An officer of the United States has no right, without express directions from his government, to enter the territorial jurisdiction of a country at peace with the United States, and forcibly seize upon property found there, and claimed by citizens of the United States. Application for redress should be made to the judicial tribunals of the country.</p> <p>6. Where D.. an officer of the United States, without the direction of his government, seized property at the Falkland Islands, claimed by citizens of the United States, and which it was alleged had been piratically taken by one V., who pretended to be governor of the Falkland Islands under the government of Buenos Ayres, and it was proved that V. was not acting on his own authority but under a commission from the government of Buenos Ayres, it was held that the seizure of the property by D. being unlawful, a claim for salvage by A. for personal services bestowed upon the property after it was delivered over to him by D., could not be sustained.</p> <p>7. Where the evidence is conflicting, and it is doubtful on which side it preponderates, the decree of the court below will not be disturbed on the ground that it is against evidence.</p> <p>[Cited in The Maggie P., 25 Fed. 206.]</p>

This was an action on the case for a violation of a patent right, owned by the plaintiffs [William C. Davoll and others], for an improvement in the speeder for roving cotton. The letters patent [No. 3,0S9] were averred to have issued May 19th, 1843. The general issue was pleaded, and notices given of several defences, all of which at the trial here at this term were found by the jury against the defendant [James S. Brown].

This was a suit for subtraction of wages. The libellant shipped as mate for a voyage from Boston to Turk’s Island, and back to her port of discharge in the United States, for wages at the rate of twenty-five dollars a month. The brig sailed December 4, 1836, and when four days out met with heavy gales, by which she was much injured in her spars and rigging, and strained in ner hull.

<p>Debt on award. The terms of submission were “of a controversy of several accounts and contracts existing between us.”</p>

This case was before the court several terms ago, and is reported in AVare, 485 [Case No. 3,605]. After the opinion was then delivered, the counsel for the respondent moved the court to suspend the decree, to enable the party to offer further evidence to show the actual condition of the vessel, when she arrived at Bermuda. Under the circumstances of the case, the court allowed the motion. The case was now presented on the new evidence.

[A. H. H.] Dawson obtained judgment against [Richard C.] Daniel in New York, from which appeal was taken but no supersedeas of execution was prodheed. Suit was brought on this judgment in the circuit court of the United States, at Memphis, and on account of some oversight or misapprehension of counsel, judgment was taken by default; the evidence offered being a duly exemplified copy of the New York judgment.

<p>Case No. 3,669.</p> <p>Execution—Watchman—What Constitutes Abandonment.</p> <p>1. Execution is not void because it issues prematurely. If issued while motion for a new trial stands adjourned, the irregularity is cured as soon as such motion is denied, and this is especially so where the order of adjournment provided that the same was granted, without prejudice to plaintiff.</p> <p>2. Semble, that the proper practice to prevent the issuance of an execution, where motion for a new trial is not disposed of, is to ask and obtain stay of execution.</p> <p>3. Watchman: His withdrawal by levying officer no abandonment of levy. His presence not necessary to hold title.</p> <p>[Followed in Steers v. Daniel, 4 Fed. 594. Cited in Freeman v. Dawson, 110 II. S. 267, 4 Sup. Ct. 94.]</p> <p>4. To constitute an abandonment of a right secured, there must be a clear, unequivocal and decisive act of the party; an act done, which shows a determination in the individual not to have a benefit which is designed for him.</p> <p>NOTE. There were two judgments involving the same facts.</p>

The action was brought tor a violation of the plaintiff’s patent right for making suspenders [granted to him (J. Dawson) November 6, 180G.] The case was fully proved on tbe part of the plaintiff.

<p>Case No. 3,671a.</p> <p>Discharge of Bankrupt—Witnessf.s.</p> <p>[A creditor of a voluntary bankrupt is a competent witness for other creditors opposing the bankrupt’s discharge.]</p>

In equity. Final hearing on pleadings and proofs. Suit brought upon letters patent [No. 42,842] for an “improvement in electro-magnetic telegraph,” granted to complainant, Samuel F. Day, May 24, 1864, and reissued March 23, 1869 [No. 3.335]. The first of the foregoing engravings represents a sectional, and the second a plan or top view of the apparatus.

<p>Case No. 3,671.</p> <p>•Jurisdiction' of Federal Courts — Action on Supersedeas Bond—Nonresident Creditors.</p> <p>[A nonresident creditor who obtains judgment in a state court, from which an appeal, with supersedeas, is taken to the state supreme court, may, after affirmance of the judgment, if it is not paid, sue the principal and surety jointly on the supersedeas bond in the federal court.]</p>

<p>Case No. 3,673.</p>

<p>This was an application [by Horace H. Dayj to the court to grant an injunction against the use of the machinery used in the defendants’ India rubber manufactory. The plaintiff claimed to be the owner of a patent granted to E. N. Chaffee, in 1836, for the use of machinery in preparing India rubber and spreading it upon cloths, etc. This case at a former day had been set down for hearing at this time, and both parties had been ordered to file the affidavits of the facts upon which they relied.</p> <p>Upon the coming in of the court, the counsel for Mr. Day moved the court to have the case postponed, in order that they might be prepared for the argument of the case, and said that they had not had sufficient time to read the proofs offered by the defendants.</p> <p>The defendants’ counsel resisted this motion, and urged that the trial should then proceed, inasmuch as it was the day fixed upon by the court at a previous day. in accordance with the request of the plaintiff’s counsel, and because the proofs had been filed at the time ordered by the court •</p> <p>This motion for delay was refused by the court</p> <p>The plaintiff’s counsel also asked for leave to file affidavits in answer to the proofs filed by the defendants, and gave as a reason that they were taken by surprise, from the grounds taken in defense of the case.</p> <p>The defendants’ counsel insisted that, according to the established practice of the court, the plaintiff had no right to file affidavits in rebuttal of the affidavits filed by the defendants; that the established practice in patent eases was for the plaintiff to file such affidavits as he relied upon, and then for the defendant to file his proofs in answer. The question was fully discussed by the counsel, and the court. .SPRAGUE, ,L. overruled the motion, and laid down the rule as to the practice.</p>

This was an action of contract [by Joseph M. Day against James Buffinton] to recover the amount of taxes assessed under the internal revenue laws of the United States, upon the plaintiff’s salary as judge of probate and insolvency for the county of Barnstable, in the commonwealth of Massachusetts. ■ It was argued before CLIFFORD, Circuit Justice, and LOWELL, District Judge, at the October term, 1869, upon the following agreed facts: “That the plaintiff was, during the years…

In equity. This was a motion for a preliminary injunction to restrain the defendants from infringing letters patent for “improvement in the process and machinery for the manufacture of India rubber,” granted to Edwin M. Chaffee, August 31, 1836, extended for seven years from August 31, 1850, and, as was claimed, assigned to the complainant July 1, 1853.

<p>Case No. 3,677.</p> <p>Money in Marshal's Hands.</p> <p>Where the marshal has money in his hands, the balance of proceeds of sale of property claimed by a party other than the execution debtor, and to recover which such party has brought suit against him, the court will not order him to pay the money into court pending such suit, there being no pi oof of collusion or danger of loss.</p>

<p>Case No. 3,678.</p> <p>Reissue op Patents—Review of Commissioner's Action—Injunction against Action at Law— When Issued.</p> <p>[Cited in Hussey v. Bradley, Case No. 0,940.]</p> <p>DAY (GOODYEAR v.). See Cases Nos. 5,550— 5,509.</p>

[Bill by Horace H. Day against Isaac Harts-horn for infringement of letters patent No. 16, granted to E. M. Chaffee, August 31, 1836.] This was a motion for an injunction found-, ed upon the verdict of the jury in a suit at law, between the same parties, which resulted in a verdict for the plaintiff. The case presented a state of facts essentially the same as that in Day v. Candee [Case No. 3676].

This was a motion on the part of the defendants [the Newark India-Rubber Manufacturing Company] to quash a writ of foreign attachment and a summons issued out of this court against them by the plaintiff [Horace H. Day] for an alleged infringement of certain letters patent Under the writ a large amount of their goods had been seized in the city of New York, and were in the possession of the marshal.

<p>This was an application [by Horace H. Day) for a provisional injunction [against the New England Car-Spring Company] to restrain the infringement of letters patent LNo. 16] granted and extended to one Chaffee. The facts are stated in the opinion of the court</p>

This was an action on ’the case [by Horace H. Day against the New England Car-Spring Company] for the infringement of letters patent granted to Edwin M. Chaffee, on the 31st of August, 1836, and extended for seven years from the 31st of August, 1850. On the 1st of July, 1853, the patentee assigned the entire patent to the plaintiff. The defendants interposed a plea of not guilty, without any notice of special matter, and also four special pleas in bar.

[This was an. action at law by Horace H. Day against the New England Car-Spring Company for an injunction of the alleged in- • fringement of a patent. A motion to strike out the special pleas filed by defendants was heretofore denied. Case No. 3,6S7.]

In equity. These were two bills of review filed by Silas C. Day and Ezekiel R. Day against John Phelps, Putnam, Burke, and others, and growing out of a decree rendered in this court in July, 1860, in the case of New Albany v. Burke, reported in 11 Wall. [78 U. S.] 96, where some of the facts are stated. It is there said that there was a decree rendered against the railroad company and the city, and the bill was dismissed as to the other defendants.

This was a bill in equity, filed [by Horace H. Day, Alexander Hay, and Charles Goodyear against John Stellman, Christopher Henricks, and Henry G. Farber] to restrain the defendants from infringing upon letters patent for “improvements in the manufacture of India rubber,” granted to Charles Goodyear, June 15, 1844, reissued December 25, 1849, and extended for seven years from June 15, 1858, in so far as said letters patent covered the manufacture of shirred, corrugated, or…

<p>Case No. 3,691.</p> <p>Extensions op Patents — Rights op Assignees and Licensees—Interpretation op Patents.</p> <p>1. The cases of Wilson v. Rousseau. 4 How. '[43 U. S.] 010, Wilson v. Simpson, 9 How. 150 U. S.] 109, and Bloomer v. McQuewan, 14 How. [35 U. S.] 539, commented on.</p> <p>2. Various special acts of congress extending .patents, commented on, with reference to their provisions in favor of assignees, grantees, and licensees under the original terms of the pat■ents.</p> <p>3. The language of the 18th section of said -act of July 4, 1830, considered. The effect of that section is, to continue to those who were assignees or grantees of the right to use a patented invention during the original term of the patent, the right to use it during an extension of the patent under that section, whether such right arose from the purchase of a machine, or from a direct assignment or grant of a limited •or unlimited right to use.</p> <p>[Cited in Wood v. Miclngan Southern & N. I. It. Co., Case No. 37.957; Wetherill v. Passaic Zinc Co., Id. 17,405.]</p> <p>4. But such right is limited to a right to use, although the person holding it may also have held, during the original term, an exclusive right to use, to make and to vend.</p> <p>5. And such right is secured only to the extent of the respective interests of the assignees ■ and grantees therein.</p> <p>0. If. before the extension, the right to use was limited to a single state, county, town, or smaller district, it continues, during the extension, subject to the same limitations; and if the right was to use a specified number of machines, ■within a particular district, the limit in number •and restriction of place continues.</p> <p>7. If the only right to use was one which resulted from the purchase of a machine, the right to use is co-extensive with the existence of the machine, and expires with it.</p> <p>8. Under said 18th section, the assignees and •grantees of the right to use a patented process, •-are continued in the right to use it during an extension of the patent, equally with the assignees and grantees of the right to use a patented machine.</p> <p>9. The case of McClurg v. Kingsland, 1 How. [42 U. S.] 202, commented on.</p> <p>10. Chaffee’s patent of August 31st, 1836, rel-ative to India rubber, covers both the process described in the specification, and the machinery described as that to be used in carrying on the process.</p> <p>11. Where, at the expiration of the original term of that patent, A. had a right to use the patented invention for the manufacture of certain articles, and continued, during an extension •of the patent granted under the 18th section of the act of July 4, 1836 (5 Stat 124), to use the invention, in the manufacture of those articles, ' in the manner and to the extent he was entitled to use it at the time the original term expired; held, that A. had the right to continue such use, ■ as against B.. the assignee of the patent for the extended term.</p> <p>12. A. had such right, whether the patent were to be construed as being for a process, and a machine to be used in Buch process—or for a process alone—or for a machine alone—and whether the machinery used by A. under the patent was or was not in existence prior to the commencement of the extended term.</p> <p>13.The case of Wilson v. Turner [Case No. 17,845], cited and approved.</p> <p>[14. Cited in Holiday v. Mattheson, 24 Fed. 186, to the point that a purchaser acquires the right of unrestricted ownership in the article he buys, as against the vendor.]</p> <p>Tliis case was taken, by appeal, to the supreme court of the United 8'ates, where it is reported as Day v. Union India-Rubber Co.. 29 How. [G1 U. S-] 21G. The decree of the court below was affirmed, but the supreme court did not pass upon any of the questions discussed in this opinion.</p> <p>[NOTE. For other cases involving this patent, see Day v. New England Car Co., Case No. 3,GSG: .Day v. New England Cor-Snring Co., Id. 3.0R7: Day v. Candee. Id. 3,070: Day v. Union India-Rubber Co.. 20 How. (01 U. R.) 21U: Day v. Boston Belting Co., Case No. 3,-074: Day v. Hartshorn, id. 3,GS3: Hartshorn v. Dav. 19 How. (GO IT. S.l 211; Cl,r«w> v. Boston Belting Co., 22 How. (G3 U. S.) 217.]</p>

<p>[This was a bill in equity by George E. Dayton against George Wright and others for the alleged infringement of letters patent No. 130.514, granted to one R. J. Mann. August 13, 1S72. On motion to dissolve a preliminary injunction.]</p>

<p>Case No. 3,694.</p> <p>Maritime Liens—'What are Maritime Services —Vessel Towed on Tide Waters — Wages of Master.</p> <p>1. A mariner, rendering services on board of a_ vessel carrying coal between Philadelphia and New-York, upon tide waters, though she be stripped of sails and masts, and be towed by steamboats, may proceed in rem against such vessel for his wages.</p> <p>2. Every service rendered by a mariner, contributing, in contemplation of law, to the management. safety or benefit of the vessel, is so far maritime as to carry a privilege against the vessel.</p> <p>[Cited in The Norfolk, Case No. 10.207.]</p> <p>3. The services will be deemed maritime if ■substantially performed on waters within the oj' juvmv' 01 Liltt tide. 1</p> <p>[Cited in The General Cass, Case No. 5,307; The Atlantic, 53 Fed. 009.]</p> <p>■ 4. If the services of libellant were those of master, or were merely those of taking and discharging cargo at the wharves, and in no way connected with the navigation of the vessel, the lieu would be denied.</p>

<p>Certiorari to Arkansas circuit court.</p> <p>[This was a suit by J. G. Deadrick against John Harrington.]</p>

• ' In equity. Motion to set aside service. ■The affidavit of service of the subpoena ■showed .that the subpoena, had been served •by a cleric.

<p>Case No. 3,695.</p> <p>Removal op Causes — When One Partt is a Fobeignek—Remanding Cause—Effect of Entering Limited Appearance in State Court —When Cause Will be Remanded—Damages on Injunction Bond—When Awarded.</p> <p>1. If a citizen of a foreign country brings snit in a state court against a citizen of the state, the latter may remove the cause to tlie federal court under the first clause of section 2 of the act of 1875 [18 Stat. 470].</p> <p>2. But the last clause of section 2 of the act of 1875 authorizes removal only in suits between citizens of different states, and does not apply to foreigners.</p> <p>3. Where a subject of Great Britain brought suit in the state court upon a joint and several bond, against a citizen of the state of Illinois and two other subjects of Great Britain; and the citizen of Illinois entered his general appearance in the state court and the two defendants subjects of Great Britain, no service being had, entered their appearance by counsel, in the state court, solely for the purpose of petitioning for a removal of the cause; and thereupon all three defendants did petition for removal, and removal was liml. it was held that as the bond was executed in a suit in. and under the order of this court the federal court would retain jurisdiction, and would not remand .the cause.</p> <p>4. If a suit has been removed from the state to the federal court it will not be reman led unless it appears to the satisfaction of the court that it has uo jurisdiction.</p> <p>5. Whether a suit can be maintained upon an injunction bond given in the ie.ier 1 court under a general order of the court, con litioited “to pay all damages and costs that may lie awnrdel * * * upon tliedissolution of said injunction,” when no damages were awarded by the court at the time of the dissolution, in the light of tlie statutes of Illinois and the decision of the United States supreme court in Bein v. Heath, 12 How. [53 U. S.] 10S, discussed but not decided.</p> <p>0. In such case however if the state court would be compelled under tlie s*-’tutes to "ns-tain 1I13 suit, the ieder.il court ought to be bcunl by the same rule.</p> <p>See, also, the succeeding case of Deakin v. Lea [Case No. 3,696].</p>

<p>Case No. 3,696.</p> <p>JURISDICTION OVER PERSON—APPEARING TO PETITION for Removal is General Appearance — Injunction Bonds—Awarding Damages—Suit on Bond—Federal Practice.</p> <p>1. If defendants who are not served with process in a suit in a state court enter their appearance by counsel solely for the purpose of joining in a petition for removal to the federal court, "and for no other purpose whatsoever,” ns expressed, and the cause is removed to the federal court, such appearance so entered will it seems give the court jurisdict.on over such defendants for all purposes the same ns though process had been personally served upon them.</p> <p>2. Where upon a general order for nn injunction bond in the federal court a bond was given in conformity to the state statutes and practice in the state courts, conditioned to pay all damages nnd costs that shall be awarded against the complainants and hi favor of the defendant, "upon the trial or final hearing of the cause, or upon the dissolution of the injunction,” and no damages are awarded by the court upon the final hearing of the case and the dissolution of the injunction, no suit can be maintained upon the bond under the ruling of the Uirted States supreme court in Bein v. Heath, 12 How. [53 U. S.] 10S.</p> <p>[Cited in Lea v. Deakin, 13 Fed. 514.]</p> <p>3. The fact that suit can be maintained upon a similar bond given in the state court, under the state statutes, does not rule the practice in the federal court.</p> <p>,Consnltj>receding case of Deakin v. Lea [Fase No. 3.0051, and succeeding case of Lea v. Deakin [13 Fed. 514).</p>

<p>[In bankruptcy. In the matter of John W. Dean.]</p>

On December 21st, 1807, the petitioners filed their petition to have said [Edwin B.] Dean adjudged a bankrupt, alleging that on November 20th, 1807, said Dean committed divers acts of bankruptcy, in contravention of the provisions of the act of congress approved March 2d, 1S37.

<p>Case No. 3,701.</p> <p>Bankruptcy—Effect of Bankrupt’s Discharge —Powers of Register.</p> <p>"Where bankrupt had filed his petition in bankruptcy, an 1 in due course obtained a final discharge, certain creditors subsequently filed petitions and insisted before the register that he should grant orders compelling the assignee to sell and convey certain property which had passed out of bankrupt’s hands. nnd over which he liad no control, to satisfy judgments which they had obtained against bankrupt, but which register refused to entertain. Bcitl, the liens did not exist; but if they did, it was not competent for 1he creditors to enforce them after the bankrupt had been discharged. 'The register was right in his conclusions, and .they are ratified and confirmed by the court.</p> <p>[Cited in Ue Jones. Case No. 7,440; Re Wit-kowski, Id. 17,920; Re Dole, Id. 3,964.]</p>

<p>Case No. 3,702.</p> <p>Admiuai.tt Jurisdiction — Libel bt Owners against Captain—Liability por His Touts.</p> <p>1. Admiralty has jurisdiction of a libel by owners against their captain, for satisfaction of the damages which they have sustained - in consequence of a wrongful capture made by him.</p> <p>(Cited in American Ins. Co. v. Johnson, Case No. 303: .Bains v. The James & Catherine, Id. 756.]</p> <p>2. Owners are answerable for torts done by the captains they employ under a general principle of the maritime law, and not by virtue of any special contract</p> <p>[Cited in Rnlston v. The State Rights, Case No. 11,540; The Martha Anne, Id. 9,140; New Jersey Steam Nav. Co. v. Merchant’s Bank, 6 How. (47 U. S.) 430; McGuire v. The Golden Gate, Case No. 8,315; The Tankee v. Gallagher, Id. IS,124; The Florence, Id. 4,880.]</p> <p>TNOTE. The cause having been afterwards heard on the merits, the libel was dismissed. Ease No. 3,703. Libellants thereupon appealed to the high court of errors and appeals of Pennsylvania, which entered a decree in their favor. Purviance v. Angus, 1 Dali. (1 U. S.)</p>

This was an appeal from a decree of the district court, dismissing a libel between these parties. [Case unreported. The libel was by William H. Dean against J. D. Bates and another and the brig Flora.] The libel was originally filed Janury 14, 1840, setting out that Dean was owner of the brig Flora; and having certain unsettled accounts with Bates & Co., the two respondents, he executed to them a conveyance on the 20th of August, 1845, to secure what might be due.

• This was a bill in equity brought to reform a policy of insurance on certain real estate. It was brought by Joseph F. Dean, a citizen of Massachusetts, trustee in bankruptcy of ■the estate of G. Campbell, against the Equitable Fire Insurance Company of Nashville, Tenn.

Mr. Taylor (as amicus curiae) suggested that the court could not take the bill for confessed, nor proceed to decree against x-egg. The subpoena was served on Legg, and the bill, having been filed three months, was taken for confessed. The debt was due from Legg to the plaintiff on promissory notes under seal. The bill states, in the usual form, that the defendant Legg is a non-resident of the District of Columbia, and cannot be found so as to be served with process.

This was a motion to the court for a ha-beas corpus to bring up the slaves of Joseph Deane, who had been committed by the may- or of the town for the supposed violation of a by-law prohibiting the… Held: was at some distance north of the. range of lots on Montgomery street.

[This was a libel by E. B. Dean and others against the propeller Dean Richmond to recover damages for a collision with the schooner A. Baensch on Lake Michigan.)

<p>Case No. 3,715.</p> <p>Foreign Judgments—When Enforceable Here —Decrees Based on Local Statutes.</p> <p>1. G., a French citizen, married, in France, the daughter of P., and of his wife, C., citizens of the United States. Such wife of G. died, leaving a child of such marriage. Under the statute law of France, providing, that a father-in-law and a mother-in-law must make an allowance to a son-in-law who is in need, so long as a child of the marriage is living, G. afterwards obtained, in a court of France, a judgment or decree against P. and C., then residing in France, in an action in which they were served with process and appeared, requiring P. and C. to pay him a certain sum per year, in monthly 'payments, in advance, one-third of it to be for his use, and two-thirds of it for the use of the •child. G. brought an action of debt, on the judgment or decree, in this court, against P. and C., to recover the 'amount of the decreed payment for two years and seven months: Held, that the suit could not be maintained.</p> <p>[Uited in Hilton v. Guyott, 42 Fed. 235.]</p> <p>2. The laws of France upon which such decree was made, and such decree founded thereon, are local in their nature and operation. They are designed to regulate the domestic relations of those who reside there, and to protect the public against pauperism. They have no extraterritorial significance, but must be executed upon persons and property within their jurisdiction.</p> <p>[Cited in Hohner v. Gratz, 50 Fed. 370.]</p> <p>3. Such orders of the French tribunals are in this respect like orders of filiation, and orders made, under local statutes, to guard against pauperism, and in the nature of local poPce regulations, and are not founded upon principles which, irrespective of local statutes, are of universal acceptation, like judgments for a sum certain, founded upon contracts or other recognized private rights.</p>

Colton was agent for another insurance company. Becoming acquainted with De Camp, he solicited him to apply to the defendant for a policy on his life. The application was made June 1st, 1869, and the medical examiner of the defendant on the 3rd pronounced him a first-class risk. Colton endorsed the application as agent for the defendant.

offered, at the hearing, to prove certain papers not made exhibits, and cited the 30th section of the judiciary act of 1789 (1 Stat. 8S). The cause was set for hearing upon the.bill, answer, replication, exhibits, and depositions. C. Lee stated it to be the practice in the federal courts to examine witnesses at the hearing, and to have the evidence taken down in writing by the clerk.

This was an action [by Henry De Casse against Krosen J. B. Spader] for the recovery of taxes paid under protest, assessed upon fire-brick manufactured by the plaintiff. It was tried before Judge FIELD, without jury, under the 4th section of the act of congress passed March 3,1865 [13 Stat. 483].

<p>Case No. 3,721.</p> <p>DISTRIBUTION OF PlUZE iuON'ET — RIGHTS OF Squadron' Comm an dek — Capture by Singue Vessel.</p> <p>1. The commander of a squadron, to whose command a ship of war is attached, and under whose orders she sails, is entitled to the flag twentieth of all prizes made by such ship, although the other part of the squadron may never have sailed on the cruise, in consequence of a blockade by a superior force.</p> <p>[Cited in Robinson v. Hook, Case No. 11,956; ü. S. v. Steever, 113 U. S. 752, 5 Sup. Ct. 768.]</p> <p>2. To deprive such a commander of his flag twentieth, on account of having left his station, with'n the act of the 23d of April, 1800, c. 33, § 6 [2 Stat. 52], it is indispensable, that some local station should have been assigned to him.</p>

This was an application by the assignee in bankruptcy of William H. Decker, for the re-examination of a debt proved against the estate by the South Brooklyn Saw-Mill Company.

[This was a bill by Levi Decker against William H. Griffith for infringement of reissued patent No. 3,323, granted to complainant March 0,1SG0, upon original patent No. 00,057, of December IS, 1S00. The patent was for an improvement in cushions for billiard tables.

<p>Case No. 3,725.</p> <p>Patents—Novelty—Infringement—Cushions fob Billiard Tables.</p> <p>1. The claim of the reissued letters patent granted to Levi Decker, March 9th, 1809, foi an “improvement in cushions for billiard tables,” the or.ginal letters patent having been granted to him December IStk, 1SC0, namely, “The catgut or other cord E, partially or fully imbedded, or otherwise attached, at the angle a of the rubber cushion C, so as to protect said cushion against the impact of the ball, substantially as herein shown and described, and for the pur poses set forth,” is not void for want of novelty, by reason of anything found in the letters patent g an.ed to William K. Winant, August 10th, 1S56, for “improvements in cushions for billiard tables.”</p> <p>2. In the Winant patent, a strip of steel merely lies in a crease or groove cut in the rubber, and is kept in place without being attached by screws, cement or otherwise. In the Decker patent. the cord is described as being moulded or imbedded entirely within the rubber. But, it appearing that, before Decker’s invention, billiard tables were made in accordance with the Winant patent, but with the added feature of an arrangement for tying down the steel strip to the cushion, by means of holes in the lower edge of the strip and wires put through them and fastened to the under side of the rail, to keep the strip in place in the rubber, and it further appearing, that, prior to Decker's invention. billiard table cushions were made by one S., with a French clock spring placed in a slit cut in the upper face of the rubber, parallel to and near the under face of the rubber, and cemented into the s'it. and cloth cemented over the slit: Held, that a suit founded on the Decker patent could not be maintained against billiard tables so constructed, or against an arrangement like that of S. but with a round wire substituted for the steel strip.</p> <p>[NOTE. For oilier cases involving this patent. see note to Decker v. Grote, Case No. 3,726.]</p>

Final hearing upon pleadings arid proofs. Suit brought [against Frederick Grote and •others] on letters patent [No. 60,037] for “improvement in cushions for billiard tables,” granted to the complainant [Levi Decker] De-cember IS, 1S6G, and reissued March 9, 1SG0 j [No. 3,323]. A description of the invention, quoted from the specification, together with the claim, will be found in the opinion of the court.

[Motion for provisional injunction. Suit brought upon letters patent, reissue No. 3,323, for improvement in cushions for billiard tables,” issued to complainant, Levi Decker, March 9, 1569. The original patent (No. 60,657) was granted to complainant December 18, 1866. Defendant was a Connecticut corporation. Process having been served upon one of its officers in the city of New York, it appeared by solicitor, and filed a plea to the jurisdiction of the court]

[In bankruptcy. Daniel] Deckert was adjudged a bankrupt on his own petition on the 31st of March, 1873. An assignee was appointed May 16th, 1S73, to whoin his real and personal property was assigned in due form. So much of the personal property as was exempt under the bankrupt law was duly set off by the assignee. Its value was estimated at 8337.75.

[Appeal from the district court of the United States for the southern district of New York.] This was a libel in personam, filed in the district court, by [Andres Dedekam] the owner of the brig Brodrene, to recover freight for the conveyance of certain bundles of nail-rod iron, in that vessel, from Newcastle-upon-Tyne to New York.

After the decree in this cause (Dedekam v. Vose [Case No. 3,729]), the appellees [Francis Vose and others], on motion to the court, took an order, by default, against the stipu-lators in the cause, that they pay into court the amount of their stipulation, and had a bill of costs taxed on that motion by the clerk. From that taxation the appellant [Andres Dedekam] appealed to this court.

<p>Case No. 3,732.</p> <p>Shipping—Negligent Stowage — Deduction op Damages fuom Fueight—Tendeu.</p> <p>[1. Where iron rods are damaged by reason of improper stowage, the same having been placed at the bottom of the vessel and covered by coal, and to which method of stowage the shipper at the time objected, he is entitled to a set-off against the freight charges to the extent of such damage.]</p> <p>[2. An offer to pay the freight with such set-off, followed by payment into court, is a fulfillment in good faith of the contract of shipment.]</p> <p>[NOTE. This decree was affirmed by the circuit court on appeal. Case No. 8.729. The case was afterwards twice heard in that court on questions relating to the taxation of costs. Oases Nos. 8,730 and 3,781.]</p>

This action was brought on two policies of insurance, dated March and May, 1S06, on the ship Romulus, and on her freight, both valued: the former at and from New-York to Havana, and back again to New-York. (The vessel warranted neutral, to be proved in this country.

[Appeal from the commissioner of patents. [Application by Levi Dedericks for a patent for an improved hoisting and extending •ladder. The applicant appeals from the decision of the commissioner of patents rejecting the application.]

This case was argued at its different stages, having been twice heard, first upon the plea of jurisdiction, and afterwards upon the merits, by Messrs. Wallis 'and Thomas for libellants, and by Messrs. Thomas W. Hall, Jr., Wm. Fell Giles, Jr., and John S. Hanan, for respondents.

This was an appeal from a decree of the district court [for the southern district of New York], in favor of the libellants [Charles Deems and others], in a suit in personam, in admiralty.

<p>Error to Lafayette circuit court.</p>

<p>Case No. 3,737.</p> <p>'Tug axd Tow—Negligence — Pleading—Unsea-wouthiness.</p> <p>Jl. A tug is liable for damages, resulting from negligence in her navigation, to a vessel in tow, whether she is towing under a contract or not.</p> <p>[Cited in The Merrimac. Case No. 9,478; Jennings v Muller, Id. 7,2S2. Quoted in The M. J. Cummings, 18 Fed. 182; The M. Vanderco’ok, 24 Fed. 476.]</p> <p>2. A tug was towing a barge to a bulkhead, near which was a sunken pier, whose presence was known to the master of the tug, and on which the barge struck: Held, that the running of the barge upon the pier was conclusive evidence of negligence on the part of the tug, in the absence of proof of any vis major.</p> <p>[Cited in The Narragansett, 20 Fed. 398.]</p> <p>3. A libel charged that the existence of the sunken pier was known to the tug, and that, in place of avoiding it, the tug towed the barge upon it, but did not aver that it was dons negligently, and the answer averred that the accident was not the result of any negligence on the part of the tug, and the case was tried on those pleadings: Held, that the libellant might amend the libel, by averring negligence, and thus accepting the issue tendered by the claimant, and the issue which was in fact tried.</p> <p>4. Where the defence was set up that a barge, injured by being towed against a sunken pier, was too heavily loaded and was too weak: Held, that as it was not shown that she was too heavily loaded for a barge which was to perform her voyage without being subjected to the blow which she received, nor that she was not sufficiently strong for the ordinary purposes of the voyage she was on, the defence was not available.</p> <p>[NOTE. For statement of further proceedings in this case, see Case No. 3,738.]</p>

<p>Case No. 3,738.</p> <p>Motion fob Execution’—Laches—Settlement.</p> <p>A suit was brought by a married woman as owner of a canal-boat against a steamboat to recover the value of the boat and her cargo, lost by negligence of the steamboat. A decree was made in her favor on March 4, 1871, for $2,-737.69 damages and $331.61 costs. In May, 1871, an agreement to compromise was made between the proctors, and the stipulators paid $2,000 in settlement. The owners of the cargo were parties to the settlement and the husband of the libellant was present and consented to it and also her proctor, who has since died. In March, 1879, a motion for leave to issue execution against the stipulators was made on behalf of the libellant, on her affidavit that she did not authorize the settlement and received no part of the $2,000: Held, that the facts as to the settlement created so strong a presumption of acquiescence on the part of the libellant that it was not overcome by her affidavit, and that in any event she could only enforce the decree for the amount of her interest in it, and. as she had not shown what that was, her motion must be denied.</p>

Two men, who had escaped from Charleston and given themselves up to our fleet, made important disclosures concerning the signal lights used by the rebels, and thus enabled the navy to make the prize. This was done under a promise of payment if. their services should prove to be of value. They now petition against the proceeds in the registry.

<p>Case No. 3,740.</p> <p>Bill op Lading—Freight on Pink Wood—“Non-polk Inspection.”</p> <p>A vessel took on board at Norfolk, Va., a quantity of pine wood, and her master signed a bill of lading, which described the wood as being “112% cords pine wood, Norfolk inspection,” and agreed for its delivery at New York on payment of freight “at four dollars per cord.” The vessel arrived in New York, where the consignee refused to pay $450 for the freight, but insisted that the cargo should be discharged and measured, and that freight should be paid only at the rate of $4 per cord on such measurement. The wood was then discharged by the vessel, and deposited in a proper wood-yard, of which the consignee had knowledge. He filed a libel against the vessel to recover the value of the wood, alleging that the master had sold it and converted it to his own use: Held, that, on the bill of lading, the vessel was entitled to receive the $450 as freight; that she delivered all the wood she took on board at Norfolk; that it was not made to appear by the libellant that the master had sold and converted the cargo, and that the libel must be dismissed.</p> <p>[Distinguished in Gibson v. Brown, 44 Fed. 99.]</p>

<p>Case No. 3,742.</p> <p>Patents — Decision of Officer as to Preliminary Oath — Novelty — Infringement —Evidence-Tin Cans.</p> <p>1. The invention described in the reissued letters patent granted to Moritz Pinner, November 1st, 1864, for an improvement in tin ■cans, (the original patent having been granted to Jean Bouvet, June 28th, 1864,) is not a different one from that described in the original patent, although, in the reissue, the device is described as applicable to different forms of construction of cans, and by different modes, from those in the original.</p> <p>2. The decision of the patent office, in granting a patent, that the inventor had made the necessary preliminary statutory oath, is final.</p> <p>[Cited in Holmes Burglar Alarm Tel. Co. v. Domestic, etc., Tel. Co., 42 Fed. 222.]</p> <p>3. Soldering a flat strip of metal over a slot, by soldering the edges of the strip to those of the slot, is not different from soldering a round wire into a slot, by connecting the edges of the slot with solder over the wire.</p> <p>4. The necessary utility, to uphold a patent, considered.</p> <p>5. The requirement, in the patent, that the solder is to be torn, indicates that it must not be of a kind so hard that it cannot be torn.</p> <p>6. A person who infringes a patent is liable for the infringement, although what he does may be .an improvement upon the patented device.</p> <p>. [Cited in Phillips v. Carroll, 23 Fed. 250.]</p> <p>7. The proof of infringement was the sale of a can by the defendant, purchased for and by the . direction of the plaintiff. The can was sold in the usual course of the defendant's business. On all the evidence, it was held that the defendant was dealing in the infringing cans in such a manner that, except as to the one can referred to, he was liable to account, und ought to be restrained by injunction.</p> <p>[NOTE. An application for leave to review the decree entered pursuant to this opinion was denied. Case No. 3,743. Subsequently, on defendant’s application, the decree was amended. See S Fed. 434.]</p>

<p>Case No. 3,741.</p> <p>Abandoned Claim.</p> <p>This claim seems to have been abandoned.</p>

<p>Case No. 3,743.</p> <p>Decrees in* Patent Cases — Application* fob Review—New Anticipation*—Sufficiency of Excuses.</p> <p>In a suit on a patent, after an interlocutory decree in favor of the plaintiff, the defendant applied to the court for leave to file a bill to review the proceedings and the decree, and to amend the answer by setting up two French patents against the novelty of the plaintiff’s patent, on the ground that, if the French patents had been in evidence, the decision would have been different The application set forth, (1.) that the defendant was ignorant of the existence of the French patents until after the proofs were dosed; (2.) that he did not know of their relevancy and materiality until after the decree was made and after he had employed new counsel; (3.) that the defendant's ignorance, and the insufficiency of a prior application, made after the proofs were taken and before the bearing, to admit said patents in evidence, was solely due to the inexperience and lack of legal knowledge of his former counsel; (4.) that, in selecting such counsel, the defendant was mistaken: Held, that the excuses offered were not sufficient to warrant the granting of the application, and that it was not clear that the result would have been different if the French patents had been in evidence.</p> <p>[Cited in Page v. Holmes Burglar Alarm Tel. Co., 2 Fed. 333: Witters v. Sowles, 31 Fed. 10: Austin v. Riley, 55 Fed. 838. Followed in Adair v. Thayer, 7 Fed. 920.]</p> <p>(NOTE. The decree here sought to be reviewed was subsequently amended, on defendants’ application. 8 Fed. 434.]</p>

By T. J. Latham, Register: To the Hon. E. S. Hammond, Judge of said Court: Julius Bamberger and others filed their compulsory petition in bankruptcy in this case July 1, 187S, on which day your honor directed that the order to show cause issue; which petition and order are herewith referred.

<p>Case No. 3,745.</p> <p>Involuntary Bankruptcy — Character op Proceeding—Jdry Trial—New Trial.</p> <p>1. A proceeding to have a debtor adjudged bankrupt is a civil and not a criminal proceeding.</p> <p>2. Where a debtor denied the alleged acts of bankruptcy and demanded a jury trial, and upon sucli trial the jury found the facts alleged in the petition were untrue, held, the district court has the same power over verdicts rendered in such cases as courts of common law, and may, on proper cause shown, set them aside and order a new trial.</p> <p>[Cited in Re California Pac. R. Co., Case No. 2,315.]</p> <p>[NOTE. For an opinion rendered in this ease on a motion to attach witnesses for disobedience of subpoenas, see Case No. 4,173.]</p>

This was an action against [Hernán J. Red-field] the collector of the port of New York, to recover back an excess of duties, paid under protest, upon numerous importations of merchandise, during the years 1853, 1854, 1855, and 1S50, from the island of Porto Rico, a part of the Spanish dominions.

<p>Case No. 3,747.</p> <p>Extradition Treaties — Ex Rost Facto Operation—Right op Asylum—Constitutional Law.</p> <p>1. Under the convention for the extradition of fugitives from justice, between the United States and Italy, concluded March 23, 18GS (Í5 Slat. 629), a person may be surrendered for the crime of murder committed in Italy before the making of the convention.</p> <p>2. The various extradition treaties between the United States and foreign countries examin ed, with a view of showing that some, on their face, exclude surrender for prior crimes, while others do not, and that prior crimes are'included. where the language is capable of a construction including them, unless they are expressly excluded.</p> <p>3. A person who has- committed a crime abroad, and iome to the United States before the making of an extradition treaty covering a surrender for such crime, has not thereby acquired a right of asylum of which he cannot be deprived</p> <p>4. The restrictions in article 4 and article 5 of the amendments to the constitution of the United States, have no relation to the subject of extradition, as regulated by the convention with Italy and by statute.</p> <p>5. Such convention, construed as covering the case of a crime committed before the treaty was made, is not open to the objection that it is a bill of attainder, or an ex post facto law. within the meaning of article 1, section 9, of the constitution of the United-States.</p>

Ejectment, to recover 100 acres of land, in Northampton county. The plaintiff deduced a regular title from the proprietary to William Allen, for 1853 acres of land; and read the copy of a deed from William Allen, in 1771, to James Delancey, and the plaintiff his wife, in fee, for 1000 acres, part of the above 1853 acres; of which 1000 acres, the land in question, are parcel.

This case came on, upon a point reserved at the last court, whether the exemplification of the deed, from Allen to Delancey,- executed in 1771, proved before a justice of the supreme court in 1772, and recorded in the county of Philadelphia in 1773, could be offered in evidence. [See Case No. 3,749.] Myers ■ Fisher, Esq., was examined; who proved, that he had been, for many years before the revolutionary war, a practitioner at the bar; had since acted as a scrivener and…

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

This case came up on a petition of [Joseph W.] Delano to be paid out of the proceeds of the vessel [the bark J. Walls, Jr.] the amount of a bill of supplies furnished her by him. The supplies were furnished her in this port on the application of her master. About the time the delivery of them was to be completed, Johnson, the present claimant, purchased a third of the vessel.

This was a suit brought by scire facias, for the purpose of repealing a patent obtained by the defendant [John Scott] from the United States, under which he claimed the sole and exclusive right of using and vending to others, certain improvements in making iron chests or safes. This patent the plaintiff [Jesse Delano, Jr.] alleged he had obtained surreptitiously and on false suggestions.

This was a bill in equity wherein the complainant [Warren Delano), owner of the ship Mastiff, sought to recover damages of the respondents [Nathan Winsor, Jr., and others], as his agents, because they improperly and l unfaithfully executed the trust he confided to them, as ship-brokers, to procure a cargo of freight for the vessel, and also on account of certain misrepresentations made by them in respect to the same, whereby he was induced to pay them in commissions a…

Assumpsit on several counts: (1) Money had and received. (2) On a promissory note dated at New York, on the 23d of March 1811, payable to plaintiff [John F. Delaplaine] or order on the 15th of July then next. (3, 4, and 5) On like notes for like sums, payable on the 1st and on the 15th of August then next, and on the 1st of September then next. Pleas: (1) Non assumpsit. (2) Statute of limitations of Massachusetts specially set forth.

<p>Case No. 3,758.</p> <p>Bankruptcy—Debtor’s Discharge — Objections —Admission of Fictitious Debts — Concealment of Assets—Evidence.</p> <p>[1. The admission of a fictitious debt against his estate will not bar the bankrupt’s discharge, under the act of 1841, unless the same is admitted in proceedings under the act Therefore, proof of an assignment of liis whole estate before the passage of the act, with preference of fictitious debts, will not operate as a bar.]</p> <p>[2. Putting a fictitious debt upon the schedules of the bankrupt is admitting the same, within the meaning of the act.]</p> <p>[3. Declarations of a debtor, at the time of his failure, that he has means to pay all his debts, are not sufiicient, by themselves, to show a fraudulent concealment of assets.]</p>

In this case a bill was filed to October 1825; an answer put in March 1826; exceptions taken and a new answer filed June 1826. On tlie 11th of October 1826, the plaintiff took out a commission to Bordeaux, which has never been executed or returned. The plaintiff lias filed no replication, or taken any measures to procure testimony, or to bring the cause to a hearing. On the first day of this term, Mr. Rawle moved to dismiss the bill with costs.

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

[Suit in equity by Miguel A. De Laveaga. against Thomas H. Williams and others.] This case came before the court on a plea of abatement to the jurisdiction of the court

[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, to recover damage for rescuing the steamship Delaware from impending peril, while lying off South Edisto island, South Carolina.

On. the attachment of the vessel at the suit: of the libellant, a stipulation was entered into by him and Edward R. L’Amoreux, ac- * cording to the course of this court, in the sum of two hundred and fifty dollars, to secure the costs of suit, if decreed against the libellant. On a hearing of the cause, upon the merits, on the 15th day of April last, the libel was dismissed, and costs to be taxed were adjudged in favor of the claimant of the vessel.

The steamer Osprey was on her way to sea, out of Delaware hay, with three signal lanterns in place, heading for the lights of Cape Henlopen, on the west. The barque Delaware, without any lights, came into the capes with the wind free to pass up the bay, and the tide against her.

[In equity. Bill by the president, managers, and company of the Delaware & Hudson Canal Company against Henry C. Clark.] This was a final hearing, on pleadings and proofs.

[Libel by the Dela-ware & Hudson Canal Company against the steamboat Alida for fuel furnished. Decree for libelants. Judgment suspended to enable claimant to move ■ for a reargument.]

[This was a bill to reform a policy of marine insurance. An action at law was previously brought upon the policy, and judgment given for plaintiff. See Hogan v. Delaware Ins.

Action at law. The plaintiff corporation was insurer of a cargo of sugar on board the North German bark Francis, from Java to Boston. The vessel sailed from Pasoe-roean, Java, with said cargo on board. Soon after leaving her port of departure she encountered a hurricane, and was compelled to cut away her masts to save vessel and cargo.

<p>Case No. 3,767.</p> <p>Internal Revenue — Enjoining Collection — JUKISDICTIOX — lliliEGULAKIT1ES OF ASSESSOR— Constitutionality of Law.</p> <p>1. An assessor of inteftial revenue acts judicially in determining what persons and things are subject to taxation under an act of congress levying taxes.</p> <p>[Quoted in Kissinger v. Bean, Case No. 7,-853.]</p> <p>2. If the subject matter is within his jurisdiction, that is, if he is bound to enquire and determine who and what are subject to taxation, a mistake as to the person -or thing taxed, or an irregularity of proceeding on his part, will not invalidate his action as assessor so far as to make the collector, who proceeds on a warrant in proper form to collect the tax, a trespasser.</p> <p>[Quoted in Kissinger v. Bean. Case No. 7.853. Explained in Kensett v. Stivers, 10 Fed. 524.]</p> <p>, 3. A sum of money assessed by a United States assessor, under the provisions of an act of congress. in the exercise of his judicial power to determine what is the subject matter of taxation, is a United States tax, within the meaning of the act of congress prohibiting any court from maintaining a suit restraining the collection of U. S. tax. In such a suit the court will not hear the question of the unconstitutionality of the law, or invalidity of the act of congress, under which the tax has been assessed, argued, however much they may be of the opinion that the law, when tested in another form ol action, will be found unconstitutional, invalid, or inoperative.</p> <p>[Applied in Alkan v. Bean, Case No. 202. Quoted in Kissinger v. Bean, Id. 7.853. .Explained in Kensett v. Stivers. 10 Fed. 524. Cited in Snyder v. Marks, 109 U. S. 193, 3 Sup. Ct. 100.]</p> <p>4. The purpose of the act of congress was to prevent any interference with the prompt and regular collection of the revenue; and the interposition of any defence to a national tax, levied by an assessor acting within his jurisdiction, would be equally fatal to the said purpose of congress, whether said defence is founded on the alleged unconstitutionality of the act. its invalidity. or want of application to the ense.</p> <p>5. Query? Has not this court on general principles of public policy, founded on the relations of the states to the general government, the power to dissolve the injunction, independent of the act of congress requiring it?</p>

<p>Case No. 3,770.</p> <p>Delivery of Cargo — Not Accountable for Breakage—Negligence—Burden of Proof.</p> <p>1. Under a provision in a bill of lading, that the vessel shall not be accountable for leakage, breakage or runt, the vessel is nevertheless responsible for negligence or want of sir'll or care in her lading, stowage or delivery of the cargo. But such negligence or want of care or skill must be affirmatively shown by the party alleging it.</p> <p>[Cited in Vaughan v. 630 Casks of Sherry Wine, Case No 16,960; Wolff v. The Vader-land, 18 Fed. 740.]</p> <p>2. Where a bill of lading for cases of plate glass contained the clause, “Not accountable for breakage,” and it appeared, that, when the cargo was discharged, certain of the cases were placed flatwise on the dock ¿rid others jilaced endwise, and the attention of a clerk of the consignees of the cargo was called to the fact that some of the cases were piled flatwise on each other, but none of the cases appeared to be broken or pressed in, and all the cases were receipted for as in good order, and, on opening the cases at the consignees’ store, some of the plates in some of the cases that were piled flat-wise were found to be broken, as were also some plates in the cases that were placed endwise, (the claim for damage to the latter haring been abandoned); held, that the consignees had failed to show that the damage to the glass was caused by the piling of the cases flatwise, or by any other negligence on the part of the ship.</p>

<p>Case No. 3,769.</p> <p>Maritime Liens—Wharfage—Admiralty Jurisdiction.</p> <p>1. A claim for wharfage as a maritime lien upon the respondent’s vessel is not cognizable in admiralty.</p> <p>2. The admiralty jurisdiction is not to be invoked to enforce common law rights, for which the common law has provided appropriate and efficacious remedies.</p>

<p>Case No. 3,774.</p> <p>Bankruptcy — Puook against Separate Estate or Partners.</p> <p>Where, out of a firm of four partners two were insolvent and one was bankrupt, and the fourth partner paid off- and discharged out of his separate estate all the firm debts: Held, that he was entitled to prove against the separate estate of the bankrupt one half of the amount so paid by him.</p>

<p>Case No. 3,772.</p> <p>Prize.</p> <p>Vessel and cargo condemned as enemy property, and for a violation of the blockade.</p>

<p>Case No. 3,775.</p> <p>Joint and Several Contract — Actions on — Parties — Discontinuance and Nolle Pros-equi.</p> <p>1. In a suit on a joint and several contract the plaintiff may sue all or one or any intermediate number of the co-contractors, although he could not do so at the common law. The statute of Arkansas authorises this proceeding.</p> <p>2. The plaintiff may. after bringing suit against all, discontinue as to any defendant before final judgment, although he may be served with process, and this will not operate as a discontinuance of the action, nor can the other defendants avail themselves of it.</p> <p>3. A discontinuance anil nolle prosequi stand on the same ground; neither operating like a retraxit to release and bar the cause of action.</p> <p>4. A nolle prosequi amounts to no more than an agreement not to proceed further in that suit as to the particular person or cause of action to which it is applied, but does not prevent the commencement of-a future suit.</p>

<p>Case No. 3,776.</p> <p>Admiralty Jurisdiction — Maritime Contracts and Torts — Maritime Insurance — Jurisdiction at Law—Bottomry Bonds.</p> <p>1. The admiralty has jurisdiction over all maritime contracts, wheresoever the same may be made or executed, and whatever may be the form of the stipulations.3 The admiralty has also jurisdiction over all torts and injuries committed upon the high seas, and in ports or harbors within the ebb and flow of the tide. The like causes are within the jurisdiction of the district courts of the United States by virtue of the delegation of authority “in all civil causes of admiralty and maritime jurisdiction.”</p> <p>[Cited in Willard v. Dorr, Case No. 17,679; Jenks v. Lewis, Id. 7.279; Steele v. Tliacher, Id. 13.34S; American Ins. Co. v. Johnson, Id. 303; Ramsay v. Allegre. 12 Wheat. (26 U. S.) 63S; Waterbury v. Myrick. Case No. 17,253; Davis v. The Seneca, Id. 3,650; U. S. v. Grush. Id. 15,268; The Tilton, Id. 14.054; The Wave, Id. 17,297; Borden v. Hiern, Id. 1,655; The Gold Hunter, Id. 5,-513; The Perseverance, Id. 11,017; The Volunteer, Id. 16,991; Davis v. New Brig, Id. 3,643; Thackarey v. Farmer of Salem. Id. 13,852: House v. The Lexington, Id. 6,737; U. S. v. Mackenzie, Id. 15,691; Dun-das v. Bowler, Id. 4,140; The Martha Anne, Id. 9.146: Mutual Safety Ins. Co. v. The George, Id. 9,981: The Lotty, Id. 8.524; Leland v. The Medora, Id. 8,237; Packard v. The Louisa, Id. 10,652; Ü. S. v. New Bedford Bridge, Id. 15,867; Van Sant-wood v. The John B. Cole, Id. 16,875; Lowry v. The E. Benjamin, Id. 8,582; Greeley v. Smith, Id. 5.750: Waring v. Clarke, 5 How. (46 U. S.) 473. 47S. 486: New Jersey Steam Nav. Co. v. Merchants’ Bank. 6 How. (47 U. S.). 421. 436: Taylor v. The Royal Saxon, Case No. 13,803; Xvynoch v. The S. C. Ives, Id. 7,958; Tunno v. The Betsina. Id. 14.236; Jackson v. The Magnolia, 20 How. (61 U. S.) 335; Marsh v. The Minnie, Case No. 9,117; The Richard Busteed, Id. 11,764; The Clarion, Id. 2,795; The Sarah Jane, Id. 12,349; Jackson v. The Kinnie, Id. 7,137; Francis v. The Harrison, Id. 5,038; Moir v. The Dubuque, Id. 9,696; The General Cass, Id. 5.307; Bernhard v. Oreene, Id. 1,349; The North Cape, Id. 10,316; Salvor Wrecking Co. v. Sectional Dock Co., Id. 12.273; Ex parte Easton, 95 U. S. 76; People v. Supervisors of Richmond County, 73 N. Y. 397; Simpson v. The Ceres, Case No. 12,-881; The Canada, 7 Fed. 732; The City of Salem, 10 Fed. 843; Doolittle v. Knobeioch, 39 Fed. 40; Haller v. Fox, 51 Fed. 299. Followed in Baird v. Daly, 57 N. Y. 246; Drinkwater v. The Spartan, Case No. 4,-085.]</p> <p>2. A policy of insurance is a maritime contract, and therefore of admiralty jurisdiction.</p> <p>See the opinion of Mr. Justice Johnson in Croudson v. Leonard. 4 Cranch [8 U. S.] 434. and Hale v. Washington Ins. Co. [Case No. 5,913].</p> <p>[Cited in Hale v. Washington Ins. Co., Case No. 5,916; Gloucester Ins. Co. v. Younger, Id. 5,487; New England Marine Ins. Co. v. Dunham, 11 Wall. (78 U. S.) 35: Insurance Co. of Pennsylvania v. The Wauban-shene, 24 Fed. 559.]</p> <p>3. Courts of common law have a jurisdiction concurrent with the admiralty over maritime contracts.</p> <p>[Cited in The Gilbert Knapp. 37 Fed. 209: Steele v. Thaeher. Case No. 13,348; Plum-mer v. Webb. Id. 11.233: New Jersey Steam Nav. Go. v. Merchants' Bank, 6 How. (47 U. S.) 420; Hill v. The Golden Gate, Case No. 6,491.]</p> <p>[4. Cited in Leland v. The Medora, Case No. 8,237, to the point that the last bottomry bond is to be paid in preference to any former ones.]</p>

<p>Case No. 3,777.</p> <p>Prize—Test Oath — Mortgages in Prize Court — What is Enemy Property — Transfer to Neutral—Blockade.</p> <p>1. A test oath is an oath of ownership simply, and all papers annexed to such oath will be stricken from the record as irregular. The fact of the ownership, with a general denial that the captured property is lawful prize of war, is all that is proper to include in the claim.</p> <p>[Cited in The Napoleon, Case No. 10,012; The John Gilpin, Id. 7,343.]</p> <p>2. A mortgagee of captured property has no right to assert his mortgage in a prize court, and demand its payment out of the proceeds of the property if condemned. All liens upon captured property, which are not in their very nature open and apparent, like that of freight upon the cargo laden on board a captured vessel, are utterly disregarded in prize courts.</p> <p>3. Property belonging to a merchant residing and trading at an enemy port is, when captured, liable to condemnation as enemy property. The evidence discussed, showing that the transfer of the vessel by an enemy to a neutral was colorable and not real.</p> <p>4. A transfer of an enemy vessel by an enemy to a neutral during the war. and for the pur pose of her continuance in trade with the enemy, is void, even though made in good faith and for a valuable consideration.</p> <p>5. The true destination of the vessel in this case was not disclosed upon her papers. The de-fence set up, that the vessel made inquiry at a neutral port as to the blockade, and was informed that it had been raised, and then directed her course towards a blockaded port in order to make inquiry there as to the existence of the blockade before attempting to enter, shown to be groundless.</p> <p>6. A contingent destination to a blockaded port, if it in fact existed, must appear on the ship’s papers.</p> <p>7. Where knowledge of a blockade exists at the commencement of the voyage of a vessel, she cannot lawfully approach a blockaded port, even for the bona fide purpose of inquiring as to the continuance of the blockade; and, if she does, she is liable to capture.</p> <p>[Cited in The Empress. Case No. 4,477; Stokely v. Smith, Id. 13,473.]</p> <p>8. Vessel and cargo condemned.</p> <p>This decree was affirmed, on appeal, by the circuit court, July 17, 1803 [Case No. 8,778].</p>

<p>[Appeal from the district court of the United States for the southern district of .New York.</p> <p>[Prize. The vessel was condemned in the district court (Case No. 8,777), and the claimant appealed.]</p>

<p>Case No. 3,780.</p> <p>Constitutional Law—Obligation op Contracts.</p> <p>A state insolvent law cannot discharge or suspend the obligation of a contract, though made 'and to be performed within the state, if it is a .contract with a citizen of another state, nor can •it defeat the right of action of a citizen of another state in the circuit court of the United States.</p> <p>[Cited in Hale v. Baldwin, Case No. 5,913; Baldwin v. Hale, 1 Wall. (68 U. S.) 234; Green v. Collins, Case No. 5,755.)</p> <p>NOTE. State insolvent laws cannot discharge the obligation of contracts made with citizens of other states. See Baldwin v. Hále, 1 Wall. [68 U. S.] 234; Hale r. Baldwin [Case No. 5,-•913], citing above case.</p>

<p>Case No. 3,781.</p> <p>Pabtnekship—Evidence op —Bakkhdptcy— Pao of op Claim—Costs.</p> <p>[1. One who—partly through friendship, and partly through a desire to promote a profitable business, in order that he may receive payment of an antecedent debt—advances money to another for the purchase of materials to be manufactured, retaining a lien thereon as security, will not be held liable as a partner merely because of his debtor’s representation to that effect, made without his knowledge or authority, coupled with the fact that he looked carefully after the property, which constituted his only security, and was consulted and gave his assent to a sale thereof to his debtor’s brother.]</p> <p>[2. Costs will not be allowed to a claimant in . bankruptcy proceedings, who, by failing to make a clear and frank disclosure of the transactions on which his notes were founded, misleads the assignee so as to cause delay and expense in the proof of his claim.]</p>

This was an action [by Thomas A. De Mill and others against Augustus Lockwood] for the recovery of a tract of land situate in Stamford. The plaintiffs, four in number, were the children and the only heirs male of Peter De Mill. The title to the land was originally in Anthony De Mill. He, by his will, made the 15th of July, 1790, devised the land to his nephew Joseph De Mill, for life.

<p>This cause was left to be determined by the court, on the law and facts, without the intervention of a jury.</p>

[Action in ejectment.] Motion by defendants’ counsel to postpone the trial until the plaintiff has paid the costs of a former ejectment between the same parties, for the same premises; whiqh was decided in favour of the defendants, in the supreme court of this state. Cases cited in favour of the motion: Roberts, Costs, 448; 2 W. Bl. 1158. On the other side were cited Adams, Ej. 322; Roberts, Costs, 446.

Ejectment for lot 6. of Mayer’s subdivision of lots 1 and 4, in block 22, in the canal tras-tees’ subdivision of the south fractional half of section 29. township 39, range 14, situated in Cook county, Illinois.

In bankruptcy. This was a petition of 'Gardner Dennett, assignee of David D. Rug-gles, a bankrupt, claiming certain property, which had been transferred by Ruggles to G. & D. N. Ropes, which had been takeu into possession by their assignee, as having been transferred in fraud of the bankrupt law, and for the purpose of giving them a preference over the creditors. The material facts were as follows: The Messrs.

The cause was removed from the circuit court of Alachua county to the United States circuit court, upon affidavit by the attorney in fact of the plaintiff, that from prejudice or local influence the plaintiff would not be able to obtain justice in the state court. The counsel for defendant thereupon moved to remand the cause to the state court, on grounds which are stated in the opinion of the court

In equity. Final hearing upon pleadings and proofs. Suit brought [by Joseph S. Dennis against James E. Cross, James F. Dane, and William Westlake] upon letters patent [No. 13,286] for “improvement in lanterns,” granted to Charles Waters, July 17, 1855, and assigned to complainant The following engraving (Fig, 1) represents the Waters lantern.

<p>[This was a bill in equity by Paul Dennis against Daniel Eddy and others.]</p>

This was a bill in equity filed [by Paul Dennis against Walden Eddy and others] to restrain the defendants from infringing letters patent [No. 19,412] for an “improvement in cultivators,” granted to the complainant February 23, 1858, and reissued August 4, 1863 [No. 1,515].

[This was a bill in equity by Paul Dennis against Walden Eddy and Abram Reynolds, survivors of Samuel Langdon, to restrain the alleged infringement of letters patent'No. 55.-630, granted to P. Dennis, June 19, 1866.]

The libel filed in this case states that Dennis, owner of the brig Lear, sent her in November last on a trading voyage to St. Domingo, and bound to Cape Francois, where she arrived in December, and sold her cargo. Having taken in a return cargo, she proceeded, in February, to Port de Paix, for the sole purpose of joining sundry other American vessels, some of which were armed, and might protect her against the brigand cruiz-ers.

<p>Case No. 3,797.</p> <p>Release of Suhety — Principal’s Insolvency— Extension of Time—Subrogation—Legal and Equitable Remedies.</p> <p>1.The surety by giving notice to the creditor, and requesting him to sue the principal debtor, who is in failing circumstances, does not release himself, though the principal should become insolvent.</p> <p>2. The relief of the surety, under such circumstances, is in equity.</p> <p>3. Where the obligee changes the contract, by giving longer time, &c., the surety is discharged. And this matter may be set up at law.</p> <p>4. In such a case the discharge of the surety does not depend on the insolvency of the obligee, but on the alteration of the contract. But the solvency or insolvency of the principal debtor can better be ascertained in chancery, where his answer may be required.</p> <p>5. The surety, on the payment of the debt, is entitled to be substituted to all the rights of the creditor.</p> <p>6. This does not mean that the original obligation, which is discharged by the payment, shall be assigned to the surety; but mortgages, &c.</p>

<p>Case No. 3,798.</p> <p>Negotiable Notes — Blank Indorsement—Feo-eral Jurisdiction—Citizenship.</p> <p>1. A note with a blank indorsement authorizes the holder to receive the amount as the prima facie owner, and to sue the- indorser by filling up the indorsement.</p> <p>2. When the action is brought against the in-dorser by the indorsee, the action is maintainable in this court, though the assignment was made by a citizen of Michigan to á citizen of New York.</p>

<p>Case No. 3,799.</p> <p>Mauitime Contkacts — Carriage or Passengers —Contract to Forward.</p> <p>[1. Certain passengers engaged with a ship-agent at Cork for passage to New York. The vessel in which it was proposed to carry them not being ready for sea, they were placed on board another ship, bound for Philadelphia; the agent giving each passenger a certificate engaging that he should be carried to Philadelphia on the latter ship, with a written indorsement that he should then be forwarded to New York free of expense. The master received these certificates from the passengers without dissenting from their provisions, and kept them until arrival at Philadelphia. There, however, he disclaimed further responsibility for the passengers. Held, that the contract was a maritime contract, made with apparent authority, and was binding on the ship.]</p> <p>[2. The contract was an integral one, not separable as to the two stages of transportation; and therefore the ship was liable for the expense of forwarding the passengers to New York, whether she carried them herself, or caused them to be sent by another ship, or by land.]</p>

<p>Case No. 3,800.</p> <p>Claimants aoainst Insolvent Railroad Co-Promises by Receiver.</p> <p>1. Claimants for materials furnished an insolvent railroad company are not entitled to payment out of a fund in court arising from a san; of the corporate property at the instance of mortgage bond-holders, until the bonds are paid. Such claimants have no specific lien upon the property.</p> <p>2. Promise of payment by the receiver does not change their case: they can only take the surplus after specific liens have been discharged.</p>

<p>Case No. 3,801.</p> <p>Specific. Performance—Consideration.</p> <p>1. A contract was made for the purchase of certain tracts of land, as a consideration for which sis thousand dollars were to be paid, and certain work was to be done. The money was paid, but the work was not done. A- bill being filed under such circumstances, it was dismissed.</p> <p>2. There is no principle in chancery better established, than that the party who asks a specific performance, must show performance on his part, or that he has offered to perform, and been prevented from-doing so, by the acts of the defendant.</p>

Action by the plaintiffs, merchants of Glasgow, for goods shipped to the defendant, a merchant of Philadelphia. The defendant claimed, amongst others, the following credits: 1.The amount of a bill of exchange for £300 sterling, drawn by Eves & Wistar in favour of the defendant, on Barber & Co. of Liverpool, at sixty days, payable in London.

<p>Case No. 3,803.</p> <p>Payment—Presumption from Lapse op Time.</p> <p>1. After the lapse of twenty years a presumption of payment of a bond or note arises, and, under peculiar circumstances, it may arise on a shorter time. This presumption may be rebutted by circumstances.</p> <p>2. A new trial will not be granted against strong circumstances of equity.</p>

This was an action of replevin, originally brought in the supreme court of New York to recover the possession of sundry bales of cotton. Tbe defendapt [Simeon Draper] removed the case into this court, and the plaintiffs [Alexander Dennistoun and others] now moved to quash the writ of certiorari issued by this court in the case, and to remand the case back to tbe state court.

<p>Case No. 3,805.</p> <p>Attorney and Client—Authority op Attorney —Arbitration — Conclusiveness of Award— Review of Award — Reference — Effect of Report — How Regarded in Federal Courts —Agreement for Cognovit—Enforcement in Federal Courts.</p> <p>[1. The submission of a controversy to arbitration by an attorney binds his client.]</p> <p>[2. An arbitration award is conclusive as to the parties thereto, and can only be avoided or vacated for fraud or gross misconduct.]</p> <p>[3. Mistakes of law by arbitrators, or errors of judgment by them on the evidence, cannot be-reviewed or rectified.]</p> <p>[4. An attorney may confess judgment for his. client in an action on contract.]</p> <p>[5. State statutes authorizing and regulating references have no application to federal courts.] [6. Consent to a reference does not authorize a judgment iu invitum on the report.]</p> <p>[7. The federal courts will not entertain questions on a referee’s report, but will regard and treat it as an award by arbitration.]</p> <p>[8. The reservation in a submission to referees of the right to move to spt aside their report takes away its character of a submission to-arbitration. Consequently, an agreement in the submission to give a cognovit for the amount of • the report will be deemed to refer to the amount as finally settled by the court, and not the amount reported by the referees.]</p> <p>[9. A reference under.state statutes not being recognized by the federal courts, a stipulation to confess judgment for the amount reported by the referee will not be enforced therein.]</p>

This was a motion for a new trial, in an action on the case, brought [by James and Amos Densmore against William C. Schofield and others] to recover damages for the infringement of letters patent [No. 53,794] for an “improved car for transporting petroleum,” granted to plqintiffs April 10, 1806, and' reissued May 29. 1866 [No. 2,261]. The case was tried in February, 1867, and resulted, under the charge of the court, in a verdict for the defendants.

<p>Case No. 3,809a.</p> <p>Administrators in Different States — Privity —Actions on Judgments.</p> <p>Where administration of an estate is granted in two states, there is no privity between the administrators, and hence a judgment againsl one cannot be made the basis of an action against the other.</p>

<p>Case No. 3,809b.</p> <p>Negotiable Instruments—Liability op Assignor.</p> <p>, The assignee of a bond or note is bound to úse due diligence, by prosecuting the maker to insolvency, before he can resort to the assignor, unless the maker is notoriously insolvent, or has removed from the state, so as to render suit unnecessary or impossible or an useless act.</p>

Bill in equity [by the Dental Vulcanite Company against Isaac J. Wetlierbee] founded upon letters-patent [No. 43.009] for a new and useful improvement in artificial gums and palates. Pending the. suit and subsequently to the filing of the answer the patent was twice reissued. Subsequent to the last reissue the complainants filed a supplemental bill of complaint, to which answer was duly made, and the cause was fully heard upon pleadings and proofs.

By section 3412 of the Revised Statutes of the United States, being a re-enactment of the sixth section of the act of March 3, 1865 [13 Stat. 4S4], as amended by act of July 13, 1866 [14 Stat 146], it is provided that every national banking association, state bank, or state banking association, shall pay a tax of ten per centum on the amount of notes of any person, or of any state bank or state banking association, used for circulation and paid out by them.

[This was an action by the Deposit Savings Association, of Mobile, against Lou. H. Mayer, collector of internal revenue, to recover taxes alleged to have been illegally collected.] It is agreed that the following are the facts in this case, viz.: The plaintiff is an incorporated body chartered and organized under the charter granted by the general assembly of Alabama, and which may be read as a part of the facts agreed, from the acts of the legislature of Alabama (Pamph.

<p>Habeas corpus.</p>

<p>[In bankruptcy. In the matter of Walter S. Derby.)</p>

<p>Case No. 3,816.</p> <p>Voluntary Bankruptcy—Assent op Creditors to Discharge—Act June 22, 1S74, § 9.</p> <p>1. The words of the 9th section of the act of June 22. 1874 (18 Stat. 178), providing that in cases of voluntary bankruptcy, no discharge shall be granted to a debtor whose assets shall not equal thirty per cent, of the debts proved against his estate, upon which he shall be liable as principal debtor, "without the assent of at least one-fourth of his creditors in number and one-third in value,” are to be understood as meaning creditors to whom he is liable as principal debtor and who have proved their debts against his estate.</p> <p>[Cited in lie Read, 5 Fed. 722.]</p> <p>2. Such assent must be in writing, and it is sufficient if it is filed before the hearing of the application for discharge.</p>

This was a writ of right, claiming to recover an undivided fifth part of a certain parcel of land in Somerville, in this district Two pleas were filed by the tenants [Samuel Jacques, and others]: First, they pleaded the general issue, or rather tendered an issue on a joinder of the mise, on the mere right of the demandant [Eleanor Derby] and her seizin, with the usual prayer that recognition be made whether they or the demand-ant have the greater right to hold the premises,…

<p>Jury waived and cause submitted to court -on facts and law.</p>

<p>This was an appeal from a decree of the district court [of the United States for-the district of Massachusetts] made on the libel against the ship Medora, which was referred to in the preceding case. It averred, that Fisk & Bradford, the owners, on the 25th of March, 1845, at Boston, where the Medora was then lying, executed a bottomry bond to the libellant, such as is described in his answer to tlie libel by Leland & Co. That two previous libels, named in the opinion of the court in said case, had been filed and sustained against the vessel, and her sale ordered,. and the libellant prayed, that he might receive payment out of the balance of the proceeds thereof still remaining in the district court. The libel requested notice to be given to the assignee of the owners and to Leland & Co., and to other claimants to appear and object if they have cause. On the 30th of April, 1846, Wins or, the assignee, appeared and admitted, that Fisk & Bradford executed the bond to [James] Deshon at the time named, and were the owners of the ship. That the amount loaned he is not informed of, and begs it may be proved, but believes a note for $1000, payable in six months, constituted a part, and that $3200 of it was money previously advanced. That a part of it was notes of the owners then falling due, and checks and commissions, and notes given by the libellant not then due, and notes of the owners given to. third persons, which the libellant had taken up. That said bond was not a maritime contract, nor its enforcement v within the admiralty jurisdiction of the district court, because the loan* was not on the risk of the vessel’s being lost, but was to be repaid with interest at all events. That the above' bond was not duly recorded as a mortgage under the laws of Massachusetts till July 19, 1845, after the title of Winsor as assigiiee had accrued. That on the arrival of the Medora from Manilla, March 17, 1846, he took possession of her as assignee of the owners for the benefit of all concerned, and has expended about her for her preservation 8209.14. That in support of these facts, beside the papers and evidence offered, he prays that the libellant be required to answer certain interrogatories - on oath. And that this libel be dismissed, and the proceeds of the Medora be paid over to him. He set out, also, the failure of the former owners, April 29, 1846; the proceedings then commenced under the insolvent system of Massachusetts, and prosecuted till he was appointed assignee, and the property of the owners duly assigned to him on the 22d of Maj-, 1846. The replication of Deshon denied all the material parts of the answer, and called for proof. The evidence, besides what was put into the previous case, which might be pertinent, consisted of the expenditures made since the arrival of the vessel, and which it was agreed should be allowed out of the proceeds, and taxed in the cases before decided. A note for $750 from A. C. to the owners was put in, and an admission that the libellant, before the ship sailed to Manilla, inquired of the master if she was free from all previous incumbrances, and was answered in the affirmative. The libel-lant in answer to the interrogatories testified, that he advanced the $6000 while the Me-dora was in port and preparing to sail, and it was in cash except a note of $1000 given by him to the owners, payable in six months. That he has received no commissions, though 5 per cent, was agreed to be paid, and he has had former dealings with the owners, which were kept entirely distinct from this, and all now claimed is due. That he discounted a note of $752 by Leland & Co. which if not paid, as it has not been, was to be covered by the bond. That all the advances were made within twenty-five days, and by previous agreement were to be secured by the bot-tomry bond, and he has received from no quarter any thing in payment The decree in the district court was, that the libellant recover against the proceeds of the vessel $5860 without costs.</p>

[This was an action on a policy of life insurance issued by a New Jersey corporation to plaintiff on the life of her husband.] The policy was non-forfeitable, „ never became void through non-payment of premium, therefore the act did not apply. The insured had a right to waive the provisions of the law in favor of another stipulation, and did so waive by accepting a paid-up policy. Chase v. Phoenix Life Ins. Co., 67 Me. 85; Maxw. Interp.

This was an action of trespass. It appear-' ed, that in June, 1842, the plaintiff [John S. Despan] was a citizen of Rhode Island, residing at Pawtucket; and that the defendant [James N. Olney] came to his shop, in that village, accompanied by several files of soldiers, arrested the plaintiff, and after holding him in confinement for a few hours in a neighboring tavern, had him conveyed to the city 'of Providence, where he was confined for several days, and then permitted…

<p>Case No. 3,823.</p> <p>Prize—Joint Caftdke—Distribution.</p> <p>In cases of joint capture by privateers, they share in proportion to the number of men com-Ilosing their respective crews.</p>

This is an application for a writ of habeas •corpus. The applicant states himself to be -an alien, and a subject of Napoleon HI., emperor of the French. That he has an action, at law pending in the supreme court of this state, in which he is plaintiff, and the county •of San Francisco is defendant, for the sum of sixteen thousand dollars; and delay in the decision thereof is a great injury to him.

An action was brought, by payee v. drawer, on following draft: “Banking House, T. Robinson, Bours & Co., Stockton, January 22d, 1S55. At sight pay to the order of A. Dessau, for value received, twelve hundred dollars. T. Robinson. Bours & Co., Agents. To William Hagan & Co., New York.” An answer to the complaint was filed, which sets forth specially certain facts by way of defense, which will be found in the opinion of the court.

The jury were empannelled to try issues in two actions, the one brought to recover the ■amount of a bill of exchange, drawn by the defendant on a house at Rochelle, in favour -of the plaintiffs, for two thousand pounds sterling, and damages, the same having been protested; and the other for the balance of a commercial account.

The questions in this cause were, whether the defendant could set off against the plaintiff’s demand, which was on a protested bill of exchange for the sum of £7,000 sterling, which the defendant had ordered the plaintiff to insure on a vessel, the plaintiff being under a legal obligation to make the insurance as directed; but which he had failed to do, and the vessel was lost. Secondly.

<p>Case No. 3,829.</p> <p>Bankruptcy — Homestead Rights — Property Fraudulently Conveyed — Surrender by Creditor.</p> <p>1. The bankrupt files his petition, praying to have fifteen hundred dollars set apart to him out of the assets of the estate in lieu of a homestead. It appears from the evidence that he conveyed his proparty in trust, for himself and creditors named in the deed, to delay the collection of a judgment recovered against him. Held, that when a party makes a conveyance which is afterwards set aside on account of an illegal preference under the bankrupt law [of 1867 (14 Stat. 517)], both the right to a homestead and dower revive.</p> <p>2. That a creditor who surrenders his rights under a fraudulent conveyance, must be held to have made a surrender under the 23d section of the act, and not a mere assent on his part for the unsecured creditors to participate in the proceeds of his preference, and the same effect is to be given to the relinquishment of the creditor, as the setting aside of the deed would have had, had it taken place.</p>

Motion to set aside judgment. Judgment in this case had been entered by default, for want of an affidavit of defence, upon copy filed of tin agreement in writing, whereby the company defendant agreed to ship and consign to plaintiffs [Detmold and Cox], within a specified time, a certain quantity of coal to be sold by them at a certain commission.

This was an application for a provisional injunction to restrain the defendants [David Reeves, R. S. Buck, S. J. Reeves, and others] from the infringement of letters patent [No. 2,558] for “a method of generating and supplying heat,” granted to Christian E. Det-mold as the assignee of M. Faber Du Faur, April 16, 1842, and reissued January 23, 1845 [No. 67]- [The plaintiff claims to have invented a new process of drawing off from blast furnaces the waste combustible gases,…

The action was brought to recover for the services of the tug Young America, in towing the barge Detroit to and from Bear Creek, in Canada. The libel was originally filed in the name of John K. Harrow, who was supposed to be the owner of the tug. After answer filed and the testimony of one witness had been taken, it was discovered that James P. Harrow was the owner of the tug at the time the services were performed.

This was a reference to a register to in-cluiré and report whether one-fourth in number and one-third in amount of the creditors of the Detroit Car Works, a corporation, had petitioned for the adjudication of the corporation as bankrupt. On the hearing before, the register, counsel for petitioning creditors insisted that a corporation, having committed an act of bankruptcy, could be adjudged bankrupt on the petition of-a single creditor.

<p>Case No. 3,834.</p> <p>• Patents—Infringement—Base-Burning Stoves.</p> <p>[NOTE. Patent No. 131.930 was granted to Carter & Dwyer October S, 1872; reissued March 7, 1876 (No. 6,979).]</p>

On motion for a new trial. This was an action of assumpsit to recover of the defendant the price of thirty printed copies of testimony taken on behalf of the plaintiff in a certain patent suit pending before the patent office at Washington.

[This was an action of ejectment by Maria De Varaigne against Edward Fox.] In February, 181S, the mayor, aldermen and commonalty of the city of New-York were possessed of certain premises in that city, occupied by them as an alms-house establishment. and presented to the legislature of New-York a memorial praying that a law might be passed authorizing them to enter upon and take possession of certain lands contiguous to the said premises, and hold the same for the use of the…

William Dovaughn was sworn as a witness to the grand jury, who asked him whether he saw John Ball gaming at Mrs. Garner’s. He refused to answer, saying that he could not answer the question without criminating himself. This was stated to the court, by the grand jury, in writing.

Petition for the confirmation of a Spanish land claim [filed by Catharine De Viilemont, Carlos De Viilemont, Ursine De Viilemont, Pedro De Viilemont, James Blaine and Yoe, his-wife, Don Carlos Gibson, Cecilia Gibson, Ade-lia Gibson, Louis De Viilemont, Pierre Soule and Armantine, his wife, Louis T. Caine and Adele, his wife, Armand Mercier, Alfred Mer-eier, Dider Preux and Leontine, his wife, Au-guste Mercier and Charles Jessier, heirs and legal representatives of Don Carlos…

<p>Case No. 3,840.</p> <p>Receiver's Possession and Title -to Lands — INTERFERENCE HT STATE COURT — CONTEMPT — Receiver's Sale—Release, of Liens.</p> <p>1. When a receiver, appointed by this court, is vested with the title to, and possession of, real estate, as such receiver, his possession is the possession of this court, and any attempt to disturb such possession by proceedings subsequently instituted in a state court, or otherwise, without first obtaining the leave of this court, is a contempt of this court.</p> <p>2. Where a receiver appointed by this court brought a suit in equity, in this court, against persons who claimed to have pre-existing liens on real estate, of which such receiver was in possession by virtue of his trust, to have the rights of such defendants, in respect of such liens, determined by this court, and, if adjudicated in their favor, paid out of the proceeds of the sale of such real estate by the receiver, this court made an interlocutory order requiring the defendants to release their liens, and setting apart to be paid into this court, out of the proceeds of the sale to be made of such real estate by the receiver, a sufficient sum to discharge such liens, with the costs of the suit, and ten per cent, in addition, to be held as a fund applicable to the payment of such liens, if they should be established by the decree of this •court to be prior in right to the claims of the plaintiff.</p>

[In bankruptcy. In the matter of Patrick C. Devlin and John Hagan.] In this ease, the warrant in bankruptcy was issued July 10th, 1867, the first meeting of creditors being fixed for July 24th.

<p>Case No. 3,843.</p> <p>FEDERAL JURISDICTION—HABEAS CORPUS — BANKRUPT Imprisoned on State Process — Pleading and Evidence.</p> <p>1. Where a bankrupt is held under arrest upon state process in an action of tort, in the nature of deceit, it being alleged in the declaration that he obtained possession of the plaintiff’s goods under color of a contract, by means of false and fraudulent representations, the United States district court has no power to discharge the bankrupt upon a x>etition for.a writ of ha-beas corpus.</p> <p>[Approved in Re Kimball, Case No. 7,768. Followed in Re Whitehouse. Id. 17,564. Cited in Re Alsberg, Id. 261.]</p> <p>2. Evidence cannot be received to contradict the declaration and to show that no such cause of action really exists as is therein set forth.</p>

This was an application to Mr. Justice GRIER, for interlocutory injunctions in three cases, involving the same state of facts.

<p>Case No. 3,847.</p> <p>Bankruptcy — Sale of Lands Free of Liens— Interest—Commissions and Costs — Jurisdiction of State Court.</p> <p>1. Where the assignee has sold real estate discharged of liens, he should allow interest on the liens to the date of making up his report of distribution.</p> <p>2. Attorney’s commissions and costs stipulated to be paid on foreclosure are not allowable when the proceedings to foreclose are invalid.</p> <p>3. When the bankrupt court has first taker, jurisdiction by ordering a sale of mortgaged premises, discharged of liens, it thereby ousts a state court of jurisdiction to foreclose the mortgage.</p>

John T. Dewees, the representative in the congress of the United States from the Raleigh district in the years 1S68-9, made some arrangement with one Cunningham, by which the latter was enabled to transmit his business circulars through the mails without paying postage thereon. The circulars were printed, sealed up in envelopes, franked by Dewees as member of congress; or the franked envelopes were furnished by Dewees, and used by Cunningham, it did not appeal-which.

<p>[In bankruptcy. In the matter of Edward Dewey.]</p>

<p>Case No. 3,850.</p> <p>Bankruptcy—Equitable Claims—Patmknt.</p> <p>In 1872 the bankrupt sold certain government bonds belonging to his sister, which were then in his hands, and out of the avails paid and took up a mortgage note which then fell due, secured on certain real estate, and kept the balance to his own use. At that tíme he also owed his sister for a balance of interest he had previously -received, and had other government bonds of .hers which he had or afterwards pledged for his debts. During the following six years he paid her money from time to time, which was charged against the interest received by him upon her bonds, and not otherwise applied by either. Held, that she was entitled to be treated as if she had held the mortgage from the time he took it up; that the payments should be applied upon the interest and not to the balance of avails of the sale; and that she was entitled to a lien for the payment of the sum found to be due to her after application of such payments.</p>

<p>Case No. 3,852.</p> <p>Shipping—Part Owners—Partnership—Factors and Brokers—Lien por Advances.</p> <p>1. Where A. and B. purchased the ship S. and her cargo, on account of themselves, and C. and D., in equal third parts, and it was agreed between the parties that C. should go as master and supercargo, the outward cargo to be consigned to C., and A. and B. made all the advances both for ship and cargo, and were constituted the agents and factors in New York for the several parties, and the return cargo was to be consigned to them for sale on account of the ■concern, held, that the parties interested in this adventure could not be considered partners, but must be deemed tenants in common, each one having a right over his separate share, according to the rules .of law applicable to such an interest in chattels, and not to be governed by the law of partnership.</p> <p>2. Bold, further, that A. and B., so far as related to the interest or share of D., must be considered his agents or factors, and that they had a right to retain out of his share of the proceeds of the adventure, for their advances and disbursements in his behalf.</p> <p>3. A. and B. drew a bill of exchange on D. for their advances, which was accepted by D. bu1 not paid; and, subsequently to the acceptance of the bill, but before it fell due. D.. having failed, transferred his interest in the ship and cargo then at sea, to E., for a pre-existing debt. Held, that the bill drawn on D., by A. and B., was not a waiver of their lien on the proceeds of the cargo, especially as E. had notice of their claim.</p> <p>4. And E. having filed a bill for a discovery and account of the proceeds of the cargo, one-third of which he claimed under D.. it was held that he had no superior equity upon which he could rest his claim to overreach the lien of A. and B.</p> <p>5. Held, however, that as A. and B. were not acting in the character of general factors, but were constituted such under the particular arrangement in relation to this adventure, that their lien must be limited to their advancements for D. on account of the outward cargo, and not for the genera] balance of their account against him.</p>

<p>Case No. 3,851.</p> <p>Coi’tkight—Who Entitled to—Whites Em-plotep bt Another.</p>

[This was a libel by Benjamin De Wolf and others, owners of the brig Europa, against two hundred and sixty-six hogsheads and thirtv-one tierces of molasses (Thomas R. Gordon and others, claimants), to enforce a lien for money due under a charter party.]

At law. Writ of habeas corpus directed to John Waters, a constable. The return is, that lie holds him [John W. Dexter] by virtue of two warrants of arrest issued by John D. Clark, a justice of the peace; one m favor of John Hands, Jr., for a small debt, and the other in favor of the corporation of Washington, for ten dollars, a penalty of a by-law.

Bill in equity [by Edward Dexter against Thomas Arnold and another]. The substance of the bill was as follows: Jonathan Arnold died in 180G, intestate, leaving his brother, tlie defendant, Thomas Arnold, and his sister, Marcy Dexter, and sundry other persons, his heirs at law. Afterwards, the defendant, Thomas Arnold, in March, 1S07, took administration on the estate of Jonathan Arnold.

Petition to file a bill for the purpose of obtaining a review of a decree, rendered in this court at a former term, in the case of Dexter v. Arnold [Case No. 3,S55]. The original bill, filed at the November term. 1S21. charged Thomas Arnold, as surviving partner, joint owner, trustee, and agent of his brother Jonathan Arnold, and as administrator upon his estate.

This was a bill in equity, brought by the plaintiffs [Edward. Dexter, Jr., and others] at the June term of this court in 1828, to redeem a mortgage given many years ago, and it sought an account and other relief, according to the common course in bills of this nature.

Bill in equity to redeem a mortgaged estate. The cause, as formerly heard in this court, will be found reported in Dexter v. Arnold [Case No. 3.857]. It now came again before the court, upon the report of the master, W. R. Staples.

Bill in equity, to redeem the one third of certain real estate, called the “Paget Farm,” which the plaintiffs [Henry H. Dexter and others] sought to redeem, claiming title under the mortgagor, Jonathan Arnold. The material facts were as follows: In May, 1793, Jonathan Arnold and Aza Arnold were each seized and entitled to one third of the Paget farm, in his own right and fee simple, the other third being owned by the children of their deceased brother, Welcome Arnold.

[This was an action of ejectment by Edward Dexter, Jr., against William Dexter.] The cause came on to be heard upon a special statement of facts agreed by the parties, as follows: “It is agreed that the estate described in the plaintiff’s declaration, descended from Stephen Dexter, the grandfather of the brothers.

Ejectment, in the nature of a real action, according to the local practice. This case was tried at the last November term in this district, and a verdict found for the plaintiff [Edward Dexter] upon the following facts: Both parties claimed a title to the demanded premises under one Charles Harris, who died in October, 1784. The defendants [Andrew Harris and others] are the children and heirs of Charles Harris.

<p>Case No. 3,863.</p> <p>Admiralty Jurisdiction — Whaling Voyages— Rights op Master and Co-Owner—Set-Off.</p> <p>1. The libellant was master and a co-owner of a whaling-vessel. After the voyage had been made up and the amount due for his lay ascertained, and the proceeds of the voyage were in the hands of the other owners, held, that the libellant was entitled to recover, in admiralty, the amount due him as a master, notwithstand ing his co-ownership.</p> <p>2. A court of admiralty is not restrained from doing substantial justice by mere forms or technicalities.</p> <p>[Cited in Todd v. The Tulchen, 2 Fed. 603; The Gazelle, 128 U. S. 487. 9 Sup. Ct. 143; The Journeyman, 60 Fed. 296.]</p> <p>3. Where it was agreed that the libellant, in his capacity as owner, was indebted to the other owners in some amount not then ascertainable, but it was not shown that this indebtedness was. either by agreement or usage, connected with the contract of hiring; held, that the libellant was not precluded from recovering the whole amount due him as master.</p> <p>4. The claim of the owners in such case is a matter of set-off, of which admiralty has no jurisdiction.</p> <p>[Cited in The Two Brothers, 4 Fed. 159.]</p> <p>5. The power which a court of admiralty possesses over its own process will enable it to do complete justice to all parties.</p>

Bill in equity for an injunction and relief. The bill in substance states, that on or about the 20th day of December, 1832, the plaintiff [Henry H. Dexter] was, and still is, the lawful owner and possessor-of a certain close or meadow, situated in the said city of Providence, containing about five acres and one half of an acre of land, and for twenty years and upwards, before that time, and the time of committing the injuries and grievances complained of, he, and those from…

<p>This was a case in which the libellants, pilots of Martha’s Vineyard, claimed salvage of the owners of the bark Richmond, belonging to Providence, R. I., for services rendered in getting the bark into Holme's Hole, on the 27th of November last, she being forty-two days from New Orleans, bound for Boston. It was in evidence that the value of the bark, with her cargo, consisting of cotton and lead, was more than 850,000. On the 19th of November, in a violent gale, as appeared by her log, her rudder was lost and a temporary steering apparatus was arranged to supply its place. The evidence of the libellants tended to show, that the vessel being, as they maintained, then without a rudder and otherwise crippled, and short of provisions, was spoken and boarded by the libellants off Block Island, with two signals of distress flying; that on the morning of the 27th of November, they put a pilot aboard and stood by her, at the request of the master, all day, and towed her some hours; and that, without the assistance rendered by them and their boat, the bark could not have reached a harbor that evening. The claimants maintained that the whole statement of the pilots was greatly exaggerated, and offered evidence tending to show, that the bark was in no danger on that day from wind and sea; that she was not out of provisions, and could have made Holme’s Hole on that day without other assistance than that of a pilot; and they contended that the libel-lants had not gone beyond the ordinary line of their duty as pilots, and could not at law recover a salvage compensation.</p> <p>After the first hearing of the case, and after consideration and consulting the authorities cited on both sides; DAVIS, District Judge, intimated his opinion, that the libellants in the case, as pilots, could not recover a salvage compensation. The libel-lants then moved for leave to amend their libel and file a supplemental bill for extra compensation .as pilots, to which the claimants objected. At a subsequent day, amendment was allowed, and a further .hearing had, and evidence introduced to show the fair value of such services, and how they are usually compensated. The claimants proved the payment of $12S—being $40 for pilotage into Holme’s Hole; $2S for keeper’s fees 14 days there, and $00 for pilotage thence to Boston. A large portion of which, they contended, was for extra pilotage services, and also a tender of $150 in addition, and thought this was all they should be called upon to pay. The libellants contended, that a liberal allowance should be made for services attended with danger, and brought some evidence tending to show, that $500 or $600 would be a fair compensation.</p>

This was a bill in equity brought by Edward Dexter against the defendants [Simon Smith and others], and was, in most respects, precisely like the case of Bean v. Smith [Case No. 1,174], excepting in this, that “William Stone,’ Jr., who was not made a party in the other case is made a defendant in this.

Case for a libel on the wife before marriage. -The declaration alleged the purport to be a charge of illicit and criminal intercourse between the husband [Edward Dexter] and wife before the marriage. The libel was contained in a newspaper called “Hie Beacon,” which was published by the defendant [William S. Spear]. Plea not guilty. At the trial the cause was argued by K. W. Greene and Mr. Tillinghast for the plaintiffs, and by Rivers & Whipple for the defendant.

This case came before the court on testimony taken under an order of reference, on a petition presented to the court by the as-signee in bankruptcy, asking for a determination [as to the claims of certain mortgagees and] as to the validity of certain alleged liens, claimed as mechanics’ liens, under the laws of New Jersey, on certain real estate, buildings and fixed machinery situated on the Hackensack river in New Jersey, owned by the bankrupt, and used by him in his…

This case came up on a petition by Hewes and Phillips, and a petition by Uzal Cory, for the review of an order of the district court [for the southern district of New York] touching the distribution of the bankrupt’s estate, which order excluded liens claimed by the petitioners severally under the law of New Jersey, known as the “mechanics’ lien law.” 3 Ben. 450 [Case No. 3,870].

<p>Case No. 3,873.</p> <p>Confiscation—Property of Alien Residing Temporarily in Confederacy.</p> <p>Under the confiscation act of July 13, 1861 [12 Stat. 257], a vessel belonging to an alien female, who resided transiently at New Or.eans, having gone there to visit some relatives and attend to some matters of account, with the intention of then returning abroad, and who was engaged in no mercantile business there, was held not to be subject to forfeiture.</p>

Claim for a lot fifty varas square [in the mission of Dolores] in San Francisco county, rejected by the board, and appealed by the claimant [Elizabeth De Zaldo].

<p>Case No. 3,874.</p> <p>Salvage—Compensation—Misconduct op Salvohs.</p> <p>[812,000 held to be a reasonable reward foi getting a ship and cargo worth $125,000 off a reef at Key West; but this amount reduced by one half because of 24 hours’ delay resulting from carelessness, negligence, and gross errors of judgment on the part of the salvors.]</p> <p>[Cited in Boberts v. The St. James, Case No. 11,914.]</p>

This was an action to recover the value of certain casks of wine, which were shipped ■on board the bark Diadem at Marseilles, consigned to order at New York.

[Appeal from the district court of the United States for the district of Massachusetts.] The facts in this case were as follows.: The ship Diana and cargo were captured by the-prlvate armed ship Thomas, commanded by Thomas M. Shaw, on or about the 19th of May, 1813, and sent into the port of Wis-casset, in the district of Maine, for adjudieation.

These were appeals from the district court [of the United States for tbc>' district] of Pennsylvania, dismissing the libels of the appellants. which sought-to make the appellees liable for acts of piracy committed by the officers and crew of the privateer, • on the high . seas.

In equity. This was a final hearing on pleadings and proofs. The bill was filed by Sydney W. Dibble, trustee of the Wheeler and Wilson Manufacturing Company, the Grover and Balter Sewing Machine Company, the Singer Manufacturing Company, and Thomas J. W. Robertson, by the said three companies, and by the said Robertson, as plaintiffs, against James M. Augur, as agent of the Florence Sewing Machine Company.

<p>Case No. 3,878.</p> <p>Land Grants by Mexican Governors—Absence of Documentary Proofs.</p> <p>[When no expediente or other evidence of the existence of the grant is produced from the archives, or its absence accounted for, and there is no evidence whatever that any of the preliminary steps required by the regulations have ever been observed,1 and the evidence as to occupation or cultivation by the claimant is unsatistae-tory, the claim should be rejected. U. .S. v. Cambuston, 20 How. (61 U. S.) 59, followed.]</p>

<p>Case No. 3,880.</p> <p>Assumpsit ox Note—Sufficiency of Plea—Pa-kol Evidence to Show Relations of Parties —Special Pleas.</p> <p>1. A plea that the defendant, who was sued as principal, indorsed the note as guarantor and not as principal, being demurred to, it was held the plea was good.</p> <p>2. The undertaking of the defendant was collateral. and he can only be made liable in the character assumed.</p> <p>3. It may be doubtful whether parol evidence is admissible to show that a defendant is surety against the terms of the note. But. if the intent with which the indorsement was made be doubtful, it may be explained by parol.</p> <p>4. A special plea which amounts only to the general issue is bad. But in the action of as-sumpsit there are many defences which may be pleaded specially or given in evidence under the general issue.</p> <p>6. In special pleas in bar color to the plaintiffs’ right must be given.</p>

<p>Case No. 3,881.</p> <p>Siiiwping — Delivery of Goons — Piling ox Weabj — Bill of Lading — Dangers of the Sea—Act of God.</p> <p>1. By the general usage of commercial and maritime law, a carrier by water must convey from port to port or from wharf to wharf. He is not bound to deliver goods at the warehouse of the consignee. It is the duty of the consignee to receive his goods out of the ship or upon the wharf.</p> <p>2. To constitute a good delivery upon the wharf, the carrier should give due and reasonable notice to the consignee, so as to give him a fair opportunity of providing suitable means tn remove the goods or put them under proper custody.</p> <p>[Cited in Turnbull v. Citizens’ Bank, 16 Fed. 147.]</p> <p>3. The goods of the various consignees when landed must be placed in separate piles. Where the goods of several consignees were piled to-, gether in one bulk upon the wharf during a rainy and stormy day,' and covered with tarpaulins'. so as not to be fairly open to the inspection of consignees, and a fair chance afforded to re-move them; held, that this was no delivery.</p> <p>4. An actual inspection of the goods and their removal by the consignee is not necessary to a delivery, but there can be no delivery without the opportunity to inspect and remove.</p> <p>5. By the exception “dangers of t;ke sea.” as used in bills of lading, is meant all unavoidable . accidents from which common carriers by the' general law are not excused unless they arise from the act of God.</p> <p>6. A loss which might have been avoided by proper foresight and prudence cannot be attributed to “dangers of the sea,” and to relieve the carrier from liability for such loss, he must show that due diligence and proper skill were used to avoid the accident, and that it was unavoidable.</p> <p>7. A loss by the “act of God” must be shown to have happened by a natural and unavoidable necessity, arising wholly above the control of human agencies, and independent of human action or neglect.</p> <p>8. Any act of omission or carelessness on the part of the master or crew contributing to the loss, takes away the defense that the loss was occasioned by the act of God.</p>

The petitioner [Orange H. Dibble], in his bill, sets forth the purchase from the Bank of the United States, in the year 1830, of a lot in the city of Georgetown, D. C.; that he had paid the purchase-money and had received a conveyance of the premises in fee simple; that he had neglected, without any fraudulent intent, to record the deed; that the time limited by law for the registration of such instruments had expired; and that it could not now be done without the aid of the…

<p>Case No. 3,883.</p> <p>Patents—Construction of Claim — Sewing Machines.</p> <p>1. The first claim of the patent granted to Thomas J. W. Robertson, November 22d, 1859, for an “improvement in sewing machines,” being a claim to “the employment, in combination with the needle of a sewing machine, of a plate K, constructed and - operating ■ substantially - as. herein shown and described, for the purpose of' laying and holding braid, gimp and other material upon the surface of the fabric, as set forth.” is not only restricted to a separate, detachable plate, but cannot extend to a detachable braiding guide arranged in connection with the presser foot of a sewing machine. [Dibble v. Augur. Case No. 3,879, followed.]</p> <p>2. The braiding device used in connection with the Wilcox and Gibbs sewing machine, not being a separate, detachable plate, but being a part of the presser foot, does not infringe such first claim.</p> <p>•'3. Nor does such braiding device infringe the second claim of such patent, inasmuch as the guides or sides of the braiding channel or groove in it do not extend past the centre, and on each side, of the needle hole, for the purpose of keeping the stitching always in the cen-tre of the braid, in turning corners, circles, &c., by holding it in position until.it is sewed on the cloth.</p>

<p>This was a proceeding in involuntary bankruptcy. The petition was filed by the firm -of Garrett. Clark & Co., against the firm of Henry E. Dibblee & Co., of the city of New York, and alleged four acts of bankruptcy: (1.) That, on or about the 25th of February, 1869, the debtors, being insolvent and in eon--temptation of insolvency, gave to A.1 Iselin & Co. a warrant to confess judgment, and did procure and suffer their property to be taken on legal process, in favor of A. Iselin & Co., and that, on April 30th, 1869, said judgment was entered in the supreme court of the state, for 854,105, and execution was issued on it, and the debtors’ goods levied upon, and that this was done with intent to give a preference to Iselin & Co., and to defeat and delay the operation of the bankruptcy act. "(2.) That the debtors, being insolvent and in contemplation of insolvency, made a payment of money to Iselin & Co., with intent to give them a preference as creditors. ■ (3.) That, on the 1st of May, 1869, the debtors, being insolvent and in contemplation of insolvency, made a transfer to Iselin & Co. of property amounting to about 546,000, with intent to give them a preference as creditors, and with intent to defeat and delay the operation of the act. (4.) That, in April, 1869, the debtors, being insolvent and in contemplation of insolvency, made a payment of '84,000, in money and bills receivable, to the wife of John J. Krauss, with intent to give a preference to her.</p> <p>The bankrupts took issue on the petition, and the case was tried before a jury. On the trial the following facts appeared: The defendants gave the confession of judgment on the 25th of February. It was at that time delivered to Mr. Iselin. He kept it in his possession, or under his control, until the 30th of April. He then took it to the proper officer, and a judgment was entered up upon it for 854,105, and an execution was immediately issued on the judgment, to the sheriff of the city and county of New York. On the same day, the sheriff went to the store of Dibblee & Co. with the process, and made a levy-on their goods, ¡and took possession of such goods, to hold them, to be administered by the state court and applied upon the judgment The- sheriff remained in possession of ■the property during the remainder of that da 3-—the 30th day of April—and all through the next day, which was the 1st of May, until about ten o’clock - in the evening of the latter day, when a transfer of 846,000 worth of accounts, bills receivable, and other securities. was made by the three debtors, to Iselin & Co., in absolute payment and extin-guishment of their debt. With the extin-guishment and payment of the debt, .the judgment and execution fell to the ground, the transfer of securities having been accepted by Iselin & Co. as a payment of the debt.</p> <p>The facts in regard to the Krauss matter were as follows: On the morning of the 30th of April, before the sheriff came with the execution, Mr. Dibblee paid to Mr. Krauss, for Mrs. Krauss, 82,000 in money, on a debt of 84,000 due to her. During the next day, the 1st of May, while the sheriff was in possession under the execution, and before the making of the transfer of securities to Iselin & Co. on tire evening of the 1st of May, Dibblee handed over-to Mr. Krauss $2,000 worth, of securities, to pay up the balance of the debt of $4,000 due to Mrs. Krauss.</p>

<p>In this ease, which was an action at common law, on the trial before INGERSOLL, District Judge, and a jury, oue of the defendants was offered as a witness for the defendants [James E. Furniss and others]. An objection was made, on the part of the plaintiffs [Henry E. Dibblee and othersj, to the admissibility of the testimony.</p>

<p>[In* error to the district court of the United States for the district of Connecticut</p> <p>[Action by William Dibblee against Gad Sheldon.]</p>

This was a suit by a creditor of Alexander Hamilton and Thomas, his son, to subject certain real property situate in the city of Portland, and held by the wife of said Alexander, to the payment of his debts upon the ground that it had been acquired with his means and credit, and the conveyance taken to the wife with intent to defraud creditors.

This was a libel in rem for a collision, promoted by Charles Dickenson, owner of the scow Petrel, against the. steamboat Gore.

In the above case the warrant was issued by the undersigned in June, returnable 15th ■day of September, 1S7S. The register, being prevented from -attending at said time by prevalence of yellow fever, and being absent from the city, and a portion of the time absent from the state, made and forwarded to his assistant orders of adjournment, first to October 15th, then to November 15th, and then to November 25th.

<p>Case No. 3,896.</p> <p>Bankruptcy—Fraudulent Transfer—Kshvvl-edbb ok Vendee.</p> <p>To entitle an assignee to recover of the ven-dee goods sold on the eve of bankruptcy, it must be shown, not only that the bankrupt intended to dispose of his property in fraud of the act iof 1807 (14 Stat. 517)], but that the defendant knew such to be his intention, and guiltily combined and colluded with him to carry it into effect.</p>

[This was a libel by Noah Dickinson and others, -owners of the schooner San Louis, against the schooner Catharine (Storks W. Lewis and others, claimants), to recover damages for a collision between the two vessels.]

the United States for the southern district of Ohio. In admiralty. These were cross actions brought in the admiralty court, which, by the order of that court, were consolidated.

<p>Case No. 3,898a.</p> <p>Replevin Lies, When — Special Pleas — New Trial—Evidence not Produced.</p> <p>1. Where evidence is within the control of a party, who omits to use it at the trial, because lie was not advised of its importance, a new trial will not be granted to enable him to bring it forward.</p> <p>2. Possession by the plaintiff, and an -actual wrongful taking by the defendant, are necessary to support the action of replevin.</p> <p>i. Property in the defendant must De specially pleaded, and cannot be given in evidence under non cepit</p>

The legal questions in the case were presented by a demurrer to one of the defendants' pleas. The substance of the plea is staled in the opinion of the court.

<p>Case No. 3,901.</p> <p>Shipping—Pakt Owners—Right op Possession.</p> <p>[The owner of three-fourths of a foreign vessel may recover possession against the alien master, who owns the other one-fourth, although the accounts of the voyage are still unsettled, and the vessel has merely stopped in an American port on the way to her home port.]</p>

[This was an appeal by Michael Dietz from the decision of the commissioner of patents, refusing a reissue of a patent for an improvement in lamp-burners.]

[This was an appeal by Michael A. Dietz from a decision of the commissioner, of patents, in an interference proceeding between the appellant and W. W. Wade and Charles Burnham, in respect to an improvement in lamps. The decision appealed from awarded priority of invention to the appellees, who had already procured a patent, and refused to grant a patent to the appellant]

[This was a bill by Lyman Dike and others against Church Howe.] Manufacturers of boots and shoes were, with certain exceptions, required by section 24 of the act of June 30. 1864, to pay a duty of five per cent ad valorem upon the articles “produced or manufactured,” if the same were produced or sold, or if manufactured or made and sold, or if consumed or used by the manufacturer or producer, or if removed for consumption or for delivery, within the United States, to others…

<p>Case No. 3,905.</p> <p>Bankruptcy—Practice os Petitios to Set Aside Composition.</p> <p>On a petition to set aside' a composition, by reason of .an alleged payment, on behalf of the bankrupts, to certain creditors, of a greater percentage than was offered under the composition, for the purpose of inducing them to vote for the composition, which allegations were contested, the court ordered the clerk to call a meeting of all the creditors described in the statement produced at the meeting at which the resolution for composition was passed, for the purpose of taking testimony as to the facts alleged, on ten days’ notice, to be given as the notice for the first meeting was given, and stating the object of the meeting, the notice to be also served on the debtors, and on the person by whom the payment was alleged to have been made, the petitioners to have the affirmative in putting in such testimony, the clerk to report the testimony to the court, and the matter then to be brought on for hearing on notice, on the petition, affidavits and testimony.</p>

TThis was an action of ejectment brought by Nathaniel P. Dyke against Joseph H. Kuhns and wife to recover a tract of land in Westmoreland county.] The plaintiff claimed under Mrs. Mary Oust, who was a sister, and one of the heirs at law. of Matthew Jack, deceased. The defendants claimed under the will of the said Matthew Jack, dated in 182S, and devising all his property to his brother William.

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

<p>[This was a libel by James P. Dike and others against the bark Von Lefferl Lahsen for loss of cargo.]</p>

<p>[Libel by Dill against tbe ship John Bertram for loss of cargo.]</p>

<p>Case No. 3,911.</p> <p>UstJRy— CONSTITUTIONAL PROVISION—CONTRACT Void—Penalties and Forfeitures.</p> <p>1. The constitution of Maryland(article3, §49), declares, “that the rate of interest in this state, shall not exceed six per cent, per annum, and no higher rate shall be taken or demanded; and the legislature shall provide by law all necessary forfeitures and penalties against usury:” Eeld, that under this provision, a contract by which a higher rate of interest than six per cent, is taken or demanded, is void, not only for the excess, but tor the whole amount; and cannot be enforced in a court of justice.</p> <p>2. A contract to do an act forbidden by law, is void, and cannot be enforced in a court of justice.</p> <p>3. There can be no civil right where there is no legal remedy, and there can be no legal remedy for that which is itself illegal.</p> <p>[Cited in Tiffany v. Boatman’s Sav. Inst., 18 Wall. (85 U. S.) 385.]</p> <p>4. It is true, no penalty or forfeiture is incurred by reason of the usurious contract, until the legislature shall prescribe it; but the incapacity to maintain an action upon such contract is no forfeiture or penalty, for no right of action is acquired under it, and therefore, there is nothing to forfeit.</p>

<p>[In admiralty. Libel by Otto Dill and others against the bark Colombo for damage to cargo.]</p>

Certain creditors of the bankrupt [George Wr. Dillard,] have made application to the supervisory jurisdiction of the circuit court in this case, for a reversal of a decree of the •district court sitting in bankruptcy, allowing a homestead exemption to the bankrupt. [Case unreported.] There are several cases •submitted, the facts agreed upon being the same, or nearly so, in all of them.

<p>Case .No. 3,912a.</p> <p>Action of Debt—When Lies—Account—Appeal —Lack op Appeal Bond—Waivek — B-ecokd B.F.CrTALS.</p> <p>1. Debt will lie upon an open account for goods sold and delivered, as well as assumpsit.</p> <p>2. Debt will lie on a contract, express or implied, for a sum certain, or capable of being ascertained.</p> <p>3. The expressions, “account,” “open ac-cnum. ¡mu ■Dunk account” convey the same idea, and express an amount due otherwise than by written contract.</p> <p>4. Where a narty appears and does not object for want of an appeal bond, he thereby waives it, and the want of it does not affect the jurisdiction of the court. Jurisdiction is acquired by the appeal, not by giving the bond.</p> <p>5. Where the record states that the jury were sworn, it will be presumed that the proper oath was administered, to try the case before the ■court.</p>

This was a writ of error from the district court. [Case unreported.] It was an action of debt, brought there upon a recognisance entered into before an alderman of the city of Philadelphia, by James Jasper, and Samuel Dillingham, for the appearance of the former, before the said alderman, the morning afterwards, to answer. The words of the recognisance, as it appears upon oyer, are as follows: “July 22d, United States vs. Jasper. Ja.

<p>Case JNo. 3,914.</p> <p>Consuls not Amenable to Subpoena—Subpoena Dcoes Tecum—Ofpicial Documents.</p> <p>1. The provision of the constitution, which secures to the accused in criminal prosecutions .the right to have compulsory process for obtaining witnesses in his favor, does not authorize the issuing of such process to ambassadors, who by public law or consuls, who by express treaty, are not amenable to the process of the courts.</p> <p>[Cited in IT. S. v. Trumbull, 4S Fed. 90.]</p> <p>2. Where a subpoena duces tecum, directed to a consul of France, is prayed for,-it is. the duty of the court to require the party praying for it to show that the document is not an official paper, protected by law from examination and seizure.</p>

Bill in equity by a creditor of the Boston, Hartford, and Brie Railroad Company [Sydney Dillon], against the assignees in bankruptcy of that company [George M. Barnard and others], and the trustees under a mortgage of the property and franchises of the corporation, made to secure certain mortgage bonds issued for the purpose of paying the existing mortgage debt of the railroad and discharging prior liens thereon.

This case came before the court on demurrer to the petition. The action is brought [by John Dillon against the Union Pacific Bailroad Company] to recover for personal injuries to the plaintiff while serving the defendant.

<p>Case No. 3,918.</p> <p>Consolidation of Companies — Ultra Vires — Innocent Bonnholders—Estoppel—Laches.</p> <p>! 1. In view of the legislation in Illinois great</p> <p>! liberality should be exercised in regard to con- ! tracts for consolidation between different rail-i road companies. By the general language of ! the statutes relating to the union and consolida-I tion of different lines of road, the means by I which the result is to be or has been obtained, l have not been clearly designated, but that has ! bjeen left to be adjusted by contracts between the parties.</p> <p>[Cited in Hervey v. Illinois Midland By. Co.. 28 Fed. 173: Union Trust Co. v. Illinois Midland B. Co.. 117 U. S. 963,- 6 Sup. Ct. 809.]</p> <p>2. Where a corporation has acted under a contract and received the benefits arising under it, it is not competent for it to deny its validity as being “ultra vires.”</p> <p>3. After the lapse of several years from the time of the contracts of consolidation, and a mortgage having been made, bonds issued, and sold to bona fide purchasers on the faith of such contracts, it is not competent for the stockholders any more than for the company itself to question the authority under which the contracts and mortgage were executed.</p> <p>FCited in Moulton v. Chafee, 22 Fed. 27.]</p> <p>[See note at end of case.]</p> <p>[NOTE. Complainant having -appealed to the supreme court, the decree of dismissal was there affirmed for want of equity in the bill. The ground stated by that court (per Mr. Justice Field) was that, even assuming that complainant was a stockholder at the time of the transactions in question, his omission to object to the purchase of the road or the issuance of the bonds, and his failure to seek relief through the officers and directors of the corporation itself, was such acquiescence as wou’d prevent him from obtaining any relief in equity. S -e Dimp-fell v. Ohio & M. Ry. Co., 110 U. S. 209, S Sup. Ct. 573.)</p>

<p>Case No. 3,919.</p> <p>Bankruptcy—Effect of Proving Debt.</p> <p>Proving a debt in I'a’-kruptcy does not of itself operate as an absolute extinguishment or satisfaction of the debt. If the bankrupt’s discharge is refused, the creditor who has proved his debt is remitted to -his former rights and remedies.</p> <p>[Cited in Re Sweet, 30 Fed. 702.)</p> <p>[See note at end of case.)</p> <p>[This case, reported as above in 9 N. B. R. 508, was a state decision in the district court, county of Philadelphia. See 31 Leg. Int. 15G.]</p>

<p>Case No. 3,920.</p> <p>Taking Deposition':—Waiver op Notice—Notary—Certificate.</p> <p>1. Where the requirements of section 30 of the judiciary act of September 24. 3789 (1 Stat. 88), in regard to giving previous notice of the taking of a deposition de bene esse, are not complied with, if a notice is in fact served, and the adverse party appears by counsel and cross-examines the witness, the deposition is admissible in evidence.</p> <p>[Cited in Re Thomas, 35 Fed. S23.]</p> <p>2. A deposition under section 30 of the said act of September 24. 1789, may, under the provisions of the act of July 29, 1854 (1U Stat. 315), be taken before a notary public.</p> <p>3. Where the certificate of the notary states the existence of facts which, under the act of 1789, make it unnecessary to give any notice, it is not necessary that the certificate of 1h« notary should state that those facts were the reason why no notice was given.</p> <p>4. The certificate and seal of the notary are • sufficient proof of his authority to act as such.</p> <p>[5. Cited in Dinsmore v. Philadelphia & R. R. Co., Case No. 3,021, to the point that corporations may sue and be sued as citizens.]</p>

[This was a suit in equity by William B. Dinsmore, president of the Adams Express Company, and the Express Company against the Philadelphia and Reading Railroad Company. On demurrer to the bill.]

<p>Case No. 3,922.</p> <p>Shipping Aktici.es—Ambiguitt.</p> <p>1. Articles describing a voyage from England to the United States and back, held not to in-clude ports on the Pacific coast.</p> <p>2. Ambiguity in shipping articles ought to be resolved in favor of seaman, it being the duty •of the master or owner to have such contracts couched in plain language.</p>

This was a motion made by Archer & Brother, as claimants, to be allowed to bond certain property in the custody of the marshal under the process in this case. The property was under seizure for alleged violations of the internal revenue laws of the United States. Archer & Brother had intervened and filed a claim and answer, claiming, as mortgagees, the possession of a part of the property so seized.

[Proceedings upon the question of incumbency of the office of attorney for the United States in the eastern district of Pennsylvania.]2 The question depended principally upon the effect of two clauses of the constitution. One of them provides that the president shall nominate, and, by and with the advice and consent of the senate, shall appoint all officers whose appointments are not otherwise provided for in the constitution, and which shall be established by law.

A difference of opinion having arisen between the United States district attorney and the foreman of the grand jury in reference to the right of the district attorney or his -assistant to appear before that body and conduct the examination of witnesses for the government and advise them upon matters •of law and questions arising upon the construction of the federal statutes, and the matter having been brought to the attention -of the court, the grand jury was requested to…

[Appeal from the commissioner of patents. [Application by Hiram Dixon for a patent for an improved method of bookkeeping. The applicant appeals from a decision of the commissioner of patents rejecting his application.]

This was a bill of injunction filed in the United States district court, on its equity side, to enjoin the defendant from interfering with certain real estate of the complainant which he had sold before his bankruptcy while it was subject to a debt of the complainant, and had repurchased some years alter the discharge in bankruptcy; the lien of the debt to which it had been subject not yet having been satisfied.

<p>Case No. 3,929.</p> <p>Tiíeiüht Bilí.—Coxstuuctiox—Onus Phobandi— Loss BEYOND CAIiKIEK’S LlNE.</p> <p>1. A freight bill is a contract; and its effect •cannot he varied by parol.evidence.</p> <p>.2. A freight hill ending “Aec’t Henry Dixon.” and signed “W. T. Noell & Co., Agents,” may he construed afe made to Henry Dixon, he being In fact the consignee.</p> <p>3. The words “I. & C. Central R .R.” cannot, without an allegation of misnomer, or offer to prove the identity, be taken to 'mean the Columbus and Indianapolis Railway Co., in a contract not purporting to be made by such company.</p> <p>4. Where a freight bill is signed “W. T. Noell <& 'Co., Agents,” not appearing on its face to he the contract of a railroad company, parol evidence is not admissible to show that it is the •contract of the company.</p> <p>• 5. In the charge of a breach of a common law •duty—as the duty of a common carrier—denied by the defendant, the burden of proving the ■breach is with the party alleging it, whether it is alleged as a mal-feasance or a non-feasance; and he cannot recover without proving it.</p> <p>6. Where a railroad company received goods for transportation to a point, beyond their own terminus, and the plaintiff alleges that they undertook to carry the whole distance by rail, the burden is upon him to prove such undertaking.</p> <p>[Cited in Robinson v. Memphis & C. R. Co., 9 Fed. 139.]</p> <p>7. In such case the burden is not upon the carrier to account for the loss, if he has delivered at his own terminus to a proper person.</p> <p>NOTE. So far as bills of lading and other writings are mere receipts, they may be contradicted by parol, but so far as the writing -contains terms of a contract it stands on the same footing as other written contracts. Thus a bill of lading receipting goods as in good or•der and well conditioned, may be contradicted by showing that their internal order and condition was bad, and any other fact erroneously recited. 1 Greenl. By. ? 300, and notes. As to how far bill of lading is a contract, and how far a receipt, consult 1 Par. Shipp. & Adm. 190, 191, and notes: 3 Kent. Comm. 208; The .T. W. Brown [Case No. 7.590]. and eases cited; The Wellington [Id. 17,384]. As to the shipment, it is not conclusive evidence between the original parties. Grant v. Norway. 10 C. B. 665: Bates v. Todd, 1 Moody & It. 106; Berkley v. Wailing. 7 Adol. & E. 29.</p> <p>Though it appears to have formerly been the general rule that the contract must show on its face, that a person other, than the executing party is the principal, or such principal is not bound, yet this would seem to hold now •only in cases of solemn instruments under seal; and the authoritative rule now is that where the agent makes a contract, apparently in his own name, but really for his principal, his principal is liable. The difference being that the .agent also makes himself personally responsible. Mr. Justice Story says “there is no doubt that parol evidence is admissible on behalf of one of the contracting parties to show that the other was an agent * * * although contracting in his own name, so as to fix the real principal. ” Story, Ag. § 270; alsc Id. .§§ 110, 147, 160-162, 269, 392; 2 Smith, Lead. Cas. 226. and cases cited; Chit. Gout. (11th Am. Ed.) 149, note y1; Id. 303, note o; Id. 309, note h; Higgins v. Senior, 8 Mees. & W. S34; Dykers v. Townsend, 24 N. X. 57.</p> <p>Mr. Parsons, in his work on Contracts (volume 1, p. 55,) states the general rule to be, “Parol evidence may always be admitted to charge an unnamed principal; but not to discharge the actual signer.” Consult also notes to same page, and page 549. Common carrier under special contract limiting his liability has no authority to contract with next carrier for a limited responsibility. Babcock v. Lake Shore & M. S. B. Co.. 49 N. X. 491. Effect of marks showing ultimate destination and using printed blank adapted to through contract. Id.</p> <p>Where a common carrier contracts for the transportation over his route and delivery to connecting line, the fact that the contract fixes the price for the entire carriage does not make it a through contract, so as to entitle the succeeding carriers to the benefit of exceptions from liability contained in the contract. Aetna Ins. Co. v. Wheeler, 49 N. X.-616. In a contract by a carrier to transport and deliver to a point beyond its own line, an exception as to liability extends to connecting lines who share the freight. Maghee v. Camden & A. R. Transp. Co., 45 N. X.514. Under an agreement to carry freight toa point beyond the terminus of its own line, a railroad company is liable for the default of aconnectingline; but the mere receiving goods marked for such a point only binds the carrier to deliver to the next carrier. Root y. Great Western R. Co., 45 N. X. 524. ;</p> <p>For an elaborate discussion of the liability of common carriers on through bills of lading, and what constitutes a through bill, and under what circumstances a carrier is discharged from further liability by delivery at his own terminus to a connecting carrier for further transportation, consult Woodward v. Illinois Cent. R. Co. [Cases Nos. 18,006 and 1S.007]. and cases there cited; also a recent opinion by the U. S. supreme court. Railroad Co. v. Manufacturing Co.. 16 Wall. [S3 U. S.] 318. The rule adhered to by the Illinois supreme court is that a carrier receiving goods marked beyond his own route is liable for their delivery at their ultimate destination. Illinois Cent. R. Co. v„ Copeland, 24 Ill. 332; Same v. Johnson, 34 Ill. 389; Same v. Frankenberg, 54 Ill. SS.</p>

<p>Case No. 3,930.</p> <p>Sbamex’s Warms—Fohfeituiu: bv Misconduct.'</p> <p>The libellants, seamen of the Cyrus, at the commencement of the voyage, had refused to proceed to sea, unless the rigging was repaired. An accommodation took place, and they per, formed the voyage. After the arrival of the Bhip at Philadelphia, they attended on board to do duty, but finding other persons employed to unload the ship, and no provisions prepared for them, they went on shore. It was attempted to forfeit their wages for the voyage, in conse-qnenee of the conduct of the seamen in the beginning of the voyage, and also by their having left the ship. The court decreed wages for the voyage.</p> <p>[Cited in The Nimrod. Case No. 10.267: The Mentor, Id. 9,427; Magee v. The Moss. Id, 8.944; Grannon v. Hartshorne. Id. 5.689.: The Childe Harold. Id. 2.676; The Wenor nah. id. 17,412; Halverson v. Nisen, Id. 5,070; The Hudson. C Fed. S30; The He-roe. 21 Fed. 528; The Xoddleburn, 28 Fed. 857; The Lizzie Frank,.31 Fed. 480.]</p>

This is an action [at law] for violation of a patent right, for a new and useful improvement in manufacturing men’s and women’s saddles, without saddle trees [granted to P. Dixon, July 10. 1819]. The schedule states, that “the pad is first cut out, and made in any shape thought proper. The part of a pad usually covered with a saddle tree, is then covered with a piece of thick leather.

Writ of error from the district court of Norfolk. The United States brought an action of debt in that court, on an embargo bond, executed by the plaintiff in error, and others, which bond was in the words and figures following, to wit: “Know all men by these presents, that we, .Tohn Lewis, master of the ship, called the ‘Adams,’ of Boston, burthen 189 tons, licensed for the coasting trade, and William Dixon of Portsmouth, Ac., are held and firmly bound, unto the United…

The plaintiffs wore the mortgagees of property for the benefit of bondholders. The mortgage was executed by the South Pacific Railroad Company, and the property mortgaged is now owned by the Atlantic & Pacific Railroad Company. Jones, the defendant, as sheriff of Franklin county, seized the property for taxes due from the South Pacific Railroad Company, the mortgagor.

<p>Case lío. 8,938.</p> <p>Makitime Li exi-—Laches—Bona Fide Puk-ohaseks.</p> <p>1. Secret liens must be enforced with reasonable diligence as against bona fide purchasers without notice.</p> <p>[Cited in The Bristol, 11 Fed. 163.]</p> <p>2. Where a vessel, owned in New Jersey, became subject to a lien for damage by collision, to a vessel owned in Boston, and afterwards came within this judicial district on three voyages, one of which arrivals was known to the libellants; and was then nearly four years after the collision, sold to bona fide purchasers without notice: Held, that a libel in rem. filed four years and one month after the collision, was too late.</p> <p>[Cited in The C. N. Johnson, 19 Fed. 784.]</p> <p>3. A sale by one' of the original purchasers to another of them, of part of the vessel, pending the collision cause, will not affect that share with a liability to which it was not subject in the hands of the seller.</p>

<p>Case No. 3,939.</p> <p>Salvage Compensation — Right or Crew or Salved Vessel to Particípate — Miscoxduct of Salvors.</p> <p>[1. The total amount awarded as salvage may be affected by the number entitled to share therein.]</p> <p>[Contra, see Ourrie v. The Josiah Hathorn, Case No. 3,491a.]</p> <p>[2. The transfer of the crew of a vessel in imminent peril to another vessel, pursuant to an agreement of the respective captains, does not so dissolve the contract as to entitle them to salvage for subsequent labors in saving the distressed vessel according to the agreement. The Blaireau, 2 Cranch (6 TJ. S.) 240; The Two Catherines, Case No. 14.28S; Taylor v. The Cato, Id. 13,786: and The Florence,20 Eng.Law & Eq. 607, distinguished.]</p> <p>[3. The bona fide adoption of a certain course by salvors entitles them to compensation for work actually done in pursuance thereof, although it may subsequently appear that anothei course would nave been better.]</p> <p>[4. The amount awarded for salvage- serv-. ices should be more than a compensation for the mere labor employed in effecting them.]</p> <p>[5. Slight misconduct of salvors under great provocation, and not resulting in any loss to claimants, should not reduce the amount of salvage.]</p> <p>[G. Avarice and hard dealing by a salvor should reduce, and extraordinary energy should increase, the amount of his compensation.]</p> <p>[7. $60,000 allowed upon a valuation of $260,-000, where the salving vessel abandoned a whaling cruise at its commencement, and spent about nine months in rendering the service, bringing the salved ship into port, and enforcing the claim.]</p>

This was a proceeding [in bankruptcy] on the part of J. P. Doan, as petitioning creditor of the firm of Compton and Doan, to have the firm adjudged bankrupts. No opposition was offered by Thomas C. Doan of the firm, but Richard .T. Compton, his co-partner, filed answer denying the acts of bankruptcy alleged in the petition.

This was a motion to set aside a fi. fa., by virtue of which the U. S. marshal had levied on 14,000 shares of stock in the Allegheny Valley Railroad Company, and 15,000 shares in the Connellsville Railroad Company, owned by the defendant.

<p>Case No. 3,943.</p> <p>BaNKKDPTCT—CoJIP.' SITION PROCEEDINGS—POWERS or Register.</p> <p>At the meeting of creditors called to take action on a resolution of composition, the register has no authority to require any other person to testify except the debtor.</p>

Case for infringement of a patent right for the double reflecting baker, brought by the .plaintiff [Isaac Dobson], as assignee of the patent.

<p>Case No. 3,946a.</p> <p>Voluntary Bankruptcy—Petition—Schedule of Real Estate.</p> <p>[1. A voluntary petition in bankruptcy need not allege the insolvency or dissolution of a firm of which petitioner was a member.]</p> <p>[2. A schedule of petitioner's real estate which states the county tand town in which the property is situated, together with the name of the grantor, is sufficiently accurate.]</p>

In this case the register certified to the court the following statement of facts and questions: “The only assets of the bankrupt LOliver W. Dodge] consist of certain notes, accounts, and claims, all past due and unpaid, in which he had a one-seventh interest, valued at $250, which interest has passed to the assignee, Mr. John Sedgwick, who has not received or paid any moneys whatever for, or on account of, the bankrupt’s estate.

<p>This was an action by Wm. E. Dodge and others against Chester A. Arthur,-collector of customs for the port of New York, to recover certain duties paid under protest.</p>

In equity. This was a motion for a preliminary injunction to restrain defendant [Thomas F. Card] from infringing letters patent [No. 14.447] granted to Calvin Dodge for an “improvement in fire-places,” granted March 18. 1856, one-half of which was assigned to John B. Ryan. The disclaimer and claim of the patent were as follows: “I do not claim the contracting of the vent or throat of the chimney, as that is well known as a device; but I do claim the use of a deep recess.

Upon the trial of this cause, the defendant made the following objections to the execution of a commission issued to Hayti: 1. That it appeared, from the deposition taken under this commission, and from the certificate of the persons to whom it was directed, that the deposition of the witness was not committed to writing by bim under tbe sanction ■of an oath, but was written and signed by bim many days before tbe oath was administered. 2.

<p>This was a libel by William E. Dodge and others against the ship John Stuart for injuries sustained by collision.</p>

<p>Case No. 8,958.</p> <p>Authority of Decision on Question of Fact— Mexican Grant, Juridical Possession under —Right to Purchase under Act of July 23, 18B6—Survey of Public Lands—Patent—Collateral Attack.</p> <p>1. When a question of fact as to the proper location of a Mexican grant has been determined by the district court, and on an appeal the finding has been reviewed and affirmed by •the justice of the supreme court assigned to the ■ circuit; the determination is entitled to great weight as authority on a similar issue of fact submitted upon the identical testimony in another proceeding.</p> <p>2. The magistrate who gave juridical possession to the grantee under a Mexican grant, ■was not authorized to include lands in the juridical possession not embraced within the exterior lines designated in the grant.</p> <p>3. A claimant under a Mexican grant whenever presented his grant for confirmation under the act of 1851, and who is not in privity with any party who did present the grant, is not within the provisions of the seventh section of the act of congress passed July 23. I860 (14 Stat. 220), authorizing certain purchasers of Mexican grantees to purchase lands excluded by a final survey of the grant.</p> <p>4. Lands claimed under a Mexican grant excluded from the external limits of the grant by the express terms of the decree of confirmation, cannot properly be embraced within a survey of the grant, and are public lands subject to survey and sale as such from the time when the decree of confirmation so excluding them becomes final.</p> <p>[Cited in U. S. v. Southern Pac. R. Oo., 45 Fed. 610.]</p> <p>5. Such lands when surveyed by the surveyor-general of the United States, under the general authority given for that purpose, are subject to selection by the state of California as a part of the lands granted to the state by congress.</p> <p>6. A patent of the state, valid on its face, cannot be collaterally impeached by matter dehors the patent, by a party having no title, in an action at law brought in the national courts to. recover the land purporting to be granted by it</p>

The libel alleges that in November, 1854, the bark Storm Bird was owned jointly by the libellants [William M. Dodge and others] and respondents [Arthur Leary and others], and was fitting for sea at New iork for .such joint owners under the charge and superintendence of Appleton Oaksmith, and that the libellants furnished said ship’s husband, for the use and service of the vessel, furniture and utensils necessary to her fitting out. and to enable her to perform her intended…

Bill in' equity for an account. The bill, after the usual address to the court, proceeded as follows: “Humbly show-eth your orator, John Dodge, executor of the last will and testament of Unite Dodge, of New York, in the state of New York, merchant, and a citizen of said state, deceased, whose said will was proved before the surrogate of the county and city of New York, on the twenty-eighth day of July.

<p>| [In bankruptcy. In the matter of John ■Doe.]</p>

<p>Case No. 3,958.</p> <p>Ejectmf.nt—Stat of Exf.cution Pending Equity Suit in State Couut—Injunction—Seuvice of Svhpoexa—Landlord and Tenant—Notice to Quit.</p> <p>1. This court will not stay proceedings on a judgment in ejectment, until the equity between the parties, of which they have jurisdiction, shall be investigated in a state court. But such proceedings will be stayed, where this court have not jurisdiction of the equity.</p> <p>2. It is sufficient service of the subpoena, on an injunction bill, to serve it on the attorney of the. plaintiff in the ejectment.</p> <p>[Cited in Cortes Co. v. Thannhauser, 9 Ped. 228.]</p> <p>S. A notice to quit, by the English rule, is necessary only wnere the relation of landlord and tenant subsists.</p>

[This was a bill in equity by John Doggett against William Emerson and others.] The bill, in substance, stated as follows: “That on or about the twenty-first day of February, in the year 1S35, William Emerson.

<p>Case Wo. 3,961.</p> <p>Equity Practice — Hearing in Vacation by Agreement—Death of Judge—Entry of Decree-Opinion—Rehearing—Notice.</p> <p>1. A case beard and decided in vacation be■fore one judge, by agreement of the parties, is to be considered as if heard and decided before and by the court.</p> <p>2. If the decree be not actually entered till after the judge dies who drew it up and announced it, an entry of it may be made at the next term.</p> <p>3. The intervening death of the judge, in such a case, is no objection, and no ground, for a rehearing, if an opinion was actually delivered; but otherwise, if only prepared. To justify a rehearing, it is not sufficient to satisfy the court, that the opinion may have been erroneous in law, if there was no mistake as to the law or fact when it was given.</p> <p>[Cited in Hunter v. Marlboro, Case No. 6,90S.]</p> <p>4. A court may .alter its judgment at any time before it is entered up; 'or. if entered, before il is made final to be carried into effect. But it should not be altered without notice to both parties, if it has before been announced, nor without the full hearing and adequate causes which take place and justify rehearings usually in chancery.</p> <p>[Cited in Jenkins v. Eldredge, Case No. 7,-209; The Illinois, Id. 7.003; U. S. v. Garcia, Id. 15.180: Giant Powder Co. v. California Vigorit Powder Co., 5 Fed. 201.]</p> <p>[NOTE. This cause was subsequently heard on exceptions to the master's report, and also upon an application by respondent Noreross to be allowed to put in evidence, under a cross bill, a discharge in bankruptcy obtained by him. See Case No. 3,002.]</p>

<p>[This was a bill in -equity by John Doggett against William Emerson and others.]</p> <p>This case came before the court, again at an adjourned session of the May term. 1840, on exceptions to the report of the master in chancery upon the decree against the respondents, rendered at May term. 1S4Ó. The original opinion of the court was delivered in August, 1845, by Justice Story, and is now published in Doggett v. Emerson [Case No. 3,900], and a decree was prepared to carry it into effect; and both were communicated .to the parties at a sitting held by their agreement under a continuance nisi. Objections being made to entering up the decree, after the death of Judge Story, the parties were heard on that point, and a request was made for a rehearing of the cause, at the October term, 1845. Afterwards, during that term, an opinion was pronounced by Woodbury, J., for the court against the respondents on these points. Doggett v. Emerson [Cuse No. 3.9(51]. The muster then proceeded to make the inquiries whicli were submitted to him. and reported thereon at May term, 1S4G. Exceptions were filed to his report by all the parties, and were argued at an adjourned sxiou of the court, held at Portland. July 7th. 1S4G. Enough of the report and exceptions will be stated in the opinion of the court to show the grounds of the questions. The case was continued nisi, and judgment pronounced at Boston, September Sth. lS4(i.</p>

Bill in equity [by Lucy A. Doherty] to restrain the respondent [James G. Haynes] from infringement of certain letters-patent [No. 3S,519] upon table trays or waiters. The nature of the complainant’s invention was described as consisting,— 1.

<p>Case No. 3,964.</p> <p>Bankruptcy Codrts — Jurisdiction of Discharged Bankrupt—Examination'as to Concealed Property.</p> <p>1. The summary jurisdiction of the bankruptcy court over the person of the bankrupt ceases on the granting of his discharge from his debts.</p> <p>2. After such discharge, he cannot, by summary order, be required to submit to examination touching his property alleged to have been concealed or fraudulently transferred.</p> <p>[Cited in Re Witkowski. Case No. 17,920; Re Nichols, 1 Fed. 844.] ■</p> <p>3. For the recovery of such property a plenary suit is necessary, in which, if the bankrupt be required to make discovery, or be examined as a witness, he will be entitled to the benefits and the protection belonging to a party or witness in like cases.</p>

<p>Case No. 3,965.</p> <p>Bankruptcv—Examination’ op Bankrupt after Discharge.</p> <p>An order and summons were issued requiring a bankrupt to appear and be examined as a. -witness. Under the advice of counsel ■ he declined to be sworn until after the decision of the court. The preliminary objections were substantially as follows: First. That the order and summons were unauthorized by law. Second. That the name of the assignee is being used for the purpose of extorting a settlement of stab claims against the bankrupt, more than two years after he has received his discharge, when it is too late to vacate said discharge. Third. That the bankrupt cannot now be examined for the purpose of founding or aiding any prosecution to be commenced by the assignee against third persons other than the bankrupt. Fourth. That the bankrupt cannot now be examined for the purpose of instituting or aiding a proceeding to vacate his discharge. Held, that the second and fourth objections are well taken; that the first and third objections are not well taken; that on the second objection the register ought to suspend all further proceedings under the order and summons.</p> <p>[Cited in Andrews v. Dole, Case No. 373; Cady v. Phenix Fire Ins. Co., Id. 2,284.]</p> <p>[NOTE. See In re Dole, Case No. 3,904.]</p>

Action of assumpsit [by Charles E. Dole and others] on a policy of insurance.

On a former day of this term, Samuel D. Parker, as counsel for |Antonio] D’Olivera and others, moved the court for a writ ' The cause was shortly argued by Parker for the petitioners, and by William Sullivan for the master of the vessel, upon whose, complaint they had been committed.

The relator [George Doll] in this case was duly assessed by the assistant assessor of his district in the early part of the year 1868, upon his sworn return for an income tax, due the United States for the year 1867; this return was not subjected to contestation of any character, was returned to the collector, and the tax paid.

<p>Case No. 3,969.</p> <p>Internal Revenue—Income Tax — Fraudulent Return—Reassessment and Penalty — Constitutional Law.</p> <p>1. An assessor of internal revenue has power to reassess the income tax of a citizen who has already paid the tax first assessed against him.</p> <p>2. The imposition of an addition of one hundred per centum as a penalty for the return of a false or fraudulent valuation is constitutional.</p>

<p>This was an action by [Harold Dollner and others] the owners of cargo shipped on board the schooner Julia Frances against [John Garcia and others] the owners of the steamer Cristoval Colon, for the loss of the cargo by a collision between the schooner and the steamer during the night of Dec. 21, 1856. off the capes of Delaware. The respondents denied any negligence in the steamer, which occasioned the collision, and set up moreover that the libelants had no right to sue, being only consignees of the goods, and that a suit was previously commenced against the steamer, in rem, in the district court for the eastern district of Virginia, to recover the same damages claimed in this action.</p>

Admiralty appeals from the district court of Massachusetts in cases of collision.

<p>Case No. 3,972.</p> <p>Seamen’s Wages—Evidence—Damages.</p> <p>1. Sailors were shipped in New York for a voyage to San Domingo, at $25 a month. They went on board the vessel and went to work, and were afterwards told to go home to their boarding house for meals. On their return they were told that other men had been shipped in their place, and they filed a libel to recover damages for the loss of the voyage. On the trial, the three libellants testified that they returned the next day after they had been told to go home. The master testified that they did •not return till the second day, and until after he had obtained other men in their places: Held, that as the master could have called his mate and the shipping master to sustain him. and had failed to do so, without the suggestion of any difficulty in so doing, the question would be determined according to the statement of the-greater number of witnesses.</p> <p>2. That, on the evidence, therefore, the men were discharged without reason, and were entitled to recover damages for the loss of the voy-</p> <p>[Cited in The Acorn, 32 Fed. 638.]</p> <p>3. That half a month’s wages was sufficient compensation.</p>

This cause was heard on exceptions to the libel of the Orient Mutual Insurance Company.

<p>Case No. 8,974.</p> <p>Marine Insurance —Lien in Favor of Underwriter—What the Libel should Aver.</p> <p>[For opinion of -the district court, see Case No. 3,973.].</p> <p>NOTE. The meaning of this would seem to be that while the impressions of the judge were with the writer of the opinion in The Dolphin [Case No. 3,973], he reserved to himself the right to change, alter, or modify his own after argument .of • a case in the supreme court and -consultation with his brother judges.</p> <p>No one -has a higher respect for the great learning and acute intellect of the district judge for the eastern district of -Michigan, than the writer. Whatever has been said or written by this magistrate is justly entitled to the. most respectful and thoughtful consideration. Bur. the law is the science of reason and justice, and the humblest member of the profession has, as to any question, the right to enter a plea for the right, if he shall do so in a becoming manner.</p> <p>The supreme court in Van dewater v. Mills, 19 How. [60 U. S.] 89, set their faces against the oft-recurring attempts to enlarge the limits of admiralty liens. They say, by Grier, J.: “The maritime privilege” or lien is adopted from the civil law, and imports a tacit hypothecation of the subject of it. It is a jus in re without actual possession or any right of possession. It accompanies the property into the hands of a bona fide purchaser. It can be executed atid divested only by a proceeding in rem. This sort of proceeding against personal property is unknown to the common law, and is peculiar to the process of courts of admiralty. The foreign and other attachments of property in the state courts, though by analogy loosely termed proceedings in rem, are undoubtedly not within the category. But this privilege or lien, though adhering to the vessel is a secret one; it may operate to. the prejudice of general creditors and- purchasers without notice; it is -therefore stricti juris, and cannot be extended- by construction, analogy or inference. “Analogy,” says Pardassus (3 Droit Civ. 597], “cannot afford a decisive argument, because privileges are of strict right. They are an -exception to the rule by which all creditors have equal rights -in the property of-the debtor, and-an exception should be declared and described -in express words. We cannot arrive at it by reasoning from one case to another.” “These cases will be found stated, and fully vindicated in the ease of The Young Mechanic [Case No. 18,180]; The Kearsarge [Id. 7.633]; and Harmer v. Bell. 22 Eng. Law & Eq. 62.”</p> <p>“Now,” continues Judge Grier, at another place in the same opinion, “it is a doctrine not to be found in any treatise on maritime law,' that every contract by the owner or master of a vessel, * * * hypothecates the- vessel for its performance.” Though stated in The Williams [Case No. 17.710] differently, viz., that all ■contracts including insurance, made by the master, bind the ship (Brown, Adm. 208), the learned district judge admits that this principle Is in one particular incorrect. He says that the part referring to insurance is erroneous, because ■ contracting for that is not within the province of the master—it rests with the owners. Here he'is undoubtedly correct. And why has the master no such power? For the sim pie reason that he cannot bind the ship except for such supplies as are absolutely necessary to enable it to properly discharge its functions in commerce and navigation. He may, when he can raise money in no other way, hypothecate the ship on bottomry or borrow money by re-spondentia. He can charge the ship for all needful supplies and equipment, as seamen, wharfage, provisions, repairs, etc.; but they must all fall within the line of strict necessaries, for which the boat needs credit</p> <p>The reader, in the foregoing extract taken from Yandewater v. Mills, will notice how the court speak of deducing principles from analogy. They refer to that case again on page 91 of the opinion, paragraph 3. Now, in The Dolphin decision, an attempt is made to trace an analogy between the contradi of affreightment and that of marine insurance. In the former the cargo is bound to the ship and the ship to the cargo. The contract is reciprocal. In the latter case, how are the insurers bound to the ship? The contract is made between the owners and the .insurers, and not with the ship at all. In the admiralty it is well understood that the ship is •one person and the owner or owners other and distinct persons. Moreover, .the lien goes along hand in hand with the service, supply or benefit conferred on the vessel (Vandewater v. Mills, 19 How. [60 U. S. 89], and passim); and if it be admitted for the sake of argument that marine insurance is a supply, (.wnieh is not the case,) the benefit derived from supply must be immediate in order to draw along the lien. If any benefit can be derived from this so-called supply by the vessel, it cannot be immediate but is in futuro; for the benefit, if at all, must be in the payment of the premium, the contingency for which may, or may not happen.</p> <p>If the vessel be a total loss, of what service would the premium, when collected by the owners, be to the wholly lost or ruined ship? The •owners might or might not purchase or build another, but if they did there could be no notion of a lien connected therewith, for the additional reason that owners have no liens; only third parties. If the boat were partially in jured, the owners might or might not repair, and to that the same argument might be added as in the ease of total loss. Nor can it be a benefit or service of any kind to the vessel.There is another feature inseparably connected with liens on ships—that is, credit to the vessel. Here the credit is wholly to the owners, and if there be no credit to the vessel there is no lien. Even supplies furnished in a foreign port where the owner may. happen to be at the time, or his agent, or where he has credits, or if the captain -be supplied with funds, create no lien. It is for the furnisher to see tbat tbe vessel needs ■ the credit, and it is for this reason that in the home port, where supplies are furnished or repairs made, there is no lien on .the vessel be cause it is supposed that the owner has credit. There is an exception where it appears that he is Wholly insolvent, or a special contract has been made to charge the vessel. The law does not presume the credit; acts or facts must prove it.</p> <p>The reasoning- of the judge is almost wholly by analogy, and the grounds he bases his decision upon are: 1st—That as the contract is maritime, therefore a lien follows; and 2d—It is a supply, and therefore is entitled to rank as a lien. As is well known there are contracts that are maritime which do not carry a lien with them. If you go to that question—or the one of supply—where can a better illustration be found than in the master of a ship? His contract with the owner for the sailing of the boat pertains to, and is to be performed upon, or in connection with, the sea or public watercourse, and strictly falls within commerce and navigation; hence it is a maritime contract. Yet he has no lien; no, not even for advances that he may make, or articles he may purchase as necessaries for the ship. This is the well settled law in England, and the weight of authorities is the same way in this country. See 2 Pars. Shipp. & Adm. p. 24. Why? Because he does not contract with the ship, but with the owners, and the articles he furnishes are supposed to be furnished upon the understanding either that he has money or credits of the owners, and that he does not in any case look to the . ship, but solely to them; and, perhaps, also, another reason may operate to a certain extent, he is the general agent of the owners, and on board 'represents them. Go to the question of supply. Let it be answered, where is there -a supply- or service so necessary to a ship as the master of the vessel? He is as necessary, as much so, as seamen who have liens—as necessary as provisions or repairs. He is the eye, the life, the soul of the ship. It is he who directs her course through the sunshine as well as the storm, and without him the vessel could not fulfill its mission of moving upon the waters and plying in the marts of trade. And yet he has no lien. The judge seems to have overlooked the decision made by Mr. Justice Story—that great master of admiralty law—in De Lovio v. Boit [Case No. 3,776], a ease decided in 1815. It was then ruled that the contract of insurance taken on a vessel was a maritime .contract. And the other decision made by the same judge, reported in Hale v. Washington Ins. Co. [Id. 5,916], decided in 1842, in which he refers to tbe previous case and re-afiirms the decision, remarking at the same time that he- had wished to have the supreme court pass upon the question; that an opportunity was on one occasion about to be offered, and he believed, had not the case been dismissed, that his brother judges, Marshall and Washington, would have expressed themselves in accordance with his views. Here then for sixty years previous to the 11th Wallace case the law was so-ruled.' Is it not to be supposed that it was well understood by the profession, and for that reason acquiesced in rather than that the question was new and admitted of considerable doubt? Moreover, the proceeding in Insurance Co. v. Dunham [11 Wall. (78 U. S.) 1] was in personam, not in rem. Does any one doubt that the master of a ship may proceed likewise in personam in a court of admiralty for wages and advances? The analogy would seem to hold good between his case and that of a marine policy—both being maritime contracts and neither having liens, and the contract in each case being with the owners. Hammond v. Essex Eire & Marine Ins. Co. [Case No. 6,001); Willard v. Dorr [Id. 17,-679],</p> <p>Let this be-said: The decision in the John T. Moore [Case No. 7,430],, decided by one of the present associate justices of the supreme court (then circuit judge), seems to rest-alone upon true grounds—the policy is taken out for the benefit and indemnity of the owner, and is of no service or benefit to the vessel. However ingenious the argupient, the judge has failed to show that the continental law of Europe supports Ms view. The ordinance of Louis XIV. • does not recognize a lien in marine insurance, and however fine-spun the reasoning of those great men, Valin and Emerigon, may be, the fact is patent from the opinion that the au-’ thority for the principle announced in it is derived from the Code of Commerce of France, a merely local law, which binds no other nation. That law is very different from ours. There marine insurance is ranked as a lien in the scale as No. 10, only one other lien being lower. There the master of a vessel takes No. 6 as his lien-rank, four degrees above the insurer, while (as heretofore shown) in our law he has no lien at all. Moreover, it is not stated in the opinion, as the writer understands the fact to be and as is the law in Louisiana, that the “privilege” in .the French law is to be recorded, so that the liens are not as ours, secret, but known to all the world. And if not recorded, it is for the reason that the contract is acknowledged before, and authenticated by, a notary, and there is as much publicity in this as an acknowledgment or other act done in our courts of record; for it is a well known fact that, in all ports in countries where the civil law holds sway, during business hours the offices of the notaries are filled with brokers, ship owners, lawyers, merchants and others. The contract when it leaves the notary’s hand in France is termed the acte, and in no sense can be considered secret. These aetes are official, and executed in a-public manner.</p> <p>Taking this to be so, the French law is certainly not so objectionable, because no one would be so readily prejudiced thereby. The great objection to liens under our system is— they are secret and prejudice general creditors. How unjust that the insurer, who has rendered the vessel no service, should step in ahead of the master, who has given his time, his money, and exposed his life in behalf of the sMp; and of the builder, who has no lien (Roach v. Chapman., 22 How. [63 U. S.] 129), neither one of whom; as general creditors, in all probability will receive a dollar of the proceeds. Secret liens injure commerce, for reasons apparent to every one,, and our policy has been to fetter navigation and trade as little as possible. No doubt this is the reason why the greatest commercial nation of ancient or modern times—England—has never-accepted or declared the doctrine of lien in such case—that nation which may be almost liter-' ally said to have a ship in every port, bay, harbor and navigable river in the world, for wher-’ ever men live, whether civilized or savage, off their coasts may be seen the flag of St. George1 floating in the breeze.</p> <p>How far, or whether to any extent, her policy has been adopted on the continent of Europe, the writer is not prepared to say. He has a copy of the Italian Codice Civile, with the royal imprint, A Torino (Turin), but finds no such title as “Assicurazione” (insurance) in it. He regrets not being able to lay his hand upon the Código de Comercio of Spain, and the works of her writers on this branch of the law. It appears that marine insurance took its origin at Barcelona, and it is possible that this subject has been thoroughly discussed. • Nor has he been-able to ascertain the law in the Baltic provinces’ and German empire, or of other portions of •Europe. Is it necessary? The supreme court of the United States, in The Lottawana Case, 21 Wall. [88 U. S.] 577. have laid down the following rule for our guidance. They say:</p> <p>“Perhaps the maritime law is more uniformly followed by the commercial nations than the civil and common laws are by those who use them. But like those laws, however fixed, definite, and beneficial the theoretical code of maritime law may be, it can have only so far the effect of law in any country as it is permitted to have. But the actual maritime law can hardly be said to have a fixed.and definite form as to all the subjects which may be embraced within its scope. Whilst it is true that the great mass of maritime law is the same in all commercial countries, yet in each country peculiarities exist either as to some of the rules, or in the mode of enforcing them. * * * No one doubts that «very nation may adopt its own maritime code. France may adopt one, England another, the United States a third; still the convenience of the commercial world, bound together as it is by mutual relations of trade and intercourse, demands that in all essential things wherein those relations bring them in contact there should be a uniform law founded on natural reason and justice. Hence, the adoption by all commercial nations (our own included) of the general maritime law as the basis and groundwork of all their maritime regulations. But no nation regards itself as precluded from making occasional modifications suited to its locality and the genius of its own people and institutions, especially in matters that are of merely local and municipal consequence, and do not affect other nations. * * * Each state adopts the maritime law, not as a code having any independent or inherent force proprio vigore, but as its own law, with such modifications and qualifications as it sees fit. Thus adopted and thus qualified in each case, it becomes the maritime law of the particular nation that adopts it. And without such voluntary adoption it would not be the law. And thus it happens that from the general practice of commercial nations in making the same general law the basis and groundwork of their respective maritime systems, the great mass of maritime law which is thus received by these nations in common comes to be the common maritime law of the world. * * * The question as to the true limits of maritime law and admiralty jurisdiction is, undoubtedly, as Chief Justice Taney intimates, exclusively a judicial question, and no state law or act of congress can make it broader, or, it may be added, narrower than the judicial power may determine those limits to be. But what the law is within those limits, assuming the general maritime law to be the basis of the system, depends on what has been received as law in the maritime usages of this country, and on such legislation as may have been competent to affect it. To ascertain, therefore, what the maritime law of this country is, it is not enough to read the French, German, Italian, and other foreign works on the subject, or the codes which they have framed, but we must have regard to our own legal history, constitution, legislations, usages, and adjudications as well. The decisions of this court illustrative of these sources, and giving construction to the laws and constitution, are especially to be considered; and when these fail us, we must resort to the principles- by which they have been governed. But we must always .remember that the court cannot make the law; it can only declare it. If within its proper scope any change is desired in its rules other than those of procedure, it must be made by the legislative department.”</p> <p>On maritime contracts, see De Lovio v. Boit [Case No. 3.776]; Hale v. Washington Ins. Co. [Id. 5,916]; on analogy in maritime liens, Vandewater v. Mills, 19 How. [60 U. S.] 89, 91; on secret liens, same authority, and Steele v. Franklin Ins. Co., 17 Pa. St. 290; Turner v. Stetts, 28 Ala. 420; Stilwell v. Staples, 19 N. Y. 401; and 2 Cush. 412.</p>

<p>Case No. 8,975.</p> <p>Pbize—Blockade—Coktuabaxd — Illegal Voyage—Stop at Neutkal Pout—Evidekce.</p> <p>[1. The act of knowingly sailing for a blockaded port, with intent to enter therein, is an attempt to break the blockade, rendering the ves- ■ sel and the cargo liable to capture in any part of the voyage.]</p> <p>{Cited in The Stephen Hart, Case No. 13,-364.]</p> <p>[2. The offense of attempting to carry contraband of war to the enemy is complete at the mo-' ment when a vessel begins her voyage for that purpose, and she is from that time liable to capture.]</p> <p>[3. The voyage of a vessel to a blockaded port, although broken by a stop at a neutral port, is one continuous illegal voyage.]</p> <p>[4. A vessel suited by size and construction for blockade-running was captured on her way from Liverpool to Nassau with arms (described in the freight list as “hardware ’) and cotton cards, as a part of her cargo. Her master, mate, and cook swore that the voyage was to end at Nassau, and the vessel to be turned over to the consignees, and that the .crew were engaged for only three months. Letters from the owner to the consignees, found on board, indicated that she was to be used between Nassau and Mexico, or Nassau and Canada or New York. Another letter was discovered, directing consignees not to discharge any of her cargo at Nassau, but to put on more. The. cargo was of a kind not marketable at Nassau. Held, that the evidence showed an intent to carry the cargo to a blockade port in the rebellious states, and that vessel and cargo were lawful prize.]</p>

[This is a bill in equity by Samuel Dolton against L. B. Nelson and Thomas A. Graham.] On final hearing on bill, answer, cross-bill, and proofs. Tne bill was brought to quiet title. No question arose concerning the frame of the bill or the equity jurisdiction.

The libellants [Nathaniel Dominy and others] in this case were wreckers near Sag Harbor. The brig D’Alberti, having been driven ashore, was bought as a wreck by the claimants in this case, and the libellants did work in saving the rigging and other material of the wreck. They thereupon filed this libel against the articles saved, claiming to recover salvage.

<p>Case No. 3,978.</p> <p>Seamen—Whaling Voyage—Coopbh’s Lay—Dis-kating—Evidence.</p>

<p>Case No. 3,979.</p> <p>Mileage and Pees of United States Marshals —Interest.</p> <p>1.A United States marshal is authorized to charge for all necessary travel in serving papers,' but the language of section 47 of the bankrupt act [of 1867 (14 Stat. 540)] precludes all constructive mileage; therefore, it is essential that he should name the place of service in his return, in order that the correctness of the mileage charged may appear upon its face.</p> <p>2. If he has' two or more processes in his hands at the same time, and in the same matter or proceeding, he can charge mileage but once.</p> <p>3. Should the service of any one of such processes make additional travel necessary, such additional travel may be charged for in the re turn.</p> <p>4. A marshal is not entitled to charge interest upon fees earned, but when his expenditures exceed the amount of money paid to him in advance on account of costs, justice requires that he should be compensated by allowing the usual rate of interest on the excess.</p>

[Appeal from the district court of the United States for the district of Massachusetts.] The respondents [John B. Kettell and others] chartered the brig Erie, at Boston, for a voyage to Port au Prince and back to Boston.

A petition is this day presented by a voluntary bankrupt whose original petition for adjudication and relief was filed on the 6th of the present month.

Petition for review, under section 2.of the bankrupt act, of an order of the district court refusing the bankrupt a discharge in a case where there were no assets.

This was an action of trover by Nathaniel Donaldson, assignee of Emanuel Mann, bankrupt, against John Y. Farwell and his partners, to recover the value of certain goods •sold by them to the bankrupt and afterwards reclaimed by them. ■ The bankrupt was, during the early part of 1S72, a merchant in Richfield, near Milwaukee, Wisconsin, and on the 4th, 5th, and 17th days of April, 1872, purchased through his son, Washington L. Mann, of the defendants, merchants in Chicago, a…

<p>Case No. 3,984.</p> <p>•Jurisdiction of Federad Courts—Pleading— Practice.</p> <p>1. 'Where a demurrer was ‘ sustained to a declaration, on account of a failure to show a case within the jurisdiction of the court, and the declaration was afterwards so amended as to cure that defect, it becomes substantially a new suit, and the defendant may interpose a plea to the jurisdiction of the court, averring that both parties are aliens.</p> <p>2. The facts and circumstances upon which jurisdiction over the case depends, must be set forth in the declaration or pleadings.</p> <p>3. Various examples given, and cases cited to illustrate this rule.</p> <p>4. And where the jurisdiction does not appear on the face of the declaration, such omission may be taken advantage of by motion to dismiss the suit, at any time before final judgment, or after verdict, by motion in arrest of judgment or by bringing a writ of error and having the judgment reversed.</p>

Admiralty appeal from a decree of the district court [of the United States for the district of Massachusetts], The claimants [Walter Donaldson and others] shipped at Elizabethport, N. ,T., on the brig Hyperion, a cargo of coal, owned by them, and to be delivered to them as consignees at Phillips’ wharf in Salem, Mass. The bill of .lading contained no demurrage clause.

This was a libel by the owner of the bark Francisco Bellagamba to recover damages for the breaking of one of her yards by its being caught by the rigging of the schooner Moss Glen, ■while in tow of the tug Don Juan. The hart was lying at the lower side of a pier near the end. The next pier below was a shorter pier. The Moss Glen was being towed out of the slip between the piers astern of the Don Juan, on a hawser.

<p>Case No. 8,986a.</p> <p>Bankruptcy—Sales by Assignee—Confirmation.</p> <p>[It is not the practice in the first circuit to confirm sales by assignees, as the rights of third parties are liable to be compromised thereby.]</p> <p>[Cited in Re Alden, Case No. 151.]</p>

Assumpsit on a policy of insurance, dated on the 23d of June. 1828, whereby the plaintiffs [John' S. Donnell and others] caused themselves to be insured, lost, or not lost, “$4,500 oil the ship United States, and $10,-500 on property on board said ship, valued at 5 per cent, above the costs and charges, per invoice, at all periods of the voyage, at and 'from Baltimore, to, at, and from all ports and places, in any order of succession, one or more times to the same, between…

Motion to remand cause to state court This suit was- brought in a state court by the complainant [Joseph A. Donohoe], a citizen of California, against the Mariposa Land and Mining Company of California, a corporation created under the laws of California, and the Farmers’ Loan and Trust Company, a corporation created under the laws of New York.

[In bankruptcy. In the matter of John O. Donohue.] An attorney at law was sworn and interrogated concerning the disposition he had made of certain property, as attorney for his client, a bankrupt He invoked the privilege of an attorney, and declined to answer unless compelled. ' The court directed the witness to answer, and after-' wards filed an opinion.

This libel in admiralty was filed by the appellant, James Donahue, against Langley B. Culley, owner of a new brig afterwards called the “United States Brig Lawrence,” to recover the value of work done on, and materials furnished said brig, in the year 1843. The libel was filed on the 9th of October, 1843; the amount claimed was $1186 01.

[Thompson] Dean owned stock in the Memphis Gas Light Company, claiming that neither the officers of that company nor stockholders had taken, or were about to take, any steps to protect the right of his company, and insisting that it alone had the exclusive right to lay down mains and sell gas in the city of Memphis.

[Appeal from the district court of the United States for the district of Louisiana.] This was a libel in a.cause of contract of affreightment to recover the sum of $2,5S0 freight for carrying the goods of the respondent on the steamer Emma, for a period beginning November 2S, 1876, and ending March 3, 1877. The vessel, during that time, was owned by Wm.

Writ of error to the district court [of the United States] for the eastern, district of Missouri. The error complained of is that the district -court should have allowed compensation to the administrator’s intestate (who was surveyor of the port of St. Louis under the act -of congress of March 2, 1831, on whom was ■devolved the duties of collector) of 86,003 per .year instead of 35,000.

This was an action of trespass on the case brought by James H. Dooley, trustee in bankruptcy of Asa Snyder and Warner Moore, trading as Asa Snyder & Co., against the defendants, P. Gallagher, D. S. Peirce, and William Terry, trading as P. Gallagher & Co. The declaration contained two counts.

<p>[Libel by Thomas Dooley and others for seamen’s wages. Decree for libellants.]</p>

In equity. Bill of injunction [by James H. Dooley against the Virginia Fire & Marine Insurance Company]. Reasonable previous notice having been given, motion was made for a preliminary injunction; the bill being still at rules, and the cause not to mature until the fall term. The defendants filed their answer on the day of the motion.

[This is a bill in equity by James H. Dooley, trustee in bankruptcy, against the Virginia Fire & Marine Insurance Company.] The property on which the liens mentioned in the proceedings rest consists of a lot of ground in the city of Richmond, on which are a large brick foundry and other buildings. This real estate was purchased on the 3d of December, 1S72, by Asa Snyder, individually, from the firm of Dunlop, Moncure & Co., and was conveyed to him on that date.

<p>Case No. 4,000.</p> <p>Bankrupt Law—Fraudulent Preference — Exchange of Securities.</p> <p>In this case the bankrupt, a merchant, doing business with a bank, had from time to time overdrawn his account with the knowledge of the cashier, but without the knowledge of any other officer of the bank. To secure these overdrafts the cashier procured from him a bill of sale of a portion of his stock in- trade, which was not recorded, nor accompanied with possession, and the bankrupt continued his business as usual. This was more than two months prior to the commencement of the proceedings in bankruptcy. Subsequently, .and within two months of the commencement of proceedings in bankruptcy. the overdrafts were disavowed by tin managers of the bank, who, to secure the bank, procured a new bill of sale, caused it to be put on record, and took possession of- the goods. Held, that although this was clearly a fraudulent preference within the meaning of the bankrupt law [of 1867 (14 Stat. 517)], yet, under the rule of Sawyer v. Turpin, 91 U. S. 114, the transaction took effect by relation to the first bill of sale, and this having been given more than four months prior to commencement of proceedings in bankruptcy, the second bill of sale became a valid security.</p>

[This was an action at law by Thomas C. Doremas and John M. Nixon, against Henry D. Bennet and others on a promissory note. Heard on a demurrer to a plea to the jurisdiction of the court.]

<p>[This was an action at law by Thomas C. Doremus against William A. Burton. Heard on a motion for a new trial.]</p>

<p>Case No. 4,004.</p> <p>Telegraph Companies — Dklat in Transmission • and Delivery—Uninsured Messages— Measure of Damages—Contract Exemptions.</p> <p>[1. When a telegraph company receives a message for transmission, the fair inference is that the sender resorts to the telegraph because he cannot, or does Dot, choose to wait for the mail, and the company agrees, by implication, that his message shall be carefully transmitted, arid delivered without unnecessary de- : lay.] :</p> <p>[2. The fact that a message left at a telegraph ' office in New York at 5:20 p. m. was not deliv- ; ered at Mobile until 10:30 a. m. on the next day I is prima facie evidence of negligence, it ap- ! pearing that under ordinary circumstances tha 1 message could be transmitted from one tele- . graph office to the other in about four minutes.] i</p> <p>[3. A person using the telegraph, unless he I insures his message, takes the risk of delay and ¡ failure to deliver, arising from accidents and . obstructions to which-telegraph lines are liable.] j</p> <p>[J. Telegraph companies are bound to deliver ' messages impartially, in good faith, and in the • order in which they are received.]</p> <p>[5. The company is only liable for damages which were within the reasonable contemplation of the parties at the time of making the contract for transmission; and hence if the com pany’s agent was informed that the message was important, and the message itself indicated that it was a business communication, and that delay would result in serious damage, the company is liable for any loss resulting from negligent delay: but if the agent was only informed that the message was important, with a request for early transmission, but the dispatch did not in any way indicate that damage would be suffered by delay, then the liability is limited to nominal damages merely.]</p> <p>[6. A contract exempting a telegraph company from liability for damages resulting from delay, unless the message was ordered repeated, is void, for it is against public policy to allow the company to exempt itself from liability for the results of its own negligence.]</p> <p>[Cited in Primrose v. W. U. Tel. Co., 154 U. S. 7, 14 Sup. Ct. 1104.]</p>

<p>Case No. 4,003.</p>

[This was an action by John P. Dorn against the Germania Insurance Company on a policy of fire insurance. Heard on defendant's motion for a new trial.]

[This was a bill in equity by A. H. Dorr against Robert Gibboney’s executrix and others.] In 1859 Thomas L. Preston made to Robert Gibboney as trustee a deed of assignment to secure his creditors. The deed mar-shalled the debts into four classes and directed that they should be paid in that order of priority.

At law. This was an action brought by the plaintiff [Samuel F. Dorr], an extensive importer of French goods, against the defendant [Jesse Hoyt], the collector of the port of New York, to recover back the sum of $88.00, being the amount of duties charged on an importation of twist These duties had been charged under the decision of the comptroller of the treasury of 1S33, and the entry was made, and the duties levied,.as upon sewing silk, at the rate of $2.28 per pound.

The defendant [Jesse Hoyt], collector of the customs at New York, had exacted from the plaintiffs [S. & F. Dorr & Co.] duties at the rate of 40 per cent upon silk twist, imported by the plaintiffs during the year 1839, insisting on the right to duty as on -sewing silk. The plaintiffs paid the duty, protesting against the right to exact any duty, and brought this suit to recover back the duty.

The defendant [Samuel Swartwout] was collector of the port of New-York from the year 1829 to the year 183S. The plaintiffs (Francis F. Dorr and William C. Allen] and Samuel F. Dorr deceased, composed the firm of S. & F. Dorr & Co., of New-York, from 1S32 to 1838. This suit was commenced on the 30th of July, 1845, to recover an excess of duties paid under protest by that firm to the defendant at various times from the 6th of July, 1833, to the 3d of February, 1837.

<p>In admiralty. On exceptions to libel.</p>

In equity. Final hearing upon pleadings and proofs. Suit brought [against James S. Marsh and others] upon reissued letters patent for “improvement in harvester-rakes,” granted Owen Dorsey, June 9, 1868, No. 2,982, as a reissue of the patent originally granted him March 4, 1856 [No. 14,350].

<p>Case No. 4,015.</p> <p>PATENTS—INFRINGEMENT SUITS— PARTIES PLAINTIFF—Assignment and License — Territorial; Limitations—Inju n ctions.</p> <p>1. In a suit in equity, brought on letters patent for a machine, to restrain the defendant from making the patented machines and selling 1hem to parties who buy them for exportation to and use in foreign countries, it is proper to join, as plaintiffs, the owner of the legal title to the patent with the holder of the exclusive right to make and vend the patented invention for use in foreign countries.</p> <p>2. A patentee has the right to grant the right to make and sell the patented invention within-specified territory, and to make that right exclusive in the grantee, and yet limit the use of the thing so made and sold, within specified limits.</p> <p>[Cited in Heaton Peninsular Button-Fastener Co. v. Dick, 55 Fed. 25.]</p> <p>3. A patentee, while granting to another a right to make or to make and sell, may retain to himself the exclusive right to make and sell for export or use in other countries.</p> <p>4. Whether the grant of a right to make and sell carries with it a right to use, quere.</p> <p>[See Adams v. Burks, Case No. 50. note.]</p> <p>5. Whether, when a mere licensee to make and sell a patented machine within specified limits, sells a ma'hine so made to another, the machine may be used anywhere, quere.</p> <p>G. Where there did not appear to be danger of irreparable injury to the plaintiff, and his right was not clear, a preliminary injunction was refused.</p> <p>[NOTE. For another case involving patent I No. 14,350, see Dorsey Harvester Revolving | Rake Co. v. Marsh, Case No. 4,014.] j</p>

A bill of indictment was sent to the grand jury at this term, by the district attorney, of the United States, against Jose Ferreira dos Santos, a subject of the queen of Portugal, which the grand… Held: that he might be sent thither for trial.

I. Henry C. Butler, one of the registers of said court in bankruptcy, do hereby certify that, in the course of the proceedings in said cause before me. the following question arose pertinent to said proceedings, and was ■ stated and agreed to by the counsel for the opposing parties, to wit: Messrs. Start & Gove, who appeared for the assignee of the bankrupt [A J. Doty], and opposed the allowance of the claim hereinafter described, and Messrs.

This was a bill in equity, filed to restrain the defendant from infringing letters patent [No. 15,570] for “improvement in machines lor pressing bonnets and bonnet frames,” granted to William Osborn August 19, 1856, reissued February 17, 1857; again reissued to Mary J. Osborn, executrix, March 27, 1860 [No. 933], and assigned to complainants.

[This was an attachment for a contempt in violating the injunctions heretofore granted in two cases. See Doubleday v. Sherman [Cases Nos. 4,021 and 4,022]. The question related to the extent of punishment to be awarded.] 2

<p>This was a bill in equity filed [by William-E. Doubleday and John Stewart] to restrain the defendants [Frederick Sherman and Henry Boas] from infringing letters patent for an “improvement in machines for pressing bonnets, bonnet frames,” etc., granted to William Osborn, August 19, 1856, reissued to him February 17, 1857, and again March 27, 1860, assigned to complainants and reissued to them May 29, 1866.</p> <p>This patent was before the court in the case of Doubleday v. Bracheo [Case No. 4.-018]. The claims of the original patent and the reissues of 1S57 and 1800 will be found in the report of that case. The claims -of the reissue of May, 1866, are as follows:</p> <p>“I. Manufacturing, stretching, or shaping, by means of heated • dies, the whole of the bonnet frame (or similar article, to be worn upon the head), at one operation, substantially as specified.</p> <p>“II. Manufacturing by stretching, forming, or shaping, by heated dies, the flaring face-piece and side-crown of a bonnet, or similar article, to' be worn upon the head, jointly, at one operation, substantially as specified.”</p>

This was a bill in equity filed to restrain defendants | Frederick Sherman and Henry Boas] from infringing letters patent [No. 30,-379] “for an improvement in curling hat brims,” granted to Frank S. Sibley and the complainant [William Doubleday], as assignees of Sibley. October 9, 1S60, and subsequently assigned to plaintiff.

Final hearing: on pleadings and proofs. Suit in equity [by Samuel EL Doughty against Theodore D. Day and Gilbert Horton] brought upon letters patent [No. 20,081] for an “improvement in shirt hoops,” granted June 22, 1858, to L. A. Osborn and I. J. Vincent, as assignees of the inventor. Robert J. Mann.

<p>Case No. 4,027.</p> <p>Negotiable Instkuments—Costs of Pkotest.</p> <p>The payees [holders] of a promissory note are entitled to re-recover the posts of protest against an indorser: the note or bill being of that character which makes a protest evidence of a demand of payment.</p>

[This was a bill in equity, filed to restrain the defendants from infringing letters patent for “an improvement in skeleton skirts,” granted to Samuel H. Doughty and James Draper, as assignees of James Draper, October 4, 1859, assigned to Doughty, Draper, James Brown and William King, and reissued to them December 27, 1859, assigned to plaintiff, and reissued to him August 1, 1865.' A trial under the first reissue of this patent will be found to be reported Doughty v. West…

This was a bill in equity, filed [by Samuel H. Doughty against Joseph I. West and Jamos O. West] to restrain the defendants from infringing letters patent [No. 25.701] for ■“improvement in skeleton skirts” granted to James Draper and Samuel H. Doughty, assignees of James Draper. October 4, 1S59, ■and reissued December 27, 1859 [No. 870].

<p>[This was a motion for a retaxation of costs. On a motion for a provisional injunction to restrain the defendants [the West, Bradley & Cary Manufacturing Company] from infringing letters patent for “improvement in skeleton skirts,” granted to Samuel H. Doughty and James Draper, as assignees of James Draper, October 4,1859, assigned to Doughty, Draper, James Brown, and William King, and reissued, to them December 27, 1859, assigned to plaintiff and reissued to him August 1, 1SG5. an order was made directing that unless the defendants pay to the complainant the usual or regular license fee-established by the complainant for the use of such invention, to the extent that this defendant desired to use the same (the complainant tendering, at the time of such payment, a license to use such invention to that extent), a provisional injunction issued as prayed for in the bill of complaint, and by such order it was referred to a master to ascertain and report what, if any, was the regular license fee, so established by the complainant for such use, to the extent that the defendants should state before the master, they desired to use the same. Upon such reference, the parties appeared. Numerous sessions were held, at which proofs were taken, and several drays were appointed for the taking of proofs and for hearing, at which the master attended, but at which nothing was done except to adjourn. On the coming in of the report, exceptions were filed, and an order was made referring the matter back for a further report. On such further reference, numerous sessions were had, and proofs were taken, and there were also times appointed for the purpose, at which the master attended, but the proceedings were adjourned. On the taxation of the costs of these references, the clerk has allowed to the complainant two docket fees, of twenty dollars each—one for each reference—and has taxed, as master’s fees, twenty dollars per day for each day on which proofs were taken or argument heard, and the like twenty dollars for each day on which the proceedings were adjourned. The defendants objected to the taxation of the items above named, on the ground that no docket fee can be taxed for a hearing before a referee on such a reference, and that the fees allowed to the master are excessive.]2</p>

Libel and cross libel for collision between the schooners Douglass and White Cloud, in the passage between Pointe au Pelée and Pointe au Pelée Island, in Lake Erie, on the morning of July 6th, 1861. The Douglass was bound from Oswego to Chicago, and at the time of the collision was sailing upon a W. N. W. course, having the wind free and nearly abeam. The White Cloud was at the same time bound down the lake, upon an E. S. E. course, close-hauled upon the starboard tack.

<p>Case No. 4,032.</p> <p>Seamen’s Wages—FonFEiTimE — Interpretation of Shipping Autici.es — Change of Voyage— Log Book Entries as Evidence.</p> <p>1. The word “or” has sometimes been construed to mean “and,” when such construction has been clearly necessary to give effect to a clause in a will, or to some legislative provision, but never to change a contract at pleasure.</p> <p>[Cited in Smith v. Hammond, Case No. 13,-053.]</p> <p>2. Shipping articles for a voyage “from Philadelphia to Gibraltar, other ports in Europe, or South America, and back to Philadelphia,” au-f.horise a voyage directly from Gibraltar to South America, without proceeding 'to any intermediate European port, but not a return aft-erwards from there to a European port.</p> <p>[Cited in The Brutus, Case No. 2,000.]</p> <p>3. A change of a voyage from that specified in the shipping articles, must be actually resolved on and known to a seaman, to authorise him to leave a vessel without forfeiting his wages.</p> <p>4. An- entry in the log book is prima facie evidence of its truth in every particular, and to be falsified, must be disproved by satisfactory evidence.</p> <p>[Cited in The Lilian M. Yigus, Case No. 8,-346.]</p>

This was a libel [by George H. Douglass against the ship Washington] for wages. The transactions on which the libel was founded occurred at Calcutta. The vessel was in port for about a month, and the libel-ant for two weeks, without any proceedings being had in the matter: but when the ship was on the point of sailing the libelant attached her.

<p>Case No. 4,035.</p> <p>Prize—Recapture—Restitution.</p> <p>The prize court has jurisdiction to decree restitution of a vessel recaptured from the enemy, and to award damages against the recaptors for embezzlement.2</p> <p>[Cited in Williams v. Waterman, Case No. 17,745.]</p>

<p>Case No. 4,034.</p> <p>-Prize— Efficiency of Blockade—Spoliation of Papers.</p> <p>1. The court overruled the defences set up by the claimants, namely, that the blockade of the port of Wilmington, N. C., was not efficient, and that a vessel of war of the United States, not stationed in guard of a blockaded port, had no right to seize a vessel violating such blockade.</p> <p>2. Vessel and cargo condemned for a violation of the blockade. Spoliation of papers.</p> <p>NOTE. An appeal was taken from this decree to the supreme court by the claimants. That court, at the Decern tier term, 18G5. affirmed the decree of the district court. See [The Douro] 3 Wall. [70 U. S. 5G4],</p>

<p>Case No. 4,037.</p> <p>Due» as Mortgage—Pahod Evidence — Equity PltOCEDURE AND PRACTICE—STATE STATUTES.</p> <p>1. A deed absolute upon its face, may be shown by parol evidence, to have been intended as a security.</p> <p>[Cited in Teal v. Walker, 111 U. S. 247, 4 Sup. Ct. 420.]</p> <p>[See Amory v. Lawrence. Case No. 830; An. drewg v.'Hyde, Id. 377.]</p> <p>2. But parol evidence is not admissible to contradict a written instrument.</p> <p>3. Where a deed was given, with warranty, and a defeasance that the grantor should have a re-conveyance, if within twelve months, he should pay the debt, although in the meantime the grantee had a right to sell the whole or a part of the property at a price fixed, in payment of the debt, the deed will be considered as a security.</p> <p>4. A statute of a state which regulates the procedure, on a bill of foreclosure, does not apply to the courts of the United States.</p> <p>5. They do not derive their chancery jurisdiction, or their rules of practice, from state authority.</p>

<p>Case No. 4,037a.</p> <p>Charter Partt—Breach bt Master—Liability of Charterer for Port Charges and Discharging Cargo—Damages for Detention.</p> <p>[1. The master of a vessel chartered to carry coal consigned to a naval vessel at Ounalns-ka, being ready to sail next day. so informed the charterer, who, wishing to cancel the contract with the naval authorities, left to consult with them for that purpose, and instructed the master, if he (the charterer) did not come on board in the morning, to proceed according to his instructions. Having procured permission to deliver the coal to other parties, the charterer returned about daylight, saw the vessel, but made no effort to board her until some hours later, at which time she had sailed. Held, that the master was not guilty of misconduct amounting to a breach of the charter party.]</p> <p>[2. On arrival at Ounalaska, the master, not finding the naval vessel, waited for a month, and news having arrived of her loss by shipwreck, after waiting some time for a berth, he landed the coal. The charter party provided that the cargo should be discharged free of all expense to the vessel, the .charterer to pay port charges. Held that, under the circumstances, the charterer was liable for both the port charges and the costs of discharging the vessel.]</p> <p>[Cited in McLeod v. 1,600 Tons of Nitrate of Soda, 55 Fed. 532.]</p> <p>[3. The charter party likewise provided that the charterer should pay 8100 per day for every day’s detention of the vessel'by his default. Held, that he was liable for the agreed sum •for the period of delay at Ounalaska.]</p> <p>[Cited in McLeod v. 1,000 Tons of Nitrate of Soda, 55 Ned. 532.]</p> <p>[NOTE. On appeal to the circuit court, the decree was affirmed without opinion.]</p>

<p>Case No. 4,038.</p> <p>Evidence — Admissions of Agent — Negligent Towage—Total Loss, Evidence of — Market Value.</p> <p>1. In the trial before a jury, of an action at law to recover damages for the loss of the plaintiff’s canal-boat, through the negligence of the defendant, while being towed by the defendant, the boat, which was loaded with coal, having struck the spiles of a bridge and sunk, the plaintiff, on being examined as a witness, testified, under objection, that he afterwards Had a conversation with a person who was the agent of the defendant in regard to tow-boats, and he said that the boat was sunk, and that it would cost more to raise her than she was worth, and that he regarded her as a total loss: Held, that the evidence was competent.</p> <p>[Criticised in Jennings v. Muller, Case No. 7-, 282.)</p> <p>2. The statement was within the scope of nis agency, there had been time for the agent to make an examination, and it is to be assumed that he had made one; nor was it a subject in relation to which it was necessary to be shown that the person speaking was an expert.</p> <p>3. A party .claiming a total loss of his vessel must prove either an actual total loss, or that it would cost more to raise and repair the vessel than she would be worth when repaired. The burden of proof is upon him.</p> <p>4. The facts, that the boat was struck, and filled and sank to the bottom of a river in which the tide .ebbed and flowed, and that, after the lapse of sufficient time to ascertain the facts, the agent of the party causing the injury declared to the owner that she was a total loss, and that it would cost more to repair her than she would be worth when repaired, were evidence to justify a submission of the question to the jury.</p> <p>5. The fact that the boat was proved to havs been subsequently seen lying in the harbor of New York, slightly repaired and lying in the mud, did not necessarily alter the result. The whole evidence was proper for the jury.</p> <p>6. On the question of the actual market value of the boat at the time of her loss, it was competent evidence for the plaintiff to testify as to what he had paid for her and what he had expended upon her.</p> <p>[7. Cited in Powell v. The Willie. 2 Fed. 99, to the point that the defendants were bound to possess a knowledge of the dangers of the navigation they undertook.]</p>

<p>Case No. 4,039.</p> <p>Lien- of Agent—Assignment of Claim — Claim. Definition of—Plea in Abatement—Lien of Agent as against Thirl Person — Hoiv Enforced.</p> <p>1. An agent employed to collect a claim against the United States for a certain per centum of the amount realized, whether in bonds, drafts or cash, has a lien upon the fund lor his compensation.</p> <p>2. An assignment of such claim to such agent absolute upon its face, but made in fact to enable him to collect the same in his own name, is nevertheless an assignment of so much of the claim as the agent is entitled to retain as compensation.</p> <p>8. The term “claim,” as used in section 3477 of the Revised Statutes, does not include claims for supplies furnished the Oregon expedition to protect the emigrants of 1854; at least after the act of congress providing for their payment.</p> <p>4. A plea in abatement pleaded with matter to the merits is considered waived or abandoned.</p> <p>[Cited in Collinson v. Jackson, 14 Fed. 309.]</p> <p>5. Where an agent has a lien upon a fund for a certain compensation for his services, either by virtue of his agency or an assignment pro tanto, he may sue in equity to enforce his rights therein against a third party receiving the same with notice thereof.</p> <p>0. Where the principal of such agent is an administrator, the latter is not bound to present his demand to him for allowance or rejection before commencing suit against such third party, the latter's liability being wholly dependent upon his own acts, and not those of the administrator.</p>

Action for money had and received to the use of the plaintiff. The plaintiff [B. F. Dow-ell] brought an action against the defendant [William Griswold] to recover certain sums of money alleged to have been received by the defendant from the treasury of the United States at Washington, to the plaintiff's use. Upon the trial of the action, on May 25, 1S77, the plaintiff had a verdict for four thousand dollars.

<p>[This was an action by B. F. Dowell against William C. Griswold.]</p>

<p>Case No. 4,041a.</p> <p>Appeal Bond—Liability of Sureties—Discharge.</p> <p>1. Where an appeal bond is conditioned to-prosecute the appeal with effect, or on failure to do so to pay the debt, damages, and costs adjudged, the failure of the appellant to prosecute the appeal with effect, renders the parties liable on the bond; and, as bail in error, they become fixed, without ca. sa., or any step-against the principal.</p> <p>2. Bail in error are not discharged, nor is the judgment satisfied by taking the body of the principal on a ca. sa., and a plea to that effect is bad.</p> <p>3. When bail become fixed, they cannot be discharged from liability, either by the surrender, bankruptcy, or arrest of the principal on.a ca. - sa. .</p> <p>4. The difference between bail to the action and bail in error.is, that in the former the sureties are not fixed until ca. sa. is sued out and returned; but in the latter, no ca. sa. is necessary at all for that purpose, and they become fixed from the judgment of affirmance by the superi- or court.</p> <p>5. Debt is the proper action on an appeal bond or recognizance, but by the common law rule, the plaintiff must sue all, if living, or one, and not an intermediate number, otherwise the defendants may plead it in abatement.</p> <p>6. Although upon an appeal or writ of error, the statute requires a recognizance; yet entering into bond with security, is a substantial compliance with the statute, and the parties are-liable on a bond so given.</p>

<p>Case No. 4,042.</p> <p>Majutimi; Lions—Paht Owneks.</p> <p>A person who makes a parol contract for the purchase of a share in a vessel, and receives, jointly with the other owners, possession of the vessel, cannot acquire a lien upon her for maritime services.</p>

This was a petition for an injunction, stating that the petitioners [Downer and others], being creditors of William F. Spear, a trader, -on the first day of September, 1842, filed their petition in bankruptcy in due form against the said Spear, alleging an act of bankruptcy to have been committed by him on the eighteenth day of August last past, and praying that he might be declared a bankrupt.

The facts in the case, which were agreed to by the respective counsel, show that the bankrupt, William Downing, and one Richard W. Emerson, were co-partners under the firm name of Downing & Emerson, and as such were dealers in boots and shoes in the city of St Louis, previous to December, 1868; that in the month of December, 1868, they dissolved by consent, Downing purchasing the stock of goods and all other assets of the firm, and agreeing to pay off and discharge all of…

This was a contest in the district court between Downing’s assignee in bankruptcy and the Traders’ Bank of St Louis, and tbe causé-is brought here by the bank to obtain a review of tbe decision of tbe district court ordering tbe bank to credit tbe sum of $4,000' on its claim against the estate. Downing was adjudicated, a bankrupt on tbe 9th day of December, 1S09, upon a petition filed against him on tbe first day of that month.

Alternative writ of mandamus was served on the clerk of the board of supervisors of Bock Island county, and service admitted by such clerk, “by order of the board.” Application was made that a peremptory writ issue.

[This was a foreclosure suit, brought by David Dows, Frederick S. Winston, and Calvin F. Burnes, trustees, against the Chicago & Southwestern Railway Company and the Chicago, Rock Island & Pacific Railroad Company.

Petition in bankruptcy for review and reversal of a decree of the district court, denying an application of the petitioner [Louis J. Doyle] for a discharge in bankruptcy. [See Case No. 4,051.] The facts are stated in tne opinion.

<p>Case No. 4,051.</p> <p>Bankruptct—Discharge — Fraudulent Preferences.</p> <p>1. "Where a discharge is refused bankrupt on the ground of his having given a preference, held, the bankrupt is a trustee for his creditors. Property must be administered in accordance with the provisions of the national bankrupt law [14 Stat. 517].</p> <p>2. Q.—Can one of the leading purposes of the bankrupt act be thwarted by and through the means of a continuing indemnity mortgage, unlimited in amount?</p> <p>[NOTE. On the petition of the bankrupt a review of this decision was had in the circuit court, and the decree was there affirmed. See Case No. 4,050.]</p>

<p>Case No. 4,052.</p> <p>Bankkuptct—Dischakge— Peima Facie Feaud.</p> <p>Where eleven objections to a discharge were filed and pressed by opposing creditors, and I under each an issue of fact was raised ,and i evidence and argument submitted, held, the opposing creditors having established a prima facie case of fraud, the petitioner is not entitled to his discharge.</p>

On motion to remand. Plaintiff, a citizen of Illinois, began suit against the defendant in the superior court of Detroit. This was removed to this court and tried on the 24th day of June. On the trial plaintiff submitted to a nonsuit, and two days thereafter began this suit for the same cause of action in the superior court of Detroit, which was also removed upon the petition of the defendant setting forth that plaintiff was a citizen of Illinois.

The schooner Romp, loaded with iron, and bound on a voyage from Boston to Jonesport in Maine, was run into and sunk a few miles outside of Thacher’s Island, Cape Ann, on the evening of March 16, 1866, by the schooner D. P.; and this libel was promoted by her owners for the damage. The night was very foggy, the wind about S. S. W.; the Romp was sailing on the starboard tack, with the wind free, heading about N. E. by E., and had no lights set.

Libel in admiralty by the Tremont Insurance Company, a corporation created under the authority of a charter from the commonwealth of Massachusetts, against the brig Draco, upon an-asserted bottomry bond. The •claimants, Messrs. Stanton, Nichols and Whitney, assert in themselves title as ven--dees, and also other matters of defence.

<p>[In the matter of Priscilla C. Drake, a bankrupt.]</p>

[This was an appeal by Oliver P. Drake from a decision of the commissioner of pat•ents, in an interference proceeding, award--ing priority of invention to Charles Cunningham, assignor to John C. Pedrick.]

<p>Case No. 4,061.</p> <p>Plf. uiing—Variance—Surplusage—Declaration on Note.</p> <p>1. A note dated at Cincinnati, and described in the declaration as dated at Cincinnati, in the state of Ohio, is admissible in evidence; especially where the fact is proved, or admitted, that Cincinnati is in the state of Chio.</p> <p>2. The contract being transitory, and the place where it was made having no effect upon its ■construction, the words, “in the state of Ohio,” may be rejected as surplusage, and need not be proved.</p> <p>3. It is sufficient to describe the note in terms, or according to its legal effect.</p>

<p>In equity. This was a petition by two persons, Morgan and Gooch, to be made parties to the suit, which was a bill filed by aliens against citizens of the state of New York. The application was opposed by the plaintiffs [James Drake and others].</p>

<p>Case No. 4,064.</p> <p>Mauitime Liens—Waived—Taking Note.</p>

<p>In equity. A receiver, in this case, sold at auction, under an order of the court, certain real estate in the city of New York, which was purchased at the sum of $191,000, by parties who paid down ten per cent, of the purchase-money, ($19.100,) besides $60 for auctioneer’s fees. The purchasers refused to perfect the purchase on account of an alleged defect of title, but were ordered by the court to perfect it. From this order an appeal to the supreme court was about to be taken, when the attorneys for the receiver gave notice of the withdrawal of the order compelling the purchasers to fulfil the purchase, and consented that such order should be held void and of no effect. On these facts, the purchasers now presented a petition, praying for a return of the purchase-money so paid, with interest, together with the legal expenses, including reasonable counsel fees, incurred and paid in the course of their proceedings in making the purchase.</p>

<p>This was an action [by James Drake] against [Hernán J. Redfield] the collector of the port of New York, to recover back an excess of duties. At the trial, the plaintiffs submitted to a nonsuit, after the case had gone to the jury, and now moved to have the suit reinstated on the calendar. The goods upon which the duties in question were imposed, were imported into the port of New York about the middle of September, 1S55. An appraisement was made of them by merchant appraisers, in the latter part of that month. It was claimed that that appraisement was illegal. That appraisement increased the value of the importation over the invoice value more than 10 per cent. The payment of the duties, according to the invoice value, was made to the collector on the 20th of September, without objection and without a protest. Upon such payment, a permit was given by the collector, and, in the latter part of September, the goods went out of the possession and control of the collector into the possession of the plaintiffs, who disposed of the same. On the 10th of November, the plaintiffs paid to the collector the excess of duty demanded, and accompanied such payment with a protest.</p>

This was a bill to establish a set-off, filed by John B. Drake against William E. Itollo, assignee of the Merchants’ Insurance Company. On the 1st of June, 18G9, the complainant borrowed of the insurance company the sum of 875.000, one-third of which was payable June 1st, 1872, and the remainder June 1st, 1874, to secure which he gave his notes and mortgage on certain real estate in Chicago.

In equity. This was a motion for a provisional injunction. The plaintiffs [James Drake and others] were merchants and bankers, residing in London, and composing the firm of Drake, Kleinwort & Cohen.

<p>Case No. 4,068.</p> <p>Partnership—Power of Partner to Bind Firm after Dissolution—Ratification.</p> <p>1. After the dissolution of the partnership, one partner has no power to bind the late firm by giving a note for a partnership debt. But where one partner is authorised by the advertisement, giving notice of the dissolution, that he is authorised to settle all accounts, for and against the firm, it is bound by his settlements, though he may not be authorised to give a new instrument for the payment of the amount. In England the rule is different.</p> <p>2. Where notes are given by one partner, under the above circumstances, and subsequently the other partner promises to pay the notes, it is a ratification of the power.</p>

Bill in equity for an injunction to restrain alleged infringement of letters-patent [No. 64,410] for a device for forming letters and figures on type-blocks, originally granted to the complainant [Daniel Draper] May 7, 1807, reissued May IS, 1809 [No. 3,442]; and for an account. The defendant [Thomas S. Hudson] [ died pending the suit, and his executor was : made party defendant. No discovery was ! prayed against the executor, and there was j no proof of infringement by him.

[Bill in equity by George Draper against the Potomska Mills Corporation for the infringement of reissued letters patent No. 6,016, granted to G. Draper, August 18, 1874, upon original patent No. 127,159, granted May 2S, 1872.]

<p>Case No. 4,070.</p> <p>Patents—Novelty—Skirts.</p> <p>[The Doughty & Draper patent for a “woven skeleton skirt” shows patentable novelty, and is valid.]</p>

<p>Case No. 4,071.</p> <p>Admikaltt — Concurrent Actions in Rem and in Personam.</p> <p>[1. Concurrent actions in rem and in per-sonam may be prosecuted in the same suit, under the supreme court rules.]</p> <p>[2. There is no practical prejudice in incurring a duplicate responsibility, as the modification of the rules relieves the respondents from the double liability of stipulation or bail in the same cause.]</p> <p>[3. The stipulation or bond in such a suit only covers the value of the property attached and surrendered.]</p>

<p>Case No. 4,073.</p> <p>Patents—Pkior Use anh Sale—Reissues.</p> <p>1. Where a reissue contains nothing that might not have been claimed in the original patent, it is not for a different invention.</p> <p>2. The mere deposit of a model in the patent office will not warrant an inference that the model was accompanied by an application for a patent.</p> <p>[Cited in Henry v. Francestown Soap-Stone Co., 2 Fed. 81.]</p> <p>3. Section 7 of the patent act of March 3, 1839 [5 Stat. 353], as amendatory of that of July 4, 1836 [5 Stat. 117], construed to imply that the purchase, sale, or prior use, etc., of an invention, in order to defeat a patent, shall have been with the knowledge and consent of the inventor.</p> <p>[Cited in Campbell v. Mayor, etc., of New York, 9 Fed. 504; The Driven-Well Cases, 16 Fed. 411.]</p> <p>4. The prior sale, purchase, or use of the thing patented, necessary to defeat the patent, discussed.</p> <p>[Cited in Anderson v. Hovey, 124 U. S. 712, 8 Sup. Ct. Rep. 0S2.]</p> <p>5. Whether it is enough to prove that the inventor has sold an earlier and less perfect article, where the thing sold, although within the claim of the patent, is not the whole of the patented invention, quaere.</p> <p>[Cited in Henry v. Francestown Soap-Stone Co., 2 Fed. 79. Applied in Campbell v. Mayor, etc., of New York, 47 Fed. 521.]</p>

At law. Writ of error from the criminal court. Indictment for stealing, taking and carrying away two negro slaves of the good; and chattels, property and slaves of one Andrew Hoover, under act of assembly of Marv-lánd, 1737, c. 2, § 4. Criminal Court, July 27th, 1848.

[This was an action by Peter Dreskill against Francis P. Parish to recover damages for hindering and obstructing in the arrest of slaves. See Driskeíl v. Parish, Cases Nos. 4,087—4,089.] Mr. Parish, in proper person, moved the court in this case to retax the costs, on two grounds: 1. Because there was no service of a subpoena on Charles L. Mitchell and Andrew J. Dreskill, who appeared several terms, and were examined as witnesses. 2.

<p>Case No. 4,077.</p> <p>Bankruptcy— Bankrupt’s Failure to Pat over Money—Contempt.</p> <p>The bankrupt court will adjudge a bankrupt guilty of contempt of court who fails to pay over "to his assignee money returned “cash on hand,” in his schedule of assets, or to the marshal as messenger in involuntary cases. Bankrupt committed and ordered to be detained until he should pay the amount stated on his iu-ventory, together with costs.</p> <p>[Cited in Re Salkey, Case No. 12,253; Re How, Id. 6,747.]</p>

<p>Case No. 4,076.</p> <p>Witness—Subpoena—Taxation' op Pees — Deposit ions.</p> <p>1. A subpoena runs like all other process, throughout the district, and also a hundred miles ' from the place of holding court. '</p> <p>[Cited in Young v. Merchants’ Ins. Co., 29 Fed. 275.] :</p> <p>2. A deposition may be taken of a witness who lives more than one hundred miles from ! the place where the court is held. !</p> <p>[Cited in Young v. Merchants’ Ins. Co., 29 i Fed. 275.]</p> <p>8. A witness who attends voluntarily, is entitled to his fees, from the party at whose instance he attends.</p> <p>[Cited in Anderson v. Moe, Case No. 359; Spaulding v. Tucker, Id. 13,221; Dennis v. Eddy, Id. 3,793; Re Williams, 37 Fed. 320; Hunter v. Russell, 59 Fed. 966.]</p> <p>4. But the losing party cannot be taxed with the fee of a witness unless he be regularly summoned, by the marshal or his deputy.</p> <p>[Cited in Woodruff v. Barney, Case No. 17,-986: Anderson v. Moe. Id. 359; Cummings v. Akron Cement & Plaster Co., Id. 3.473; Spaulding v. Tucker, Id. 13,221; U. S. v. Sanborn. 2S Fed. 303; Haines v. McLaughlin, 29 Fed. 70; The "Vernon, 36 Fed. 116; Burrov v. Kansas City, Ft. S. & M. R. Co., 54 Fed. 282.]</p>

<p>Case No. 4,078.</p> <p>Maritime Liens—Materials Furnished—Patment by Note—Receipt.</p> <p>[1. Lumber sold to a shipbuilder, who has several vessels on the stocks, but not for use in any particular one of them, gives rise to no lien, against one in wliic-h part of it is used. Rogers v. Currier, 13 Gray, 129, followed.]</p> <p>[2. Where a bill is receipted “Received payment by note.” the giving of the note must be treated as a payment thereof, in the absence of any evidence to qualify the receipt.]</p>

This action is brought by tile plaintiff [George G. Drew] to recover of the defendant [Milwaukee & Saint Paul Railroad Company] damages for running over and thereby causing, as it is alleged, the immediate death of Iza Drew, the infant daughter of the plaintiff. The negligence of the defendant is properly and fully alleged.

<p>Case No. 4,080.</p> <p>Seamen Paid out of Proceeds of Wrecked Vessel—Payment of Extra Wages to Consul.</p> <p>1. The rule of the maritime law, as declared by Mr. Justice Ware, that tlie seaman is entitled. in cases of wreck, or semi-naufragium, to be paid out of the savings of a wreck, or the proceeds of a condemned vessel, not only his wages, but an additional amount equal to the expenses of his return home, are superseded by the special laws on the subject enacted by congress.</p> <p>[Cited in Kelly v. Otis, 23 Fed. 905.]</p> <p>2. When a vessel had been condemned and sold, as not worth repairing; and the master, at the instance of the consul, paid to the latter the three months’ extra wages required by law to be paid to him, when a vessel is voluntarily sold; which wages the men failed to receive, or apply for; held, that the payment of the extra wages to the consul, discharged the owner’s liability therefor; but that the master had no right to deduct from the amounts due the men, a charge for exchange.</p>

In bankruptcy. By deed of 22d August, 1806, William C. Claiborne conveyed to Samuel D. Drewry his one-seventh interest in his deceased father’s property and family residence on Dan river, opposite the town of Danville, Virginia, called “Mount Blanc,” containing about 260 acres. Liens existed on this interest at the time against Claiborne which are immaterial to the question now in controversy.

This bill in equity was filed by Frederick E. Driggs, as assignee in bankruptcy of the estate of Tonkin & Trewartha, against the persons composing the firm of Moore, Foote & Co., to recover assets of his assignors, which defendants had sold in virtue of a claim to them under a mortgage executed by the assignors.

<p>Case No. 4,084.</p> <p>Separate Property op Married Women — Employment of Husband—Husband’s Creditors.</p> <p>1. Mrs. Russell, a married woman, carried on, managed, and controlled an iron foundry and other business interests in her own name, with funds loaned her by friends to whom she gave her own notes, with whom she advised as well as with her husband as to proposed investments. The husband, who was insolvent, was hired by the wife, and received a monthly compensation. Held, that the property used in the business and that purchased by her and standing in her name, was her individual property, and not liable to be taken to satisfy the claims of her husband’s creditors.</p> <p>2. Bdd, that a married woman may carry on business on her own account and for her own interest; that she may employ all needed labor, workmen, and agents, and that she may employ her own husband and pay him.</p>

This was a libel [by Joseph Drinkwater and others against the freight and cargo of the brig Spartan, Jacob Quincy, Charles Fox, Joseph E. Foxcroft, and Robert H. Thayer being claimants] on a charter-party, by the terms of which the owners let to freight the whole of the vessel with her appurtenances, for a voyage to be made by the charterers to one or more ports in the Western Canary and Madeira Islands, and bach to her port of -discharge in the United States, and to…

<p>[In the matter of Perrin C. Drisco, a bankrupt Petition by Gustavis Bret and others to review the rulings of the district court]</p>

This was an action of debt brought [by Driskell against Parish] to recover the penalty prescribed by the act of congress of February 12, 1793, respecting “fugitives from justice, and persons escaping from the service of their masters.” By the 4th section of this statute, it is provided, that if any person shall knowingly and willingly • obstruct or kinder the claimant of a fugitive slave, his agent or attorney, in seizing or arresting a fugitive from labor, or shall harbor…

LEAVITT, District Judge. This was an action in the case, brought [by Peter Driskell against Francis D. Parish] under the last clause of the act of congress of 1793.

<p>Case No. 4,089.</p> <p>Slavery — Action for Hindering Arrest of Fugitive— Authority of Agent to Arrest — Penalty—What Constitutes the Offence.</p> <p>1. Where a written power of attorney is given to an agent, authorising him to arrest a fugitive from labor, and he acts under such power in attempting to make the arrest, the power must be produced, or its contents proved, in an action against an individual for hindering the arrest.</p> <p>[Cited in Giltner v. Gorham, Case No. 5,-453.]</p> <p>2. No one incurs the penalty under the act of congress [1 Stat. 302] for hindering or obstructing the arrest, who does not act “knowingly.” He must have notice that the colored persons are fugitives from labor, and that the agent has authority to arrest them.</p> <p>[Cited in Giltner v. Gorham. Case No. 5,-453; U. S. v. Weld, Id. 16,660.]</p> <p>3. The principle is the same, whether the arrest be made with the view of removing the fugitives out of the state, or taking them before a judicial officer.</p> <p>4. The power of attorney is in the nature of process, and should be shown, if demanded.</p> <p>5. No one incurs the penalty who hinders an arrest by persons who have no authority to make it.</p> <p>6. To obstruct the arrest is an offence, and the guilt of the party charged should be clearly established.</p> <p>7. There can be but one penalty for the same act. in hindering an arrest, of one or many fugitives from labor. And so of harboring one or many at the same time.</p> <p>[U. S. v. Grant, 55 Fed. 415.]</p> <p>8. The penalty is not given as a compensation to the master, but as a punishment for the offence.</p> <p>0. To harbor or conceal under the statute, there must be a manifest design to elude the claim of the master.</p> <p>10. An open and fair action, with an intention to procure a fair legal hearing for the fugitive. is no violation of the act.</p> <p>[This was an action by Peter Driskell against Francis D. Parish for hindering and obstructing the arrest of a fugitive slave.]</p> <p>[NOTE. There were tWo subsequent trials of this case, one at November term, 1847, and one at November term, 1849, the latter resulting in a verdict for plaintiff in the sum of $500. See Cases Nos. 4.0S7 and 4,08S. Afterwards the case was heard on motion by defendant to retas the costs. See Id. 4,070 and 4,076.]</p>

This was a voluntary petition for the benefit of the bankrupt act. A creditor having an attachment on mesne process upon the chattels of the bankrupt petitions that the proceedings may be stayed and annulled, on the ground that the bankrupt has before applied for the benefit of the act, in March, 1872, and that in February, 1875, his discharge was refused, by reason of certain frauds specified and proved against him.

A ferry-boat [the Moonachie] of the Ho-boken Ferry Co., running between New York and Hoboken, N. J., was coming out of her slip on the New York side, a little behind time, but very slowly, and her sister-boat was lying in the stream waiting to go in.

<p>(This was a bill in equity by William Drope against John MillerJ Order to try disputed facts.</p>

On the 19th of July last, several mei-cantile firms in Cincinnati filed in this court a petition against John T. Drummond, charging that, on the 20th of March last, he committed several acts of bankruptcy, and praying that he be declared a bankrupt They claim that they are creditors to the aggregate amount of $2,784.36. The acts of bankruptcy specified are as follows: 1.

<p>Case No. 4,094.</p> <p>PltEFEIlENCE—SoitKE.N’DEK.</p> <p>1. No creditor of a bankrupt, who obtains a fraudulent preference from him, can take any benefit thereby.</p> <p>2. Every creditor receiving a fraudulent preference, who, after adjudication of bankruptcy, and before he is sued on account of such preference, voluntarily surrenders to the assignee all property, money, and advantage received by him under such preference, may prove his debt and have his dividend in like manner as if no preference had been given. But he forfeits all right to prove his claim or have a dividend, if he fails voluntarily to deliver up what he has obtained under such preference, or only delivers it up at the end of a law-suit.</p> <p>NOTE. The surrender of a fraudulent prel-erence must be made before judgment, but it lies in the discretion of the court to allow the creditor to surrender after suit brought and before judgment. In re E. II. Stephens [Case No. 13.365]. See In re Kipp [Id. 7.S36]. A voluntary surrender, absolves the creditor from fraud and allows him to prove his debt, but not otherwise. In re Davidson [Id. 3.599]; In re Hunt rid. G.S82]. A fraudulent conveyance cannot be surrendered so as to allow the creditor to prove his claim. Bingham v. Richmond [Id. 1.415]; Same v. Frost [Id. 1.413]; and Same v. "Williams [Id. 1.413]. Paying a judgment recovered aaainst the creditor is no surrender. In re Tonkin [Id. 14,094],</p>

[This was a bill by Jonas Drury and La-viiiia Drury, bis wife, against Jobu Ewing and Sarah C. Ewing, his wife, and others, for infringement of copyright]

In this cause, which was a bill filed by the mortgagee. Drury, in 18G3, to foreclose a mortgage made by the defendants, Foster and wife, the defence was, in substance, that the mortgage, when executed and acknowledged, contained several material blanks, which were afterwards filled up without the knowledge of the wife, who never assented to or ratified the instrument as thus perfected.

<p>Case No. 4,097.</p> <p>Sr am ex’s Wages—Fohpeituki:.</p> <p>Wages not always forfeited by disobedience-of a captain’s orders, unattended by aggravating circumstances.</p> <p>[Cited in The Mentor. Case No. 9.427; The Maria. Id. 9.074: Smith v. Treat. Id. 13,117: The Cornelia Amsden, Id. 3,234; The Antioch, 11 Fed. 166.]</p>

<p>Case No. 4,098.</p> <p>Pkizb — Violation of Blockade—Contest by Citizen of Insurrectionary State—Claim by Agent.</p> <p>1. The decision of the supreme court in The Prize Cases (2 Black [67 U. S.] 635) as to the questions of war and blockade, applied to this case.</p> <p>2. A citizen of a state in insurrection has, legally, no locus standi in a court of the United States, to contest a prize seizure.</p> <p>3. Effect of a claim and answer in a prize suit, put in and verified by an agent, and not by the owner.</p> <p>4. Vessel and cargo condemned for a violation of the blockade.</p>

This was a libel by Alfred Holt and others, owners of the steamship Talisman, to recover for a collision which took place about nine o’clock on the morning of the 15th of January, 1863, in the Hudson river, between the city of New York and Jersey City, between the steam ferryboat D. S. Gregory and the steamship Talisman. The Talisman was at anchor.

On the morning of Sunday, the 16th of September, I860, the steam ferryboat D. S. Gregory, a vessel belonging to the New Jersey Railroad and Transportation Company, and plying regularly across the Hudson river, as a ferryboat, from a slip at the foot of Montgomery street, in Jersey City, in the state of New Jersey, to a slip at the foot of Desbrosses street, in the city of New York, left her slip on the New Jersey side, about twenty minutes past 10 o’clock a. m., with the…

<p>Case No. 4,101.</p> <p>Collision on Hudson Rivek — Fkkhy-Boa.ts— CltOSSING CoUKSES—FOO.</p> <p>1. Two ferry-boats, the P. and the G., were bound from their respective slips on the New York side of the Hudson river to their slips on the New Jersey side. Their courses crossed each other, the P. having the G. on her starboard side. It was night. There was a dense fog, and the tide was ebb. Each vessel was blowing her steam whistle, and each pilot heard the whistle of the other boat, and understood from it that another steamboat was crossing his course. The pilot of the P-, when he heard the whistle, stopped his boat and continued to blow his whistle, and, as the other whistle 'indicated the nearer approach of the other boat, he backed his boat before he saw the lights of the other boat, and the wheels of his boat were revolving backward when the collision occurred. The pilot of the G. did not slow or stop his boat when he heard the whistle of the P., but kept on at the same speed as before, the tide bearing his boat down on the P., and did not stop or back his engine till he saw the lights of the P. The G. struck the P. on the ' starboard side: Held, that the 19th (now 23d) rule has no application to a case of such a dense fog; and, though it would have been the duty of the G. to 'have kept on, without alteration of her course, if the P. could have seen and known her exact position, the pilot of the G. was, under these circumstances, in fault for not sooner stopping and backing his engine.</p> <p>2. The P. could not be held in fault for not having avoided the G., when she, by stomoing her headway, was obeying the 16th (now 21st) rule, which required her to go at a moderate speed in a fog.</p> <p>3. The navigation of the P. was without fault, and the G. must be held responsible for the collision.</p> <p>[NOTE. On appeal by the claimants, the decree was affirmed bv the circuit court. See Case No. 4,103.]</p>

This was a libel, in rem, filed in the district court, against the steam ferry-boat D. S. Gregory, by the owners of the steamship Talisman, to recover for the damages sustained by the latter, in a collision which occurred between the two vessels, in the port of New York, on the morning of the 15th of January, 1863, about half-past nine o’clock. The district court decreed for the libellants [Case No. 4,099], and the claimants appealed to this court

<p>[Appeal from the district court of the United States for the southern district of New York.]</p> <p>This was a libel in rera, filed in the district court, in admiralty. That court decreed for the libellant [Case No. 4,101], and the claimant appealed to this court</p> <p>The following facts were found by this court: “About seven o’clock in the morning of January 3d, 1873, a collision occurred, near the middle of the Hudson river, opposite New York, between the steam ferry-boat Pavonia, owned by the libellant, and the steam ferry-boat D. S. Gregory. The river is about one mile wide at this point. An unusually dense fog prevailed at the time. There was no wind. The tide was the first of the ebb. - Both vessels were side-wheel steamers, • employed on ferries across the Hudson river between New York and New Jersey, and well known to each other. The Pavonia connected with the Erie Railroad, and the D. S. Gregory with the Pennsylvania Railroad. The Pavonia was on one of her regular trips from the foot of Chambers street, New York, to her slip in Pavonia, on the New Jersey side, and the D. S. Gregory was on one of her regular trips between Desbrosses street, New York, and Montgomery street, Jersey City. As Desbrosses street was higher up the river than Chambers street, and Pavonia higher up than Montgomery street, Jersey City, the courses of the two boats crossed each other. The regular course of the Pavonia, after leaving her slip, was about north-west, and that of the D. S. Gregory south-west, or, southwest by west. This brought the point of crossing near the middle of the river. The full speed of the Pavonia was about twelve miles an hour, and that of the D. S. Gregory scant eleven. Both boats were in charge of experienced and competent pilots, and had their lights properly set and burning. The D. S. Gregory had two lookouts performing their duty, and both standing on the upper deck, one on each side of the pilot house. The Pavonia had one lookout on the upper deck, performing his duty and standing near the pilot house. Another lookout was on the deck below. The Pavonia started out of her slip at full speed, but, as soon as she got outside, slowed down to half speed and headed on her regular compass course. She sounded her fog whistle at proper intervals. Soon after she got out, she heard a whistle off her starboard hand, which she recognized as that of the D. S. Gregory, or one of the other Desbrosses street boats. After this she kept on for a little time at half speed, but, as the sound from the whistle of the D. S. Gregory came nearer, concluded to stop and let that boat go by ahead. Accordingly, her bell was rung to stop, and the order was promptly obeyed. She still continued to blow her fog whistles, but, after her engine had been stopped a little time, hearing the noise of the wheels of the D. S. Gregory from a direction which indicated danger of collision, she sounded the alarm whistle and rang her bell to back. Almost immediately afterwards the D. S. Gregory appeared through the fog and ran into her on the starboard side, just forward of the starboard wheel. The bell was rung to back and the alarm whistle sounded before the D. S. Gregory, or her lights, came in sight. The forward part of the Gregory passed under the guards of the Pavonia and knocked a large hole in her side. The wheels of the Pavonia made four turns back before the boats came together, but she had not acquired much, if any, backward motion. The D. S. Gregory, when she left her slip, slowed down to half speed and took her regular course by compass for her New Jersey landing. She sounded her own fog whistles, and heard those from the Pavonia, and recognized them as coming from a boat passing from New York to Pavonia, on that ferry. She kept her course at half speed, however, until she saw the Pavonia looming up before her out of the fog, when she rang her bells to stop and back, but, before her headway was materially affected, the collision took place. Both the Pavonia and the D. S. Gregory were respectively in places, on their courses, where they* might properly have been looked for if there had been no fog. The damage done to the Pavonia by the collision amounted "to $3,812.54, at the date of the decree below.”</p>

<p>[This was a libel by Charles P. Duane against Charles Goodall.]</p>

<p>Case No. 4,104.</p> <p>Collision is the Kills—Steamer and Schooner — Changes or Direction in a Channel — Burden of Proof.</p> <p>1. A steam-tug and a schooner came in collision in the day time, in a narrow channel. The, steamer set up that the collision was caused by the schooner’s changing her course: 71 rid. that the tug was prima facie liable, and that the burden of making out a defence was on her. .</p> <p>2. On the evidence, the schooner made no changes of course except such as were proper and necessary, with the wind as it was, in the channel, and those in charge of the tug were bound to suppose she would make such changes, and be prepared for them.</p> <p>• 0. The tug was liable for the collision.</p>

Motion, by the defendant, for a rule on the plaintiff, to give security for costs, on the ground that the plaintiff is a non-resident. The facts admitted were that the plaintiff has a large bookstore in this city, and occasionally resides here during the winter, has a «family, and now resides at Philadelphia. His family never has resided here. He has a storekeeper here. The marshal has applied at the store and received pay for fees regularly. See Act Md. 1796, c. 43, § 12.

<p>Case No. 4,107.</p> <p>Ohampertt — Deeds — Limitation of Actions— Constitutional Law—Executor’s Sales.</p> <p>1. A deed executed for land, which is held adversely to the grantor, by an individual in possession, is void under the champerty act.</p> <p>2. The statute of limitation can only run against the legal title.</p> <p>3. A law authorizing executors to sell so-much land of the estate, as shall be necessary to pay the debts of the estate, is held by the supreme court of Illinois, to be unconstitutional. In the case before the court, the law passed March, 1819—the sale was made in 1828. In analogy to the statute of limitations, the powder expired. The sale of 1828, was, therefore, void. The debt on which the land was sold, was contracted b.v the executor, after the law ■of 1S19 was passed.</p> <p>[C-ited in Atkins v. Fibre Disintegrating Co., IS Wall. (So ü. S.) 301.]</p>

Ejectment for two hundred and eighty acres of land in Susquehanna county. The title of the lessor commenced with a warrant, dated the 13th of June, 1792, granted to Abraham Dubois, for three hundred and fifty acres, lying on the Susquehanna river; bounded by lands of H. Drinker on the north east, by vacant hills on the south east, and on the north west by land of Minna Dubois. On the 14th of the same month and year, the purchase money was paid.

Action at law. Siiit' brought upon letters patent [No. 36,512] for an “improvement in the mode of building piers for bridges,” granted to plaintiff [John Dubois], September 23, 1802, in *the construction of defendants’ railway bridge across the Susquehanna river at Havre de Grace.

<p>Case No. 4,109a.</p> <p>Collision in East Riveh—Sailing Vessels— Lookout.</p> <p>[A sloop, proceeding to a dock in the East river with a ,iib only, according to the usual course of navigation at that place, -with crew and lookout properly stationed, was run into by a schooner sailing free fully manned, and with plenty of sea room. It did not appear that the gebooner had a proper lookout, or that the sloop was guilty of anything leading or contributing to the injury. Held, that the schooner was in fault, and liable for the damage sustained by the sloop.]</p>

<p>This was a libel in rem for wages of libelant as pilot and sailing-master of the propeller Dubuque, from April 5 to December 5, 1SG5, at one hundred and twenty-five dollars per month. The libelant claimed a balance due and unpaid of seven hundred and forty-nine dollars and fifty-three cents. The libel was filed and the vessel seized, February 13,1869. The answer of the Second National Bank, claimant, intervening for its interests in the proceeds of the vessel, as mortgagee, denied knowledge, &c., of the alleged services of libelant, and denied that there was any thing due him, or that any thing which might be due was a lien upon the propeller or her proceeds. The answer further alleged on information and belief; That libelant was in fact master of the propeller, and therefore could have no lien for his wages. That soon after libelant left the vessel, and on December S, I860, he had a settlement with the owner, and received the owner’s note in full for the balance due him for wages, and for another small claim he held against the owner, and in full for his claim against the vessel, if any existed. That on October 4, 1S6G, John Hutchings, sole owner of said vessel. mortgaged the same to claimant for eleven thousand four hundred and sixty-two dollars and fifty-two cents; that the mortgage was' duly recorded on October 10, 1866, and there was due and unpaid upon the mortgage at the time of filing the answer the sum of nine thousand two hundred and fifty dollars; that this mortgage was given for a valuable consideration, and without notice of libelant's claim; and that the libelant’s claim is stale, and ought not to be enforced as against the mortgage.</p>

<p>Case No. 4,112.</p> <p>Customs Duties—Classification — Commercial Designation—Yak Lace.</p> <p>[The question whether, under section 2 of the act of March 2, 1807 (14 Stat. 561), the goods known as “yak lace,” which are composed entirely of worsted, are dutiable as “dress trimmings” or as “manufactures of worsted,” depends upon whether they are known in commerce as “dress trimmings” or as “laces,” which is a question of fact for the jury upon the testimony of merchants dealing in such goods.]</p>

<p>Case No. 4,113.</p> <p>Customs Duties—Classification'—Commekcial Designation—Laces.</p> <p>[Whether certain black laces, hand made, and all of silk, are dutiable at (30 per cent., as “silk laces,” under section 8 of the act of'ISOl, or at 30 per cent., as “thread laces,” under section 20 of the act of 1SG1 and section 0 of the act of 1802, depends upon the question whether they were known in commerce by the one or the other designation, which is a question for. the jury on the evidence.]</p>

In a former case, Judge Randall decided that the property of a petitioner in bankruptcy, was divested out of him, only from the time of the decree of bankruptcy;1 and accordingly, allowed an execution creditor who had made a levy after the petition had been filed, but before a decree had passed, to proceed with a sale of the property levied on. In a subsequent case the question was again brought before the court.

[These are two cases in admiralty,—the first, Stephen Dudley against the steamboat Superior, being a libel for supplies and materials, while the second, James M. Sexton against the steamboat Troy, is a libel for wages.]

<p>In equity. The plaintiff, who was a resident and citizen of the state of New Jersey, and had been such since the month of January, 1855, was, during all that time, engaged in the business of banking in the city of New York, as a partner in the firm of James G. King & Sons. The defendant Small was the receiver of taxes in and for the city and county of New York. The law of the state of New York (Laws 1S55. c. 37> provides, that all persons doing business in the state of New York, as merchants, bankers, or otherwise, and not residents of the state, shall be assessed and taxed on all sums invested in said business, the same as if they were residents of the state. Residents and non-residents, with respect to taxes on personal property invested in business in the state, are put on an equality. The plaintiff was assessed and taxed upon his personal property invested in his said business in the city of New York, in the years 1S55, 1S5C, and 1S57. The amount of those taxes was about $1,400. He refused to pay them. He alleged, in his bill, that the law of the state of New York was in violation of the constitution of the United States, and was otherwise illegal and void, and prayed for an injunction restraining the defendant Small, and others who might claim authority to act, from issuing any warrant or other instrument, and from taking any steps, for the collection of said taxes, and from levying upon any goods or chattels to satisfy the same. The defendants demurred to the bill.</p>

On certificate of register in bankruptcy. By Wilbur F. Browder, Register: Thomas Duerson, a citizen of Todd county, Kentucky, died intestate November 26, 1873, leaving certain real and personal property which descended to his seven adult children and heirs-at-law, of whom George T. Duer; son, the bankrupt, was one. On the 27 th day of December, 1873, the heirs-at-law met upon the premises in Todd county, and agreed upon a parol division of the real estate among themselves.

This was an action on the case brought on the 27th of October. 1851, by the plaintiff, a resident of New l’orlc.

<p>Case No. 4,119.</p> <p>Executors and Administrators—Personal and Representative Liability for Monet Received-Assignment—Agency.</p> <p>1. Whenever money or property is lawfully recovered or received by an executor or administrator, in his representative character, he holds it as assets of the estate, and is liable in that character to the party entitled to it.</p> <p>2. If the decedent was not liable for the money in his life-time, and his administrator, after his death, receives it in his representative character, and the receipt and acquittance of the administrator discharge the debtor, the party entitled to the money may, at his election, hold him responsible, either in his personal or representative character. But the decedent must have held the property, or chose in action, under a contract, express or implied, with the party entitled to the money, and must have been authorized to deal with it and dispose of it in his’own name.</p> <p>3. In such cases, for the proposes of justice, the law permits the party entitled to consider the contract as having been an absolute assignment, and to treat the other party as his as-signee, who took the property as his own, and agreed to become debtor to him for the proceeds realized from it; or to regard the contract as one of agency only, in which the property or chose in action is held by the agent, not as his own, but merely as bailee for his principal, and in which he is authorized to receive the proceeds, not as money due to himself, but as money due to the principal, and placed in his hands, subject to the order and direction of his principal.</p> <p>4. Although, in such cases, either of the contracts above mentioned may have been the real one, yet both cannot exist at the same time, with reference to the same subject-matter, because they are inconsistent with each other.</p> <p>5. The party entitled may elect to consider either of said contracts the true one, but he cannot proceed upon both.</p> <p>C. If the party entitled to the money elect to proceed against the administrator in his representative capacity, and recovers a judgment, he cannot afterwards proceed, either at law or in equity, against the administrator, in his individual capacity, or against his individual estate, if he be dead.</p>

<p>Case No. 4,120.</p> <p>Extradition—Complaint before Jddóe—Juris-diction—Evidence —Accused not Competent Witness.</p> <p>1. Where there is an application for extradition, sustained by complaint on oath, it is not for the judge to consider whether or not a foreign government has authorized the application: he has only to examine the evidence of criminality; and, if he deems it sufficient to sustain the charge, to certify the same to the secretary of state.</p> <p>2. The treaty of extradition with Great Britain does not give the accused the right to be confronted with the witnesses against him: the evidence may be in the form authorized in the country whence it comes, and, in substance, sufficient to warrant action in the country whose action is invoked.</p> <p>3. The testimony of the accused is not admissible in a case of extradition, tried by a judge of the United States, though he is sitting in a state where such evidence would be received.</p>

This libel [in personam] was filed to recover the value of repairs to the boilers and machinery of the steamer Massachusetts, made by the libellant in the years 1866 and 1867. The libel states that it is filed agaiust defendants, as the owners of the said steamer, for repairs to said steamer in the years 1866 and 1867, which repairs were made at the request of the master of the said steamer. To this libel no answer has been filed by Samuel J. Pentz, but John TV.

<p>Case No. 4,122.</p> <p>[See Scott v. The Young America, Case No. 12,050.]</p>

<p>Case No. 4,123.</p> <p>Pilots—Kxtiu Compensation.</p> <p>Pilots and others, assisting vessels in distress, beyond what their mere duty requires, are entitled to compensation.</p> <p>[Cited in The Wave, Case No. 17.297.]</p>

<p>[Petition for review of an order of the ■district court of the United States for the southern district of New York in the matter of Edward G. Dumahaut and George Spicer.]</p>

This was a motion by the Bull’s Head Bank, a creditor of the bankrupts, to modify an injunction so as to allow them to apply to the supreme court of the state for an order… Held: and a composition was accepted, whereby it was provided that the debtors should pay twenty-five cents on the dollar, in one, two and three years, evidenced by their promissory notes, to be secured by mortgages on certain real estate which had formerly belonged to George Spicer, one of the bankrupts.

<p>Case No. 4,126.</p> <p>Bankruptcy—Previous Voluntary Assignment — Suit bt Creditor for Accounting — Fees and Expenses.</p> <p>A composition was accepted and confirmed, which provided that the assets, which had within three months before the bankruptcy been assigned for the benefit of creditors, should remain in the hands of the voluntary assignee and be distributed by him. Previous to the confirmation, petitioner had commenced a suit against the assignee in a state court for an accounting and distribution of the assigned property. This suit being continued and large expenses incurred, an amendment to the composition was accepted, by which the assigned property was to be delivered to the assignee in bankruptcy and distributed by him. This amendment was confirmed on condition of payment to petitioner of such sum toward reimbursement of his expenses in said suit as the court should award to be proper. It appeared that at the commencement of said suit the voluntary assignee was ready to pay a dividend but was stopped by injunction, and that petitioner reduced the assignee’s claims, but had incurred large expenses for receiver’s and referee's fees, and also claimed five hundred and fifty dollars as an extra allowance which it was alleged he would have been entitled to if a decree had been entered in that suit. Held, that, it not appearing that the assignee’s claims could have been adjusted without suit, the suit was not beneficial to the creditors; that under the provisions of the original resolution the petitioner had no absolute right to have the property remain in the hands of the voluntary as-signee; that no right to the cost and expenses of the suit had become vested in the petitioner; that it therefore had no interest which was secured to it under section 17 of the bankrupt act [14 Stat. 517), and was not entitled to reimbursement for the expenses and costs of said .suit.</p>

<p>Case No. 4,127.</p> <p>B ANKRUPTC V—• Fit A CUTTLE N'T MORTGAGE—COSTS and Expenses.</p> <p>Where a mortgage for four thousand dollars was given, while only one thousand dollars was advanced upon it, and was recorded in full, it is prima facie-evidence of fraud, and it was therefore held, that out of the proceeds of sale of the property seized, the marshal pay over to the petitioning creditors, or their attorneys, the amount of their reasonable costs, expenses, etc., incurred in the proceedings in this matter, and that the balance be paid over to the mortgagee.</p>

<p>Case No. 4,129.</p> <p>Guauanty op Debt—Defaui/t—Notice to Guab-AXTOIi. .</p> <p>1. Where a debt guaranteed is not paid, notice to the guarantor must be given in a reasonable time.</p> <p>2. The same strictness is not required in such a case, as to charge the indorser on a bill or promissory note.</p> <p>3. Nothing can excuse the want of notice, but the insolvency of the debtor.</p>

This was a motion to dissolve an injunction obtained by the plaintiff, to restrain the defendants, Miller. Hart & Co., from issuing an execution on a judgment rendered on the law side of’this court in their favour, against the plaintiff here.