Volume 81 — United States Reports

; the case being thus: The “Abandoned and Captured Property Act”* authorized the Secretary of the Treasury to appoint special agents to receive and collect all -abandoned or captured property in any State or Territory in insurrection against the,United States, and authorized also the sending of such property to any place of sale within the loyal States, and the sale of it at auction to the highest bidder. “ And the proceeds thereof,” says' the act, “ shall be paid into the…

Motion by Mr. E. C. Benedict, to dismiss a writ of error to the Supreme Court of New York, taken under -the assumption that the case was within the 25th section of the Judiciary Act; a section abundantly known to most lawyers practicing in this court, but which as it makes the basis of the judgment in this and several cases which follow, is partially copied for the benefit of any who do not at all times recall its phraseology. “ Sec. 25.

Motion by Mr. Edward Janin [Mr. T. J. Durant opposing) to dismiss, for want of jurisdiction, a writ of error to the Supreme Court of the State of Louisiana, taken under an assumption that the case fell within the 25th section of the Judiciary Act, quoted supra, pp. 5, 6.

Motion by Mr. W. S. Holman (Mr. E. T. Merrick opposing) to dismiss a writ of error to the Supreme Court of the State of Louisiana, taken on the assumption that the case fell within the 25th section of the Judiciary Act, quoted supra, pp. 5, 6.

Held: as it well may have been, that the provision in the Federal Constitution which forbids any State to pass a law impairing the obligation of contracts, protects from the operation of the State constitution slave contracts made prior to its adoption, as the contract here in question was sustained and enforced, still no question arose of which this court can take cognizance.

Held: or authority exercised under, the United States, and the decision is against the title, right, privilege, or immunity specially set up or claimed by either party under such Constitution, treaty, statute, commission or authority.

Motion by Mr. Artemas Libbey (Mr. A. G. Stinchfield opposing) to dismiss a writ of error to the Supreme Judicial Court of the State of Maine; taken on an assumption that the case fell within the 25th section of the Judiciary Act, quoted supra, 5-6.

5-6, which gives a right to this court to re-examine, in certain cases specified, the final judgment or decree of any suit in the highest court of law or equity in which a decision in the suit could be had, says that the same “May be re-examined, and reversed or affirmed, in the Supreme Court of the United States, upon a writ of error, the citation being signed by the chief justice, or judge, or chancellor of the court rendering or passing the judgment or decree complained…

<p>1 When a plaintiff presents as an important part of his case a written proposal, he is not at liberty to insist on a recovery on the ground of mere suspicion that there was a verbal proposal differing from the one in writing introduced by the plaintiff.</p> <p>2. If there is no evidenoe at all of a different verbal proposal it is the duty of the court to tell the jury there is none, when requested.</p> <p>3. It is error in the eouit in such case to charge the jury that tuey may find such a verbal proposition, when there is nothing but mere suspicion on which they can do so.</p> <p>4. Where there is such a written proposal it is the duty of the court, at the request of either party, to construe it, and in doing so the admitted facts concerning the relations of the parties to the transaction are to be considered.</p>

Held: that neither the subsequent payment of the taxes nbr the fact that the claimant was an innocent purchaser, without notice of the wrongful acts of the antecedent owner, constituted a defence to the charge. 8.

Richard Christmas, of Kentucky, on 30th November, 1859, sold to one Lyons, of Mississippi, an estate there, and received in consideration therefor his promissory notes, each for $16,666, payable to him the said Richard or bearer, with interest, with a mortgage ou the estate.

Motion, by Mr. G. G. Wright, to dismiss a writ of error to the Supreme Court of Iowa. Hurley sued Street to recover a lot of ground at Council Bluff. The defendant set up that the plaintiff had no title himself, and then relied on a tax sale, statute of limitation, and various other defences.

<p>1. Suit in chancery by an assignee in bankruptcy to recover the proceeds of goods sold under judgment in a State court against the bankrupt taken by confession when both parties knew of the insolvency.</p> <p>Such a judgment, though taken before the first day of June, 1867, is an unlawful preference under the 35th section of that act, if taken after the enactment of the bankrupt law.</p> <p>2. The proceeds of the sale of the bankrupt’s goods being in the hands of one sued as a defendant, another person who had a like judgment and execution levied on the same goods is not a necessary party to this suit, being without the jurisdiction. The rule laid down as to necessary parties in chancery.</p> <p>3. The proceeds of the sale being in the hands of the bank, though it had given the sheriff a certificate of deposit, the assignee was not obliged to move against the sheriff in the State court to pay over the money to him, but had his option to sue the bank which had directed the levy and sale and held the proceeds in its vaults.</p> <p>4. The defendant having money received as collections for the bankrupt delivered it to the sheriff, who levied the defendant’s execution on it and applied it in satisfaction of the same. This is a fraudulent preference, or taking by process under the act, and does not raise the question whether if the defendant had retained the money it could be set off in this suit against the bankrupt’s debt to the defendant.</p> <p>5. So taking a check from the bankrupt and crediting the amount of the check then on deposit, on the bankrupt’s note the day before taking judgment, was a payment by way of preference and therefore void, and does not raise the question of set-off.</p>

In January, 1868, Alfred Bennett, James Van Pelt, and Gilbert Van Pelt, were merchants doing a commission business in New York under the name of Bennett, Van Pelt & Co. The partner, Gilbert, resided in Savannah, where he was in the habit of purchasing cotton and consigning it to his firm in New York..

This was a motion in a suit which had come here on appeal from the Court of Claims; the case being thus: Some years ago, by act of Congress, appeals were allowed from the.Court of Claims to this court; and this court, in conformity with authority given in the act, prescribed certain rules under which the appeals might be heard.

These were two suits in the court below, in the nature of actions of ejectment to recover certain lots in New Orleans, and also rents and profits. That court gave judgment in both cases for the defendants, and to these judgments the present writs of error were taken.

On a September night of 1865, the ship Margaret Evans, having a night watchman on board, but no light on deck, lay at a wharf at Corlaer’s Hook, on the East River side of New York.

Held: or derived from or under any grant of the State bearing date previous to the period of time *135 mentioned in the preamble to the second section, who shall have discharged all taxes duly assessed and charged against him or them upon such lands,, and all taxes that ought to have been assessed and charged thereon from the time he or they acquired title thereto, whether legal or equitable.

Held: that mandamus would not lie to the Circuit judge to compel him to entertain jurisdiction of the cause on appeal, and to hear and decide the same on the merits thereof; and that this conclusion of this court was not to be altered by the fact that owing to the sum in controversy being less than $2000, no appeal or writ of error from the Circuit Court to this court existed.

On the 9th of January, 1863, a British order in council, authorized by virtue of the Merchant Shipping Amendment Act of July 29th, 1862 (25 and 26 Victoria), made a body of “ Regulations for preventing collisions at sea.” Among these were “ Rules concerning lights,” and “ Steering and sailing rules.” In the first class were these: Lights for Steamships. Art. 3.

On the 7th of November, 1866, the Cunard steamer Java, a screw-steamship of large size, drawing nineteen feet water, and about 360 feet long (more than usual length), entered Boston harbor (a diagram of part of which is on a page following), about noon, in fine, clear weather, the tide being about one hour’s ebb, and the wind blowing a three or four knot breeze from the west.

<p>Appeal from the Circuit Court for the District of Louisiana, in a ease of collision condemning the Merrimac for damages done to the Gladiator.</p>

The ship Helen Cooper, lying at her dock in the East River, at Brooklyn, near the gas-works there, on Saturday the 17th of February, 1866, with her stern towards the river but ready for sea, applied to the captain of the steamtug Mabey to tow her out. Immediately opposite, at pier 45, on' the New York City side, was lying at the same time and well in her dock, another ship, the Isaac Chapman.

At this time the right to bring civil suits for false imprisonment wag limited by the Virginia Code to apparently, one year.* In 1863 certain western counties of Virginia, including Monroe County, aforesaid, having formed themselves into a new State were duly received as such into the Union, and in 1865 and 1866 the new State passed two statutes, thus: “ An Act in relation to the Statutes of Limitation, passed March 1st, 1865. “ Be it enacted by the legislature of .West…

The Constitution of the United States ordains “that full faith and credit shall be given in each State to the public acts, records, and judicial proceedings of every other State,” and also ordains that “ the Congress may by general laws prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof.” Congress in execution of this power thus given to it, by act of May 26th, 1790,* passed a statute prescribing the inode in which “the…

, against David Gibsou, and against Gaylord, Son & Co., and other defendants. The matter in issue was the validity, in view of the bankrupt law, of two chattel mortgages, given by the -bankrupt, one to the said Gibson, and the other to the said Gaylord, Son & Co. The mortgages were asserted to be frauds on the bankrupt law, as coming, within either the first clause or the second of the 35th section of the Bankrupt Act.

of Missouri. Hook had acted as administrator of the estate of one Curtis, and the other defendants were sureties on his official bond, and the object of the bill was to assert the right of the complainant, as one of the heirs of Curtis, to an account and a distribution of the assets in Hook’s hands.

Held: the same ought, in order to give full indemnity to the libellants, to have been for the value in legal tender notes ($4896.80), of the $2436 gold, which in gold the cargo was worth. The decree of the Circuit Court was accordingly entered March 26th, 1870, for the $4896.80, with interest added to the date of its entry, in all $6515.51, with costs.

Article 14. If two ships under steam are crossing so as to involve risk of collision, the ship which has the other on hhr own starboard side shall keep out of the way. Construction op Articles 14, &c. Article 18. Where by the above rule one of two ships is. to keep outmf the way, the other shall keep her course subject to the qualifications contained in the following article: Proviso to save Special Cases. Article 19.

Held: on the new evidence, to have been rightly reversed. Appeal from the Circuit Court for the District of Nebraska; the case being thus: On the 25th of June, 1857, Harrison Johnson having, as he supposed, the west half of a pre-emption right of 160 acres within the limits of the city of Omaha, gave a mortgage or deed of trust on it to secure the payment of his note to Easley aud Willingham.

Held: that the city thus admitted that he had no notice. 5. A suit upon a coupon or interest warrant to a bond is not barred by the statute of limitations, unless the lapse of time is sufficient to bar also a suit upon the bond.

On the 2d April, 1858, Waller, of Virginia, made an agreement in writing with one Bigler, of New York, to sell to him for $80,000 an estate on the York Diver, Virginia, consisting of about 2400 acres, to be paid for in successive an-nual payments through a term of ten years.

Held: accordingly, on an application of .these principles, that the title of the village of Carondelet, in Missouri, to lots 90 and 91 of the commons tract of the town, as subdivided by the survey made by Jasper.

Two persons, J. S. French and Walter Lenox, subscribed for the whole stock; French taking three-fourths and Lenox one-fourth, and French being made president of the company. The road was built. French and Lenox, however, .spent very little money of their own in its. construction, but raised large sums by borrowing. When, therefore, the road was built the company was seriously, embarrassed.

north part of the lake), and from the towns of Mandeville and Madisonville . (also on the north part of 'the lake — its northeast part — and not far from each other, or from the mouths of the rivers named), to the railroad-lauding, on the southwest part of the lake, of a short railroad which goes to New Orleans. The length of the lake is about thirty-six miles. As is common between steamers of opposing lines, there was some rivalry between them.

An act of Congress — that of July 25th, 1866*—prescribes that all coasting steamers and those navigating 'bays, lakes, or other inland waters, shall carry a green light on the starboard side, a red light on the port side, and in addition thereto a central range of two white lights, the after light being carried at an elevation of at least fifteen feet above the ligíít at the ■ head of the vessel; the head-light to be so constructed as to show a good light through twenty…

On the 12th of April, 1863, N. C. Martin, at Assumption, Louisiana, drew his promissory note lat one year for $7000, in favor of W. W. Pugh, which note after being indorsed there by Pugh came into the hands of James McCormick. The note, as issued, had no stamp upon it. It was not paid at maturity and no notice of non-p'ayment was given to Pugh, the indorser, who was thus of course discharged.

Held: in the absence of proof when the insured was requested to produce duplicate bills of purchase— whether before the commencement of the action or afterwards, and of proof whether there was neglect or refusal of the insured to comply— that the insurers, even though they gave proof tending to show that the insured were requested to produce duplicates of invoices, could not properly ask an instruction that if the jury…

Held: and not to the association in its corporate capacity. 3. On the 30th May, 1868, on which day the Pahquioque Bank commenced its suit, the Bank of Bethel had no authority to pay, was prohibited from paying, any creditor; it had no means within its-control with which to pay.

On motion to dismiss a writ of error to the Supreme Court of the State of Georgia. Walker, Jones, and O’Dowd were sued in the Superior Court of Richmond County, Georgia, upon a bond given by Walker, as principal, and Jones and O’Dowd, as sureties, for the faithful discharge by Walker of his duties as venduemaster in the city of Augusta.

This pilot Sherwood had had twelve years’ experience as a coast pilot and was recommended by insurance companies. The owners of the Wébb had engaged Him to take the steamer back to New York, and they had agreed also with the owners of another ship, then lying at New Bedford, to stop for her on the way and tow her to New York, and that this towage should be under direction of the same pilot.

That the several District Courts of the United States be courts of bankruptcy, and they shall have original jurisdiction in their respective districts in all matters and proceedings in bankruptcy, and they are hereby authorized to hear and adjudicate upon the same according to the provisions of this act. ... “ The said courts shall be always open for the transaction of business under this act, and the powers and jurisdiction hereby granted and conferred shall be exercised as…

Asa Whitney, of Philadelphia, had obtained, on the 25th April, 1848, a patent for fourteen years for an improvement in annealing and cooling cast-iron car-wheels. This patent expired, of course, by its terms on the 25th of April, 1862. Just before its expiration, that is to say, on the 21st of March, Albert Mowry, of Cincinnati, also obtained a patent for fourteen yeárs, for a process for annealing car-wheels, of which he professed to be the inventor.

<p>In error to the Circuit Court for the Eastern District of Pennsylvania; in which court, Munson and others brought ejectment against The Schuylkill and Dauphin Improvement Company and two other like companies, all corporations of Pennsylvania, to recover certain valuable lands in the State just named. Judgment having gone for the plaintiffs, the companies brought the case here.</p>

On the 1st of December, 1863, he obtained a reissue. He then, December 1st, 1864, made an assignment to Jonathan Taylor thus: “Whereas I, Samuel Nicolson, invented a certain new and useful improvement in wooden pavements, of which letters-patent of the United States of America (numbered 1583 of reissued patents, and bearing date the 1st of December, 1863) have been granted to me, giving to me and my legal representatives the exclusive right of making, using, and vending the…

... $35 00 For each vessel of 500 tons and over, and less than 1000 tons, 30 00 * * * * * * “And each engineér and pilot, licensed as herein provided, shall pay: For ■the first certificate granted by any inspector or inspectors, the sum of . . ' •. . .... . . $5‘00 And for each subsequent certificate.....1 00 to such inspector or inspectors, to be accounted for and paid over to the collector or other chief officer of the customs; and the sums'derived from all the sources…

Held: although ajudg: ment was no lien upon a homestead, where the premises were worth less than $1000, and a lien upon the surplus where they were worth more than that sum, yet, where the owner conveys the same by an absolute deed or mortgage legally executed, the fee in the premises conveyed, no matter what their value, passes to the grantee, subject only to the right of occupancy on the part of the grantor in ease the…

Held: in short, but that inchoate interest which might or might not ripen into an equitable title. Reference by the court to decisions of the Supreme Court of Illinois, * will show that no other view can be taken consistently with fhem. Further. All the claim that Jacquemart had to the laud arose from McGuire’p deed to Thiriat.

Cross v. United States, 81 U.S. (14 Wall.) 479 (1871), is a United States Supreme Court case in which the Court held that the principle of res judicata did not apply to Congressional reference cases. This was because Congress' intent in referring the case to the Court of Claims was to waive the defense of time bar for the entire controversy and that such intent could not be interpreted narrowly to prevent full recovery.

This deed was not recorded until the year 1864. In December, 1837, Russell being a debtor to the United States mortgaged the same lot with all the several others that he owned to the then Solicitor of the Treasury, to secure this debt, and the mortgage was promptly put on' record. There was no evidence that the existence of the deed to Breese was known to the agents of the government ai the time when this mortgage was taken by it.

IN this case, Riggs had brought ejectment in the court below against Collins to-recover a lot, one of the several ones mentioned in the preceding ease as having been mortgaged by Russell to the United States, and bought by Corcoran from the United States after the foreclosure by the government of their mortgage and the purchase in by them of all the several lots included in it. Riggs was the grantee of Corcoran.

“ Shall faithfully comply with all the provisions of law in relation 'to the duties and business of distillers.” The statute also enacts: “ Section 15.

Hamilton retired from the firm in July, 1867, hut no notice of the dissolution was given, and by common agreement Cook was allowed to carry on the business in the partnership name until the'end of the year.

Gorham Co. v. White, 81 U.S. (14 Wall.) 511 (1872), was a United States Supreme Court case in which the Court held it is not essential to identity of design that the appearance should be the same to the eye of an expert. If, to an ordinary observer, the resemblance is sufficiently deceptive as to induce him to purchase one, supposing it to be the other, then the one first patented is infringed by the other.

Held: that a stranding of , the vessel incurred by her attempt to cross a bar, in charge of a government pilot, upon an order of the quartermaster of the government when the wind was high and the water low — the quartermaster having seen the vessel strike on a previous attempt to cross, and he giving the present, « second, order with a full knowledge of the danger of crossing, and *532 against the judgment of both the…

Justice, by a letter to Lieutenant Treadwell, first lieutenant of ordnance, proposed to supply the Ordnance Department with 4000 rifled muskets, “ similar in style and finish to the sample deposited” with the said lieutenant, at $20 each. On the next day Lieutenant Treadwell, inclosing Justice’s proposition, wrote to General Ripley, then chief of ordnance, at Washington, as follows: “ I inclose a proposition from Mr. Justice to furnish rifle muskets, calibre .69.

” Under this enactment, Hunt, a brigadier-general of volunteers, filed a petition in the Court of Claims claiming commutation pay. The United States demurred; thus admitting, of course, that the petitioner was a brigadier-general during the recent civil war, and was not entitled to commutation for fuel and quarters. He was then entitled to the increased commutation for subsistence if his rank of brigadier was not above the rank of brevet brigadier.

, in 1819, a rent charge of $224 to Moore, with right of distress, re-entry, &c. In 1821 Hannon died insolvent, and the rent not being paid, Moore “took possession” of the house again, though in what mode or -whether with any of the requisites of a common law re-entry did not appear. In 1825 being still in possession he conveyed the rent charge, describing it in form, to one Irwin, and Irwin in 1854 conveyed ittnii/i the lot on which it urns charged to 11.

pages, in long primer type, without any assignment of errors, having been thus: Richard Gregg sued W. S. Moss, in assumpsit, on this instrument; Kellogg, the party signing it with Moss, having been wholly insolvent. Peoria, December 23d, 1856. Richard Gregg, Esquire. Dear Sir: Mr. Elder is here, and wants to take the funds with him to pay drafts due to-morrow. It is not right that he should be forced to pay this money for our accommodation.

Philpot and H. Picket, residing at Titusville, Pennsylvania (who, with George Sherman, of Philadelphia, had been speculating in oil wells), a well “ on the Blood Farm” near the town named; Philpot and Picket agreeing by the articles to pay Gruninger $3500 within thirty days. The money was not thus paid.

Held: that proof of a usage *592 to make the deviation, or of the shipper’s knowledge of the intent to make it, was admissible. 5. By agreement the merchant may have charge of the stowage of his own goods. * This is not unusual where the goods require special care in the handling and stowage.

Held: to be conclusive evidence that the possession and control of the vessel had not passed to the charterer but had been retained by the general owner. 8.

” With this statutory provision in force, Hohnbach sued Erskine, a collector of internal revenue, in an action of trespass for the seizure by him, the said collector, and conversion to his use of certain personal property of the alleged value of $10,000, belonging to him, the plaintiff.

<p>1. Asa Whitney’s patent of April 25th, 1848, for an “improvement in the process of manufacturing cast-iron railroad wheels,” was for a process, not for a combination.</p> <p>2. Where only vague and uncertain directions could be given as to the degree of foreign heat to be applied in any particular case, there, when a patentee in his specification, establishes a maximum and a minimum, the ascertainment of the proper intermediate degree maybe left to the skill and judgment of the operator practicing the process.</p> <p>3. It is as true of a process, invented as an improvement in a manufacture, as it is of ah improvement in a machine, that an infringer is not liable to the extent of his entire profits in the manufacture.</p> <p>4. In such a case the question to be determined is, what advantage did the infringer derive from using the invention, over what he had in using other processes then open to the public and adequate to enable him to obtain an equally beneficial result ? The fruits of that advantage are his profits, and that advantage is the measure of profits to bo accounted for.</p> <p>6 When a patent is for an entire process made up of several constituent steps or stages, the patentee not pretending to be the inventor of those constituents, his chum'to the process as an entirety does not secure to him the exclusive use of the constituents singly. Wjmt is secured is their use when arranged in the process.</p> <p>6. The profits recoverable from an infringer are the measure of the paten* tee’s damages, and though calledy>?-q/?¿s are really damages; and unliquidated until a final decree is made.</p> <p>7. Interest upon unliquidated damages is not generally allowable, and should not he allowed before a final decree for profits.</p>

Young shipped a quantity of wheat on the steamboat Key City, a vessel owned by a corporation called the Northwestern Packet Company, which had this and several other steamboats engaged in the navigation of the Upper Mississippi River. The cargo was lost, and so never delivered.

there is: *665 “The decision of a State court which simply held that promissory notes given for the loan of 1 Confederate currency,’ together with a mortgage to secure the notes, were nullities on the ground that the consideration was illegal according'to the law of the State at the time the contract was entered into, is not a decision repugnant to the Constitution.” The writ in that case was accordingly dismissed, as not within the 25th section.

The charter-party contained these clauses: “The war risk is to be borne by the United States, the marine risk by the owner, for a period of thirty days, and as much longer as the service^ of the vessel may be required to be employed in such service as the United States may direct. “ The vessel is valued at $40,000, and should she be retained so long in the service of the United States that the money paid and due on account of the charter (deducting therefrom the actual cost…

” Another clause in the same act provides: “That the corporation, &c., is hereby authorized to lay and' collect a tax upon all property bordering upon each street or alley that may be paved, sewered, lighted, cleaned, or watered by said corporation, in accordance with the provisions of this act.” On the 12th October, 1865, the city authorities of Washington passed an ordinance which provided for the grading and paving a certain part of Fourteenth Street (including a part…