Vol. IV.] NOTES OF OPINIONS, DECISIONS, AND ORders. [No. 3. the jury to determine what the plaintiff was equitably entitled to recover he called other attorneys and proved what is ordinarily charged in such cases, and the defendants excepted to the ruling of the court in refusing to charge the jury that they should disregard such testimony. Attorneys and solicitors are entitled to have allowed to them for their professional services what they reasonably deserve to have for the same, having due reference to the nature of the service and their own standing in the profession for learning, skill, and proficiency; and for the purpose of aiding the jury in determining that matter it is proper to receive evidence as to the price usually charged and received for similar services by other persons of the same profession practising in the same court." No. 167. The President, &c., Insurance Company of North America, plaintiff in error, v. Phebe N. Field. In error to the Circuit Court of the United States for the Northern District of Illinois. Mr. Chief Justice Waite announced the decision of the court, affirming the judgment of the said circuit court, with costs and interest. No. 294. The United States, appellant, v. Manuel J. Garcia et al. Appeal from the District Court of the United States for the District of Louisiana. Mr. Chief Justice Waite announced the decision of the court, affirming the decree of the said district court in this cause, on the authority of United States v. Lynde, 11 Wall. 632. No. 784. Germania National Bank et al., appellants, Frank F. Case, receiver. Mr. Chief Justice Waite announced the decision of the court, denying the motions to dismiss this cause. No. 333. J. P. T. Barry, plaintiff in error, v. The Commonwealth of Massachusetts; No. 525. James W. McCready, plaintiff in error, v. The Commonwealth of Virginia; No. 638. Joseph Shields, plaintiff in error, v. The State of Ohio. Mr. Chief Justice Waite announced the decision of the court, granting the motion to advance these causes. Monday, January 29, 1877. No. 406. Chester Badger et al., plaintiffs in error, v. The United States, ex rel. Matthew and M. S. Bolles. In error to the Circuit Court of the United States for the Northern District of Illinois. Mr. Justice Hunt delivered the opinion of the court, affirming the judgment of the said circuit court, with costs. The relators filed their petition for a mandamus against Badger and others, supervisor, town clerk, and justices of the town of Amboy, alleging the recovery of two judgments by them against that town; that the supervisor, town clerk, and three justices of the peace, constituted a board of auditors, whose duty it was to audit and examine town accounts; that a sworn statement of the judgments was presented to the board, but they refused to audit the same; that three of the persons named pretended to resign their offices, and would not perform the duties of the same, but that no other persons have been appointed or elected to succeed them; that the others refused to act or to associate with them, the collector and assessor; that by reason of the acts of the parties the petitioners have been unable to have taxes collected for the payment of their debt; that no provision has been made for its payment, and they pray that a mandamus may be awarded to compel the auditing of the judgments. The defendants admit the resignations stated, and allege that they were accepted by the justices of the town, and that notice thereof was given to the town clerk, who made a minute of the same upon the records of the town, whereby, as they insist, they ceased to be officers of the town. Notwithstanding the resignations the writ was ordered to issue and the order is here affirmed. No. 904. The City of Omaha, plaintiff in error, v. Aaron Hammond. In error to the Circuit Court of the United States for the District of Nebraska. Mr. Justice Miller delivered the opinion of the court, affirming the judgment of the said circuit court, with costs and interest. The defendant in error sued the city of Omaha on a contract for the construction of two public wells in the streets of that city. The contract was in writing, and, by its terms, plaintiff was "to sink and construct two wells, . . . . said wells to be circular, twelve feet in diameter, and to be curbed with a brick wall nine inches in thickness, and arched over in a secure and proper manner, the whole to be completed under the supervision, and to the satisfaction, of the chief engineer of the fire department of said city." For this work the city was to pay plaintiff 66 one hundred dollars for each and every one thousand gallons of water which each of said wells shall be capable of producing, and shall produce, within twenty-four hours, the capacity of said wells to be tested by the chief engineer of the fire department of the city of Omaha aforesaid. And upon the report of said officer being made to the council of said city, showing that the wells are completed and satisfactory, and also showing the amount of water that said well or wells will produce in twenty-four hours, the said party of the first part shall be entitled Vol. IV.] NOTES OF OPINIONS, DECISIONS, AND ORders. [No. 3. to and shall receive from the said party of the second part the said sum, to be paid in city warrants." These extracts, it is said, from the agreement, are all that are necessary to the decision of the case. The plaintiff proved the construction of the wells under the supervision of the engineer, to his entire satisfaction, and his final acceptance of them. But it was also proved that, while the main part of the wells was sunk to the depth of twenty to twenty-three feet of the diameter of twelve feet, the brick curbing of nine inches in thickness, built inside the shaft so sunk, reduced this diameter to ten and a half feet, and that smaller shafts of four or five feet in diameter were sunk below the bottom of the main well to the depth of several feet. These two circumstances constituted the defence of the city. As to both of them, it is here said, the city is concluded by the action of its own officer, the engineer, who was also by the terms of the contract authorized by the parties to it to decide these questions. No. 166. The Consolidated Fruit Jar Company, appellants, v. James T. Wright. Appeal from the Circuit Court of the United States for the Southern District of New York. Mr. Justice Swayne delivered the opinion of the court, affirming the decree of the said circuit court, with costs. No. 114. William H. Cammeyer et al., appellants, v. John Newton et al. Appeal from the Circuit Court of the United States for the Southern District of New York. Mr. Justice Clifford delivered the opinion of the court, affirming the decree of the said circuit court, with costs. These were patent causes which were decided upon questions of novelty. In No. 114, the rule announced in U. S. v. Burns, 12 Wall. 252, is approved. No. 152. The United States, appellants, v. Charlotte Bostwick, administratrix, &c.; No. 153. Charlotte Bostwick, administratrix, &c., appellants, v. The United States. Appeals from the Court of Claims. Mr. Chief Justice Waite delivered the opinion of the court, reversing the judgment of the said court of claims, and remanding the cause with instructions to render judgment in conformity with the opinion of this court. These appeals involved the construction of a contract of a special character, not of general interest. No. 797. The United States, appellants, v. Cyrus C. Clark. Appeal from the Court of Claims. Mr. Chief Justice Waite announced the decision of the court, remanding the cause for such further proceedings as law and justice may require. No. 164. The West Wisconsin Railway Company et al., plaintiffs in error v. D. J. Foley et al.; and No. 165. The West Wisconsin Railway Company et al., plaintiffs in error, v. D. J. Foley et al. In error to the Circuit Court of the United States for the Western District of Wisconsin. Mr. Chief Justice Waite delivered the opinion of the court, affirming the judgments of the said circuit court in these causes, with costs, and $500 damages in addition to interest. WAITE, C. J. It is clear that there is no error in this record. The answer does not state facts sufficient to constitute a defence to the action. No counsel have appeared to prosecute the suit, no brief has been filed, and no error assigned. We are entirely satisfied that the case has been brought here for delay, and that it is proper to adjudge "just damages for delay" under the provisions of sec. 1010, Rev. Stat. The only difficulty we have had has been in respect to the amount. Under the old rules the court was sometimes asked to give damages beyond those prescribed by the rule. This was always denied, but so far as we have been able to discover it has never been decided that less could not be given under proper circumstances. "Shall" ought undoubtedly to be construed as meaning "must," for the purpose of sustaining or enforcing an existing right, but it need not be for creating a new one. Neither under the statute nor the rule has a party the legal right to demand a judgment for damages in excess of interest. All is left to the judicial discretion of the court. And this is true as well as to the amount as to the propriety of giving any at all. This being the case, we think the rule may fairly be construed as limiting the amount beyond which we cannot go, but as leaving us at liberty to give less than the full sum in cases where, in our judgment, the circumstances are such as to make it proper to do so. An inflexible rule requiring us to award a certain specified amount or none at all, would oftentimes operate to defeat itself. The object is to discourage frivolous appeals, as well as to compensate to some extent for the loss which results from delay. Oftentimes ten per cent. upon the amount of a judgment might far exceed the loss actually sustained; and in such cases we might decline to award damages at all, if we could not give less, because of the wrong that would be inflicted if we did give them. Thus one of the benefits anticipated from the rule would be lost. Under these circumstances we hold that while, with the rule in force, we cannot award as damages for delay more than ten per cent. upon the amount of the judgment, we may, in the exercise of our discretion, give less. Vol. IV.] DIGEST OF CASES. [No. 3. No. 168. The Electric Match Company et al., plaintiffs in error, v. The United States. In error to the Circuit Court of the United States for the Northern District of Illinois. Mr. Chief Justice Waite announced the decision of the court, affirming the judgment of the said circuit court in this cause. No. 773. Peter Doyle, Secretary of State, Wisconsin, plaintiff in error, v. State of Wisconsin, ex rel. Drake. Mr. Chief Justice Waite delivered the opinion of the court, denying the motion to set aside certain proceedings of the supreme court of Wisconsin. DIGEST OF CASES PUBLISHED IN EXTENSO IN LATE ISSUES OF AMERICAN LEGAL PERIODICALS. ABBREVIATIONS. Albany L. J.-Albany Law Journal, Albany, N. Y., WEED, PARSONS & Co. Am. Law Reg.-American Law Register, Philadelphia, Pa., D. B. CANFIELD & Co. Leg. Chron. Legal Chronicle, Pottsville, Pa., SOL. FOSTER, JR. Leg. Int. N. B. R. Legal Intelligencer, Philadelphia, Pa., J. M. POWER Wallace. ADMIRALTY. 1. CONTRACT TO BUILD SHIP. - OWNERSHIP. Upon a contract to build and deliver a ship after a successful trial trip at sea, although the party for whom it is built in pursuance of the contract inspects and approves the work as it progresses and makes payments thereon, in proportion to such progress, such party does not thereby become the owner of such vessel, nor until the final completion and delivery thereof. The Revenue Cutter, D. C. U. S. Or., Pac. Law Rep., January 23, 1877. 2. MARITIME CONTRACT DEFINED.-A vessel launched and afloat upon the navigable waters of this district (Oregon) is a ship, and a contract to furnish materials for her equipment is a maritime one. The ruling in The Eliza Ladd affirmed. Ib. 3. POSSESSION DEFINED. A party contracted with the United States to build and deliver a vessel after a successful trip at sea, and the latter in pursuance of the contract kept a superintendent at the vessel during the progress of the work, with power to reject or approve all materials Vol. IV.] used in her construction. Held, that the contractor was in possession during the progress of the work and not the United States, and that the vessel was not exempt from the process of a court in a suit to enforce a lien against her for materials furnished for her equipment at the request of the contractor. Ib. 4. IBID. The builder under such contract having failed to perform the same, and the contract being that the United States might in such case, at the option of the secretary of the treasury, complete the work at the expense of the contractor: Held, that until such option was exercised, the vessel was not and could not rightfully be taken into the possession of the United States; and that when it was, the United States would take possession merely as the agent of the contractor to finish the vessel for and on its account and risk. 1b. See PLEADING AND PRACTICE, 5. BANKRUPTCY. 1. MECHANIC'S LIEN.. PROCEEDINGS IN BANKRUPTCY TO PRESERVE. - A mechanic's lien which derives its existence wholly from a state statute, and the continuance of which is by such statute made dependent upon the commencement of a suit within a prescribed period, is not preserved as a valid incumbrance on the property, when no suit is commenced in the state court, and no step taken in the bankrupt court equivalent to such suit, within the time limited by the statute for the preservation and enforcement of the lien, although the proceedings in bankruptcy are commenced within that period. A lien claimant can, as an equivalent for commencing a suit in a state court, prove or assert his lien in the bankruptcy proceedings within the time limited by the statute creating the lien. In re Brunquest, D. C. U. S. E. D. Wisc., 14 N. B. R. No. 12. 2. SEPARATE BUSINESS AND ACCOUNTS. If the bankrupts, in addition to other business, carried on a brokerage business, for which they kept a separate account, and a separate bank account, a party whose bonds were sold is entitled to payment in full, if the amount in the bank is more than sufficient to pay all claims against the brokerage department. Voight v. Lewis, Trustee, D. C. U. S. E. D. Pa., Ib. 3. ATTACHMENT. BILL OF SALE. PREFERENCE.—If an insolvent defendant in an attachment suit gives a bill of sale of the attached property to the receiptor, with the understanding that the property shall be sold and the property applied towards the payment of the debt of the attaching creditor, without regard to the attachment, and without a demand perfected in execution, the bill of sale is a preference; but if the understanding was that the proceeds should be applied only upon demand duly made on execution, it is valid. Parsons v. Topliff, S. C. Mass., Ib. 4. IF THERE IS AN OMISSION TO ENTER AN ORDER REFUSING A DISCHARGE, the bankrupt court may make it nunc pro tunc if no rights of third parties have intervened which can be prejudiced by making the record speak the truth. In re Drisco, C. C. U. S. Mass., Ib. 5. SECOND PETITION. If a party has contracted new debts, since the filing of the first petition, he may file a second petition in bankruptcy. Ib. [No. 3. 6. GOODS ON COMMISSION. FIDUCIARY DEBT. If goods were consigned to the bankrupt to sell on commission, and he failed to account for the proceeds, this is a fiduciary debt, and will not be released by a discharge. Meador v. Sharpe, S. C. Ga., Ib. No. 11. 7. THE COST OF AN ATTACHMENT which has been dissolved by bankruptcy may be paid out of the fund; unless that the attachment did not and could not operate to preserve the property for the general creditors. Ex parte Holmes, S. C. Mass., Ib. 8. IF THE BANKRUPT, BEING TRUSTEE, DEPOSITED THE TRUST FUNDS IN BANK with his own in his own name, the mode of ascertaining how much belongs to the trust estate is to take the deposits and withdrawals in the order of their dates, find out how much of the balance belongs to the trust, and how much to the general fund, and divide accordingly. Ex parte Hobbs, D. C. U. S. Mass., Ib. 9. MARSHAL'S FEES. COMMISSIONS FOR DISBURSEMENTS. The marshal is entitled to a fee of two dollars for serving a copy of the petition as well as the order to show cause on the debtor in an involuntary case. The allowance of a commission for disbursements is not limited to disbursements for court expenses. The marshal is not entitled to a commission on the value of property for the seizure or custody thereof. In re Burnell Brothers, D. C. U. S. E. D. Wisc., Ib. in section 5110, 10. THE MEANING OF THE WORD 66 TRADESMAN is substantially the same as shopkeeper. Persons who buy and sell in a small way, merely by way of eking out their living, which is principally earned in other ways, are not tradesmen. As the word tradesman is in a section that is almost penal, it should be confined in its meaning. In re Cote, D. C. U. S. Mass., Ib. ON PERSONAL PROPERTY. 11. COMPOSITION. SECURED CREDITOR. LEVY OF EXECUTION If a resolution of composition has been duly ratified, it confines the secured creditor to his security, and discharges the debtor from personal liability for the secured debt. If a composition is entered into for cash payments, secured by a mortgage on real estate, the district court has no jurisdiction to restrain a creditor from levying an execution on personal property, although the name of such creditor was properly placed on the list of creditors. In re Lytle, D. C. U. S. W. D. Pa., Ib. No. 10. BILLS AND NOTES. FRAUD OR ILLEGALITY, IN THE INCEPTION OF A NEGOTIABLE PROMISSORY NOTE TRANSFERRED BEFORE MATURITY, will vitiate the same in the hands of a person having knowledge of the fraud or illegality; and when such fraud or illegality is established, the burden of proof is devolved upon the holder, to show that he took the note in good faith or for value. But when such note is taken in good faith and for value, the holder is vested with a good title, notwithstanding there may have been circumstances connected with the transfer to him sufficient to put an ordinarily prudent man on inquiry. Hamilton v. Marks, S. C. Mo., Am. Law Reg., January, 1877. BROKERAGE. RIGHT OF BROKER TO COMMISSIONS. When a broker authorized to sell at private sale has commenced a negotiation, the owner cannot, pend |