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Taylor et al. v. Carryl.

reason for fostering in the common-law courts of this country, whether State or Federal, opinions springing from prejudices which arose out of the conflicts of the times, and which tend to create jealousies and suspicions on their part, and produce discord instead of harmony and mutual good feeling in the tribunals of justice. These jealousies and suspicions of Lord Coke undoubtedly grew out of the vehement conflicts, personal as well as political, in which he was so prominently engaged during all his lifetime. They have been discarded and disowned in the courts of the country from which we derived them, and also emphatically repudiated by the stat. of 3 and 4 of Victoria.

And believing, as I do, upon the best consideration I am able to give to the subject, that the decision and the principle upon which the opinion of the court founds itself is inapplicable to the case before us, and that if it is carried out to its legitimate results it will-deprive the admiralty of power, useful, and indeed necessary, for the purposes of justice, and conferred on it by the Constitution and laws of the United States, I must respectfully record my dissent.

INDEX

OF THE

PRINCIPAL MATTERS.

ADMIRALTY.

1. Where the master of a vessel was also part owner, and made a contract of affreightment with a lumber company, of which he was also a member, and the cargo was consigned to the master, the case is not within admiralty jurisdiction, but appropriate to that of a court of chancery. Grant v. Pouillon, 162.

2. Where a judgment of the Circuit Court, sitting in admiralty, was affirmed here by a divided court, interest was not to be calculated upon the judgment. Hemmenway v. Fisher, 255.

3. The eighteenth rule of this court never applied to cases in admiralty which are brought up by appeal, and the rule itself is repealed by the sixty-second rule. Ibid.

4. The admiralty jurisdiction of the courts of the United States extends to cases of collision upon navigable waters, although the place of such collision may be within the body of a county of a State, and may be above the flux and reflux of the tide. Jackson v. Steamboat Magnolia, 296. 5. The District Courts exercise this jurisdiction over fresh-water rivers "navigable from the sea," by virtue of the judiciary act of 1789, and not as conferred by the act of 1845, which extends their jurisdiction to the great lakes and waters "not navigable from the sea." Ibid.

6. The admiralty jurisdiction of the courts of the United States does not extend to cases where a lien is claimed by the builders of a vessel for work done and materials found in its construction. Peoples' Ferry Company v. Beers, 393.

7. Whether the District Courts can enforce a lien in such cases, where the law of the State where the vessel was built gave a lien for its construction, is a question which the court does not now decide. Ibid.

8. Where a tow-boat was descending the Mississippi river with a vessel fastened to each side, and another at the stern, and a collision ensued between one of the vessels thus lashed and an ocean steamer ascending the river, the evidence shows that the latter was in fault, and must pay for all the damage. Snow et al. v. Hill et al., 543.

9. Where a vessel had been seized under a process of foreign attachment issuing from a State court in Pennsylvania, and a motion was pending in that court for an order of sale, a libel filed in the District Court of the United States for mariners' wages and process issued under it, could not divest the authorities of the State of their authority over the vessel; and of the two sales made, one by the sheriff and one by the marshal, the sale by the sheriff must be considered as conveying the legal title to the property, and the sale by the marshal as inoperative. Taylor v. Carryl, 583. 10. Where property is levied upon, it is not liable to be taken by an officer acting under another jurisdiction Ibid.

11. The cases examined where conflicting claims against the same property are set up under the laws of the United States and under State laws. Ibid. 12. The process of foreign attachment in Pennsylvania is identical with that which issues out of the District Court of the United States sitting in admiralty. Ibid.

ADMIRALTY, (Continued.)

13. The admiralty jurisdiction of the courts of the United States, although ex-
clusive on some subjects, is concurrènt upon others. The courts of com-
mon law deal with ships or vessels as with other personal property. Ibid.
14. In order to give jurisdiction in rem, the seizure by the marshal must have
been valid; and this was not the case when the vessel was, at the time
of seizure, in the actual and legal possession of the sheriff. Ibid.

AGENTS.
1. A broker who negotiates the sale of an estate is not entitled to his com-
mission until he finds a purchaser in a situation and ready and willing
to complete the purchase on the terms agreed upon between the broker
and the vendor. McGavock v. Woodlief, 221.

2. Where an assignee of a claim upon a foreign Government, holding it under
an assignment supposed to be good, but afterwards adjudged invalid,
prosecuted the claim to a successful result, and was subjected to costs
and expenses in protecting the fund from rival claimants, and thereby
preserving it, he was entitled to a reimbursement of these costs and ex-
penses by the true owner, upon a final settlement of accounts between
them. Williams v. Gibbes, 535.

3. Being placed in the position of a trustee, it was his duty to defend the title,
and the expenses for so doing were properly chargeable to the estate. Ibid.
4. The assignee ought also to have been allowed a compensation for his
trouble and personal exertions in the prosecution of the claim; and under
the special circumstances of this case, the Circuit Court having allowed
thirty-five per cent. of the sum realized, this court are not prepared to
say it is too much. Ibid.

5. At a sale of public lands in a Territory, an agent who purchased for another
must account, as trustee, to his employer, although the statutes of the
Territory have abolished all resulting trusts. Irvine v. Marshall, 558.

APPEALS.

1. Where this court affirmed a decree of a Circuit Court, which was, that a
conveyance of property should be executed upon the payment of a sum
of money; and the Circuit Court proceeded to carry out its decree by
issuing an attachment against the party who refused to execute such
conveyance, an appeal will not lie to this court from the order directing
the attachment. McMicken v. Perrin, 133.

2. The appeal must be dismissed, with costs, on motion. Ibid.

3. Where an appeal from a decree is taken within ten days from the rendition
of the decree, it is in time to operate as a supersedeas; and so, also, if
taken within ten days after the decree is settled and signed. Silsby v.
Foote, 290.

APPEAL BONDS.

1. The penalty of the bond taken, when an injunction is awarded, is no evidence
of the amount or value in dispute. Brown v. Shannon, 55.

BILLS OF EXCHANGE AND PROMISSORY NOTES.

See COMMERCIAL LAW.

BANKRUPTCY.

1. Deeds of large tracts of land made by a grantor when deeply in debt, and
when suits were pending against him, and who shortly afterwards 'peti-
tioned for the benefit of the bankrupt act, the possession and occupation
of the land continuing the same after the sale as before, and the consid-
eration money one-half only of the actual value, held to be fraudulent
and void as against creditors. Hudgins v. Kemp, 45.

2. The Circuit Court of the United States has no power to entertain an original
bill brought by a creditor, who has come in and proved his debt against
the bankrupt, for the purpose of annulling or vacating a discharge and
certificate in bankruptcy, obtained in the District Court upon imputations
of fraud, done in contemplation of bankruptcy by the bankrupt; or to
give relief, either at law or in equity, in a suit brought by a creditor who
had proved his debt under the commission, who had assented to the
bankrupt's discharge and certificate, and who had taken a dividend out
of the bankrupt's estate. Commercial Bank of Manchester v. Buckner, 108.

BANKRUPTCY, (Continued.)

3. The District Court, which passed the decree in bankruptcy, can take cogni-
zance of such a case. Ibid.

4. Whether or not such a bill could be filed by a creditor who had not come
in and proved his debt, and who was not a party to the decree in bank-
ruptcy, is a question which the court does not now decide. Ibid.

5. Nor has the Circuit Court the power, under its general jurisdiction over
frauds, to give relief either at law or in equity, in a suit brought by a
creditor who had proved his debt under the commission, had assented to
the bankrupt's discharge and certificate, and had taken a dividend out of
the bankrupt's estate. Ibid.

BILLS OF EXCEPTION.

1. A refusal of the court below to grant a new trial is not a proper subject
for a bill of exception. Doswell v. De La Lanza, 29.

2. The Circuit Court of the United States in Alabama, by a general rule,
adopted the practice of the State courts, which is regulated by a stat-
ute providing that no bill of exceptions can be signed after the adjourn-
ment of the court, unless with the consent of counsel, &c. United States
v. Breitling, 252.

3. But where a judge holding the Circuit Court in Alabama signed a bill of ex-
ceptions under special circumstances, after adjournment, and without the
consent of counsel, this court will consider the exception as properly
before it. It is in the power of a court to suspend its own rules, or
except a particular case from them, to subserve the purposes of justice.
Ibid.

4. And the signature of the judge was attached to the bill, in conformity with
the decisions of this court. Ibid.

5. The exception brings up the charge of the court to the jury, but not the
admission of evidence which was objected to on the trial, but to the ad-
mission of which no exception was noted. Ibid.

6. The charge of the court, being founded on a hypothetical state of facts of
which there was no evidence, was erroneous. Ibid.

7. Rulings of the court below, in admitting or rejecting evidence, can be
brought to this court for revision only by a bill of exceptions. Suydam
v. Williamson, 429.

8. Where there is a bill of exceptions, the writ of error does not operate only
upon that part of the record. Wherever an error is apparent on the
record, it is open to revision, whether it be made to appear by a bill of
exceptions, or in any other manner. Ibid.

9. A bill of exceptions may include in its scope the rulings of the court below as
to the admissibility of evidence, which a demurrer to evidence cannot do.
Ibid.

10. Where the only bills of exception were to the refusal of the court to grant
a continuance and change the venue, the judgment of the court below
must be affirmed, as these matters are not the subjects of review by this
court. McFaul v. Ramsay, 523.

11. The laws of Iowa permitting a demurrer only when the petition by a fair
and natural construction does not show a substantial cause of action, a
demurrer to part of the petition in this case was properly overruled. Ibid.
12. Exceptions must be taken or the points reserved whilst the jury are at the bar.
Barton v. Forsyth, 532.

13. Where there was an affidavit made, after verdict and judgment, that the
affiant was the real party in interest, and prayed to be substituted for, or
admitted with, the defendant, and the court overruled the motion, an
exception to this ruling will not bring up the points which were raised
at the trial; nor will it bring up the ruling upon the motion. Ibid.
CALIFORNIA.

1. The regulations for the colonization of the Territories of the Government of
Mexico, made 21st November, 1828, in pursuance of the act of the General
Congress, August 18, 1824, provided: 1st. That the Governors of the
Territories should be empowered to grant vacant lands, among others, to
private persons who may ask for them, for the purpose of cultivating and
inhabiting the same. 2d. That every person soliciting lands shall addres❤

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