Page images

this act.” Held, that the assessment of duties, as made, was correct.

Robertson v. Salomon, 603.
8. “Goring” and “gorings” make their first appearance in the act of

March 3, 1883. 1b.
9. The Circuit Court erred in not submitting to the jury the question

whether the goods were or were not known in this country, in trade
and commerce, under the specific name of goring, and in directing a
verdict for the plaintiffs. 16.

See LOCAL LAW, 1, 4, 5.




1. Remedy for error in a decree for the foreclosure and sale of property

mortgaged to a trustee for the benefit of holders of bonds issued under
the mortgage, or in the sale under the decree, must be sought in the
court which rendered the decree and confirmed the sale. Kent v. Lake

Superior Ship Canal Co., 75.
2. A canal company which had issued several series of bonds, secured by

mortgages on its property, defaulted in the payment of interest on all.
Bills were filed to foreclose the several trust deeds, and a receiver was
appointed. On due notice to all parties receiver's certificates were
issued to a large amount for the benefit of the property, which certifi-
cates were made a first lien upon it. The property was sold under a
decree of foreclosure and sale, and the purchasers paid for the same in
receiver's certificates, the amount of the bid being less than the
amount of the issue of such certificates. On a bill filed by a holder
of bonds issued under one of the mortgages foreclosed, Held, (1) That
his remedy should have been sought in the court which rendered the
decree; (2) That the paramount lien of the receiver's certificates
having been recognized by the trustee of the mortgage under which
the bonds were issued, his action in that respect was, so far as

appeared, within the discretion reposed in him by his deed. Ib.
3. Under a writ of possession, on a judgment entered in January, 1886, in

a suit brought in a Circuit Court of the United States by C. against
M. in March, 1884, L. was evicted from land, and the agent of C. was
put in possession. L. was in possession under a sheriff's deed made
in August, 1885, under proceedings in another suit against M. L.
brought a suit in equity, in the same Circuit Court, in April, 1886,

against F. as testamentary executor of C. and individually, to have
the suit of C. declared a nullity, for want of jurisdiction, and because
L. was not a party to it, and for an injunction restraining F. and the
agent of C. from molesting L. in the possession of the land. On
demurrer to the bill: Held, (1) The case was not one for a suit in
equity; (2) The possession of L. was that of M.; and L. as a pur-
chaser pendente lite, was subject to the operation of the writ of posses-
sion; (3) The proper decree was to dismiss the bill, without prejudice

to an action at law. Lacassagne v. Chapin, 119.
4. From March, 1875, to May, 1881, D. sent to H. from time to time various

sums of money, to be lent by him for complainant at interest, H. being
instructed and agreeing to reinvest the interest in the same way. The
money was at first invested at 10 per cent, but early in 1881 H.
informed D. that the rate was reduced to 8 per cent. H. died in 1886.
D. filed a bill in equity against his executors for an account and pay-
ment of what might be found due. They answered and the cause
was referred to a master. The executors produced at the hearing no
books of accounts or papers of H. and no statements by him of his
investments. In the account stated by the master interest was in-
cluded up to April 1, 1881, at 10 per cent, and at 8 per cent thereafter
with annual rests, and a decree was entered accordingly. Held,
(1) That a trust relation between the parties was disclosed, which
entitled the complainant to an account; (2) That it was the duty of
H. to keep an account and that in its absence it must be presumed
that he reinvested interest moneys, as received, at the rates named in
the correspondence; (3) That after his death his executors should be
charged at the legal rate of 6 per cent; (4) That certain claims set
up by the executors for taxes paid were not sustained by the proof.

Dillman v. Hastings, 136.
5. When, in a court of equity, it is proposed to set aside, annul or correct a

written instrument for fraud or mistake in the execution of the instru-
ment itself, the testimony on which this is done must be clear,
unequivocal and convincing, and not a bare preponderance of evidence;
and this rule, well established in private litigations, has additional
force when the object of the suit is to annul a patent issued by the

United States. United States v. Budd, 154.
6. When the defendant in a suit in equity appears and answers under oath,

denying specifically the frauds charged, no presumptions arise against
him if he fails to offer himself as a witness as to the alleged frauds,

inasmuch as the plaintiff can call him and cross-examine him. Ib.
7. A person who has acquired title by adverse possession may maintain a

bill in equity against those who, but for such acquisition, would have
been the owners, for the purpose of having his title judicially ascer-
tained and declared, and to enjoin the defendants from asserting title
to the same premises from former ownership that has been lost.
Sharon v. Tucker, 5:33.

8. Such a bill is not a bill of peace, nor is it strictly a bill quia timet. The

ground of the jurisdiction is the obvious difficulty and embarrassment
in asserting and protecting a title not evidenced by any record, but
resting in the recollection of witnesses, and the warrant for its exercise
is found in the ordinary jurisdiction of equity to perfect and complete
the means by which the right, estate or interest of holders of real
property, that is, their title, inay be proved or secured, or to remove

obstacles to its enjoyment. Ib.
9. A court of equity has jurisdiction over a bill filed by a State to prevent

illegal interference with its control of the digging, mining and remor-
ing phosphate rock and phosphate deposits in the bed of a navigable
river within its territories. Coosaw Mining Co. v. South Carolina, 550.







1. In an action for injuries caused by a machine alleged to be negligently

constructed, a subsequent alteration or repair of the machine by the
defendant is not competent evidence of negligence in its original con-

struction. Columbia gPuget Sound Railroad Co. v. Hawthorne, 202.
2. Upon an indictment for conspiracy, acts, or declarations of one con-

spirator, made after the conspiracy has ended, or not in furtherance of
the conspiracy, are not admissible in evidence against the other

conspirators. Logan v. United States, 263.
3. B. contracted with C. to construct and put up for him a crushing plant,

with a guaranteed capacity of 600 tons daily, and C. agreed to pay
therefor $25,000, one-half on presentation of the bills of lading and
the remainder when the machinery should be successfully running.
The machine was completed and put in operation October 1. The
agreed payment of $12,500 was made on delivery, and $7500 in three
payments in the course of a month. B. sent a man to superintend the
putting up of the machine and to watch its working. Under his
directions a book was kept in which were recorded either by himself
or under his directions by C.'s foreman, the daily workings of the
machine between October 18 and November 7, which account was
copied by B.'s man and sent to B. The working from November 7
to the following March was also kept in the same way. In an action
by B. against C. to recover the remainder of the contract price; Held,

(1) That B.'s man could use these books in his examination in chief
to assist him in testifying as to the actual working of the machines
from October 18 to November 7; (2) That the defendant not having
introduced the books, (which were in his possession,) in his evidence
in reply to the plaintiff's evidence in chief, could not, in rebuttal, ask
a witness to examine them and state the results as to the working of
the machine in the months of November, December, and January,
which subjects had not been inquired about by the plaintiff. Chateau-

gay Ore and Iron Co. v. Blake, 476.
4. Evidence of a local custom is not admissible unless it is shown to be

known to both parties; and this court may infer, from the general
course of the inquiries and proceedings at the trial, that a custom
inquired of at the trial and so excluded, was regarded by the court
and by both parties as a local custom, and not as a general cus-
tom, although the record inay contain nothing positive on that point.

5. When the defendant in his answer admits the execution of an instru-

ment set up by the plaintiff in his declaration, and claims that it is
invalid by reason of matters set forth in the answer, that instrument
is admissible in evidence. Smith v. Gale, 509.
See Copyright, 6;

Equity, 5, 6;

Local Law, 5;



An exception that the court did not charge either of eighteen enumerated

requests for special instructions except as it had charged is an insuffi-
cient exception. Chateaugay Ore and Iron Co. v. Blake, 476.

See Local Law, 1.

A regulation made August 25, 1886, by the commissioner of Internal Rev-

enue, with the approval of the Secretary of the Treasury, under § 20
of the act of August 2, 1886, c. 840, (24 Stat. 209,) in relation to
oleomargarine, required wholesale dealers therein to keep a book, and
make a monthly return, showing certain prescribed matters. A whole-
sale dealer in the article who fails to comply with such regulation is
not liable to the penalty imposed by § 18 of the act, because he does
not omit or fail to do a thing required by law in the carrying on or
conducting of his business. United States v. Eaton, 677.



See PRACTICE, 1, 2.



Courts do not favor forfeitures; but will nevertheless enforce them when

the party by whose default they are incurred cannot show good ground
in the conduct of the other party on which to base a reasonable excuse
for the default. Hartford Life Insurance Co. v. Unsell, 439.


See Equity, 5, 6.

1. The statutes forbidding the transfer by a debtor of his property with

intent to hinder, delay or defraud creditors do not invalidate a con-
veyance by a debtor to a bona fide creditor, with intent to prefer him.

Crawford v. Neal, 585.
2. The burden of setting aside a conveyance by a debtor as made with

intent to hinder, delay or defraud creditors is on the attacking creditor;
'but where the fraudulent intent on the grantor's part is made out, and
the circumstances are suspicious, then the purchaser must show that
he paid full value; and if this is shown it must then be made to

appear that the purchaser had full knowledge of the fraud. Ib.
3. The continued possession by an insolvent debtor of his real estate after

the transfer of it to a creditor by way of preference may be explained

by the surrounding circumstances. Ib.
4. Of two conveyances made by an insolvent debtor at the same time to

two individuals, one may be held to be valid as a preference of a bona
fide creditor, and the other invalid as made with an intent to hinder,
delay or defraud creditors, unless the two transactions are so inter-
mingled as to make them necessarily but one transaction, in which
case both will be void. 16.


While the good-will of a business may be the subject of barter and sale, it

must be something substantial and capable of pecuniary estimation,
and not shadowy. Camden v. Stuart, 104.




See COPYRIGHT, 2, 3.


« PreviousContinue »