Γ

CALIFORNIA (continued).

3. An appeal from a decree of the District Court to the Supreme Court,
in such cases, suspends the operation and effect of the decree only
when, by a judgment of the Supreme Court, the claim of the con-
firmee in the premises in controversy may be defeated. Ib.

4. The decree of the board of land commissioners in such cases, or of the
courts of the United States, where it becomes final, takes effect by
relation as of the day when the claim was presented to the board of
land commissioners.

Ib.

5. The statute of California which gives to mechanics a lien upon the
flumes or aqueducts" which they may have constructed or repaired,"
provided suit be brought "within one year after the work is done,"
construed and held to be confined to that part of the canal where the
work was done. Canal Company v. Gordon, 561.

CHARITABLE USES. See Massachusetts, 1.

COLLISION. See Practice, 20-1.

1. In settling the mere facts of a collision of vessels, on conflicting evidence,
the Supreme Court will not readily reverse a decree made by a Dis-
trict Court and affirmed by the Circuit Court. The Hypodame, 216.
2. When a steam vessel, proceeding in the dark, hears a hail before it
from some source which it cannot or does not see, it is its duty in-
stantly to stop and reverse its engine. Ib.

8. The captain of a steam propellor is not a competent lookout; though
the propellor be but a river propellor. The lookout should be a per-
son specially appointed. Ib.

4. Vessels navigating rivers which have a usage as to the sides which
ascending and descending vessels respectively shall observe, are
bound to observe the usage. The Vanderbilt, 225.

COMMERCIAL LAW. See Negotiable Paper.

1. To justify the sale, by the master, of his vessel, good faith in making
the sale, and a necessity for it, must both concur; and the purchaser,
to have a valid title, must show their concurrence. The Amelie, 18.
2. A justifiable sale divests all liens. Ib.

CONFIRMATION.

1. Where the government directed that settlers should be "confirmed "
in their "possessions and rights," and ordered a particular public
officer to examine into the matter, &c., confirmation by writing
not under seal was sufficient. Reichart v. Felps, 160.

2. A probate court cannot by subsequent order give validity to sales void
by the laws of the State where made. Gaines v. New Orleans, 642.

CONFLICT OF JURISDICTION.

After return of nulla bona to an execution from the Circuit Court of the
United States against a municipal corporation of a State, bound to
levy a tax to pay its debts, mandamus lies from such Circuit Court
to compel the levy, even though the State court, after the judgment
obtained in the Circuit Court, and before the application for the

CONFLICT OF JURISDICTION (continued).

mandamus, have enjoined such levy. Riggs v. Johnson County, 166;
affirmed in Weber v. Lee County, 210, and in United States v. Council
of Keokuk, 514, 518.

CONSTITUTIONAL LAW.

1. A statute of a State, that the masters and wardens of a port within it
should be entitled to demand and receive, in addition to other fees,
the sum of five dollars, whether called on to perform any service or
not, for every vessel arriving in that port, is a regulation of com-
merce within the meaning of the Constitution, and also, a duty on
tonnage, and is unconstitutional and void. Steamship Company v.
Portwardens, 31.

2. A special tax on railroad and stage companies for every passenger car-
ried out of the State by them is a tax on the passenger for the privi-
lege of passing through the State by the ordinary modes of travel, not
a simple tax on the business of the companies, and is unconstitutional
and void. Crandall v. State of Nevada, 35.

8. Congress has no power to organize a board of revision to annul titles
confirmed many years by the authorized agents of the government.
Reichart v. Felps, 160.

4. A statute authorizing a chancellor to appoint a devisee of a life estate
in a trust for life, remainder over, to execute the trust, does not vio-
late the obligation of a contract. Williamson v. Suydam, 723.

CONTRACT. See Evidence, 10; Shrinkage of Soil.

1. In a contract to make and complete a structure, with agreements for
monthly payments, a failure to make a payment at the time specified
is a breach which justifies the abandonment of the work, and entitles
the contractor to recover a reasonable compensation for the work actu-
ally performed. And this, notwithstanding a clause in the contract
providing for the rate of interest which the deferred payment shall
bear in case of failure. Canal Company v. Gordon, 561.

2. Where a party, who, by contract, has a right to have and take security
to have work finished by a certain day,-no penalty nor any right to
terminate the contract for non-completion, being reserved, permits
the other side, after breach, to go on in an effort to complete the con-
tract, he has no right to compel him to complete it in a manner which
necessarily involves him in loss. Clark v. United States, 543.
CORPORATION. See Debtor and Creditor.

COURT OF CLAIMS.

1. The act of March 3, 1863, concerning the Court of Claims, confers a
right of appeal in cases involving over $3000, which the party de-
siring to appeal can exercise by his own volition, and which is not de-
pendent on the discretion of that court. United States v. Adams, 101.
2 When the party desiring to appeal signifies his intention to do so in any
appropriate mode within the ninety days allowed by that statute for
taking an appeal, the limitation of time ceases to affect the case; and
such is also the effect of the third rule of the Supreme Court concern
ing such appeals. Ib.

COURT OF CLAIMS (continued).

3. It is no ground for dismissing such appeal, that the statement of facts
found by the Court of Claims is not a sufficient compliance with the
rules prescribed by the Supreme Court on that subject. United States
v. Adams, 101.

4. But the Supreme Court will of its own motion, while retaining juris-
diction of such cases, remand the records to the Court of Claims for a
proper finding. Ib.

5. A finding which merely recites the evidence in the case, consisting
mainly of letters and affidavits, is not a compliance with the rule; but
a finding that a certain instrument was not made in fraud or mistake
is a proper finding without reporting any of the evidence on which
the fact was found. Ib.

6. A case in the Court of Claims which involves the right of a claimant
to a military bounty land-warrant under the acts of Congress of March,
3d, 1855, and May 14th, 1856, is apparently within that part of that
section of the act of March 3d, 1863, which provides "that when the
judgment or decree will affect a class of cases, or furnish a precedent
for the future action of any executive department of the government
in the adjustment of such class of cases, . . . and such facts shall be
certified to by the presiding justice of the Court of Claims, the Supreme
Court shall entertain an appeal on behalf of the United States, with-
out regard to the amount in controversy." United States v. Alire, 573.
DAMAGES.

See Practice, 21.

1. Where an intruder, ousted by judgment on quo warranto from an office
having a fixed salary, and of personal confidence, as distinguished
from one ministerial, takes a writ of error, giving a bond to prosecute
the same with effect and to answer all costs and damages if he shall
fail to make his plea good-thus, by the force of a supersedeas, remain-
ing in office and enjoying its salary-does not prosecute his writ with
effect,—the measure of damages on suit on his bond by the party who
had the judgment of ouster in his favor, is the salary received by the
intruding party during the pendency of the writ of error, and conse-
quent operation of the supersedeas. United States v. Addison, 291.
2. The rule which measures damages upon a breach of contract for wages
or for freight, or for the lease of buildings, where the party aggrieved
must seek other employment, or other articles for carriage, or other
tenants, has no application to public offices of personal trust and con-
fidence, the duties of which are not purely ministerial or clerical. Ib.
3 On a breach of a contract to pay, as distinguished from a contract to in-
demnify, the amount which would have been received if the contract
had been kept, is the measure of damages if the contract is broken.
Wicker v. Hoppuck, 94.

4 In a suit against a common carrier for not carrying a party according
to contract, the allegation of a breach" whereby the plaintiff was sub-
jected to great inconvenience and injury," is not an allegation of spe-
cial damage. Roberts v. Graham, 578.

DEBTOR AND CREDITOR. See Fraudulent Conveyance.

1. Where a bank charter is forfeited on quo warranto and the corporation is
dissolved-any surplus of assets above its debts, by general laws of
equity, will belong to the stockholders. Lum v. Robertson, 277.

2. A delinquent debtor cannot in such case plead the judgment of forfeit-
ure as against a trustee seeking to reduce his debt to money for the
benefit of the stockholders. Ib.

DYING DECLARATIONS. See Evidence, 3.

EQUITY. Sec Debtor and Creditor; Evidence, 6; Notice; Mandamus, 1;
Public Lands, 2; Public Policy; Practice, 17-19; Tort Feasors.

1. Where a plain defect of jurisdiction appears at the hearing or on appeal,
a court of equity will not make a decree though no objections have
been interposed in the first instance. Thompson v. Railroad Com·
panies, 134.

2. Where a sale for taxes is impeached for fraud or unfair practices of offi
cer or purchaser, to the prejudice of the owner, a court of equity is the
proper tribunal to afford relief. Slater v. Maxwell, 268.

3. The jurisdiction of a court of equity invoked to enforce a statutory lien,
rests upon the statute, and can extend no further. Canal Company v.
Gordon, 561.

4. Where a fact alleged in a bill in chancery is one within the defendant's
own knowledge, the defendant must answer positively. Slater v.
Maxwell, 268.

5. A paper put in after the answer filed and after part of the testimony has
been taken, stating that the "plaintiffs in the cause hereby join issue
with the defendants (naming them), and will hear the cause on bill,
answer and proofs against the defendants," is a sufficient replication.
Clements v. Moore, 299.

6. Exceptions to the report of a master in chancery cannot be taken for
the first time in this court. Canal Company v. Gordon, 561.

7. Where a release is fraudulently obtained from one of two joint con-
tractors, the releasing contractor is not an indispensable party to a bill
filed by his co-contractor against the other party to the contract. Ib.
ESTATE.

See Remainder.

Though a devise to trustees and their heirs," passes, as a general thing,
the fee, yet where the purposes of a trust and the power and duties of
the trustees are limited to objects terminating with lives in being,-
where the duties of the trustees are wholly passive, and the trust thus
perfectly dry, the trust estate may be considered as terminating on
the efflux of the lives. The language used in creating the estate will
be limited to the purposes of its creation. Doe, Lessee of Poor, v. Cụn-
sidine, 458.

EVIDENCE. See Practice, 11.

1. Under the plea of the general issue in actions of assumpsit evidence may
be received to show, not merely that the alleged cause of action never
existed, but also to show that it did not subsist at the commencement.
of the action. Mason v. Eldred et al., 231.
51

VOL. VI.

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EVIDENCE (continued).

2. Where a statute authorized a sale of land after notice, &c., and declared
that the deed of conveyance should be "prima facie evidence of title,"
the deed being offered in evidence raises primarily the presumption
that the requisite notice had been given. Mumford v. Wardwell, 423.
8. A will made a short time before a testator's death acknowledging a child
as his legitimate and only daughter, is to be regarded, on a question of
legitimacy, as an affirmative evidence of great weight; and in the
nature of a dying testimony of the testator to the fact. Gaines v. New
Orleans, 642.

4. An attorney-at-law having no power virtute officii to purchase for his
client at judicial sale land sold under a mortgage held by the client,
the burden of proving that he had other authority rests on him. Sav-
ery v. Sypher, 157.

5. Approval by the judge of a bond for prosecution of a writ of error may
be inferred from the facts of the transaction. Silver v. Ladd, 440.
6. In chancery, when an answer which is put in issue admits a fact, and
insists on a distinct fact by way of avoidance, the fact admitted is es-
tablished, but the fact insisted upon must be proved. Clements v.
Moore, 299.

7. Where a creditor shows facts that raise a strong presumption of fraud
in a conveyance made by his debtor, the history of which is necessarily
known to the debtor only, the burden of proof lies on him to explain
it; his estate being insolvent. Ib.

8. Statements, either oral or written, made by the vendor after a sale, are
incompetent evidence against the purchaser. Ib.; Thompson v. Bow-
man, 316.

9. A special verdict not received by the court, nor in any way made mat-
ter of record, is of no weight as evidence for any purpose. United
States v. Addison, 291.

10. The practical interpretation which parties interested have by their con-
duct given to a written instrument, in cases of an ancient grant of a
large body of land asked for and granted by general description, is
always admitted as among the very best tests of the intention of the
instrument. Cavazos v. Trevino, 773.

FEE SIMPLE. See Estate.

FRAUDULENT CONVEYANCE.

1. A debtor in failing circumstances cannot sell and convey his land, even
for a valuable consideration, by deed without reservations, and yet
secretly reserve to himself the right to possess and occupy it, for even
a limited time, for his own benefit. Nor will this rule of law be
changed by the fact that the right thus to occupy the property for a
limited time is a part of the consideration of the sale, the money part
of the consideration being on this account proportionably abated.
Lukens v. Aird, 78.

2. A purchaser of a stock of goods from a debtor confessedly insolvent,
where the purchaser knows that the debtor's purpose is to hinder and
delay a particular creditor, and also that if the debtor intended a fraud