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11. Nor is the obligation of the contract impaired by crossing the road. A franchise
may be condemned in the same manner as individual property. Ibid.
12. The Statute of Frauds in the State of Alabama declares void conveyances made
for the purpose of hindering or defrauding creditors of their just debts. Parish
v. Murphree, 93.
13. Where a person made a settlement upon his wife and children, owing at that
time a large sum of money, for which he was soon afterwards sued, and became
insolvent, these circumstances, with other similar ones, are sufficient to set
aside the deed as being fraudulent within the statute. Ibid.
14. Where a defendant in error or an appellee wishes to have a case dismissed be-
cause no citation has been served upon him, his counsel should give notice of
the motion when his appearance is entered, or at the same term;
and also that
his appearance is entered for that purpose. A general appearance is a waiver
of the want of notice. Buckingham v. McLean, 150.
15. An appeal in equity brings up all the matters which were decided in the Circuit
Court to the prejudice of the appellant; including a prior decree of that court
from which an appeal was then taken, but which appeal was dismissed under
the rules of this court. Ibid.
16. Where a bill in chancery was filed by the assignee of a bankrupt, claiming cer-
tain shares of bank stock, the same being also claimed by the bank and by
other persons who were all made defendants, and the answer of the bank set
forth apparently valid titles to the stock, which were not impeached by the
complainant in the subsequent proceedings in the cause, nor impeached by the
other defendants, the Circuit Court decreed correctly in confirming the title of
the bank. Buckinghum v. McLean, 151.
17. A power of attorney to confess a judgment is a security within the second sec-
tion of the Bankrupt Act, 5 Stat. at Large, 442. Ibid.
18. And this security is void if given by the debtor in contemplation of bankruptcy.
But by these terms is meant an act of bankruptcy on an application by him-
self to be decreed a bankrupt, and not a mere state of insolvency. Ibid.
19. In this case there is evidence enough to show that the debtor contemplated a
legal bankruptcy when the power of attorney was given. Ibid.
20. It is not usury in a bank which has power by its charter to deal in exchange, to
charge the market rates of exchange upon time bills. Ibid.
21. Where a person desired to purchase land from a party who was ignorant that
he had any title to it, or where the land was situated ; and the parchaser made
fraudulent representations as to the quantity and quality of the land, and also,
as to a lien which he professed to have for taxes which he had paid ; and
finally bought the land for a grossly inadequate price, the sale will be set aside.
Tyler et ux. v. Black, 231.
22. In equity, where a creditor agrees to receive specific articles in satisfaction of a
debt, even although it be a debt upon bond, secured by mortgage, he will be
held to the performance of his agreement. Very v. Levy, 345.
23. But, in order to bring a case within this principle, there must be, –
1. An agreement not inequitable in its terms and effect.
2. A valuable consideration for such agreement.
3. A readiness to perform, and the absena of laches, on the part of the deotor.
24. Where the agreement to receive payment in goods was made by a person who
acted under a power of attorney from the creditor, authorizing him to trade,
sell, and dispose of notes, bills, bonds, or mortgeges, and, under this power, a
partial payment was received in goods, which was afterwards recognized as a
payment by the creditor, the power was sufficient to authorize an agreement to
receive the remaining amount, also in goods, at any time when called for
within twelve months, especially as the bond had yet four years to run.
25. This agreement was not inequitable; there was a valuable consideration for it;
and the debtor was always ready to comply with it, on his part. Ibid.
26. The creditor cannot now allege fraud in his debtor. It is not charged in the
bill; and, although he may not have known of the agreement when the bill
was framed, yet, when the answer came in, he might have amended his bill,
and charged fraud. Ibid.
27. Real property, in Louisiana, was bound by a judicial mortgage. Fouler v. Hart,
28. The owners of the property then took the benefit of the Bankrupt Act of the
United States. Ibid.
29. A creditor of the bankrupt then filed a petition against the assignee, alleging
that he had a mortgage upon the same property, prior in date to the judicial
mortgage, but that, by some error, other property had been named, and pray.
ing to have the error corrected. Of this proceeding the judgment creditor had
no notice. Ibid.
30. The court being satisfied of the error, ordered the mortgage to be reformed, and
thus gave the judgment creditor the second lien instead of the first; and then
decrced that the property should be sold free of all incumbrances. Of this
proceeding, and also of the distribution of the proceeds of sale, the judgment
creditor had notice, but omitted to protect his rights. Ibid.
31. In consequence of this neglect, he cannot afterwards assert his claim against a
purchaser, who has bought the property as being free from all incumbrances.
32. The following paper, viz.
“ The President or Cashier of the Planters and Merchants Bank will please
hold, subject to the order of Mr. J. G. Lindsey, all the debts referred to in the
inclosed letter from Mr. McFarlin, except the two drafts of McCollier Minge,
upon the Messrs. Ellicotts, of Baltimore, which, when colleeted, please place
to my credit”- imports an authority to Lindsey to control the settlement and
collection of these several demands ; but not necessarily a transfer of the title
to or interest in them. Rogers v. Lindsey, 441.
33. The circumstances of the case favor this construction. Lindsey had become
personally responsible for a sum of money, which these debts were intended in
part to meet. As an honest transaction, it would answer all purposes, if he
had only a power to collect the debts. Ibid.
34. Where Lindsey, under this power, assigned an interest in one of these judga
ments, and the bill charged that the assignce knew of the interest of the origi-
nal creditor, which the assignee, in his answer, did not deny, he failed to bring
himself within the rules which protect a purchaser for a valuable consideration
without notice, and his claim must be set aside. Ibid.
35. Lindscy's having assigned this judgment to a third person, and then taken a re-
assignment of it, does not vary the case. He stands then in his original posi.
COLLISION OF VESSELS.
1. It is not usury in a bank which has power by its charter to deal in exchange, to
charge the market rates of exchange upon time biils. Buckingham v. McLean,
2. Where an action was brought against certain persons for giving a commercial
letter of recommendation with intention to defraud and deceive, whereby the
party to whom the letter was addressed gave credit and sustained a loss, the
question for the jury ought to have been whether or not there was fraud and
an intention to deceive, in giving the letter. Lord v. Goddard, 198.
3. If there was no such intention, if the parties honestly stated their own opinion,
believing at the time that they stated the truth, they are not liable in this form
of action, although the representation turned out to be entirely untrue. Ibid.
4. A statute of Ohio declares all promissory notes, drawn for a sum certain, pay.
able to any person or order, or to any person or his assignees, negotiable by
indorsement. Miller v. Austen, 218.
5. The following paper, namely,
" No. 959.
Mississippi Union Bank, Jackson, Miss. February 8, 1840.
I hereby certify that Hugh Short has deposited in this bank, payable twelve
months from 1st May, 1839, with five per cent. interest till duc, fifteen hundred
dollars, for the use of Henry Miller, and payable only to his order, upon the
return of this certificate. $1,500. Wm. P. Grayson, Cashier,”.
was negotiable by indorsement under the statute, and the indorsee had a right
to maintain an action against an indorser. Ibid.
6. In a suit by the indorsee against the indorser of a bill, where thc defence was
usury, the drawer and drawee were incompetent witesses, when offered to
COMMERCIAL LAW, (Continued.)
prove certain facts, which, when taken in conjunction with certain other facts,
to be proved by other witnesses, would invalidate the instrument. Saltmarsh
v. Tuthill, 229.
7. Being incompetent witnesses to establish the whole defence, they are also incom.
petent to establish a part. Ibid.
1. The bills of a banking corporation, which has corporate property, are not bills
of credit within the meaning of the Constitution, although the State which
created the bank is the only stockholder, and pledges its faith for the ultimate
redemption of the bills. Darrington v. Bank of Alabama, 12.
2. The principles established in the cases of 3 How. 212, and 9 How. 477, again
affirmed, viz., that after the admission of Alabama into the Union as a State,
Congress could make no grant of land situated between high and low water
marks. Doe v. Borbe, 25.
3 The treaty of 1819, between the United States and Spain, contains the following
“ The United States shall cause satisfaction to be made for the injuries, if any,
which by process of law shall be established to have been suffered by the Spa-
nish officers and individual Spanish inhabitants by the late 'operations of the
American army in Florida." United States v. Ferreira, 40.
Congress, by two acts passed in. 1823 and 1834, (3. Stat. at Large, 768, and 6
Stat. at Large, 569,) directed the judge of the Territorial Court of Florida to
receive, examine, and adjudge all cases of claims for losses, and report his de-
cisions, if in favor of the claimants, together with the evidence upon which
chey were founded, to the Secretary of the Treasury, who, on being satisfied
that the same was just and equitable, within the provisions of the trcaty, should
pay the amount thereof; and by an act of 1849, (9 Stat. &t Large, p. 788,)
Congress directed the judge of the District Court of the United States for the
Northern District of Florida, to receive and adjudicate certain claims in the
manner directed by the preceding acts. Ibid.
5. From the award of the district judge, an appeal does not lie to this court. Ibid.
6. As the treaty itself designated no tribunal to assess the damages, it remained for
Congress to do so by referring the claims to a commissioner according to the
established practice of the government in such cases. His decision was not the
judgment of a court, but a mere award, with a power to review it, conferred
upon the Secretary of the Treasury. Ibid.
7. The legislature of Virginia incorporated the stockholders of the Richmond,
Fredericksburg, and Potomac Railroad Company, and in the charter pledged
itself not to allow any other railroad to be constructed between those places,
or any portion of that distance; the probable effect would be to diminish the
number of passengers travelling between the one city and the other upon the
railroad authorized by that act, or to compel the said company, in order to re-
tain such passengers, to reduce the passage-money. Richmond Railroad Com-
pany v. Louisa Railroad Company, 71.
8. Afterwards the legislature incorporated the Louisa Railroad Company, whose
road came from the West and struck the first-named company's track nearly
at right angles, at some distance from Richmond; and tie legislature author-
ized the Louisa Railroad Company to cross the track of the other, and continue
their road to Richmond. Ibid."
9. In this latter grant, the obligation of the contract with the first company is not
impaired within the meaning of the Constitution of the United States. Ibid.
10. In the first charter, there was an implied reservation of the power to incorporato
companies to transport other articles than passengers; and if the Louisa Rail-
road Company should infringe upon the rights of the Richmond Company,
there would be a remedy at law, but the apprehension of it will not justify an
injunction to prevent them from building their road. Ibid.
11. Nor is the obligation of the contract impaired by crossing the road. A franchise
may be condemned in the same manner as individual property. Ibid.
12. During the war between the United States and Mexico, where a trader went
into the adjoining Mexican provinces which were in possession of the military
authorities of the United States, for the purpose of carrying on a trade with
the inhabitants which was sanctioned by the exccutive branch of the govern-
ment, and also by the commanding military officer, it was improper for an offi-
cer of the United States to seize the property upon the ground of trading with
the enamy:, Mitchell y. Harmony, 115.
CONSTITUTIONAL LAW, (Continued.)
13. Private property may be taken by a military commander to prevent it from fall-
ing into the hands of the enemy, or for the purpose of converting it to the use
of the public; but the danger must be immediate and impendirg, or the neces-
sity urgent for the public service, such as will not admit of delay, and where
the action of the civil authority would be too late in providing the means which
the occasion calls for. Ibid.
14. The facts, as they appeared to the officer, must furnish the rule for the application
of these principles. Ibid.
15. But the officer cannot take possession of private property for the purpose of in-
suring the success of a distant expedition upon which he is about to march.
16. Whether or not the owner of the goods resumed the possession of them at any
time after their seizure, was a fact for the jury. In this case, they found that
he did not resume the possession, and in this they were sustained by legai evi.
17. The officer who made the seizure cannot justify his trespass by showing the or-
ders of his superior cfficer. An order to commit a trespass can afford no jus-
tification to the person by whom it was executed. lbid.
18. The trespass was committed out of the limits of the United States. But an ac-
tion for it may be maintained in the Circuit Court for any district in which
the defendant may be found upon process against him, where the citizenship of
the respective parties gives jurisdiction to a court of the United States. Ibid.
19. The courts of the United States, under the Constitution and laws, have equity
jurisdiction. Unless the general principles of equity have been modified by the
laws or usages of a particular State, those general principles will be carried out
everywhere in the same manner, and equity jurisprudence be the same, when
administered by the courts of the United States, in all the States. Neves et al.
v. Scott, 268.
20. Hence, the decision of a State court, in a case which involved only the general
principles of equity, and was not controlled by local law or usage, is not bind-
ing as authority upon this court. Ibid.
21. In the case of Neves et al. v. Scott et al., reported in 9 Howard, 196, this court
decided two points, - one, that volunteers could, in that case, claim the inter-
ference of chancery to enforce the marriage articles in question ; and the other,
that the articles constituted an executed trust. Tid.
22. The Supreme Court of Georgia does not agree with this court upon the first
point. Nevertheless, this court does not change its decision. Ibid.
23. Moreover, the sccond point, upon which this court rested the case, does not ap-
pear to have been brought before the Supreme Court of Georgia; and, of course,
it expressed no opinion upon the point. Ibid.
24. In 1802, when Georgia ceded her back lands to the United States, she had juris-
diction over the whole of the Chattahoochee River, from its source to the
thirty-first degree of north latitude. Howard et al. v. Ingersoll, 381.
25. The rule is that, where a power possesses a river, and cedes the territory on the
other side of it, making the river the boundary, that power retains the river,
unless there is an express stipulation for the relinquishment of the rights of
soil and jurisdiction over the bed of such river. Ibid.
26. When Georgia ceded to the United States all the land situated on the west of a
line running along the western bank of the Chattahoochee River, she retained
the bed of the river and all the land to the east of the line above mentioned.
27. The river flows in a channel, between two banks, from fifteen to twenty feet high,
between the bottom of which and the water, when the river is at a low stage,
there are shelving shores, from thirty to sixty yards each in width. Ibid.
28. The boundary-line runs along the top of this high western bank, leaving the bed
of the river and the western shelving shore within the jurisdiction of Georgia.
29. The State of Pennsylvania having constructed lines of canal and railroad, and
other means of travel and transportation, which would be injured in their re-
venues by the obstruction in the River Ohio, created by a bridge at Wheeling,
has a sufficiently direct interest to sustain an application to this court, in the
exerciso of original jurisdiction, for an injunction to remove the obstruction.
The remedy at law would be incomplete. Pennsylvania v. Wheeling Bridge,
CONSTITUTIONAL LAW, (Continued.)
30. It is admitted that the Federal courts have no jurisdiction of common-law
offences, and that there is no abstract, pervading principle, of the common law
of the Union under which this court can take jurisdiction; and that the case
under consideration is subject to the same rules of action as if the_suit had
been commenced in the Circuit Court for the District of Virginia. Ibid.
31. But chancery jurisdiction is conferred on the courts of the United States by the
Constitution, under certain limitations; and, under these limitations, the usages
of the High Court of Chancery, in England, which have been adopted as
rules by this court, furnish the chancery law which is exercised in all the
States, and even in those where no State chancery system exists. Ibid.
32. Under. this system, where relief can be given by the English chancery, similar
relief may be given by the courts of the Union. Ibid.
33. An indictment against a bridge, as a nuisance, by the United States, could not be
sustained; but a proceeding against it, on the ground of a private and irre-
parable injury, may be sustained, at the instanco of an individual or a corpo-
ration, either in the Federal or State courts. Ibid.
34. In case of nuisance, if the obstruction be unlawful and the injury irreparable,
by a suit at common law, the injured party may claim the extraordinary pro-
tection of a court of chancery. Ibid.
35. The Ohio is a navigable stream, subject to the commercial power of Congress,
which has been exercised over it; and, if the act of Virginia authorized the
structure of the bridge, so as to obstruct navigation, it would afford no justifi-
cation to the bridge company. Ibid.
36. Congress has sanctioned the compact made between Virginia and Kentucky,
viz., " That the use and navigation of the River Ohio, so far as the territory of
Virginia or Kentucky is concerned, shall be free and common to the citizens
of the United States. This compact is obligatory, and can be carried out by
this court. Ibid.
37 Where there is a private injury from a public nuisance, a court of equity will in-
terfere by injunction. Ibid.
38. In this case, the bridge is a nuisance. This is shown by measuring the height
of the bridge, and of the water, and of the chimneys of the boats. The report
of the commissioner, appointed by this court to ascertain these facts, is equi-
valent to the verdict of a jury. Ibid.
39. The report of the commissioner adverted to and commented upon; the extent
of injury sustained by the boats explained; and the importance shown of main.
taining the navigation of the river. Ibid.
40. If a structure be- declared to be a nuisance, there is no room for a calculation
and comparison between the injuries and benefits which it produces. Ibid.
41. Therefore, unless there be an elevation of the lowest parts of the bridge for
three hundred feet over the channel of the river - not less than one hundred
and eleven feet from the low-water mark, the flooring of the bridge descend-
ing from the termini of the elevation at the rate of four feet in the hundred
or some other plan shall be adopted which shall relieve the navigation from
obstruction, on or before the first of February next, — the bridge must be abated.
42. (In consequence of the intimation above alluded to, viz., " that some other plan
might be a lopted” than clevating the bridge, the court, at the request of the
counsel for the Bridge Company, referred the matter can engineer. After re-
ceiving his report, the court decided as follows.) Ibid.
43. The Bridge Company may, upon their own responsibility, try whether the
western channel can be improved and made passable, by means of a druw, so
as to afford a safe and unobstructed navigation for the largest class of boats,
having chimneys eighty feet high, when they cannot pass under the suspen.
sion-bridge. This is to be done, if at all, before the first Monday of Feb.
ruary next, on which day the plaintiff may move the court on the subject of
the decree. Ibid
CONSTRUCTION OF STATUTES.
1. Where there was a contract for the sale of land for the purchase of which in-
dorsed notes were given, but before the time arrived for the making of a dced,
the purchaser failed, and the liability to pay the note became fixed upon the