ABATEMENT.
Of nuisance, see "Nuisance," § 1.
ABATEMENT AND REVIVAL.
Judgment as bar to another action, see "Judg-
ment," § 1.
ABUTTING OWNERS.
Compensation for taking of or injury to lands
or easements for public use, see "Eminent
Domain," § 1.
Of goods sold in general, see "Sales," § 2.
Actions between parties in particular relations.
See "Landlord and Tenant," § 3; "Master and
Servant," § 2.
Annexation of personal to real property, see Partners, see "Partnership," § 1.
"Fixtures."
Cause of death, see "Death," § 1.
ACCORD AND SATISFACTION.
See "Compositions with Creditors"; "Compro-
Imise and Settlement."
Accounting between partners, see "Partner-
ship," § 1.
Accounts of bankrupt, see "Bankruptcy," 8 5.
§ 1. Operation and effect of accounting.
The master of a ship, who made a settlement
of an account in which there was neither fraud,
accident, nor mistake, receiving payment of the
balance due and giving a receipt in full, cannot
impeach such settlement because of a verbal
protest and an undisclosed intention on his part
not to be bound thereby.-Ranald S. S. Co. v.
Wesenberg & Co. (D. C.) 969.
ACCOUNT STATED.
The failure of a creditor to object to a state-
ment of account rendered by his debtor does
122 F.-65
Actions by or against particular classes of
parties.
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See "Carriers," § 2; "Municipal Corporations,"
§ 3; "Railroads,' § 2; "Sheriffs and Con-
stables," § 1.
Foreign corporations, see "Corporations," § 6.
Stockholders, see "Corporations," § 2.
Particular causes or grounds of action.
See "Account Stated"; "Collision," § 9; "Cus-
toms Duties,' § 4: "Death," § 1; "Insur-
ance," §7; "Negligence," § 2; "Trover and
Conversion," § 2; "Work and Labor."
Breach of contract, see "Sales," § 3.
Infringement of copyright, see "Copyrights,"
Infringement of patent, see "Patents," § 6.
§ 2.
Injunction bonds, see "Injunction," § 6.
Loss of goods, see "Shipping," § 3.
Loss of tow, see "Towage."
Personal injuries, see "Carriers," § 2; "Master
and Servant," § 2; "Railroads," § 2.
Recovery of possession of demised premises, see
Royalties for use of patent, see "Patents," § 5.
"Landlord and Tenant." § 3.
Services, see "Work and Labor."
Unfair competition in trade, see "Trade-Marks
and Trade-Names."
Particular forms of action.
See "Assumpsit, Action of"; "Ejectment";
"Trover and Conversion."
Particular forms of special relief.
acter of the thing injured, and not upon those
See "Account"; "Injunction"; "Specific Per- of the origin of the tort.-The Blackheath (D.
C.) 112.
Determination of mining rights, see "Mines and
Minerals," § 1.
Foreclosure of mortgage, see "Railroads," § 1.
Reformation of written instrument, see "Ref-
ormation of Instruments."
Setting aside will, see "Wills," § 1.
Particular proceedings in actions.
See "Appearance"; "Costs"; "Damages"; "Evi-
dence"; "Execution"; "Judgment"; "Judi-
cial Sales"; "Jury"; "Limitation of Actions";
"Process": "Removal of Causes"; "Stipula-
tions"; "Trial."
Particular remedies in or incident to actions.
See "Discovery"; "Injunction."
Proceedings in exercise of special jurisdictions.
Criminal prosecutions, see "Criminal Law."
Suits in admiralty, see "Admiralty"; "Colli-
sion," § 9.
Suits in equity, see "Equity."
§ 1. Grounds and conditions precedent.
An action to recover real estate by a pur-
chaser at tax sale held not collusive, so as to re-
quire its dismissal by the court.-Robinson v.
Lee (C. C.) 1010.
ADEQUATE REMEDY AT LAW.
Effect on jurisdiction of equity, see "Equity,"
§ 1; "Taxation," § 3.
Operation and effect of former adjudication,
see "Judgment," §§ 1, 2.
A court of admiralty of the United States has
jurisdiction of an action in personam against
the owner of a foreign ship to recover for in-
juries sustained by an American passenger on
the high seas, irrespective of the law of ship's
flag.-Pouppirt v. Elder Dempster Shipping (D.
C.) 983.
§ 2. Parties, process, claims, and stipu-
lations or other security.
A suit in rem may be maintained by the own-
er of a tow against a tug to enforce liability
for an injury caused by alleged negligence in
towing, although at the time of the injury the
tow was under charter to the owner of the
tug.-The Temple Emery (D. C.) 180.
83. Pleading, petitions, and motions.
Where a libel states facts which warrant a
recovery, and the real issues are tried, a recov-
ery will not be denied because the libel counts
on the breach of a charter which is not binding
on respondent.-W. S. Keyser & Co. v. Jurvel-
ius (C. C. A.) 218.
A claim in a libel for demurrage should be
specific, stating the number of days and the
dates for which the demurrage is claimed.-
The Cargo of the Joseph W. Brooks (D. C.)
881.
§ 4. Hearing or trial, and decision.
fore the court, the testimony should be taken
At the hearing of a cause in admiralty be-
down in full, for use in the appellate court
in case of appeal. If there is no official stenog-
rapher, one should be procured by counsel un-
der the sanction of the court.-Neilson v. Coal,
Cement & Supply Co. (C. C. A.) 617.
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General exceptions to the findings of a com-
Of loss within insurance policy, see "Insur- missioner in admiralty, containing no reference
ance," § 5.
Of estate of bankrupt, see "Bankruptcy," § 5.
Of estate of decedent, see "Executors and Ad-
ministrators."
Of trust property, see "Trusts," § 1.
See "Collision"; "Maritime Liens"; "Salvage";
"Seamen"; "Shipping"; "Towage."
to the pertinent evidence, are not entitled to
consideration by the court.-The Waiontha (D.
C.) 719.
A court of admiralty is without jurisdiction As evidence, see "Evidence," § 3.
of a suit to recover damages for injury to a
beacon light structure, caused by collision of
a steamship therewith, where the structure was
immovable, being built on piles sunk in the
bottom of a bay, and extending several feet
above the surface of the water.-The Black-
heath (D. C.) 112.
In matters of tort, the jurisdiction in ad-
miralty depends upon the locality and char-
See "Limitation of Actions."
Of tenant, see "Landlord and Tenant," § 1.
1. Nature and requisites.
A void tax deed held a sufficient assurance of
title to confer title by adverse possession under
Tennessee seven-year statute of limitations.-
Treece v. American Ass'n (C. C. A.) 598.
Evidence held insufficient to establish title by
adverse possession which would support an ac-
tion in ejectment.-Snowden v. Loree (C. C.)
493.
2. Operation and effect.
Where the possession of land conveyed by a
void tax deed, by the grantee's tenant, extended
only to a part of the land which the tenant had
fenced by mistake, such possession did not con-
stitute possession by the grantee of the entire
tract described in the deed.-Treece v. American
Ass'n (C. C. A.) 598.
AFFREIGHTMENT.
Contracts, see "Shipping," § 3.
AGENCY.
See "Principal and Agent."
Remedy by appeal or writ of error as ground for
denial of relief by mandamus, see "Manda-
mus," § 1.
Review of admiralty proceedings, see. "Admi-
ralty," § 6.
Review of assessment of customs duties, see
"Customs Duties," § 3.
Review of bankruptcy proceedings, see "Bank-
ruptcy," §§ 5, 9.
Review of habeas corpus proceedings, see "Ha-
beas Corpus," § 2.
Review of suit for infringement of patent, see
"Patents," § 6.
§ 1. Nature and form of remedy.
An order discharging a rule to show cause for
contempt in violating an injunction against in-
fringement of a trade-mark, granted by final de-
cree in a suit in equity, is reviewable by appeal.
-Enoch Morgan's Sons Co. v. Gibson (C. C. A.)
420.
§ 2. Presentation and reservation in
lower court of grounds of review.
It is indispensable to review on appeal of a
ruling of the court below that it should have
been challenged by an exception.-Potter v.
United States (C. C. A.) 49.
An exception to the refusal of requests to
Irrigation, see "Waters and Water Courses," charge held not to raise the question of error in
§ 2.
Persons having contracts with a sugar re-
finery for the weighing and loading on cars of
cane for shipment to the refinery at an agreed
price per tou, and who hired and paid the
laborers doing the work, are neither workmen
or laborers on a plantation, nor clerks or agents,
entitled to a privilege under the laws of Louisi-
ana, but independent contractors.-Fortier v.
Delgado & Co. (C. C. A.) 604.
ALTERATION OF INSTRUMENTS.
See "Reformation of Instruments."
Of pending bills, see "Statutes," § 1.
Of petition in bankruptcy, see "Bankruptcy,"
§ 2.
giving a request with a modification.-Fitzpat-
rick v. Graham (C. C. A.) 401.
Where no objection was made to evidence in-
troduced to prove a fact, proof of such fact
cannot be denied on appeal, on the ground that
the evidence was incompetent.-Board of Sup'rs
of Riverside County v. Thompson (C. C. A.)
860.
§ 3. Assignment of errors.
Objections to a claim against a decedent's
estate held technical, and not reviewable where
they are not included in the assignments of
error.-Esterly v. Rua (C. C. A.) 609.
An objection to introduction of a lease, that
it had not been pleaded as an estoppel, was not
reviewable, where not specified in assignments
of error.-Piper v. Cashell (C. C. A.) 614.
Where a motion to stay the issuance of an
order of restitution in ejectment was treated by
the parties as the equivalent of a bill in equity
for such purpose, it will be so treated on appeal.
In an action involving the validity of a large-United States v. Marshall (C. C. A.) 428.
issue of state scrip, other taxpayers of the state
have such an interest that they may properly be
permitted to intervene and be heard through an
attorney appearing as amicus curiæ.-Robinson
v. Lee (C. C.) 1010.
The admission of immaterial evidence before
a jury constitutes reversible error, unless it
clearly appears that it was without injury to the
opposing party.-United States V. Honolulu
Plantation Co. (C. C. A.) 581.
On appeal from an order granting a prelim-
inary injunction, conditions not presented to the
trial court and relating to the scope of the in-
Pasturage in public lands, see "Public Lands," junction cannot be considered.-New Albany
§ 1.
Of will, see "Wills," § 1.
Waterworks v. Louisville Banking Co. (C. C.
A.) 776.
Error, if any, in an instruction as to the
weight to be given to the evidence of witnesses
in an action for injuries at a railroad grade crossing, held not prejudicial to defendant.Delaware, L. & W. R. Co. v. Devore (C. C. A.) 791.
§ 5. Determination and disposition of
appointed for the refinery company, who ob-
tained possession of the fund before the checks
were presented.-Fortier v. Delgado & Co. (C.
C. A.) 604.
ASSIGNMENTS FOR BENEFIT OF
CREDITORS.
Circuit court held to have jurisdiction to sus-
pend the enforcement of a decree of restitution
in ejectment pending suit to condemn the prop- See "Bankruptcy,” §§ 3-6.
erty sought to be recovered.-United States v.
Marshall (C. C. A.) 428.
In action on injunction bond, see "Injunction," § 6.
In a suit to enjoin the voting of stock owned by a corporation and held in the name of a trustee, in which such corporation has not been served, the filing by the defendant served of an affidavit made by the trustee does not constitute an appearance, which makes him a party, to bind him in his representative capacity.-Talbot J. Taylor & Co. v. Southern Pac. Co. (C. C.) 147.
APPORTIONMENT.
Of costs, see "Costs," § 1.
APPRAISAL.
Of loss insured against, see "Insurance," § 5.
Of merchandise subject to duty, see "Customs
Duties," § 3.
ARMY AND NAVY.
Under Rev. St. §§ 1418-1420, and Act March 3, 1899, 30 Stat. 1008, c. 413 [U. S. Comp. St. 1901, pp. 1007, 1008], minor between ages of 18 and 21 held enlistable in Navy without consent of parents or guardian.-Thomas v. Winne (C. C. A.) 395.
Of compensation for property taken for pub-
lic use, see "Eminent Domain," § 2.
Of loss on insured, see "Insurance," § 1.
ASSIGNMENT OF ERRORS.
See "Appeal and Error," § 3.
ASSIGNMENTS.
In insolvency, see "Insolvency," §§ 3-6.
Of patents, see "Patents," § 5.
8 1. Requisites and validity.
ASSOCIATIONS.
See "Building and Loan Associations."
ASSUMPSIT, ACTION OF.
See "Account Stated"; "Work and Labor."
Under Code Va. 1887, § 3272, a common count in assumpsit for services rendered is not subject to demurrer because of the omission to allege a promise to pay.-City of Newport News v. Potter (C. C. A.) 321.
Under a count in indebitatus assumpsit for services rendered, evidence is admissible to prove the value of such services.-City of Newport News v. Potter (C. C. A.) 321.
Of risk by employé, see "Master and Servant," § 2.
For contempt of court, see "Contempt," § 1.
ATTORNEY AND CLIENT.
Appearance of attorney as amicus curiæ, see
"Amicus Curiæ."
Attorneys as public officers, see "District and
Prosecuting Attorneys."
Attorneys in fact, see "Principal and Agent."
Of agent, see "Principal and Agent," § 1.
Embezzlement or larceny by bailee, see "Embezzlement."
§ 1. Constitutional and statutory pro
The bankrupt act does not make it obligatory on an insolvent debtor to take the benefit of Checks drawn by the superintendent of a the act.-Summers v. Abbott (C. C. A.) 36. sugar refinery on a separate fund, kept in bank for the purpose of paying laborers and small § 2. Petition, adjudication, warrant, items of expense, on which a second bank adand custody of property. vanced the money used in paying wages of Amendments may be made in bankruptcy prolaborers, held to operate as an equitable as- ceedings at any stage thereof, if otherwise ausignment of so much of the fund as was neces- thorized, regardless of the time which has elapssary for their payment, as against a receivered.-In re Mercur (C. C. A.) 384; Ludowici
Roofing Tile Co. v. Pennsylvania Inst. for In-
struction of the Blind, Id.
A petition must be specially directed against
the firm under Bankr. Act 1898 (Act July 1,
1898, 30 Stat. 544, c. 541 [U. S. Comp. St. 1901,
p. 3418]), alleging an act of bankruptcy in
which it is expressly involved, irrespective of
and in addition to any against the individual
members thereof.-In re Mercur (C. C. A.) 384;
Ludowici Roofing Tile Co. v. Pennsylvania Inst.
for Instruction of the Blind, Id.
Where proceedings were had against the indi-
vidual members of a firm, an amendment to
have the firm adjudicated a bankrupt nunc pro
tunc as of the date of the adjudication against
the members of the firm cannot be allowed.-
In re Mercur (C. C. A.) 384; Ludowici Roofing
Tile Co. v. Pennsylvania Inst. for Instruction of
the Blind, Id.
That the secretary and treasurer of a cor-
poration in his individual capacity became as-
signee of a debtor to the corporation held not
to estop the corporation from joining in an in-
voluntary bankruptcy petition against such
debtor.-In re Winston (D. C.) 187.
The fact that a creditor has received a pref-
erence does not debar him from joining in a
petition to have his debtor adjudicated an in-
voluntary bankrupt.-In re Hornstein (D. C.)
266.
A creditor, who has attached property of his
debtor within four months, may petition to have
such debtor adjudicated an involuntary bank-
rupt; but he will be required to release his at-
tachment lien before an adjudication will be
made. In re Hornstein (D. Č.) 266.
The bankruptcy law confers on courts of
bankruptcy full power to enjoin all persons
within their jurisdiction from doing any act
that will interfere with or prevent its due ad-
ministration, whether or not such persons are
parties to the proceedings.-In re Hornstein (D.
C.) 266.
A statement by a bankrupt in his schedule
held to have been intentionally misleading and
fraudulent as against creditors.-In re Towne
(D. C.) 313.
Service on involuntary bankrupt, by leaving
subpoena and copy of the petition with clerk of
a hotel of which the bankrupt was proprietor,
and where he usually resided, held sufficient,
under Bankr. Act July 1, 1898. § 18a, 30 Stat.
551, c. 541 [U. S. Comp. St. 1901, p. 3429], as
amended by Act Feb. 5, 1903, c. 487, § 6, 32
Stat. 798. Act March 3, 1875, c. 137. § 8, 18
Stat. 472 [U. S. Comp. St. 1901, p. 513], Equity
Rule 13, and Bankruptcy Form 4, 18 Sup. Ct.
xx. In re Risteen (D. C.) 732.
The hotel clerk was an "adult member or
resident in the family" of the bankrupt.-In re
Risteen (D. C.) 732.
3. Assignment, administration, and
distribution of bankrupt's estate
-Assignment, and title, rights,
and remedies of trustee in gen-
eral.
Where all the members of a firm are adjudi-
cated bankrupts, but there has been no adjudi-
cation against the firm, the trustee in the indi-
vidual cases cannot interfere with the firm as-
sets. In re Mercur (C. C. A.) 384; Ludowici
Roofing Tile Co. v. Pennsylvania Inst. for In-
struction of the Blind, Id.
Bankr. Act 1898, § 5b (Act July 1, 1898, 30
Stat. 547, c. 541 [U. S. Comp. St. 1901, p.
3424]), held not affirmative authority for the ad-
ministration of firm assets in individual pro-
ceedings against all the partners.-In re Mercur
(C. C. A.) 384; Ludowici Roofing Tile Co. v.
Pennsylvania Inst. for Instruction of the Blind,
Id.
Under the statute of Virginia (Code 1887, §
2877) the trustee in bankruptcy of a merchant
takes title to all of the bankrupt's stock, includ-
ing goods held by him on consignment, to which
he did not have title as between himself and
the consignor, but which under such statute
were liable for his debts.-Chesapeake Shoe Co.
v. Seldner (C. C. A.) 593.
The provision of Bankr. Act July 1, 1898, §
70a, 30 Stat. 565, c. 541 [U. S. Comp. St.
1901, p. 3451], which vests a trustee with "the
title of the bankrupt" to all property which he
could have transferred, or which might have
been levied upon and sold under process against
him, includes all property to which the bank-
rupt had title, as between himself and his cred-
itors. Chesapeake Shoe Co. v. Seldner (C. C.
A.) 593.
A court of bankruptcy has jurisdiction to
bring in an assignee for the benefit of cred-
itors of the bankrupt under an assignment
which constituted an act of bankruptcy, and
to require him to turn over to the trustee or
hands under the assignment.-In re Thompson
account for the property which came into his
(D. C.) 174.
Preferences and transfers by
bankrupt, and attachments and
other liens.
A secret advantage given by a debtor to one
creditor in a composition, made several years
prior to the debtor's bankruptcy, and before the
passage of Bankr. Act 1898, is not a preference,
within the meaning of such act, which can be
avoided by the bankrupt's trustee, or which the
favored creditor can be required to surrender be-
fore proving a claim against the estate.-Batch-
elder & Lincoln Co. v. Whitmore (C. C. A.) 355;
In re Batchelder & Lincoln Co., Id.
Bonds pledged by a corporation to secure
notes executed for an indebtedness contracted
by another, but which the corporation at the
time assumed with the consent of the creditor,
are not pledged for an antecedent indebtedness
of the corporation.-William Firth Co. v. South
Carolina Loan & Trust Co. (C. C. A.) 569;
In re Goldville Mfg. Co., Id.
An unrecorded contract of conditional sale,
which under the statute of Virginia is void as
to creditors of the vendee who, but for such
writing, would have had title to the property
or the right to subject it to their debts," is
void as against his trustee in bankruptcy.-
Chesapeake Shoe Co. v. Seldner (C. C. A.)
593.
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