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properly be brought in equity, as the remedy at
law would be inadequate.--Society of Shakers
See "Customs Duties."
v. Watson (C. C. A.) 730.
Complainant held licenses from the Cherokee
Nation to mine coal. Defendants, claiming un-
der licenses alleged to have been issued through
In West Virginia a defendant cannot object mistake or fraud, entered on the lands, and
to a judgment in ejectment because he has mined coal, inflicting injury on complainant
pleaded "Not_guilty," simply, nor for want of and on the estate created by the licenses. Held.
a similiter.-Robinson v. Dewhurst (C. C. A.) that equity could enjoin defendants from min-
ing.-Oolagah Coal Co. v. McCaleb (C. C. A.)
Equity has jurisdiction to determine the
The taking of private property within limited the license of one party is alleged to have been
claims of rival licensees in coal mines where
districts organized as irrigation districts for the issued through mistake or fraud. -Oolagah
purpose of furnishing water to the landowners Coal Co. v. McCaleb (C. C. A.) 86.
alone, and not for the use of the general public,
is not a public use which will justify the exercise Equity has jurisdiction of a bill by a bridge
of the power of eminent domain. -Bradley v. company against certain railroads to assert lia-
Fallbrook Irrigation Dist. (C. C.) 948.
bility to the bridge company under a contract
between it and a railroad company with which
defendants had contracted for the use of said
bridge, and in which contract they had agreed
to assume the liabilities arising under the orig-
inal contract.-Pittsburgh, C. & St. L. R. Co. v.
Keokuk & H. Bridge Co. (C. C. A.) 19.
No exception to a master's report based upon Reformation of contracts.
matters of fact should be heard by the court In order to justify the reformation of a writ-
unless such matters have been brought to the ten contract, on the ground of mistake, the tes-
master's attention, and exception taken before timony must be clear, unequivocal, and convin-
him.-Gay Manuf'g Co. v. Camp (C. C. A.) 67. cing, and must amount to more than a mere pre-
Upon appeal from a decree after final hearing Life Ins. Co. (c. C.) 785.
ponderance of evidence.-Bowers v. New York
in equity, the court will not authorize an
amendment to the bill which would require the
introduction of new proofs.-American Bell Tel.
Co. v. United States (C. C. A.) 542.
Where complainants, after actual notice that
respondent, in possession of an estate in which
A claim or interest which has not been set they claim an interest, was holding adversely,
up, by the party entitled to assert it, at the delayed 17 years in bringing suit, they are bar-
proper stage of the suit, cannot afterwards be red by laches. Dugan v. O'Donnell (d. C.) 983.
asserted, in subsequent proceedings by another
party, as an objection to the relief sought by The nonresidence of complainants will not of
such party.--Compton v. Jesup (C. C. A.) 263. itself excuse laches.-Dugan v. O'Donnell (C.
Injunctive relief is the ground upon which
Close relationship between the parties will
equity courts take cognizance of patent infringe- not prevent the application of the doctrine of
ment suits. A bill merely for damages and laches if the delay is so great as
to destroy evi-
profits is not sustainable, and it must appear
that the remedy at law is inadequate.-Wood- Long delay in claiming a right which is not
manse & Hewitt Manuf'g Co. v. Williams (C. subject to any limitation does not constitute
C. A.) 489.
laches as against parties whose adverse right
Complainant, after the acceptance of its bid is based on void proceedings which the claim-
for certain municipal bonds, refused to accept ants were under no obligation to watch for or
them, on the ground that they were invalid, and suspect. --Hodge v. Palms (C. C. A.) 61.
the municipality refused to return complainant's Certain public lands within the indemnity lim-
deposit, and threatened to hold it liable for loss. its of a grant to a railroad company were with-
Held, that equity had jurisdiction of a suit to de-drawn from settlement by the passage of the
termine the validity of the bonds, and adjust granting act in 1867. In 1885 one G. settled on
the rights of the parties, as the remedy at law
would be inadequate.-German-American Iny. I tested his right to a patent, but a patent was
Co. of New York v. City of Youngstown (C. C.) | issued in 1890. In 1891 the railroad company,
Bill of review.
A defendant is only entitled to such advantage
The rule that before a bill of review can be
upon a plea to a bill in equity as the facts plead-filed the decree must be performed does not ap-
ed, though proven after replication, entitle him ply to a party who is not required by the decree
to.-American Graphophone Co. v. Edison Pho- to do anything.-Hobbs v. State Trust Co. (C.
nograph Works (C. C.) 451.
C. A.) 618.
Proof of a direct assignment of a patent from
Error, Writ of.
a patentee to complainant does not constitute a
departure, although the bill alleges an assign- See "Appeal.”
ment from the patentee through two intermedi-
ate parties to the complainant.-American Ca-
ble Ry. Co. v. City of New York (C. C.) 227. Devised by will, see "Wills.”
Where a bill seeks both discovery and an ac-
counting, the discovery must be regarded prima
facie as incidental to the accounting, and, if
there is no right to the accounting, the bill will One who has obtained the dismissal of speci-
be held bad upon demurrer.-Everson v. Equi- fications in opposition to his discharge in bank-
table Life Assur. Co. (C. C.) 258.
ruptcy and the cancellation of the creditor's
proof of debt, on the ground that such creditor,
by leave of the bankruptcy court, has obtained
A bill alleging that complainant has been in- a judgment against him, which is in full force,
duced, by false representations of certain in- is estopped afterwards to set up his discharge in
dividual stockholders and officers of a corpora- a suit on such judgment.-Davis y, Cornwall
tion, to purchase stock therein which has proved (C. C. A.) 522; Same v. Wakelee, Id.
worthless, and also alleging numerous grounds | The heirs of a grantee of a Spanish grant dat-
upon which a dissolution of the corporation and ed 1788, who never paid anything for such
an accounting are sought, is multifarious.
Watson v. United States Sugar Refinery (c. c. grant, or any taxes
on the land, or spent any
C. money in the enduring improvements on such
land, are estopped, 100 years later, from claim-
ing an adverse title to such land.-Muse v. Ar-
lington Hotel Co. (C. C.) 637.
Where several suits, ancillary to one another,
are instituted in the several districts through
which a railroad runs, to marshal liens and
bring about a sale, and an identical decree is
entered in all, providing for a unit sale, such roll of a municipal corporation to the effect that
A memorandum indorsed on the assessment
suits are to be regarded as distinct, and the certain property is exempt from taxation is in-
provisions of the decree as separately applicable competent to prove it exempt.
-Town of Dar-
to the portions of the road within the several lington v. Atlantic Trust Co. (C. C. A.) 849.
districts, and accordingly parties to the suits
cannot represent in one district the rights of A statement, made by a deceased beneficiary
lienors upon property lying in another district. in an insurance policy issued two years before,
Per Taft, Circuit Judge. Contra, per Lurton, as to his understanding of the terms of the pol-
Circuit Judge.-Compton v. Jesup (C. C. A.) icy, is not admissible to show mistake in the
policy, either as res gestæ or as a declaration
of a deceased person.—Bowers v. New York
A railroad was sold under a decree in a fore- Life Ins. Co. (C. C.) 785.
closure suit before the claim of a party to the
suit who asserted a lien had been adjudicated.
In West Virginia, the declaration of a de-
A saving clause was inserted in the decree of ceased person familiar with the land in contro-
sale providing that if his lien were sustained the versy, made to his son on the spot before the
purchaser at the sale should pay him the amount controversy arose, is competent to prove
due, or that the court should resume possession boundary pointed out at the time. -Robinson v.
to enforce the lien by resale or otherwise, de- Dewhurst (C. C. A.) 336.
claring it to be the intention to preserve his A bill of particulars containing numerous
rights. Held, that such saving clause did not items of work and materials may be proved,
give the lienor an absolute right to payment, after destruction of the original memoranda
without regard to the rank of his lien, but left from which the account was made up, by the
him as he would have been if not a party to the evidence of the bookkeeper that he correctly
suit.—Compton v. Jesup (C. C. A.) 263. transcribed the memoranda, and the testimony
Where several suits, ancillary to one another, of the persons who made and furnished the
are brought in the several districts through but the proof
where it consists only
'him that ;
which a railroad runs, to foreclose mortgages
and marshal liens upon it, a decree in one of of the bookkeeper's testimony as to the correct-
such suits, unappealed from, is not conclusive pess of his transcription. The Norma (C. C. A.)
upon an appeal from the decree in another of 509; Merrill v. Sullivan, Id.
such suits. Per Taft, Circuit Judge. Contra, To show the amount of merchandise shipped,
per Lurton, Circuit Judge.-Compton v. Jesup evidence is admissible of persons who testifs
(C. C. A.) 263.
ports of the carrier, and since destroyed by fire. sold and conveyed the land before notice of lis
--Florida Cent. & P. R. Co. v. Bucki (C. C. A.) pendens was filed, held erroneous; and held, fur-
ther, that the title was not affected in the hands
Account books of a municipal corporation are of the purchaser, and that, if the purchaser was
not public records, and facts appearing from an innocent purchaser for value, without notice,
them must be proved in the same way as facts for the proceeds, in which he should be credited,
an accounting might be had against the father
shown in private books. -Town of Darlington not only with taxes and improvements, but with
v. Atlantic Trust Co. (C. C. A.) 849.
any money of his own used in purchasing the
A civil engineer who has made a survey of land or paying debts of the deceased.-Roggen-
the locality may testify that there was no ob- kamp v. Roggenkamp (C. C. A.) 605.
struction, and that the headlight of a train
would be visible from points in the neighbor-
Question whether a creditor of a decedent's
hood of the scene of a collision. --Chicago, St. estate, who had one of its employés appointed
P. & K. C. Ry. Co. v. Chambers (C. C. A.) within the California laws prohibiting an ad-
administrator, was in fact the administrator,
ministrator from purchasing the estate.-Gray
v. Quicksilver Min. Co. (C. c.) 677.
Sufficiency of evidence to show that a pur-
chase of property of a decedent by a company,
an employé of which was the administrator,
EXECUTORS AND ADMINIS- was fraudulent.-Gray v. Quicksilver Min. Co.
(C. C.) 67'7.
See, also, “Descent and Distribution"; "Wills."
In a suit seeking to impeach, collaterally, a Taxation, see “Constitutional Law.”
decree of a probate court for administration of
certain property, not capable of being reduced
Factors and Brokers.
to possession, as intestate property of a de-
cedent, an allegation that the succession of said See “Principal and Agent.”
decedent was fully administered and accepted
by all the owners of the assets capable of being
reduced to possession is insufficient to show
that the proceedings attacked were not valid. See “Courts.”
McCants v. Peninsular Land Co. (C. C. A.) 66.
A decree of a probate court, granting admin-
istration of the estate of one who at his death
was a resident of another state, and whose es- See "Courts.”
tate has been administered there, is void, and
can be impeached collaterally.-Fletcher v. Mc-
Arthur (C. C. A.) 65.
A decree of a probate court granting admin-See “Master and Servant.”
istration of the estate of a decedent cannot af-
fect property conveyed by such decedent in his
lifetime.-Hodge v. Palms (C. C. A.) 61; Moran- See "Collision.”
cy v. Same (C. C. A.) 64.
A decree of a Louisiana parish court grant-
ing administration, made upon a petition con-
taining proper allegations, cannot be questioned See "Corporations.”
collaterally, on the ground that the succession Imposition of franchise fee, "Constitutional
was not vacant, or that there were no debts, or Law.”
that the decedent died in another parish, or
that no notice of the proceedings was given.-
Garrett v. Boeing (C. C. A.) 51.
One assuming, without authority, to adminis- of receiver, see "Receivers."
ter the estate of a deceased person, is neverthe-
less protected in doing whatever a lawful exec-
Where both the garnishee and principal debt-
tor or administrator might do, and cannot be or are nonresidents, and the debt is payable in
charged beyond the assets which came to his the state of their residence, there is no proper-
hands; and against these he may set off just ty subject to garnishment.-Central Trust Co.
delts which he has paid. ---Roggenkamp v. Rog- of New York v. Chattanooga, R. & C. R. Co.
(C. C.) 685.
genkamp (C. C. A.) 605.
A decree whereby a father, who had adminis-
Right to garnish wages due by a foreign rail-
tered on his intestate son's 'estate without au- road corporation to its employés who are resi-
thority, and had completed the purchase of lands dents of another state.-Central Trust Co. of
under a contract made by the son, and taken the New York v. Chattanooga, R. & C. R. Co. (c.
title in his own name, was charged as trustee
of the title for the son's minor heir, and ordered Property can be made subject to garnishment
to convey the same, notwithstanding that he had I only when within the jurisdiction of the court.
-Central Trust Co. of New York v. Chatta-
nooga, R. & C. R. Co. (C. C.) 685.
Garnishment cannot be maintained in the
The Indians belonging to the Eastern band of
United States courts without personal service Cherokees in the state of North Carolina have
on the principal defendant, or his voluntary ap- never become citizens of the United States, and
pearance.-Central Trust Co. of New York 7. the federal courts have jurisdiction to entertain
Chattanooga, R. & C. R. Co. (C. C.) 685.
a suit brought by the United States, as guardian
of such Indians, for the protection of their inter-
For the purpose of jurisdiction of a garnish-ests.- United States v. Boyd (C. C.) 577.
ment proceeding the situs of a debt or other
chose in action follows the domicile of the cred-
itor.–Central Trust Co. of New York v. Chat- INDICTMENT AND INFORMA-
tanooga, R. & C. R. Co. (C. C.) 685.
Where perjury while testifying as a witness
was charged to have been committed on June
7th, but was proved to have been committed on
June 6th, held thac, as the perjury was not char-
ged to have been contained in a written instru-
ment, the variance was immaterial. — United
See "Public Lands."
States v. Matthews (D. C.) 880.
GUARDIAN AND WARD.
In Washington the giving of a bond is an es- Of copyright, see “Copyright.”
sential condition of the appointment of a guard. Of patent, see "Patents for Inventions."
ian of a minor.-Hatch v. Ferguson (C. C. A.) Of trade-mark, see "Trade-Marks and Trade-
HORSE AND STREET RAIL-
Against infringement of patent, see “Patents for
Liability to lien, see "Mechanics' Liens."
The Iowa statute (McClain's Code, $ 2008)
making a judgment against any railway cor- of bank, see “Banks and Banking."
poration, for injury to person or property, a
lien superior to that of mortgages on its prop- The surrender by a railroad company of steel
erty, does not apply to street-railway corpora- rails, not yet laid, to the seller, in partial extin-
tions.- Manhattan Trust Co. v. Sioux City Ca- guishment of the purchase price, is not a fraud-
ble Ry. Co. (C. C.) 82.
ulent preference, though made pending a motion
for the appointment of a receiver under a stock-
HUSBAND AND WIFE.
holders' bill which seeks to procure a better
management until arrangements can be made
H., in 1870, began living with a woman. In with creditors.- Illinois Steel Co. v. Putnam (C.
1873 he located a land warrant, and received a C. A.) 515.
patent in 1874. In 1876 he married the wo-
man. Held, that the land was not community
property, under the Washington statute.- See "Trial.”
Hatch v. Ferguson (C. C. A.) 43.
Land patented under a warrant for military
The beneficiary in a policy of accident insur- ( is that of debtor and creditor merely, and in-
ance taken out and paid for by the insured need volves no trust relation; and, if the policy hold-
not show an insurable interest in order to recov- er is dissatisfied with the amount of surplus ap-
er.--American Employers' Liability Ins. Co. v. portioned to him, he cannot, in the absence of
Barr (C. C. A.) 873.
fraud, maintain a bill for discovery and ac-
The "iron-safe clause” in a policy of insur-counting.. - Everson v. Equitable Life Assur.
ance, requiring the insured, as one of the condi- Co. (C. C.) 258
tions of the policy, to keep a set of books, keep
them in a safe, and produce them in case of
loss, is a condition subsequent only, and sub-
stantial compliance therewith is sufficient. Per
McCormick, Circuit Judge, and Bruce, District See, also, “Usury.”
Judge; Pardee, Circuit Judge, dissenting. -
In Wisconsin, when a judgment for defendant
Western Assur. Co. v. Redding (C. C. A.) 708. on a special finding is reversed, and judgment
A policy of accident insurance provided that ordered for the plaintiff on the finding, the plain-
the company's medical adviser might examine tiff is entitled to interest to the time of entry
the body of the insured at any time. No re- of judgment, upon the whole amount of prin-
quest was made for an examination till some cipal, and interest shown by such finding to
weeks after the insured's burial, when a re- have been due him when it was made.-Metcall
quest was made, not to the beneficiary, but to v. City of Watertown (C. C. A.) 859.
decedent's widow, and was refused. Held no
defense to an action by the beneficiary.-Ameri-
can Employers' Liability Ins. Co. v. Barr (C. C.
Regulation of, see "Constitutional Law."
An answer to an action on an accident insur-
ance policy, which attempts to set up that the
contract was not fully consummated, because
requiring the assent of the home office to the See "Patents for Inventions."
acts of an agent, but which shows that the
agent was placed in a position to deliver a com-
pleted policy, and did so, and does not aver
knowledge by the insured of the excess of au-
thority, and which also attempts to set up con- Appealable judgments, see "Appeal."
cealment of material facts and false representa- Interest on, see “Interest.”
tions, but states no particulars, is insufficient.-
American Employers' Liability Ins. Co. v. Barr W. and others, claiming to be liquidators of
(C. C. A.) 873.
a corporation in dissolution proceedings, inter-
An accident policy insured against death by tion, claiming the attached property, and asking
vened in attachment suits against the corpora-
accidental means, not covering death resulting the dismissal of the suits. Judgment was giv-
from fighting, or while violating the law. The
insured was shot during an altercation. Held, attempted to limit their appearance in the at-
en against them. Held that, though they had
that the death was accidental, and the insurer
tachment suits, they were estopped by the ad-
was liable.-Robinson v. United States Mut.
Acc. Ass'n of City of New York (C. C.) 825.
verse judgments to set up a claim on the same
A beneficiary named in a policy of life insur- ground in an action against the purchaser of the
A beneficiary named in a policy of life insur: attached property.–Frank v. Wedderin (C. C.
ance has no such vested interest as to prevent
the substitution of another beneficiary.-Robin-
son v. United States Mut. Acc. Ass'n of City of The record of a judgment by which it is de
New York (C. C.) 825.
termined that a will was valid in the state of
the testator's domicile, that it devised all the
When one effects insurance on his own life,
designating another as 'payee, the latter may
testator's real estate, that devises to charitable
sue on the policy, without showing an insur- | ing, is admissible in evidence in an action of
uses were valid, and the donees capable of tak-
able interest.–Robinson v. United States Mut. ejectment between privies to the parties to the
Acc. Ass'n of City of New York (C. C.) 825.
suit, for the purpose of proving such facts.-
It is not a defense to an action by the substi- White v. Keller (C. C. A.) 796.
tuted beneficiary in a life insurance policy that
the original beneficiaries have an action pending the bond of a surveyor who was claimed to
The record of a suit by the United States on
on the policy.-Robinson v. United States Mut. have made a fraudulent survey, in which a ver-
Acc. Ass'n of City of New York (C. C.) 825.
dict was rendered for the defendant, is not ad-
In a policy of credit insurance the words "loss missible in a suit between other parties to
sustained by the insolvency of debtors owing prove that the survey was correct. - Michigan
the insured” means the balance remaining due, Land & Lumber Co. v. Rust (C. C. A.) 155.
after deducting from the indebtedness of the
insolvent to the insured, at the time of his fail- against a railroad company for a tort causing
Under Code N. C. $$ 685, 1255, a judgment
ure, any payments made by such insolvent. injury to the person is superior to a mortgage
Mercantile Credit Guarantee Co. of New York executed after the tort was committed, though
v. Wood (C. C. A.) 529.