amend the several acts respecting copyrights," the penalty of fifty
cents on each sheet whether printed or being printed, or published, or
exposed to sale, is limited to the sheets in possession of the party who
prints or exposes them to sale. Backus v. Gould, 798.
2. It does not apply to those sheets which he had published, or procured
to be published whether they were found in his possession or not.
COURTS MARTIAL.
SEE NAVY, 1, 2.
CUSTOMS.
SEE DUTIES.
DUTIES.
1. By the fifth section of the tariff act passed on the 30th of August, 1842, (5
Stat. at L., 555,) a duty of thirty per cent. is imposed on India-rubber
oil-cloth, webbing, shoes, braces or suspenders, or any other fabrics or
manufactured articles composed wholly or in part of India-rubber."
Lawrence v. Allen, 785.
2. In the ninth section among other articles declared to be exempt from
duty, is "India-rubber in bottles or sheets, or otherwise unmanufac-
tured." Ib.
3. By these sections, the duty of thirty per cent. is payable upon shoes
made of India-rubber in Brazil, although they are made by the same
process as bottles or sheets, provided they come to this country in a
condition to be worn without further material labor on them here, and
were actually worn in this form, and provided they were called, in the
language of commerce "India-rubber shoes"; and of these two facts
the jury ought to judge. Ib.
4. The articles come within the letter of the law, and the act of 1842 was
framed with a desire to tax whatever might compete with our own
manufactures. Ib.
5. When India-rubber is made into a shape suitable for use, it may be con-
sidered a manufactured article. Originally, it was made into the shape
of boots, to be used and worn in Brazil, and afterwards into shoes; but
not intended to be sent abroad as a raw material. Ib.
6. The fact, that the material of which these shoes are made is used for
other articles of manufacture, after their importation, does not change
this view of the subject. Ib.
EQUITY.
SEE CHANCERY.
ERROR, (WRIT OF).
1. Where the judgment of the state court may be sustained on error, on any
ground within the exclusive cognizance of that court, this court will not
reverse such judgment merely because some point which can be exam-
ined here was erroneously ruled. Erwin v. Lowry, 172.
2. Where the court below ordered that a sum of money should be paid over
by the party in whose favor they decided to the losing party, the recep-
tion of this money by the losing party, before the writ of error was
sued out, will not be a sufficient cause for dismissing the writ of error.
3. Where the highest court of a State affirmed the judgment of a court
below, because no transcript of the record was filed in the appellate
court, such affirmance cannot be reviewed by this court under the
twenty-fifth section of the Judiciary Act. Matheson v. Branch Bank of
Mobile, 260.
4. The intention of the parties to raise a constitutional question is not
enough. It must be actually raised and decided in the highest court of
the State.
1. In a suit brought by a marine against the commanding officer of a squad-
ron, in which the marine alleged that he was illegally detained on
board after the expiration of his term of enlistment, it was competent
for the defendant to give in evidence a letter which he had written to
the Secretary of the Navy relating to the circumstances of the enlist-
ment. Wilkes v. Dinsman, 89.
2. An acquittal of the commanding officer by a court-martial, when tried
for the same acts by order of the government, is not admissible evi-
dence in a suit by an individual. Ib.
3. The burden of proof, that the officer exceeded his powers, is upon the
party complaining; the rule of law being, that the acts of a public
officer, on public matters, within his jurisdiction and where he has a
discretion, are to be presumed legal till shown by others to be unjusti
fiable. Ib.
4. It is not enough to show that he committed an error in judgment, but it
must have been a malicious and wilful error. Ib.
5. It was error in the court below to reject the testimony of an attorney
upon the ground of his being security for costs, when the party for
whom he was security had already obtained a judgment against his
adversary, and also upon the grounds of his being interested, when he
held certain notes only for the purpose of paying the money over to his
clients, when recovered. Patton v. Taylor, 132.
6. A former suit in chancery between the original parties to a mortgage,
involving directly the validity of that instrument, in which suit a bill to
foreclose was dismissed upon the ground that the mortgage was void,
was good evidence in an ejectment brought by an assignee claiming to
recover by virtue of the same mortgage. Smith v. Kernochen, 198.
7. The instrument had been declared void by a court of competent juris-
diction, and neither the parties nor their privies could recover upon it.
Ib.
8. There is no difference, upon this point, between a decree in chancery and
a verdict at law. Either constitutes a bar to a future action upon the
instrument declared to be void. Ib.
9. A judgment against an administrator, in which a devastavit had been
suggested and a return of nulla bona to an execution, was good evidence
against the surety of the administrator, and also against the fraudulent
grantee of the intestate. McLaughlin v. Bank of Potomac, 220.
EXECUTORS AND ADMINISTRATORS.
1. A judgment against an administrator, in which a devastavit had been
suggested and a return of nulla bona to an execution, was good evidence
against the surety of the administrator, and also against the fraudulent
grantee of the intestate. McLaughlin v. Bank of Potomac, 220.
2. Although the creditor has a remedy against the surety of the adminis
trator by a suit at law upon the bond, yet he may also file a bill in
chancery against all the parties who are concerned in the alleged fraud,
and such other persons as are interested in the estate.-Ib.
3. Although, by the laws which prevail in the District of Columbia, the
personal estate of a deceased person should be resorted to for the pay-
ment of debts before applying to the reality; yet, where the adminis
trator was found guilty of a devastavit and the personal property was
chiefly left in the hands of the surety, who was also the person charged
with being fraudulent grantee of the intestate, the general rule is not
applicable. Ib.
4. In a bill against the fraudulent grantee, it is not necessary to aver a
deficiency of the personal estate of the deceased; it is sufficient to aver
the fraud and the waste of the personal assets by such grantee, who
was also the personal representative. Ib.
1. A note held by a bank for a debt due to it, and renewed from time to
time with the same maker and indorser, is sufficient to constitute the
bank a creditor in claiming to have conveyances set aside as fraudu-
lent, although the note was not due when the conveyances were made,
and the present note was renewed afterwards. McLaughlin v. Bank of
Potomac, 220.
2. Where the original debtor had made a conveyance of property to a trus
tee for the purpose of securing his indorser, it was not necessary to
FRAUDULENT CONVEYANCES-(Continued.)
pursue and exhaust that trust-property before proceeding against the
indorser and his property. A judgment had been obtained against the
administrator of the indorser, which fixed his liability. Ib.
3. In a bill against the fraudulent grantee, it is not necessary to aver a
deficiency of the personal estate of the deceased; it is sufficient to aver
the fraud and the waste of the personal assets by such grantee, who
was also the personal representative. Ib.
4. The Commercial and Railroad Bank of Vicksburg assigned all its prop-
erty to trustees, reciting that "the embarrassed situation of the bank
and the present inability of its debtors to meet their liabilities, and by
consequence that the bank was unable to pay its debts promptly, ren-
dered it proper that a general assignment should be made for the bene-
fit of its creditors and completion of the railroad"; it therefore
assigned all its property, real, personal, and mixed, to trustees, with
authority to sell the effects assigned, to collect all debts due to the
institution, to complete the railroad, for which purpose they were
authorized to borrow a sum not exceeding $250,000, to allow claims
against the bank of a certain description, and out of the proceeds col-
lected first to pay the principal and interest of the above loan; after
the completion of the said road, dividends were to be made pro rata
amongst the creditors of the bank who had filed their claims, should
there not be a sufficient amount to pay all the claims; the trustees to
receive eight thousand dollars each per annum for their services.
Bodley v. Goodrich, 276.
5. This deed was fraudulent and void as to all creditors of the bank who
did not become parties to it by filing their claims. Ib.
1. In an insurance upon freight, there is no total loss of a memorandum
article as long as the goods have not lost their original character, but
remain in specie, and in that condition are capable of being shipped to
their destined port, no matter what may be the extent of the damage.
Hugg v. Augusta Insurance and Banking Co., 595.
2. If, however, the articles are not capable of being carried, in specie, to the
port of destination, arising from danger to the health of the crew or to
the safety of the vessel; or the public authorities at the port of dis-
tress order the articles to be thrown overboard, from fear of disease,
there would be a total loss. Ib.
3. In construing the contract of insurance upon freight, the interest of the
insured, or of the underwriters of the cargo, is not considered. There-
fore, if the vessel is in a condition to carry on the cargo to the port of
destination, or another vessel can be procured for that purpose, it is
the duty of the owner of the vessel to carry it on, although it may be
for the interest of the insured and insurers of the cargo to sell it at the
port of distress. Ib.
4. If so sold, the insured cannot recover for a total loss of freight. Ib.
5. But although it is the duty of the owner of the vessel, either to repair
his own or to procure another at the port of distress to carry on the
cargo, yet, if it should be made to appear that the repairs or procure-
ment of another vessel would necessarily produce such a retardation of
the voyage as would, in all probability, occasion a destruction of the
article, in specie, before it could arrive at the port of destination, or,
from its damaged condition, it could not be reshipped in time, consist-
ently with the health of the crew or safety of the vessel, or would not
be in a fit condition, from pestilential effluvia or otherwise, to be car-
ried on, it then became the duty of the master to sell the goods for the
benefit of whom it might concern. Ib.
6. A policy of insurance upon "freight of the bark Margaret Hugg, at and
from Baltimore to Rio Janerio and back to Havana or Matanzas, or a
port in the United States, to the amount of $5,000, upon all lawful
goods, etc., beginning the adventure upon the said freight from and
immediately following the lading thereof aforesaid at Baltimore, and
continuing the same until the said goods, wares, and merchandise shall
be safely landed at the port aforesaid," upon which a greater premium
was paid than was usual for the outward voyage alone, must not be
construed as a policy upon the round voyage. Ib.
7. The insurers were, therefore, not entitled to a deduction for the outward
freight. Ib.
SEE BOUNDARIES OF STATES.
JUDICIAL SALE.
1. Where a petition for the seizure and sale of the mortgaged property of a
deceased person was filed, in the Circuit Court of the United States for
Louisiana, against the executor of that deceased person, which petition
alleged the plaintiff to be a citizen of Tennessee, and the defendant to
be a citizen of Louisiana, and the proceedings went on to a sale without
any objection to the jurisdiction of the court being made by the execu-
tor upon the ground of residence of parties, it is too late for a curator.
appointed in the place of the executor, to raise the objection in a State
court against a purchaser at sale, and attempt to prove that the Circuit
Court had no jurisdiction over the case, because the executor was not
a citizen of Louisiana. Evidence dehors the record cannot be intro-
duced to disprove it. Erwin v. Lowry, 172.
2. Where a lien existed on property by a special mortgage before the
debtor's death, and the property passed, with the lien attached, into
the hands of an executor, and was in the course of administration in
the Probate Court, the Circuit Court of the United States had jurisdic-
tion, notwithstanding, to proceed against the property, enforce the
creditor's lien, and decree a sale of the property. And such sale was
valid. Ib.
3 The Circuit Court of the United States, having jurisdiction over the
parties and subject-matter, and having issued an order of seizure and
sale, the presumption must be, in favor of a purchaser, that the facts
which were necessary to be proved in order to confer jurisdiction were
proved. No other court can inquire into those facts. Ib.
4. Although the marshal did not give the notice required by law to the
executor against whom the petition was filed, yet, if the executor was
served with process on the spot where the the property was situated and
where the advertisments were posted up, was present at the sale and
named one of the appraisers, and requested that the land and negroes
should be sold together, he cannot afterwards impeach the sale because
formal steps were not strictly complied with. Nor can the curator who
subsequently represented the same estate. Ib.
1. At the period of the American Revolution, Rhode Island did not, like the
other States, adopt a new constitution, but continued the form of gov
ernment established by the charter of Charles the Second, making only
such alterations, by acts of the Legislature, as were necessary to adapt
it to their condition and rights as an independent State. Luther v.
Borden, 1.
2. But no mode of proceeding was pointed out by which amendments might
be made.
3. In 1841 a portion of the people held meetings and formed associations,
which resulted in the election of a convention to form a new constitu-
tion, to be submitted to the people for their adoption or rejection. Ib.
4. This convention framed a constitution, directed a vote to be taken upon
it, declared afterwards that it had been adopted and ratified by a major-
ity of the people of the State, and was the paramount law and consti-
tution of Rhode Island. Ib.
5. Under it, elections were held for Governor, members of the Legislature,
and other officers, who assembled together in May, 1842, and proceeded
to organize the new government. Ib.
6. But the charter government did not acquiesce in these proceedings. On
JURISDICTION-(Continued.)
the contrary, it passed stringent laws, and finally passed an act declar-
ing the State under martial law. 1b.
7. In May, 1843, a new constitution, which had been framed by a conven-
tion called together by the charter government, went into operation,
and has continued ever since. Ib.
8. The question which of the two opposing governments was the legitimate
one, viz., the charter government, or the government established by the
voluntary convention, has not heretofore been regarded as a judicial
one in any of the State courts. The political department has always
determined whether a proposed constitution or amendment was ratified
or not by the people of the State, and the judicial power has followed
its decision. Ib.
9. The courts of Rhode Island have decided in favor of the validity of the
charter government, and the courts of the United States adopt and
follow the decisions of the State courts in questions which concern
merely the constitution and laws of the State. Ib.
10. The question whether or not a majority of those persons entitled to
suffrage voted to adopt a constitution cannot be settled in a judicial
proceeding. Ib.
11. The Constitution of the United States has treated the subject as political
in its nature, and placed the power of recognizing a State government
in the hands of Congress. Under the existing legislation of Congress,
the exercise of this power by courts would be entirely inconsistent with
that legislation. Ib.
12. The President of the United States is vested with certain power by an
act of Congress, and in this case he exercised that power by recogniz-
ing the charter government. Ib.
13. Where a petition for the seizure and sale of the mortgaged property of a
deceased person was filed, in the Circuit Court of the United States for
Louisiana, against the executor of that deceased person, which petition
alleged the plaintiff to be a citizen of Tennessee, and the defendant to
be a citizen of Louisiana, and the proceedings went on to a sale with-
out any objection to the jurisdiction of the court being made by the
executor upon the ground of residence of parties, it is too late for a cu-
rator, appointed in the place of the executor, to raise the objection in a
State court against a purchaser at the sale, and attempt to prove that
the Circuit Court had no jurisdiction over the case, because the execu-
tor was not a citizen of Louisiana. Evidence dehors the record cannot
be introduced to disprove it. Erwin v. Lowry, 172.
14. Where a lien existed on property by a special mortgage before the
debtor's death, and the property passed, with the lien attached, into the
hands of an executor, and was in the course of administration in the
Probate Court, the Circuit Court of the United States had jurisdiction,
notwithstanding, to proceed against the property, enforce the creditor's
lien, and decree a sale of the property. And such sale was valid. Ib.
15. The Circuit Court of the United States, having jurisdiction over the
parties and subject-matter, and having issued an order of seizure and
sale, the presumption must be, in favor of a purchaser, that the facts
which were necessary to be proved in order to confer jurisdiction were
proved. No other court can inquire into those facts. Ib.
16. Although the motion under argument in the Circuit Court was addressed
to its discretion, yet, if the questions which arose and upon which
the judges differed involved the right of the matter, this court will
entertain those questions. United States v. Chicago, 185.
17. So, also, where the questions are several in number, and so material as
to decide the whole case, this court will not dismiss them, provided
they appear to have arisen at one time, at one stage of the cause, and
to have involved little beyond one point. Ib.
18. When a mortgagor and mortgagee are citizens of the same State, and
the mortgagee assigns the mortgage to a citizen of another State, for
the purpose of throwing the case into the Circuit Court, it is necessary,
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