« ZurückWeiter »
A judgment or decree of a state court is not and, if found inequitable, from refusing to en-
a less complete bar to the litigation of the same force it except upon equitable terms.-Compton
questions, between the same parties, in another v. Jesup (C. C. A.) 263.
suit in a federal court, because such judgment
or decree may have been procured by fraud. -
Peninsular Iron Co. v. Eells (C. C. A.) 24.
A decree in a suit to which all the parties in- See “Courts.”
terested in a railroad and its securities are of equity, see “Equity.”
parties, and in which all the facts relating to
the organization of the company, the purchase
of the road, and the issue of the securities are
set up, is res judicata in a suit between the See “Equity."
same parties as to any claim of a lien upon the
road arising out of the facts so set up and liti-
LANDLORD AND TENANT.
gated.-Peninsular Iron Co. v. Eells (C. C. A.)
In a lease of phosphate lands, upon a royalty,
A judgment in a suit brought by one of a a provision that the lessee shall erect a mining
class for the benefit of all members of the class plant of not less than 100 tons capacity is not
who come in and contribute to the expenses of such a forfeiture-bearing condition that if the
the suit, is not binding on one who does not lessee erects a plant of less than 100 tons ca-
come in or contribute.-Compton v. Jesup (C. C. pacity he may be ousted as a tenant holding
after the expiration of his right.-Polk County
A decree in a suit in a state court brought to Nat. Bank v. Foote Commercial Phosphate Co.
enforce a lien on a railroad, consisting of two (C. C. A.) 845.
divisions in different states, establishing such The landlord's lien given by section 3192 of
lien and directing sale of the division lying in McClain's Iowa Code expires in six months
the state where the court had jurisdiction, is from a forfeiture of the lease for nonpayment
conclusive, in a subsequent suit in a federal of rent.-Manhattan Trust Co. v. Sioux City &
court, as to the existence of the lien, and as to N. Ry. Co. (C. C.) 72.
the right to sell the separate division, or, if not
sold, to redeem it from prior mortgages without
redeeming the other division, such redemption
being incident to the right to sell. Per Taft, See "Landlord and Tenant."
Circuit Judge. Contra, per Lurton. Circuit
Judge.-Compton v. Jesup (C. C. A.) 263.
A decree of a probate court in Washington
appointing a guardian without a bond, and a Maritime liens, see “Maritime Liens.”
decree in a partition suit in which infants are Mechanics' liens, see "Mechanics' Liens.”
represented only by a guardian so appointed, of corporation on stock, see "Corporations.”
are both void, and open to collateral attack.- Tof judgment, see "Judgment.
Hatch v. Ferguson (C. C. A.) 43.
Of landlord, see "Landlord and Tenant."
Holders of stock in a corporation, as collateral Of vendor, see "Vendor and Purchaser."
security, standing in their own names on the
company's books, and who participate actively
. of Shakers, whose property is held in common
An obligation executed in behalf of a society
in the management of such corporation, are prix: and managed by trustees, without individual in-
tack such judgment collaterally.--National Founterests in the members, such obligation being
tack such judgment collaterally:-National Foun: given in return for money added to the funds of
dry & Pipe Works v. Oconto Water Co. (D. C.) the
society, creates an equitable lien on its prop-
erty.-Society of Shakers v. Watson (C. C. A.)
An action was commenced against a village by 730.
service of process on the mayor. The mayor
called on a firm of attorneys, asked if they could order a sale of property, at the suit of a subse-
Even if a court is authorized by local law to
Thereafter the village paid no attention to the be inequitable to do so in favor of one of sev,
Thereafter the village paid no attention to the quent lienor, free from prior mortgages, it would
case until nearly a year after judgment had been
entered against it by default. Held, that there eral lienors of equal rank, all equally entitled
was no ground for a bill to set aside the judg. I to enforce their liens.-Compton v. Jesup (C. C.
ment.-Village of Celina v. Eastport Sav. Bank
(C. C. A.) 401.
Where a railroad company, owning equities of
Stronger proof of freedom from negligence is redemption in the roads of 'two former compa-
required to sustain a bill to set aside a judgment nies consolidated to form it, is merged by con-
for mistake, than upon a motion for a new trial solidation into another company by proceedings
of the original action.-Village of Celina v East: which fix upon its property a lien in favor of its
port Sav. Bank (C. C. A.) 401.
A mortgagee who asserts the right to fore- boat's bad condition. Before maturity of the
close his mortgage to the exclusion of a subse- second note, he indorsed it “without recourse"
quent lienor cannot object to such lienor's en- to a bona fide purchaser. Held, that the trus-
forcing his lien, to the exclusion of such mort- tee was not a trustee of the title, but only of
gagee, upon other property to which his lien ap- the bill of sale; that the seller could not en-
plies, and upon which such mortgagee also force a forfeiture except on nonpayment, and
claims a similar lien for any possible deficiency. after making compensation for his own default;
ner Taft, Circuit Judge. Contra, per Lurton, that by the sale of the note he waived all inter-
Circuit Judge.-Compton v. Jesup (C. C. A.) 263. est in the contract and its conditions; and that
the purchaser then became the sole owner, so
as to be entitled to abandon the yacht to in-
surers for a loss subsequently occurring.-Din-
inny v. Myers (D. C.) 943.
It seems that a certificate by the inspector of
LIMITATION OF ACTIONS. a local board of underwriters that a certain ves-
sel is in good condition, and that cargoes ship-
Rev. St. Mo. 1889, $ 3195, prescribes a special ped on her will be insured at the usual rates by
limitation for actions on county warrants with the companies composing the board, will estop
in section 6791, excepting from the general lim- such companies from questioning her seaworthi-
itation in section 6774 cases where special lim- ness, as against one shipping merchandise on
itations are provided.-Knox County v. Morton her shortly after issuance of the certificate. -
(C. C. A.) 787.
Western Assur. Co. v. Southern Cotton Oil Co.
(C. C. A.) 924.
The statute requiring a suit to recover land
sold at an administrator's sale to be brought
Where a policy contained the words, “Free
within three years does not apply when there of particular average unless the vessel be sunk,
is no person who can bring suit. - Gray v. burned, stranded, or in collision," held, that
Quicksilver Min. Co. (C. C.) 677.
there was a collision, within the meaning there-
Under Act May 26, 1824, as extended by Act loaded and casting off her moorings, returned
of, where the vessel, after being completely
June 17, 1844, in relation to actions by claim to her dock because of a difficulty with her en-
ants of land under Spanish and French grants, gines, and was there struck by a scow, which
an action brought in 1894 for land including the made a slight break in her bulwarks.-London
Hot Springs in the city of Hot Springs, Ark., Assurance v. Companhia De Moagens Do Bar-
by the heirs of the grantee of an alleged Span- reiro (C. C. A.) 247.
ish grant dated 1788, is barred.-Muse v. Ar-
lington Hotel Co. (C. C.) 637.
An exception in the words, "Free of partic
Such action is also barred by Act June 11, stranded, or in collision," ceases to operate as
ular average unless the vessel be sunk, burned.
1870, known as the "Hot Springs Act.”-Muse soon as
a collision has occurred, and the insurer
V. Arlington Hotel Co. (C. C.) 637.
is liable for a subsequent loss, whether it re-
Limitations run in favor of a trustee when he sulted from the collision or not.-London As-
disavows the trust, unless the beneficiary was surance v. Companhia De Moagens Do Bar-
ignorant of the claim.--Dugan v. O'Donnell (C. reiro (C. C. A.) 247.
A vessel bound from New York to Lisbon
with a cargo of wheat was compelled to put
into Boston harbor because of a storm, where
See “Constitutional Law.”
her cargo was found to be so damaged by wa-
ter that it could not be restored to a merchanta-
ble condition, and it was accordingly sold at
that place. In an action against the insurers
Of mine, see "Mines and Mining."
of the cargo, it was shown that, owing to pe-
culiar conditions in Portugal, damaged wheat
was unsalable there. Held, that the sale at
Boston must be regarded as made for the bene-
Where the vessel insured is valued in the pol- liable for the difference between the valuation
MASTER AND SERVANT. whole amount of their lienable claims, wheth-
er actually perfected or not.-Central Trust Co.
See, also "Principal and Agent."
v. Richmond, N., I. & B. R. Co. (C. C. A.) 90.
A complaint in an action for injuries resulting
Under the Kentucky statute, where the
from defective appliance must allege knowledge claims of subcontractors exceed the whole price
on the part of the employer and ignorance on payable to the principal contractor, payments
that of the employé. -Dixon v. Western Union by the principal to the subcontractors are pri-
Tel. Co. (C. C.) 630.
marily applicable to that part of their claims
A telegraph lineman assumes the risks in Central Trust Co. v. Richmond, N., I. & B.
which cannot be secured by their pro rata liens.
volved in climbing the poles of other companies, R. Co. (C. C. A.) 90.
for necessary purposes, while engaged in string-
ing wires.-Dixon v. Western Union Tel. Co.
A lien was filed in one county, under the
(C. C.) 630.
Kentucky statute, for work most of which was
The Indiana statute (Act March 4, 1893) pro- other. Held, that a lien should be allowed for
done in_that county, but a small part in an-
viding that corporations shall be liable for inju- two-thirds of the claim.-Richmond & I. Const.
ries to their employés resulting from the act or Co. v. Richmond, N., I. & B. R. Co. (C. C. A.)
omission of any person does not impose liability 105.
for injuries resulting from the act or omission
of the person injured.-Dixon v. Western Union Property subject to.
Tel. Co. (C. C.) 630.
Under the lien law of Washington, there is no
lien on the structure of a street railway in the
Master in Chancery.
streets of a city.-Pacific Rolling Mills Co. v.
James Street Const. Co. (C. C. A.) 966.
Under the lien law of Washington, one who
furnishes material for a street cable railway has
no lien on the power house or land on which it
stands, none of his material being used in the
house or on the land.-Pacific Rolling Mills Co.
Under the Kentucky statute relative to me- v. James Street Const. Co. (C. C. A.) 966.
chanics' liens on railroads (Barb. & C. Ky. St.
1894, 88 2492-2495), the lien originates with the For what obtained.
beginning of the work, and is incipient or in- There can be no lien for waterial contracted
choate until the filing of notice.-Central Trust for and prepared. but never delivered.-Rich-
Co. v. Richmond, N., I. & B. R. Co. (O. C. A.) mond & I. Const. Co. v. Richmond, N., I. & B.
R. Co. (C. C. A.) 105.
Where a railway company made a contract A contractor cannot have a lien for material
with a construction company to build its road, lost by his negligence, though the title to it had
and also to pay certain interest on its bonds, passed to the owner. --Richmond & I. Const.
for an undivided price, held that, in estimating Co. v. Richmond, N., I. & B. R. Co. (C. C. A.)
the contract price by which the liens of subcon- 105.
tractors were limited, such interest should be
deducted.-Richmond & I. Const. Co. v. Rich-chanics” liens upon ruilroads, there can be no
Under the Kentucky statute relative to me-
mond, N., J. & B. R. Co. (C. C. A.) 105.
lien for money expended in acquiring rights of
Hardness of a bargain between a contractor way, paying salaries or expenses of a construc-
and subcontractor, not amounting to fraud upon tion company, paying a commission for guar-
other lienors or the principal, is not a reason antying a contract of such company, or for
for applying any different rule from the gen- legal expenses.-Richmond & I. Const. Co. v.
eral one as to application of payments by the Richmond, N., I. & B. R. Co. (C. C. A.) 105.
contractor to the subcontractor.-Richmond &
1. Const. Co. v. Richmond, N., 1. & B. R. CO. Who may claim.
(C. C. A.) 105.
Under the Kentucky statute, neither a con
Where a contract price is payable in stock to him can affect the rights of subcontractors te
tract with a principal contractor nor payment
and bonds, to ascertain its amount, for the pur- liens.--Central Trust Co. v. Richmond, N., I. &
pose of limiting the liens of subcontractors, the B. R. Co. (C. C. A.) 90.
market value of such stocks and bonds when
delivered should be taken.-Central Trust Co.
A subcontractor's lien, under the Kentucky
v. Richmond, N., I. & B. R. Co. (C. C. A.) 90. statute, is independent of that of the principal
contractor. - Central Trust Co. v. Richmond, N.,
In estimating the value of a contract price 1. & B. R. Co. (C. C. A.) 90.
paid to a contractor in stock and bonds, a val-
ue given to the bonds by the use of the stock in
One who sells to another material to be used
connection with_them may be taken into ac- in constructing a railway, and which such other
count.-Central Trust Co. v. Richmond, N., I. & is under contract to sell to the railway company,
B. R. Co. (C. C. A.) 90.
days after the end of the month in which he
completes his own work.-Central Trust Co. v.
Richmond, N., I. & B. R. Co. (C. C. A.) 90. By corporation, see "Corporations."
of railroad, see "Railroad Companies."
As between lienors of different priorities, in- Mortgagor and purchaser from him are estop-
terest should be allowed to the superior liens ped to deny mortgagee's capacity to act. --Farm-
from the maturity of the claims.-Richmond & ers' Loan & Trust Co. v. Chicago & N. P. R.
I. Const. Co. v. Řichmond, N., I. & B. R. Co. Co. (C. C.) 412.
(C. C. A.) 105.
The insertion in a mortgage of invalid powers
Under the North Dakota statute (section to the trustee does not avoid the mortgage in
5476), a lien, the claim for which is filed more toto.-Farmers' Loan & Trust Co. v. Chicago &
than 90 days from the completion of the work, N. P. R. Co. (C. C.) 412.
is superior to a mortgage made and filed within
such 90 days.-Wisconsin Trust Co. v. Robinson benefit of innocent bondholders the state can-
On foreclosure of a railroad mortgage for the
& Cary Co. (C. C. A.) 778.
not intervene to have the mortgage declared in-
Under the Kentucky statute relative to me- valid because the trustee is not qualified to act.
chanics' liens upon railroads (Barb. & C. Ky. -Farmers' Loan & Trust Co. v. Chicago & N.
St. 1894, $8 2492–2495), consent by an owner P. R. Co. (C. C.) 412.
to the making of a subcontract by the princi-
pal contractor, and to such subcontractors hav-
Neither can a judgment creditor intervene to
ing a lien, does not give such subcontractor a have the mortgage declared invalid because not
principal contractor's lien, or a lien superior to recorded and not authorized by the stockholders.
mortgages or statutory liens.-Richmond & I.
Farmers' Loan & Trust Co. v. Chicago & N.
Const. Co. v. Richmond, N., I. & B. R. Co. (C. P. R. Co. (C. C.) 412.
C. A.) 105.
A mortgage of three steamships already built
covered also two others then building, with a
covenant for the execution of supplementary
It seems that, while a mechanic's lien may be mortgages on the latter vessels when com-
lost by accepting a contract for a security in. pleted. Such mortgages were accordingly ex-
consistent with the existence of a lien, such ecuted in due time. Held that, even if the lat-
waiver is only conditional upon the performance ter mortgages were invalid under a statute pass-
Co. v. Rich-, the
mond, N., I. & B, R. Co. (C. C. A.) 90.
ated as an equitable lien on the two steamers,
The holder of a mechanic's lien, who takes and, having been properly recorded, constituted
note maturing within the time for foreclosure notice thereof, so that such lien was superior
for the debt, which he discounts, and afterwards to subsequently accruing claims.-The Vigilan-
pays, does not thereby lose his right to a lien. cia (D. C.) 781; The Seguranca, Id.; The Alli-
-Wisconsin Trust Co. v. Robinson & Cary Co.anca, Id.; The Advance, Id.; Atlantic Trust
(C. C. A.) 778.
Co. v. Proceeds of The Vigilancia, Id.
The New York statute of 1890, requiring the
MINES AND MINING. written assent of two-thirds of the stockholders
to the execution of a mortgage by the corpora-
In an action brought by one claiming under a tion, is not applicable to a mortgage given in ful-
placer patent, in support of an adverse claim fillment of a valid and obligatory contract made
to a lode claim subsequently located on the upon a full and valuable consideration before
same ground, the burden is on the lode claim the statute was passed.--The Vigilancia (D. C.)
ant to show by clear and convincing proofs that 781; The Seguranca, Id.; The Allianca, Id.;
such lode was a "known” lode when the placer The Advance, Id.; Atlantic Trust Co. y. Pro-
patent was applied for.-Montana Cent. Ry. Co. ceeds of The Vigilancia, Id.
v. Migeon (C. C.) 811.
The purchaser at a judicial sale in which sev-
In order that a lode or vein included within eral mortgages are foreclosed should be regard-
the boundaries of a placer patent may be sub- ed, as against the holder of a lien intermediate
ject to subsequent location, it must have been the mortgages, who is entitled to redeem, as
known, when the placer patent was applied for, mortgagee in possession under the senior mort-
to exist, and to contain minerals of such value gages. Per Taft, Circuit Judge. Contra, per
as to justify expenditures for their extraction.- Lurton, Circuit Judge.-Compton v. Jesup (C.
Montana Cent. Ry. Co. v. Migeon (C. C.) 811. C. A.) 263.
In a collateral attack upon a placer patent, the The fact that the trustees in several mort-
fact that the claim was located so as to cover gages made to secure issues of bonds are the
part of a prior lode claim, which at the time had same does not make the mortgagees the same,
not been forfeited, is a matter which cannot be in the absence of proof that the bondholders are
considered.-Montana Cent. Ry. Co. v. Migeon the same persons. Per Taft, Circuit Judge.
(C. C. 811.
Contra, per Lurton, Circuit Judge.-Compton v.
A “known" vein within Rev. St. 8 2333, must, Jesup (C. C. A.) 263.
it seems, show stronger evidences of valuable Where two mortgages on separate properties
deposits than are requisite to a valid location, are held by the same party, the owner of the
under Rev. St. § 2320.-Montana Cent. Ry. Co properties liable for the mortgage debt being
v. Migeon (C. C.) 811.
also the same, such owner, or one representing
him, cannot redeem one mortgage without re-
deeming the other. Per Lurton. Circuit Judge.
-Compton v. Jesup (C. C. A.) 263.
Motions for new trials in the federal courts
must proceed according to the common law, not
to local codes of procedure. - Lowry V. Mt.
Adams & Eden Park Incline Plane Ry. Co. (C.
Newly-discovered evidence, merely cumulative
or_contradictory, is not ground for a new trial.
MUNICIPAL CORPORATIONS. Lowry_v. ut. Adams & Eden Park Incline
Plane Ry. Co. (C. C.) 827.
The charter of a town, permitting it to issue
railroad aid bonds to any amount, is not in
conflict with article 9, § 17, of the constitution
of South Carolina. -Town of Darlington v. At. See "Patents for Inventions."
lantic Trust Co. (C. C. A.) 849.
Bonds of a municipal corporation are not ren-
Office and Officer.
dered invalid because issued by such corporation
as à village, when it is properly a city. -Cornell Corporate officers, see "Corporations."
University y. Village of Maumee (C. C.) 418.
A municipal corporation cannot dispute the
validity of an assessment made by its officers
because not completed and filed within the stat- Evidence examined in an action to dissolve &
utory time. – Town of Darlington v. Atlantic partnership and for an accounting, and held
Trust Co. (C. C. A.) 849.
that advancements of money to enable defend-
ant to buy and sell phosphate lands, giving a
A statute providing for a refund of taxes to a person advancing the same an interest in the
certain class of persons does not have the effect profits, were insufficient to show an existing
of exempting their property from taxation. partnership.-Stevens v. McKibbin (C. C. A.)
Town of Darlington v. Atlantic Trust Co. (C. 406.
C. A.) 849.
PATENTS FOR INVENTIONS.
Failure to give notice, or to mark an article
See "Banks and Banking."
"Patented," as provided' in Rev. St. $ 4900, only
affects the question of damages, and not the
right to an injunction.-Horn v. Bergner (C. C.)
To obtain a reissue broadening the original
Of pilot, see "Pilots."
claims, mistake must be shown in procuring the
Of railroad, see "Railroad Companies."
Of telegraph companies, see "Telegraph Com- original, and the application must be made with-
years is unreasonable.-Mast, Foos & Co. v.
In an action to recover damages for personal Iowa Windmill & Pump Co. (C. C.) 213.
injuries sustained by being crushed under an The negligence or acquiescence of the former
elevator while working in the elevator shaft, owners of a patent has the same effect upon an
held, that there was sufficient evidence in regard assignee's rights as his own neglect or ac-
to both negligence and contributory negligence quiescence.-Woodmanse & Hewitt Manuf'g
to make it proper to submit both questions to Co. v. Williams (C. C. A.) 489.
the jury.-Holmes v. Junod (C. C. A.) 858.
The general agent of a corporation manufac-
Negligence of a plaintiff, not contributing to turing infringing machines, and who has charge
an accident, is no defense.-Chicago, St. P. & of the sale of the same, receiving the com-
K. C. Ry. Co. v. Chambers (C. C. A.) 148.
mission, is liable for the infringement, though
he makes no sales personally.-Cramer v. Fry
Contributory negligence of a fellow servant (C. C.) 201.
of a plaintiff is no defense for a defendant who
is not the master of either.-Chicago, St. P. & Application.
K. C. Ry. Co. v. Chambers (C. C. A.) 148.
An applicant is not required, on pain of for-
Where there was evidence that a collision feiting his rights, to do in the public interest all
was caused by the disregard of rules by the en- which he may do in his own interest to speed hir
gineer of defendant's train, and that plaintiff, application. American Bell Tel. Co. v. United
the engineer of the other, had observed the rules States (C. C. A.) 542.
of the road, and acted upon apparently suf- If an applicant is under no obligation to pre
ficient evidence that the other train was also vent delays due to patent-office officials, the fact
conforming to such rules, held, that it was not that such delay results in prolonging his monop-
error to refuse to direct a verdict for the defend-oly will not make his purpose in submitting
ant.-Chicago, St. P. & K. C. Ry. Co. v. Cham- thereto unlawful.-American Bell Tel. Co. v.
bers (C. C. A.) 148.
United States (C. C. A.) 542.