Reports of Cases Decided in the Circuit and District Courts of the United States Within the Southern District of Ohio ; Humphrey H. Leavitt, Judge

Costs—Credits.

practical use, is a book within the meaning of the first section of the
act of Congress of February 3, 1831, and is entitled to the protec-

tion of the statute. Drury v. Ewing, 540.
2. In deciding whether a publication is an infringement of one for which

a previous copyright had been obtained, the true inquiry is, whether
the work alleged to be a piracy is substantially the same as that
copyrighted; and mere colorable variations, intended to evade lia-
bility for an infringement, will not destroy the legal identity of the

two. Ib.
3. If a material part of the copyrighted publication is used, though the

alleged piratical work may be in some respects an improvement, it

is still an infringment of the exclusive right of the author. Ib.
4. The substantial identity of the system of the defendant's wife with that

copyrighted by the complainant being established by the evidence,
the former is adjudged guilty of a violation of the injunction in using
and selling her guide, and is ordered to surrender all the copies in
her possession or within her control, as also the plate on which it is
printed, to the clerk of this court, within twenty days, and to pay

the costs of this proceeding. Ib.
COSTS-
1. Where a judgment was entered for a plaintiff, with costs, the court

will not, at a subsequent term, revise or correct it as to the costs;
though being for less than $500, the plaintiff was not entitled to such

judgment. Crabtree v. Ex'rs of Wm. Neff, 554.
2. A retaxation will not be ordered, on the ground that the clerk has not

discriminated between the costs of the plaintiff and those of the de-

fendant. Ib.
3. The practice of taxing the entire cost to the losing party, without dis-

crimination, has always prevailed in this court; and, until otherwise
provided by law or obligatory rule of court, will not be changed. It

is, prescriptively at least, the law of this court. 16.
COUNTY COMMISSIONERS. See PATENTS AND PATENT Law (In-

fringement.)
COURTS. See JURISDICTION; PROCESS; HABEAS CORPUS; PRACTICE ;

EXAMINING COURT.
CREDITS

Where the evidence proves, to the satisfaction of a jury, in a suit on

the bond of a disbursing officer, that money, reasonable in amount,
was paid by such officer, and services were rendered by him in good
faith, in the proper discharge of his official duties, such payment and
service, if not prohibited by law, may be allowed as credits. United

States v. Corwin, 149.
See TRIASURY DEPARTMENT; TERRITORIAL GOVERNMENT; EVIDENCE.

Creditors--Decree.

CREDITORS. See FRAUD; EQUITY.
CRIMES. See EVIDENCE; INDICTMENT; HABEAS CORPUS; PERJURY;

RECOGNIZANCE; MAIL; NEUTRALITY; EXAMINING COURT; JURIS-

DICTION; TREASON.
DAMAGES-
1. Where there is mutual fault, by the well-settled rule of maritime

law, there must be a division of the damages; and such is the decree

in this case. Schenck v. Steamboat Fremont, 57.
2. In this case, the flat-boat was laden with flour in barrels, destined for

New Orleans; as the result of the collision, the flour was submerged
in water for several hours, and injured thereby; the master of the
fat-boat, having repaired his boat, reshipped the four on the same
boat for New Orleans, where it arrived after a passage of three weeks,
and was there sold at a great loss from its damaged condition; and
as the collision occurred only sixty miles below Cincinnati, to which
place the four could readily have been shipped, and where it would
have sold with little loss: Held, that the master of the flat-boat
should have sent the flour to Cincinnati for sale, that being the near-
est and best market; and that the owners of the steamboat, adjudged
guilty of fault in the collision, are liable only for the actual loss that
would have occurred, if the flour had been shipped to and sold at
that place, and not for the loss sustained by the sale at New Orleans.

Seaman & Gillespie v. Steamboat Crescent City, 105.
3. The rule of damages for the non-fulfillment of a contract for the de-

livery of property, is the difference between the price at which it
was agreed it should be delivered and its actual market value at the
time and place of delivery specified in the contract. White y. Ar-

leth, 319.
4. If a mutual fault occasions a collision, the damages for the injury

must be divided between the boats; but if the fault was wholly on
one side, the culpable boat must bear the entire loss. Thorp v. Steam-

boat Defender, 397.

See CONTRACT; PENALTY; VERDICT; COLLISION.
DEBT AND DEBTOR-
A failing debtor has an undoubted right to pay any debt which he

justly owes, and to secure an indorser against liability, if done in
good faith.

Walker v. Adair, 158.
See ASSIGNMENT; RECOGNIZANCE.
DECREE-
On a motion for an attachment for a contempt in violating an injunc-

tion, the original decree can not be impeached, except for fraud, or
defect of jurisdiction in the court, as to the subject matter of the
suit. Drury v. Ewing, 640.

Dedication-Equity.

DEDICATION-
1. To constitute a valid dedication of property to public use, there must

be not only an intention to dedicate, but an act manifesting such in-

tention. Robertson v. Town of Wellsville, 81.
2. The law is liberal in its spirit and policy in regard to appropriations

of property for public use, and requires no particular formality to

give them validity. Ib.
3. A dedication may be established by proof of verbal declarations, or

by a written instrument, and, under some circumstances, it may be
presumed from a long continued acquiescence of the owner in the
use of the property by the public; but such presumption does not
arise where such user is by the license of the owner, and not adverse

to the title asserted by him. Ib.
4. There may be a good dedication of property to a public use, without a

divestiture of the fee of the owner. 1b.
6. Verbal declarations of the owner, that he had surrendered the control

of the landing, or beach of the river, to the municipal authorities of
a town, temporarily, and for a reason specified by him, do not import

a legal dedication to the public. Ib.
6. Evidence of continued claim of title, and the exercise of acts of own.

ership over the property, by the person claiming title, may be con-

clusive to rebut a presumption of a dedication to the public. Ib.
7. The consent of the owner of land to the construction of a road upon

it, for his own and the public use, does not make out a valid dedica-

tion. Ib.
DEED-
Evidence of the execution and contents of a quitclaim deed, alleged

to have been executed many years before the commencement of the
suit, and which was never put on record, and never heard of or seen
by those who might be supposed to be cognizant of it, at the time of
its alleged execution, or those officially charged with its custody af-
terward, should be received with great caution. Robertson v. Town

of Wellsville, 81.
DEFENDANT. See PROCESS; PARTIES.
DISBURSEMENT. See OFFICE AND OFFICER; CREDITS.
DISTRICTS. See PARTIES.
DOMICILE. See CITIZEN.
ENROLLMENT. See EVIDENCE.
EQUITY-

INJUNCTION.
1. A chancellor in the exercise of a just discretion, upon an application

for an injunction, may properly take into consideration the existence

Equity.

EQUITY_Continued.

of an actual conflict imminent danger of a violent collision be
tween two authorities, in determining the expediency of awarding
this preventive process. Crane v. McCoy, 422.

JURISDICTION.
2. It is not enough to defeat jurisdiction in equity that there was a rem-

edy at law; the remedy must be complete, prompt, and efficient.

Crane v. McCoy, 422.
3. If the rights of a party can only be enforced at law by long continued,

strenuous, and expensive litigation, and those rights can be more
promptly and efficiently asserted in equity, a stringent reason is
offered for the application of its power. Ib.

PLEADING AND PRACTICE.
4. A demurrer to a bill in equity will be sustained on the ground of the

'staleness of the claim of title set up to land, when it appears by the
averments of the bill that the complainants have slept upon their
rights from the year 1810 until the year 1859. Copen v. Fleshet,

440.
6. Where such complainants file an amended bill, alleging that for &

long time after their rights accrued they were minors, residing in
different parts of the State of Virginia, and had no knowledge of
their rights, nor the location of the land, until about the year 1841,
and were unable, until some time after that year, to take any steps
in the assertion of their rights, such allegations are sufficient to
relieve the claim of title of staleness, and to put the complainants

on proof of their allegations in that regard. Ib.
6. A bill in equity, praying that the equitable title to land may be ad.

judged to be in the complainant, and that he is entitled to a patent,
and also that a certain person may be made a defendant to the bill,
and may be compelled to disclose the nature of his claim to the land,
and by what authority he is in possession, and to account for rents
and profits, is liable to the objection of multifariousness in seeking

to obtain two distinct objects by the same decree. Ib.
7. In chancery, no material fact which has accrued since filing the

original bill can be introduced in an amended bill, and a party can

only avail himself of such fact by filing a supplemental bill. Ib.
8. Where such new matter is introduced in an amended bill, it is a

cause of demurrer. Ib.
9. The complainant in a bill in equity is not required to set out all the

minute facts of his case; the general statement of a precise fact is
usually sufficient. Dunham 5 St. John v. Eaton and Hamilton R, R.
Co. 492,

Evidence.

EQUITY_Continued.
10. Where a bill in equity distinctly alleges that the defendants sub-

scribed stock for the express purpose of constructing a branch rail-
road called the Eaton and Piqua Branch, and are liable in equity to
account to the complainants therefor, such statement embraces facts
which constitute the right of complainants to enforce the claim as-
serted by them, and it is not necessary for the defense that the bill
should state all the particulars of the subscription, including the

amount subscribed and due by each one. Ib.
11. Where a receiver has proceeded, under a decree in favor of complain.

ants, to reduce into his possession the property or assets of the
defendants, the complainants can not call on the defendants for a
disclosure by means of a supplemental bill. Ib.

TRUSTS AND TRUSTEES.
12. The law is well settled, that a person occupying the position of a

fiduciary can not be a purchaser of the trust property, even in the
absence of any ground for the presumption of actual fraud. Shake-

ley v. Taylor, 142.
13. Where three persons were administrators of an insolvent estate, and

bad obtained an order from the probate court for the sale of the de-
cedent's land to pay debts, and at the sale a note was taken for a
part of the purchase-money, payable to the administrators, upon
which suit was brought, judgment obtained, and the property offered
for sale by the sheriff on execution, and at the sale one of the ad.
ministrators became the purchaser at two-thirds of the appraise-
ment: Held, that such administrator did not occupy a fiduciary
relation to the land, and that the sheriff's deed vested a good title in

him. Ib.
14. If the purchaser could be viewed on any ground as a trustee, under

the facts of this case, the creditors of the insolvent decedent, and

not the heirs, would be the proper persons to impeach the sale. Ib.

See ASSIGNMENT.
EVIDENCE-
1. The proper evidence of the pendency of a suit is the record of the

court. United States v. Coons, 1.
2. Proof of declarations made by a defendant is admissible to explain or

determine the character of acts ambiguous or unintelligible. United

States v. Lumsden, 5.
3. Written and printed evidence containing no proof of an overt act,

in violation of section 6 of the act of April 20, 1818, is admissible
as confessions and declarations, and to such evidence the rule ap-
plies that those parts which admit of an interpretation favorable
to defendants must be considered as well as those justifying the
implication of guilt. Ib.

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Reports of Cases Decided in the Circuit and District Courts of the ..., Band 1