flict in the evidence, the presumption of wrong will be against the steamboat. Seaman & Gillespie v. Steamboat Crescent City, 105.
2. Where damage is done by a boat in motion to one lying at a wharf, the presumption of wrong is against the moving boat, and to avoid liability it must appear that the greatest caution and vigilance were observed. Mills v. Steamboat Holmes, 352.
3. Ordinary care under such circumstances will not protect the boat which commits the injury from responsibility. Ib.
See EVIDENCE; FRAUD.
PROCEEDS-
The proceeds of the sale of a boat will be ordered to be brought into the registry of the court, to be apportioned among the parties ac- cording to their respective interests, as found and adjudged by the court. Thurston v. Steamboat Magnolia, 93. PROCEEDINGS IN AID OF EXECUTION. PENDENS.
1. If, in a joint action against two defendants, both residents of another State, brought in an Ohio court, as to one of whom the process is served, and as to the other, returned not found, the party served re- moves the case to the Circuit Court of the United States, pursuant to section 12 of the judiciary act of 1789, the plaintiff is entitled to process from that court against the defendant, who was not made a party in the State court. Fallis, Brown & Co. v. McArthur & Berry,
2. In such case, the plaintiff may proceed against the defendant, who has been served with process, as the Circuit Court has jurisdiction under section 1 of the act of February 28, 1839, and may hear and decide the case as against such defendant, without making the other defend- ant a party to the suit. Ib.
PROOF. See FRAUD; CHARACTER; INDICTMENT; DEDICATION; PLEAD- ING; EVIDENCE; PERJURY; EXAMINING Court. PROMISSORY NOTES-
The law does not require any particular form of words in the transfer of negotiable paper. Any words which show an intention to trans- fer a note or bill, without restriction or limitation, will constitute a valid indorsement, and the indorsee, upon non-payment, may resort to the prior parties. Lee & Co. v. Chillicothe Branch Bank of Ohio,
See INDORSER; INDORSEMENT.
PUBLIC USE. See DEDICATION.
PURCHASER. See LIEN; FRAUD; EQUITY.
RATIFICATION. See AGENCY; LIEN.
The application for the appointment of a receiver is always addressed to the sound discretion of the court to which it is made. As a gen- eral rule, such appointment will be made in all cases where the interests of parties seem to require it. Crane v. McCoy, 422.
1. A recognizance is sufficiently certain if it sets out an act punishable by the statute without any of the particulars. United States v. Den- nis, 103.
2. Where an action of debt was brought on a recognizance, the condition of which was that the defendant should appear "to answer to the charge of stealing from the mail of the United States, contrary to the statute of the United States in such case made and provided: Held, that the felonious or criminal character of the act was charged with sufficient certainty. Ib.
3. Where a defendant and another person signed a recognizance before a justice of the peace, conditioned for the appearance of the defend- ant, before the District Court of the United States, to answer to a charge of stealing from the mail; and three days subsequently to said signing, a third person, whose name did not appear in the body of the recognizance, also signed the same: Held, that a joint action could not be sustained against all of said persons upon such recog- nizance, and that it did not, upon its face, import a joint liability on the part of all the signers thereof. United States v. Pickett, 123. 4. There is no statutory provision, either of the United States or of the State of Ohio, requiring parties to sign a recognizance. Ib.
5. An acknowledgment, without the signatures of the parties, certified by a justice of the peace, is all that is required to make a recogni- zance valid and obligatory. Ib.
REGISTRY OF THE COURT. See PROCEEDS.
Property which has been replevied, does not pass into the possession of the plaintiff after he has given a bond which has been accepted by the officer, until there is a formal delivery of the property by the offi- cer. Crane v. McCoy, 422.
See JURISDICTION.
RETURN-
The return of an United States marshal is conclusive of the facts which it sets forth, and its truth can not be collaterally impeached.
Crane v. McCoy, 422.
ROAD. See DEDICATION.
1. The defendant, as secretary of Minnesota Territory, having a fixed salary as such, was not entitled to claim, in addition thereto, the salary of governor, during the absence of that officer; as the act or- ganizing the territory made it the duty of the secretary, "in case of the death, removal, resignation, or necessary absence of the gov- ernor," to discharge the duties of that office, without any provision for an increase of compensation to the secretary. United States v. Smith, 68.
2. The proviso in the second section of the act of September 30, 1850, expressly prohibits the allowance of double salaries in all cases. lb.
3. Where an officer, with a salary payable quarterly, is appointed for four years, "unless sooner removed by the President," and a removal is made during a current quarter, he is not entitled to his salary to the end of the quarter. Ib.
SALE. See AGENCY; DAMAGES; PROCEEDS; EQUITY; FRAUD; MATE- RIAL-MEN; TITLE.
1. A salvage service, in raising and preserving a steamboat sunk in the Mississippi river, has a priority of lien over claims for wages earned and supplies furnished before the accident. Collins v. Steamboat Fort Wayne, 476.
2. A salvor is favored in law, on the assumption that without his service the res might have been wholly lost. Ib.
3. The salvage agreement having stipulated for a compensation of twenty- five per cent. on the value of the boat, assumed in the policy of in- surance at $18,000, and it appearing that the actual value did not exceed $9,000, the sum claimed for salvage is unreasonable, under the circumstances of the case, and subject to reduction by the court. lb.
4. Where a steamboat, on the Ohio river, laden with flour, was sunk by floating ice within a few feet of the shore, and her cargo was saved, at the request of the master of the boat, by fifty or sixty persons on the bank of the river, such service entitles the parties to a decree for salvage. Spencer v. Steamboat Avery, 117.
5. It is a well-settled principle of the maritime law, that risk or danger of life is not a necessary element of a salvage service. Where such risk or danger is incurred in saving property from destruction, it will place the salvors in a high position of merit, and entitle them to a more liberal compensation for the service than would otherwise be accorded to them. Ib.
6. The controlling inquiry in salvage cases is, was the property in peril of being lost, and was it saved by the efforts of those claiming to be salvors. Ib.
7. The measure of compensation, in salvage cases, depends wholly on the circumstances attending the service. Where there has been great personal exposure and risk, and property has been rescued from in- evitable destruction by the intrepidity of the salvors, a liberal allow- ance will be made. One-half of the value of the property saved has been allowed in such cases. There may be cases where the service is attended with so little difficulty and peril that it would entitle the parties to little more than a quantum meruit for work and labor. Ib. 8. It is not material whether the salvage service was rendered spontane- ously or by request, or whether with or without a previous contract between the owner or his agent and the salvors. lb.
9. Persons who aid in a salvage service, and receive pay therefor from the owners of the property saved, abandon their right as salvors. Ib. 10. In a suit for salvage against a boat and cargo, a written instrument of abandonment, signed by the officers of the boat, is admissible in evidence to prove the perilous situation of the vessel. Blagg v. Steamboat Bicknell, 270.
11. If a forfeiture of insurance results from a deviation in navigation made for the purpose of rendering a salvage service, it might be legitimately considered in fixing the amount of allowance to the salvors, but where no such consequence has followed, the mere possi- bility that it might have happened is a contingency too remote and speculative to enter into the computation. Ib.
SECESSION. See CONSTITUTIONAL LAW.
The rejection of an account or claim against the United States, by an accounting officer of the government authorized by a special act of Congress to adjust the same on equitable principles, does not pre- clude the defendant, when sued, from setting up such rejected claim or account as a set-off. United States v. Smith, 68. See EVIDENCE; TREASURY Department.
The sheriff of a county has no right to disturb, or in any way interfere, with the possession of property legally in the possession of an United States marshal. Crane y. McCoy, 422.
State Statutes-Territorial Government.
STATE STATUTES. See CONSTRUCTION; ASSIGNMENT; PRACTICE. STATUTE OF FRAUDS-
1. A judgment was obtained by plaintiff against W., and a levy made on his real property to satisfy the same. H. verbally promised to pay plaintiff the amount of said judgment in six months if he would for- bear to collect the judgment against W., and extend the time of the payment of the judgment. Held, that such promise by H. was an original and not a collateral promise, and was not required to be in writing within the statute of frauds of the State of Ohio. Stewart v. Hinkle, 506.
2. The agreement of the plaintiff was a sufficient consideration for the promise of H. to pay the amount of the judgment. Ib.
STEAMBOAT. See COLLISION; DAMAGES; PRESUMPTIONS; SALVAGE; AGENCY; CONTRACT; LIEN; ADMIRALTY; NEGLIGENCE; MATE- RIAL-MEN; EVIDENCE.
SUITS. See PARTIES; POSTMASTER; CITIZEN.
SUMMONS. See PROCESS.
SURETIES-
1. The sureties upon a bond, wherein the principals have obligated them- selves to the United States to open a ship canal three hundred feet in width, and twenty feet in depth, and keep it open the same width and depth for four and a half years from the time of the acceptance of the work by the secretary of war, are discharged from all liability on the same if the principals do not perform their agreement for opening the channel according to its terms, and the government ac- cepts the work with a channel only eighteen feet in depth instead of twenty, as required by the contract. United States v. Corwine, 339. 2. A surety is not bound beyond the terms of his contract, and his lia- bility can not be extended or enlarged by implication, and any change in terms, unless expressly assented to by him, releases him from his legal responsibility. Ib.
TERRITORIAL GOVERNMENT-
1. By the organic act of Minnesota Territory, the general government became pledged to defray "the expenses of the legislative assembly the printing of the laws, and other incidental expenses;" and the defendant is entitled to a credit for services rendered, or expendi- tures made, within the fair scope and meaning of these terms, so far as they did not pertain to the office of secretary of the Territory; but the words, "other incidental expenses," must be restricted to such expenses as were incidental to the legislative assembly and the printing of the laws. United States v. Smith, 68.
2. The second section of the act of August 29, 1842, which applies to
« ZurückWeiter » |