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GENERAL INDEX

TO THE

FOUR VOLUME OF HOWARD CONTAINED IN THIS BOOK.

FORMED BY CONSOLIDATION.

N. B.--Figures at right of title show volume to whose index it belongs.

Figures in parenthesis refer to marginal paging of the volumes contained in this book respectively,
while the black-faced figures indicate the page of this book on which the marginal paging referred to
is found.

Id.

Id.

ADMINISTRATOR-1.

APPEALS-2.
See Executors and Administrators.

See practice and writ of error.
ADMIRALTY-2.

APPEAL BOND-2.
See Piracy, and costs.

1. An appeal bond given to the people or to the
ADMIRALTY-3.

relator is good, and if forfeited may be suod upon

by either.
1. An agreement of consortship between the mas Spalding v. The People of New York, (66) 181
ters of two vessels engaged in the business known 2. Where there are many parties in a case below, it
by the naine of wrecking, is a contract capable of is not necessary for them all to join in the appeal
being enforced in an admiralty court, against prop bond. It is sufficient if they all appeal and the bond
erty or proceeds in the custody of the court.

be approved by the court.
Andrews v. Wall,

(568) 729
Brockett v. Brockett,

(238) 251
2. The case of Ramsay v. Allegre (12 Wheaton,611)
commented on, and explained.

APPROPRIATION OF PAYMENTS-1.

(Ib.) 729
3. Such an agreement extends to the owners and

See Surety.
crews, and is not merely personal between the

ASSUMPSIT-1.
masters.

(lb.) 729

1. The action of assumpsit for the use and occupa-
4. If made for an indefinite pe iod, it does not ex-

tion of lands and houses, existed in Virginia ante-
pire with the mere removal of one of the masters | rior to the cession of the District of Columbia to the
from his vessel, but continues until dissolved upon

United States.
due notice to the adverse party.

Lloyd v. Hough,

(153) 83
ld.

(Ib.) 729

2. But this action is founded upon contract, either
5. Where there is no other evidence than the an-

express or implied, and will not lie where the pos-
swer of its having been a part of the original agree-

session has been acquired and maintained under a
that such removal should dissolve the con- different or adverse title, or where it was tortious
tract, the evidence is not sufficient.

and makes the holder a trespasser.
Id.

(lb.) 729
Id.

(Ib.) 83
6. Whenever proceeds are rightfully in the posses-

ASSUMPSIT-3.
sion and custody of the admiralty, it is an inherent
incident to the jurisdiction of that court to enter-

Since the passage of the Act of Congress of March
tain supplemental suits by the parties in interest. 13, 1839, chap. 82, which requires collectors of the
to ascertain to whom those proceeds rightfully be- custo

customs to place to the credit of the Treasurer
long, and to deliver them over to the parties who

of the United States all money which they receive
establish the lawful ownership thereof.

for unascertained duties or for duties paid under
Id.

(Ib.) 729

protest, an action of assumpsit for inoney had and
ADVERSE POSSESSION-4.

received will not lie against the collector for the

return of such duties so received by him.
1. Where the original pessession by the holder of

Cary v. Curtis,

(236) 576
land is in privity with the title of the rightful
owner, in order to enable such holder to avail him-
self of the statute of limitations, nothing short of

ATTACHMENT-3.
an open and explicit disavowal and disclaimer of
holding under that title, and assertion of title in

The laws of Louisiana, allowing attachments for
himself brougbt honie to the other party, will debts not yet due, relate only to absconding debt-
satisfy the law.

ors,
Zeller's Lessee v. Eckert,

(289) 979
Black v. Zacharie,

(483) 690
2. The burden of proof is on the holder to estab-
lish such a change in the character of the posses-

ATTACHMENT–4.
sion.
Id.

(lb.) 979 1. Money in the hands of a purser, although it may
3. The statute does not begin to run until the be due to seamen, is not liable to an attachment by
possession becomes tortious and wrongful by the the creditors of those seamen.
disloyal acts of the tenant, which must be open,

Buchanan v. Alexander,

(20) 857
continued, and notorious, so as to preclude all 2. A purser cannot be distinguished from any other
doubt as to the character of the holding, or the disbursing agent of the government; and the rule
want of knowledge on the part of the owners. is general, that, so long as money remains in the
Id.

(Ib.) 979 hands of a disbursing officer, it is as much the
4. In this case there was evidence enough given money of the United States as if it had not been
upon this point to authorize the court below to drawn from the treasury.
submit the question of adverse possession to the

Id.

(lb.) 857
jury, and advise them that a foundation was laid 3. A decision of a State court, sanctioning such
upon which they might presume a grant for the an attachment, may be revised by this court under
purpose of quieting the title.

the twenty-fifth section of the Judiciary Act.
(1b.) 979"
ld.

(Ib.) 857

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ul.) 126 has his remea Zacharie,

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BANKRUPTCY-1.

bill in equity or other plenary proceeding; and also 1. Upon questions adjourned from the District to jurisdiction to proceed summarily. the Circuit Court under the "Act to establish a uni

Id.

(Ib.) 603 form system of bankruptcy throughout the United

10. The principles established in the case of Er. States," the District Judge cannot sit as a member

parte The City Bank of New Orleans in the matter of the Circuit Court, and, consequently, the points of Christy, assignee of Walden, reviewed and conadjourned cannot be brought before this court by urmea. a certificate of division.

Norton's Assigmee v. Boyd,

(438) 664 Nelson v. Carland,

(265) 126

11. But tbis court does not decide whether or not 2. Nor will an appeal or writ of error lie from the

the jurisdiction of the District Court over all the decision of the Circuit Court; and it is conclusive

property of a bankrupt, mortgaged or other

wise, is exclusive, so as to take away from the upon the district judge. Id.

(b) 126 State courts in such cases. 3. The Bankrupt Act declared to be constitutional

Id.

(Ib.) 664 by the Circuit Court of Kentucky. Note to Judge

2. Where the defendant below became a bankCatron's dissentient opinion.

rupt, this court will not award a supersedeas to stay (b) 126 an execution, because the assignee of the bankrupt

has his remedy in the Circuit Court. BANKRUPTCY-2.

Black v. Zacharie,

(483) 690 1. Under the late Bankrupt Act of the United States, the existence of a fiduciary debt, contracted

BANKS-1. before the passage of the act, constitutes no objec

See Commercial Law. tion to the discharge of the debtor from other

Whenever a banker has advanced money to andebts.

other, he has a lien on all the paper securities Chapman v. Forsyth and Limerick, (202) 236 |

which are in his hands for the amount of his gen2. A factor, who receives the money of his prin

eral balance, unless such securities were delivered cipal, is not a fiduciary within the meaning of the

to hinn under a particular agreement. act.

(lb.) la.

Bank of the Metropolis v. New England 236

Bank, 3. A bankrupt is bound to state,upon his schedule,

(234) 115 the nature of the debt if it be a fiduciary one. Should

BILLS OF EXCEPTIONS-4. be omit to do so, he would be guilty of a fraud,

The mode in which bills of exceptions ought to be and his discharge will not avail him ; but if a cred

taken, as explained in Walton v. The United States itor, in such case, proves his debt and receives a

(9 Wheat., 651), and in 4 Peters, 102, will be strictly dividend from the estate, he is estopped from after

adhered to by this court. wards saying that his debt was not within the law.

Brown v. Clarke,
Id.
. (Ib.) 236

(4) 850 4. But if the fiduciary creditor does not prove his debt, he may recover it afterwards, from the dis

BILLS OF EXCHANGE AND PROMISSORY charged bankrupt, by showing that it was within

NOTES-2. the exceptions of the act.

1. By the general law merchant, no protest is ree Id.

(Ib.) 23 quired to be made upon the dishonor of any promBANKRUPTS AND BANKRUPTCY-3.

issory note; but it is exclusively confined to for

eign bills of exchange. 1. In Kentucky,the creditor obtains a lien upon the Burke v. McKay,

(66) 181 property of his debtor by the delivery of a n. fa. to 2. Neither is it a necessary part of the ofbcial duty the sheriff; and this lien is as absolute before the of a notary, to give notice to an indorser of the levy as it is afterwards.

disbonor of a promissory note. Savage': Assignee v. Best,

(111) 818
Id.

(Ib.) 181 2. Therefore, a creditor is not deprived of this lien! 3. But a State law or general usage may overrule by an act of bankruptcy on the part of the debtor | te general law mercbant in these respects. committed before the levy is made, but after the

Id.

(11.) 181 execution is in the hands of the sheriff.

4. Where a protest is necessary, it is not indispepsId.

(Ib.) 618 able that it should be made by a person who is in 3. This court has no revising power over the decrees fact a potary. of tbe District Court sitting in bankruptcy ; nor is

ld.

(1) 181 it authorized to issue a writ of prohibition to it in 5. Where the indorser has discharged the maker of any case except where the District Court is pro- a note from liability by & release and settlement, & ceeding as a court of admiralty and maritime juris notice of nonpayment would be of no use to him, diction.

and therefore he is not entitled to it. Er-parte Christy,

(292) 603
Id.

* (Ib.) 181 4. The District Court, when sitting in bankruptcy, 6. A statute of Mississippi allows suit to be has jurisdiction over liens and mortgages existing brought against the maker and payee, jointly, of a upon the property of a bankrupt, so as to inquire promissory note, by the indorsee. into their validity and extent, and grant the same Dromgoole v. The Farmers' and Merrelief which the State courts might or ought to

chants' Bank of Mississippi, (241) 252 grant.

7. But an action of this kind cannot be maintained

(Ib.) 603 in the courts of the United States, although the 5. The control of the District Court over proceed- plaintiff resides in another State, provided the ings in the State courts upon such liens,is exercised, , maker and payee of the note both reside in Missisnot over the State courts themselves, but upon sippi. the parties, through an injunction or other appro

Id.

(Ib.) 252 priate proceeding in equity.

8. Where rotes are deposited for collection by way Id.

(Ib.) 603 of collateral security for an existing debt, the case 6. The esign of the Bankrupt Act was to se does not fall within the striot rules of commercial cure a prompt and effectual administration of the law, applicable to negotiable paper. It faits under estate of all bankrupts, worked out by the courts the general law of agency; and the agents are only of the United States, without the assistance of State bound to use due diligence to collect the debts. tribunals.

Lawrence v. M'Calmont,

(4:27) 396 Id.

(1.) 603 9. Where the drawer of a bill has no right to expect 7. The phrase in the 6th section "any creditor or the payment of it by the acceptor ; where, for increditors who shall claim any debt or demand understance, the drawer has withdrawn, or intercepted the bankruptcy," does not mean only such credit- funds which were destined to meet the bill, or its ors who come in and prove their debts, but all cred-payment was dependent upon conditions which be itors who have a present subsisting claim upon must have known he had not performed, such the bankrupt's estate, whether they have a security drawer cannot be entitled to notice of the nonpayor mortgage therefor or not.

ment of the bill.
ld.
(Ib.) 603 Rhett v. Poe,

(457) 338 8. Such creditors have a right to ask that the prop 10. It becomes a question of law,whether due dilierty mortgaged shall be sold, and the proceeds ap- gence has or has not been used, whenever the facts plied towards the payment of their debts; and the are ascertained; and therefore there is no error in assignee, on the other hand, may contest their the direction of a court to the jury that they should claims.

infer due diligence from certain facts, where those Id.

(Ib.) 603 facts, if found by the jury, amounted in the opin9. In the case of a contested claim the District ion of the court to due diligence. Court has jurisdiction, if resort be had to a formal!

Id.

Id.

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u. If the drawer and acceptor are either general 3. In 1663, the grant of Rhode Island called to be
partners or special partners in the adventure of bounded on the north by the southerly line of
which the bill constitutes a part, notice of the dis- | Massachusetts.
honor of the bill need not be given to the drawer.

(Ib.) 1116
Id.

(lb.) 338 4. Whether the measurement of the three miles
12. The strictness of the rule requiring notice be- shall be from the body of the river, or from the
tween parties to a bill, is much relaxed in cases of head waters of the streams which fall into it, is not
collateral security, or guaranty in a separate clear. The charter may be construed either way
contract; the omission of such strict notice does without doing violence to its language.
not imply injury as a matter of course. The guar-

Id.

(IL.) 1116
antor must prove that he has suffered damage by 5. The early exposition of it is not to be dis-
the neglect to make the demand on the maker and regarded, although it may not be conclusive,
to give notice, and then he is discharged only to

Id.

(IL.) 1116
the extent of the damage sustained.

6. In 1642, Woodward and Saffrey fixed a station
Id

(b.) 338 | three miles south of the southermost part of one
13. A bill of exchange drawn by the Secretary of l of the tributaries of Charles River.
the Treasury of the United States upon the French

Id.

(Ib.) 1116
government for money due, by a treaty between 7. An express order of the crown was not neces-
the two nations, cannot be considered as a bill sary to run this line, as it was not then a case of
drawn upon a particular fund, in a commercial disputed boundary.
sense.

(Ib.) 1116
Bank of the United Stdtes v. The

8. In 1702. commissioners were appointed by
United States,

(711) 439 | Massachusetts and Rhode Island to run the bound-
14. Such a bill, when taken u p supra protest for ary line, who admitted the correctness of the
tbe honor of the bank, becomes again the property former line.
of the bank in its original character of holder and

Id,

(Ib.) 1116
payee.

9. In 1710, Rhode Island appointed an agent to
ld.

(Ib.) 439 conclude the matter on such terms as he might
15. Under the law merchant, the drawer of a for judge most proper, who agreed that the sta ke set
eign bill of exchange is liable,in case of protest, for up by Woodward and Saffrey should be considered
costs and other incidental charges, and also for re- as the commencement of the line.
exchange, whether direct or circuitous. The stat-

Id.

(lh.) 1116
ute of Maryland, allowing fifteen per cent., fixes 10. In 1711, Rhode Island sanctioned the agree-
this amount in lieu of re-exchange, to obviate the ment.
difficulty of proving the price of re-exchange.

Id.

(Ib.) 1116
Id.

(16.) 439 11. In 1718, Rhode Island again appointed com-
16. When the bank came into possession of the bill, | missioners with power to settle the line,who agreed
upon its return, the indorsements were in effect that the line should begin at the same place. This
stricken out, and the bank became, in a commer | was accepted by Massachusetts and Rhode Island,
cial and legal sense, the holder of the bill.

the line run accordingly by commissioners, and the
ld.

(lb.) 439 running approved by Rhode Island.
Id.

([b.) 1116
BILLS OF EXCHANGE AND PROMISSORY

12. The allegation that the commissioner's of
NOTES 3.

Rhode Island were mistaken as to a fact, and be-
See Commercial Law.

lieved that the stake was within three miles of the
BILLS OF EXCHANGE AND PROMISSORY

main river, and not one of its tributaries, is diffi-

cult to establish, and cannot be assumed against
NOTES--4.

transactions which strongly imply, if they do not
See Commercial Law.

prove, the knowledge.
BOND-1.

(Ib.) 1116

13. If the first commission was mistaken, it almost
See Surety.

surpasses belief that the second should again he
BONDS-4.
misled. Id.

(Ib.) 1116
1. By a statute of Florida, where suit is brought 14. To sustain the allegation of a mistake, it must
upon a bond, the plaintiff need not prove its execu- be made to appear, not only that the station was
tion unless the defendant denies it under oath. It not within the charter, but that the commissioners
also provides that such an instrument may be as- believed it to be within three miles of the river,
signed : that the assignee becomes vested with all and that they had no knowledge of a fact as to the
the rights of the assignor, and may bring suit in location of it, which should bave led them to make
his own name.

inquiry on the subject.
Bra'tford v. Williams,

(576) 1109
Id.

(lb.) 1116
2. Under this statute, where a joint and several 1 15. Even if the calls of the charter had been
bond was signed by three obligors and made pay. deviated from, which is not clear, still Rhode
able to three obligees, one of whom was also one Island would be bound, because her cominissioners
of the obligors, and the obligrees assigned the bond, I were authorized to compromise the dispute.
the fact that one of the obligore was also an obligee

Id.

(Ib.) 1116
was no valid defense in a suit brought by the as- 16. It is doubtful whether a court of chancery
signee against the two other obligors.

could relieve against a mistake committed by so
ld.

(lb.) 1109 | bigh an agency in a recent occurrence. It is certain
3. The inability of one of the obligees to sue that it could not, except on the clearest proof of mis-
himself did not impair the vitality of the bond, but take. Id.

(Ib.) 1116
amounted only to an objection to a recovery in a 17. This mistake is not clearly established, either
court of law. The assignment, and ability of the in the construction of the charter, or as to the
assignee to sue in his own name, removed this diffi- location of the Woodward and Saffrey station.
culty.

Id.

(lb.) 1116
Id.

(11.) 1109 18. Even if the mistake were proved, it would be
4. The statute of Florida places bonds, as far as difficult to disturb a possession of two centuries by
respects negotiability and the right of the assignee Massachusetts under an assertion of rigbt, with the
to sue in his own name, upon the same footing as claim admitted by Rhode Island and other colonies
bills of exchange and promissory notes. The case, in the most solemn form.
therefore, falls within the principle of a partner

Id.

(Ib.) 1116
drawing a bill upon his house, or making a note in 19. For the security of rights, whether of States
the name of the firm, payable to his own order, or individuals, long possession, under a claim of
buth of which are valid in the hands of a bona fide title, is protected. And there is no controversy in
holder. Id.

(lh.) 1109 which this great principle may be invoked with

greater justice and propriety, than in a case of dis-
BOUNDARIES OF STATES--4.

puted boundary.
1. The grant of Massachusetts, confirmed in 1628.

(lb.) 1116
included the territory "lying within the space of

BREVET RANK-4.
three English miles on the south part of the Charles
River, or of any or every part thereof."

The aruty regulations under which General
Rhode Island v. Massachusetts (591) 1116 Gratiot was removed from West Point to Wash-
2. In 1662, the grant of Connecticut called to be ington were authorized by law, and bis brevet
bounded on the north by the line of the Massachu rank did not release him from discharging the du-
setts plantations.

ties of his commission proper.
Id.
(10.) 1116 Gratiot v. United States,

(80) 884

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CHANCERY-1.

from the beginning of this jurisdiction, there was

always a limitation of suit in this court. 1. If the owner of land recognizes a sale of it, al

Bowman et al. v. Wathen et al.,

" (199) 97 though made by a person who had no authority to sell, there is a privity of contract between the

17. Every new right of action, in equity, that acowner and the purchaser, which a court of equity

crues to a party, whatever it may be, must be acted will entorce. :

upon, at the utmost, within twenty years.
Buchannon et al. v. Upshaw,

(56) 46
Id.

(Ib.) 97

18. And though the claimant may have been em2. But the owner is entitled to all the advantages

barrassed by the frauds of others, or distressed, it is of the sale thus recognized.

not sufficient to take the case out of the rule. Ia.

(lb.) 46
Id.

(I.) 97 3. A perpetual injunction will be decreed in such 19. Where the complainants have long slept upon case, to prohibit the owner of the legal title from

their rights, this court must remain passive and prosecuting his ejectment.

can do nothing; and this is equally true, whether la.

(lh.) 46

they knew of an adverse possession, or, through 4. A deed, absolute on the face of it, is yet some

negligence and a failure to look after their intertimes treated as a mortgage.

ests, permitted the title of another to grow into Morris v. Niron et al.,

(118) 69

full maturity. 5. Where a bill substantially charges that there is

ld.

(Ib.) 97 a fraudulent attempt to hold property under a deed, 20. Where a decree is passed by the court below absolute on the face of it, but intended as a security against an executor, being the defendant in a chantor money loaned, evidence will be admitted to as cery suit, and before an appeal is prayed the execucertain the truth of the transaction.

tor is removed by a court of competent jurisdiction, Id.

(Ib.) 89 and an administrator de bonis non, with the will an6. Where there is proof of parties meeting upon | nexed, is appointed, all further proceedings, either the footing of borrowing and lending, with an by execution or appeal, are irregular, until the offer to secure the lender by a nortgage upon par- administrator be made a party to the suit. ticular property; if a deed of the property, absolute

Taylor et al. v. Savage,

(289) 132 on the face of it, be given to the lender, and the lend

21. If an execution be issued before the proper er also take a bond from the borrower, equity will parties are thus made, it is unauthorized and void, interpret the deed to be a security for money loaned, and no right of property will pass by a sale under it. unless the lender shall show, by proofs, that the

Id.

(Ib.) 132 borrower and himself subsequently bargained upon

22. The administrator cannot obtain redress by apanother footing than a loan.

plication to this court, but must first be made a Id.

(lb.) 69

party in the court below. This may be done at the 2. Where a loan is an inducement for the execution

instance of either side. of a deed which is absolute on the face of it, though

Id.

(Ib.) 132 the loan is not recited as the consideration of the

23. After he is thus made a party, he may stay prodeed, or as any part of it, if the lender or gra nteeceedings by giving bond, or the complainants may in the deed treats it subsequently as the considera

enforce the decree, if the bond be not given in time. tion, or a part of it, equity will declare the deed to

Id.

(b) 132 be a security for money loaned.

24. It is not clear that a complainant, who has apId.

(Ib.) 69

pealed from a decree in his favor in the hope of ob8. The answer of one defendant in equity is not taining a larger sum, can, pending the appeal, issue evidence in behalf of another defendant.

execution upon the decree of the court below. Id.

(Ib.) 69
Id.

(Ib. 132 9. If, in equity, it is adinitted or proved that one of the documents in a transaction was not intended

CHANCERY-2. to be what it purports, it subjects other documents

1. Where a party seeks relief which is mainly apin the same transaction to suspicion.

propriate to a chancery jurisdiction, in the Circuit Id.

(10.) 68 Conrt of the United States for Louisiana, chancery 10. A fact tried and decided by a court of compe

practice must be followed. tent jurisdiction, cannot be contested again be

McCollum v. Eager,

(61) 179 tween the same parties; and there is no difference

2. A writ of error is not the appropriate mode in this respect between a verdict and judgment at

of bringing up for review, a decree in chancers. common law and a decree of a court of equity.

| It should be brought up by an appeal. Bank of the United States et al. v.

Id.

(I.) 179 Beverly et al.,

(134) 75

3. An appeal will lie only from a final decree: and 11. But an answer in chancery setting up, as a de not from one dissolving an injunction, where the fense, the dismission of a former bill fled by the bill itself is not dismissed. same complainants, is not sufficient unless the

Id.

(Ib.) 179 record be exhibited.

4. The decisions and dicta of English judges, and ld.

(Ib.) 75 the recent publication of the Record Commission12. d disposition by a testator of his personalers in England, examined as to the jurisdiction of property to purposes other than the payment of chancery over charitable devises anterior to the his debts, with the assent of creditors, is in itself a statute of 43 Elizabeth. charge on the real estate, subjecting it to the pay

Vidal v. Girard's Executors,

(127) 205 ment of the debts of the estate, although no such

5. Where there are many parties in a case below, charge is created by the words of the will.

it is not necessary for them all to join in the appeal Id.

(Ib.) 75 13. Lapse of time is no defense where there is an bond be approved by the court.

bond. It is sufficient if they all appeal and the unexecuted trust to pay debts which have been de

Brockett v. Brockett,

(238) 251 clared by a court to be unpaid in point of fact. Id.

6. No appeal lies from the refusal of the court be(Ib.) 75

| low to open a former decree. 14. There must be conscience, good faith, and rea

Id.

(ID.) 281 sonable diligence, to call into action the powers of a

7. But if the court entertains a petition to open & court of equity.

decree, 'the time limited for an appeal does not beM Knight v. Taylor,

(161) 86

gin to run until the refusal to open it, the same 15. In matters of account, where they are not term continuing. barred by the Act of Limitations, courts of equity

ld. refuse to interfere, after a considerable lapse of 8. Where an appeal is prayed in open court, DO Ctime, from considerations of public policy, and from ation is necessary. the dificulty of doing entire justice, when the

Id.

(Id.) 231 original transactions have become obscure

9. A court or equity will not interfere, where the time, and the evidence may be lost.

complainant has a proper remedy at law, or where Id.

ilb.) 86 the complainant claims & set-off ot a debt arising 16. A court of equity, which never is active in under a distinct transaction, unless there is some relief against conscience or public convenience, peculiar equity calling for relief. has always refused its aid to stale demands, where

Dade v. Irwin,

(383) 308 the party has slept upon his rights for a great 10. Nor will it interfere where the set-off claimed is length of time. Nothing can call forth this court old and stale, with regard to which the complaininto activity but conscience : good faith, and rea ant has observed a long silence, and where the cor sonable diligence. When these are wanting, the rectness of the set-off is a matter of crave doubt. court is passive and does nothinx ; laches and neg

(Ib.) 308 lect are always discountenanced'; and therefore, 11. The principles laid down in the case of Tay.

ld.

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lor et al. v. Savage (1 Howard, 282), examined and 6. What constitutes a notice of a trust?
confirmed.

Id.

(Ib.) 622
Taylor v. Savage,

(395) 313 7. An agent, employed by a trustee in the manage-
12. The rights of the parties as they stand when a ment of the trust property, and who thereby ac-
decree is rendered, are to govern, and not as they quires a knowledge of the trust, is, if he after-
stood at any preceding time.

wards becomes possessed of the trust property.
Randel 1. Brown,

(406) 318 bound by the trust, in the same manner as the
13. The retention of property, after the extin- trustee.
guishment of a lien, becomes a fraudulent pos-

Id.

(Ib.) 622
session. Id.

(lb.) 318 18. Where, upon the face of the title papers, the
14. A lien cannot arise, where, from the nature purchaser has full means of acquiring complete
of the contract between the parties, it would be knowledge of the title from the references therein
inconsistent with the express terms or the clear made to the origin and consideration thereof, he
intent of the contract.

will be deemed to have constructive notice there-
ld.
(Ib.) 318 of. Id.

(lb.) 622
15. It is impossible to lay down any general rule as 9. A co-proprietor of real property, derived
to what constitutes multifariousness in a bill in under the same title as the other proprietors, is
equity. Every case must be governed by its own presumed to have full knowledge of the objects
circumstances, and the court must exercise a and purposes and trusts attached to the original
sound discretion.

purchase, and for which it is then held for their
Gaines et ux. v. Chew et al.,

(619) 402 common benefit.
15. A bill filed against the executors of an estate

Id.

(lb.) 622
and all those who purchased from them, is not, upon 10. A purchaser by a deed quitclaim, without any
that account alone, multifarious.

covenant of warranty, is not entitled to protection
Id.

(IL.) 402 | in a court of equity as a purchaser for a valuable
17. Under the Louisiana law, the Court of Probate consideration, without notice; and he takes only
has exclusive jurisdiction in the proof of wills; what the vendor could lawfully convey.
which includes those disposing of real as well as Id,

(lb.) 622
personal estate.

11. A warranty, either lineal or collaterial, is no
Id.

(lb.) 402 | bar to an heir who does not claim the property to
18. In England, equity will not set aside a will for which the warranty is attached by descent, but as
fraud and imposition, relief being obtainable in a purchaser thereof.
other courts.

ld.

(Ib.) 622
Id.

(b) 402 1 19

12. Whether a bill in equity is open to the objec-

W
19. Although by the general law,as well as the local tion of multifariousness or not, must be decided
law of Louisiana, a will must be proved before a upon all the circumstances of the particular case.
title can be set up under it, yet a court of equity No general rule can be laid down upon the subject;
can so far exercise jurisdiction as to compel defend- and much must be left to the discretion of the
ants to answer, touching a will alleged to be spoli- court.
ated. And it is a matter for grave consideration,

Id.

(Ib.) 622
whether it cannot go farther and set up the lost 13. The objection of multifariousness can be
will. Id.

(lb.) 402 taken by a party to the bill only by demurrer, or
20. Where the heir-at-law assails the validity of plea, or answer, and cannot be taken at the hear-
the will,by bringing his action against the devisee oring of the cause. But the court itself may take
legatee who sets up the will as his title, the district the objection at any time at the hearing or other-
courts of Louisiana are the proper tribunals, and wise. The objection cannot be taken by a party in
the powers of a court of chancery are necessary, the appellate court.
in order to discover frauds which are within the

Id.
knowledge of the defendants.

14. Lapse of time is no bar to a subsisting trust
Id.

(lb.) 402 in real property. The bar does not begin to run
21. Express trusts are abolished in Louisiana by until knowledge of some overt act of an adverse
the law of tbat State, but that implied trust, which claim or right set up by the trustee is brought
is the creature of equity, has not been abrogated. hoine to the cestui que trust. The lapse of any
Id.

(lb) 402 period less than twenty years will not bar the cestui
22. The exercise of chancery jurisdiction by the que trust of his remedy in equity, although he may
Circuit Court of the United States, sitting in Loui- have been guilty of some negligence, where the
siana, does not introduce any new or foreign prin suit is brought against his trustee, who is guilty of
ciple. It is only a change of the mode of redress the breach of trust, or others claiming under him
ing wrongs and protecting rights.

with notice.
Id.
(lb.) 402 Id. I

(Ib.) 622
CHANCERY-3.

15. W bere exceptions are taken to a master's re-

| port, it is not necessary for the court formally to
1. In cases of trust, where the trustee has viola- allow or disallow them on the record. It will be
ted his trust by an illegal conversion of the trust sufficient, if it appears from the record, that all of
property.the cestui que trust has a right to follow the them have been considered by the court, and
property into whosoever hands he may find it, not allowed or disallowed, and the report reformed ac-
being a bona fide purchaser for a valuable consid- cordingly.
ération, without notice.

ld.

(334) 622
Oliver v. Piatt,

(833) 622 16. There is no principle of the common law which
2. Where a trustee has, in violation of his trust, forbids individuals from associating together to
investe l the trust property or its proceeds in any purchase lands of the United States on joint ac-
other property, the cestui que trust has his option, I count at a public sale.
either to hold the substituted property liable to the

ld.

(Ib.) 622
original trust, or to hold the trustee himself per- 17. The Supreme Court has no power to review its
sonally liable for the breach of the trust.

decisions, whether in a case at law or in equity. A
Id.

(lb.) 622 final decree in chancery is as conclusive as a judg-
3. The option, bowever, belongs to the cestui quement at law.
trust alone and is for his benefit, and not for the Washington Bridge Co. v. Stewart, (413) 688
benefit of the trustee.

18. In case of controversy, a court of a equity is
Id.

(lb.) 622 the proper tribunal to prevent an injurious act by
4. If the trustee, after such an unlawful conver-public officer, for which the law might give no
sion of the trust property, should repurchase it, adequate redress, or to avoid a multiplicity of suits
the cestui que trust may, at his option, either hold or to prevent a cloud from being cast over the
the original property subject to the trust, or take title.
the substituted property in which it has been in-

Carrol v. Safford,

(441) 671
vested, in lieu thereof. And the trustee, in such 19. The legal title to stock held in corporations
a case, has no right to insist that the trust shall, situated in Louisiana, does not pass under a general
upon the repurchase, attach exclusively to the assignment of property, until the transfer is com-
original trust property.

pleted in the mode pointed out by the laws of
Id

(lb.) 622 Louisiana, regulating those corporations.
5. Where the trust property has been unlawfully

Black v. Zacharie,

(483) 690
invested, with other funds of the trustee, in other 20. But the equitable title will pase, if the assign-
property, and the latter, in the hands of the trustee, ment be sufficient to transfer it by the laws of the
is chargeable pro tanto to the amount or value of State in which the assignor resides, and if the laws
the original trust property.

1 of the State where the corporations exist do not pro-
Id.

(lb.) 622 hibit the assignment of equitable interests in stock.

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