GENERAL INDEX TO THE FOUR VOLUMES OF HOWARD CONTAINED IN THIS BOOK. 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, (lb.) 729 6. Whenever proceeds are rightfully in the posses- ADVERSE POSSESSION-4. 1. Where the original possession by the holder of Zeller's Lessee v. Eckert, Id. (Ib.) 979 Id. bill in equity or other plenary proceeding; and also jurisdiction to proceed summarily. Id. (Ib) 603 10. The principles established in the case of Erparte The City Bank of New Orleans in the matter of Christy, assignee of Walden, reviewed and confirmed. Norton's Assignee v. Boyd, (426) 664 11. But this court does not decide whether or not the jurisdiction of the District Court over all the property of a bankrupt, mortgaged or otherwise, is exclusive, so as to take away from the State courts in such cases. Id. (lb.) 664 2. Where the defendant below became a bankrupt, this court will not award a supersedeas to stay an execution, because the assignee of the bankrupt has his remedy in the Circuit Court. Black v. Zacharie, BANKS-1. (483) 690 See Commercial Law. Bank of the Metropolis v. New England (234) 115 3. A bankrupt is bound to state,upon his schedule, the nature of the debt if it be a fiduciary one. Should BILLS OF EXCEPTIONS-4. he omit to do so, he would be guilty of a fraud, and his discharge will not avail him; but if a cred- taken, as explained in Walton v. The United States The mode in which bills of exceptions ought to be 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. Id. (Ib.) 236 4. But if the fiduciary creditor does not prove his debt, he may recover it afterwards, from the discharged bankrupt, by showing that it was within the exceptions of the act. Id. (Ib.) 518 3. This court has no revising power over the decrees of the District Court sitting in bankruptcy; nor is it authorized to issue a writ of prohibition to it in any case except where the District Court is proceeding as a court of admiralty and maritime jurisdiction. (292) 603 4. The District Court, when sitting in bankruptcy, has jurisdiction over liens and mortgages existing upon the property of a bankrupt, so as to inquire into their validity and extent, and grant the same relief which the State courts might or ought to grant. Id. Ex-parte Christy, (Ib.) 603 5. The control of the District Court over proceedings in the State courts upon such liens,is exercised, not over the State courts themselves, but upon the parties, through an injunction or other appropriate proceeding in equity. Id. (lb.) 603 6. The design of the Bankrupt Act was to secure a prompt and effectual administration of the estate of all bankrupts, worked out by the courts of the United States, without the assistance of State tribunals. Id. (Ib.) 603 7. The phrase in the 6th section "any creditor or creditors who shall claim any debt or demand under the bankruptcy," does not mean only such creditors who come in and prove their debts, but all creditors who have a present subsisting claim upon the bankrupt's estate, whether they have a security or mortgage therefor or not. Id. (lb.) 603 1. By the general law merchant, no protest is required to be made upon the dishonor of any promissory note; but it is exclusively confined to foreign bills of exchange. (66) 181 2. Neither is it a necessary part of the official duty of a notary, to give notice to an indorser of the dishonor of a promissory note. Burke v. McKay, Id. (lb.) 181 3. But a State law or general usage may overrule the general law merchant in these respects. Id. (lb.) 181 4. Where a protest is necessary, it is not indispens able that it should be made by a person who is in fact a notary. ld. (Ib.) 181 5. Where the indorser has discharged the maker of a note from liability by a release and settlement, a notice of nonpayment would be of no use to him, and therefore he is not entitled to it. Id. (lb.) 181 6. A statute of Mississippi allows suit to be brought against the maker and payee, jointly, of a promissory note, by the indorsee. Dromgoole v. The Farmers' and Merchants' Bank of Mississippi, (241) 252 7. But an action of this kind cannot be maintained in the courts of the United States, although the plaintiff resides in another State, provided the maker and payee of the note both reside in Mississippi. Id. (lb.) 252 8. Where notes are deposited for collection by way of collateral security for an existing debt, the case does not fall within the strict rules of commercial law, applicable to negotiable paper. It falls under the general law of agency; and the agents are only bound to use due diligence to collect the debts. Lawrence v. M'Calmont, (427) 326 9. Where the drawer of a bill has no right to expect the payment of it by the acceptor; where, for instance, the drawer has withdrawn, or intercepted funds which were destined to meet the bill, or its payment was dependent upon conditions which he must have known he had not performed, such drawer cannot be entitled to notice of the nonpayment of the bill. Rhett v. Poe, (457) 338 10. It becomes a question of law, whether due dili ap-gence has or has not been used, whenever the facts are ascertained; and therefore there is no error in the direction of a court to the jury that they should infer due diligence from certain facts, where those facts, if found by the jury, amounted in the opinion of the court to due diligence. Id. 8. Such creditors have a right to ask that the property mortgaged shall be sold, and the proceeds plied towards the payment of their debts; and the assignee, on the other hand, may contest their claims. Id. (Ib.) 603 9. In the case of a contested claim, the District Court has jurisdiction, if resort be had to a formal (Ib) 338 11. If the drawer and acceptor are either general sense. Bank of the United States v. The (711) 439 (Tb.) 439 NOTES-3. 1. By a statute of Florida, where suit is brought Bratford v. Williams, (576) 1109 (lb.) 1109 (lb.) 1109 BOUNDARIES OF STATES-4. Rhode Island v. Massachusetts, (591) 1116 ld. 3. In 1663, the grant of Rhode Island called to be 4. Whether the measurement of the three miles Id. (Ib.) 1116 (Ib.) 1116 Id. 9. In 1710, Rhode Island appointed an agent to Id. (Ib.) 1116 13. If the first commission was mistaken, it almost 14. To sustain the allegation of a mistake, it must Id. (lb.) 1116 16. It is doubtful whether a court of chancery 17. This mistake is not clearly established, either 18. Even if the mistake were proved, it would be Id. (Ib.) 1116 19. For the security of rights, whether of States Id. BREVET RANK-4. (lb.) 1116 will enforce. CHANCERY-1. Buchannon et al. v. Upshaw, Id. 1. If the owner of land recognizes a sale of it, although made by a person who had no authority to sell, there is a privity of contract between the owner and the purchaser, which a court of equity (56) 46 2. But the owner is entitled to all the advantages of the sale thus recognized. (lb.) 46 3. A perpetual injunction will be decreed in such case, to prohibit the owner of the legal title from prosecuting his ejectment. (Ib.) 46 4. A deed, absolute on the face of it, is yet sometimes treated as a mortgage. (118) 69 5. Where a bill substantially charges that there is a fraudulent attempt to hold property under a deed, absolute on the face of it, but intended as a security for money loaned, evidence will be admitted to ascertain the truth of the transaction. Id. Id. Morris v. Nixon et al., (lb.) 69 6. Where there is proof of parties meeting upon the footing of borrowing and lending, with an offer to secure the lender by a mortgage upon particular property; if a deed of the property, absolute on the face of it, be given to the lender, and the lender also take a bond from the borrower, equity will interpret the deed to be a security for money loaned, unless the lender shall show, by proofs, that the borrower and himself subsequently bargained upon another footing than a loan. Id. (lb.) 69 2. Where a loan is an inducement for the execution of a deed which is absolute on the face of it, though the loan is not recited as the consideration of the deed, or as any part of it, if the lender or grantee in the deed treats it subsequently as the consideration, or a part of it, equity will declare the deed to be a security for money loaned. Id. (lb.) 69 8. The answer of one defendant in equity is not evidence in behalf of another defendant. Id. (lb.) 69 9. If, in equity, it is admitted or proved that one of the documents in a transaction was not intended to be what it purports, it subjects other documents in the same transaction to suspicion. Id. (lb.) 69 10. A fact tried and decided by a court of competent jurisdiction, cannot be contested again between the same parties; and there is no difference in this respect between a verdict and judgment at common law and a decree of a court of equity. Bank of the United States et al. v. Beverly et al., (134) 75 11. But an answer in chancery setting up, as a defense, the dismission of a former bill filed by the same complainants, is not sufficient unless the record be exhibited. ld. (Ib.) 75 12. A disposition by a testator of his personal property to purposes other than the payment of his debts, with the assent of creditors, is in itself a charge on the real estate, subjecting it to the payment of the debts of the estate, although no such charge is created by the words of the will. ld. (lb.) 75 13. Lapse of time is no defense where there is an unexecuted trust to pay debts which have been declared by a court to be unpaid in point of fact. Id. (Ib.) 75 14. There must be conscience, good faith, and reasonable diligence, to call into action the powers of a court of equity. M'Knight v. Taylor, (161) 86 15. In matters of account, where they are not barred by the Act of Limitations, courts of equity refuse to interfere, after a considerable lapse of time, from considerations of public policy, and from the difficulty of doing entire justice, when the original transactions have become obscure by time, and the evidence may be lost. Id. (Ib.) 86 16. A court of equity, which never is active in relief against conscience or public convenience, has always refused its aid to stale demands, where the party has slept upon his rights for a great length of time. Nothing can call forth this court into activity but conscience: good faith, and reasonable diligence. When these are wanting, the court is passive and does nothing; laches and neglect are always discountenanced; and therefore, from the beginning of this jurisdiction, there was always a limitation of suit in this court. Bowman et al. v. Wathen et al., (189) 97 17. Every new right of action, in equity, that accrues to a party, whatever it may be, must be acted upon, at the utmost, within twenty years. Id. (lb.) 97 18. And though the claimant may have been embarrassed by the frauds of others, or distressed, it is not sufficient to take the case out of the rule. Id. (Ib.) 97 19. Where the complainants have long slept upon their rights, this court must remain passive and can do nothing; and this is equally true, whether they knew of an adverse possession, or, through negligence and a failure to look after their interests, permitted the title of another to grow into full maturity. ld. (Ib.) 97 2. A writ of error is not the appropriate mode of bringing up for review, a decree in chancers. It should be brought up by an appeal. Id. (Ib.) 179 3. An appeal will lie only from a final decree; and not from one dissolving an injunction, where the bill itself is not dismissed. Id. (Ib.) 179 4. The decisions and dicta of English judges, and the recent publication of the Record Commissioners in England, examined as to the jurisdiction of chancery over charitable devises anterior to the statute of 43 Elizabeth. (127) 205 Vidal v. Girard's Executors, 5. Where there are many parties in a case below, it is not necessary for them all to join in the appeal bond. It is sufficient if they all appeal and the bond be approved by the court. Brockett v. Brockett, (238) 251 6. No appeal lies from the refusal of the court below to open a former decree. Id. (Ib.) 251 7. But if the court entertains a petition to open a decree, the time limited for an appeal does not begin to run until the refusal to open it, the same term continuing. ld. (Ib.) 251 8. Where an appeal is prayed in open court, no citation is necessary. ld. (lb.) 251 9. A court of equity will not interfere, where the complainant has a proper remedy at law, or where the complainant claims a set-off of a debt arising under a distinct transaction, unless there is some peculiar equity calling for relief. Dade v. Irwin, (383) 308 10. Nor will it interfere where the set-off claimed is old and stale, with regard to which the complainant has observed a long silence, and where the cor rectness of the set-off is a matter of grave doubt. ld. (Ib) 308 11. The principles laid down in the case of Tay lor et al. v. Savage (1 Howard, 282), examined and Taylor v. Savage, (395) 313 Randel v. Brown, (Ib.) 318 Gaines et ux. v. Chew et al., Id. (Ib.) 402 Id. Id. (lb.) 402 Id. (lb.) 402 CHANCERY-3. 1. In cases of trust, where the trustee has viola- Oliver v. Piatt. (333) 622 Id. (lb.) 622 8. Where, upon the face of the title papers, the 9. A co-proprietor of real property, derived 10. A purchaser by a deed quitclaim, without any 12. Whether a bill in equity is open to the objec- 14. Lapse of time is no bar to a subsisting trust 15. Where exceptions are taken to a master's re- ld. 17. The Supreme Court has no power to review its Washington Bridge Co. v. Stewart, (413) 658 Carroll v. Safford, Black v. Zacharie, 19. The legal title to stock held in corporations |