Gambar halaman
PDF
ePub

GENERAL INDEX

TO THE

FOUR VOLUMES 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.

[blocks in formation]

(lb.) 729

6. Whenever proceeds are rightfully in the posses-
sion and custody of the admiralty, it is an inherent
incident to the jurisdiction of that court to enter-
tain supplemental suits by the parties in interest,
to ascertain to whom those proceeds rightfully be-
long, and to deliver them over to the parties who
establish the lawful ownership thereof.
Id.
(lb.) 729

ADVERSE POSSESSION-4.

1. Where the original possession by the holder of
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
an open and explicit disavowal and disclaimer of
holding under that title, and assertion of title in
himself brought home to the other party, will
satisfy the law.
(289) 979
2. The burden of proof is on the holder to estab-
lish such a change in the character of the posses-
sion.

Zeller's Lessee v. Eckert,

Id.
(lb.) 979
3. The statute does not begin to run until the
possession becomes tortious and wrongful by the
disloyal acts of the tenant, which must be open,
continued, and notorious, so as to preclude all
doubt as to the character of the holding, or the
want of knowledge on the part of the owners.
Id.

(Ib.) 979
4. In this case there was evidence enough given
upon this point to authorize the court below to
submit the question of adverse possession to the
jury, and advise them that a foundation was laid
upon which they might presume a grant for the
purpose of quieting the title.
(lb.) 979

Id.

[blocks in formation]
[blocks in formation]
[blocks in formation]

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.
Whenever a banker has advanced money to an-
other, he has a lien on all the paper securities
which are in his hands for the amount of his gen-
eral balance, unless such securities were delivered
to him under a particular agreement.

Bank of the Metropolis v. New England
Bank,

(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.

[blocks in formation]

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

[blocks in formation]

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
partners or special partners in the adventure of
which the bill constitutes a part, notice of the dis-
honor of the bill need not be given to the drawer.
Id.
(lb.) 338
12. The strictness of the rule requiring notice be-
tween parties to a bill, is much relaxed in cases of
collateral security, or guaranty in a separate
contract; the omission of such strict notice does
not imply injury as a matter of course. The guar-
antor must prove that he has suffered damage by
the neglect to make the demand on the maker and
to give notice, and then he is discharged only to
the extent of the damage sustained.
Id
(lb.) 338
13. A bill of exchange drawn by the Secretary of
the Treasury of the United States upon the French
government for money due, by a treaty between
the two nations, cannot be considered as a bill
drawn upon a particular fund, in a commercial

sense.

Bank of the United States v. The
United States,

(711) 439
14. Such a bill, when taken up supra protest for
the honor of the bank, becomes again the property
of the bank in its original character of holder and
payee.
ld.

(Tb.) 439
15. Under the law merchant, the drawer of a for-
eign bill of exchange is liable, in case of protest, for
costs and other incidental charges, and also for re-
exchange, whether direct or circuitous. The stat-
ute of Maryland, allowing fifteen per cent., fixes
this amount in lieu of re-exchange, to obviate the
difficulty of proving the price of re-exchange.
Id.
(lb.) 439
16. When the bank came into possession of the bill,
upon its return, the indorsements were in effect
stricken out, and the bank became, in a commer-
cial and legal sense, the holder of the bill.
ld.
(lb.) 439
BILLS OF EXCHANGE AND PROMISSORY

NOTES-3.

[blocks in formation]

1. By a statute of Florida, where suit is brought
upon a bond, the plaintiff need not prove its execu-
tion unless the defendant denies it under oath. It
also provides that such an instrument may be as-
signed; that the assignee becomes vested with all
the rights of the assignor, and may bring suit in
his own name.

Bratford v. Williams,

(576) 1109
2. Under this statute, where a joint and several
bond was signed by three obligors and made pay-
able to three obligees, one of whom was also one
of the obligors, and the obligees assigned the bond,
the fact that one of the obligors was also an obligee
was no valid defense in a suit brought by the as-
signee against the two other obligors.
ld.

(lb.) 1109
3. The inability of one of the obligees to sue
himself did not impair the vitality of the bond,but
amounted only to an objection to a recovery in a
court of law. The assignment, and ability of the
assignee to sue in his own name, removed this diffi-
culty.
Id.

(lb.) 1109
4. The statute of Florida places bonds, as far as
respects negotiability and the right of the assignee
to sue in his own name, upon the same footing as
bills of exchange and promissory notes. The case,
therefore, falls within the principle of a partner
drawing a bill upon his house, or making a note in
the name of the firm, payable to his own order,
both of which are valid in the hands of a bona fide
holder. Id.
(lb.) 1109

BOUNDARIES OF STATES-4.
1. The grant of Massachusetts, confirmed in 1628,
included the territory "lying within the space of
three English miles on the south part of the Charles
River, or of any or every part thereof."

Rhode Island v. Massachusetts, (591) 1116
2. In 1662, the grant of Connecticut called to be
bounded on the north by the line of the Massachu-
setts plantations.
(lb.) 1116

ld.

3. In 1663, the grant of Rhode Island called to be
bounded on the north by the southerly line of
Massachusetts.
Id.
(Ib.) 1116

4. Whether the measurement of the three miles
shall be from the body of the river, or from the
head waters of the streams which fall into it, is not
clear. The charter may be construed either way
without doing violence to its language.
Id.
(Ib.) 1116
5. The early exposition of it is not to be dis-
regarded, although it may not be conclusive.
Id.
(Ib.) 1116
6. In 1642, Woodward and Saffrey fixed a station
three miles south of the southermost part of one
of the tributaries of Charles River.

Id.

[blocks in formation]

(Ib.) 1116
was not neces-
then a case of

(Ib.) 1116
8. In 1702, commissioners were appointed by
Massachusetts and Rhode Island to run the bound-
ary line, who admitted the correctness of the
former line.
Id.
(Ib.) 1116

Id.

9. In 1710, Rhode Island appointed an agent to
conclude the matter on such terms as he might
judge most proper, who agreed that the stake set
up by Woodward and Saffrey should be considered
as the commencement of the line.
(lb.) 1116
10. In 1711, Rhode Island sanctioned the agree-
ment.
Id.
(lb.) 1116
11. In 1718, Rhode Island again appointed com-
missioners with power to settle the line, who agreed
that the line should begin at the same place. This
was accepted by Massachusetts and Rhode Island,
the line run accordingly by commissioners, and the
running approved by Rhode Island.
(fb.) 1116

Id.

[blocks in formation]

(Ib.) 1116

13. If the first commission was mistaken, it almost
surpasses belief that the second should again he
misled. Id.
(Ib.) 1116

14. To sustain the allegation of a mistake, it must
be made to appear, not only that the station was
not within the charter, but that the commissioners
believed it to be within three miles of the river,
and that they had no knowledge of a fact as to the
location of it, which should have led them to make
inquiry on the subject.

Id.
(lb.) 1116
15. Even if the calls of the charter had been
deviated from, which is not clear, still Rhode
Island would be bound, because her cominissioners
were authorized to compromise the dispute.
Id.

(lb.) 1116

16. It is doubtful whether a court of chancery
could relieve against a mistake committed by so
high an agency in a recent occurrence. It is certain
that it could not, except on the clearest proof of mis-
take. Id.
(Ib.) 1116

17. This mistake is not clearly established, either
in the construction of the charter, or as to the
location of the Woodward and Saffrey station.
Id.
(lb.) 1116

18. Even if the mistake were proved, it would be
difficult to disturb a possession of two centuries by
Massachusetts under an assertion of right, with the
claim admitted by Rhode Island and other colonies
in the most solemn form.

Id.

(Ib.) 1116

19. For the security of rights, whether of States
or individuals, long possession, under a claim of
title, is protected. And there is no controversy in
which this great principle may be invoked with
greater justice and propriety, than in a case of dis-
puted boundary.

Id.

BREVET RANK-4.

(lb.) 1116

[blocks in formation]

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

[blocks in formation]

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
confirmed.

Taylor v. Savage,

(395) 313
12. The rights of the parties as they stand when a
decree is rendered, are to govern, and not as they
stood at any preceding time.

Randel v. Brown,
(406) 318
13. The retention of property, after the extin-
guishment of a lien, becomes a fraudulent pos-
session. Id.
(lb.) 318
14. A lien cannot arise, where, from the nature
of the contract between the parties, it would be
inconsistent with the express terms or the clear
intent of the contract.
ld.

(Ib.) 318
15. It is impossible to lay down any general rule as
to what constitutes multifariousness in a bill in
equity. Every case must be governed by its own
circumstances, and the court must exercise a
sound discretion.

Gaines et ux. v. Chew et al.,
(619) 402
15. A bill filed against the executors of an estate
and all those who purchased from them,is not,upon
that account alone, multifarious.

Id.

(Ib.) 402
17. Under the Louisiana law, the Court of Probate
has exclusive jurisdiction in the proof of wills;
which includes those disposing of real as well as
personal estate.

Id.

Id.

(lb.) 402
18. In England, equity will not set aside a will for
fraud and imposition, relief being obtainable in
other courts.
(lb.) 402
19. Although by the general law,as well as the local
law of Louisiana, a will must be proved before a
title can be set up under it, yet a court of equity
can so far exercise jurisdiction as to compel defend-
ants to answer, touching a will alleged to be spoli-
ated. And it is a matter for grave consideration,
whether it cannot go farther and set up the lost
will. Id.
(Ib.) 402
20. Where the heir-at-law assails the validity of
the will, by bringing his action against the devisee or
legatee who sets up the will as his title, the district
courts of Louisiana are the proper tribunals, and
the powers of a court of chancery are necessary,
in order to discover frauds which are within the
knowledge of the defendants.

Id.

(lb.) 402
21. Express trusts are abolished in Louisiana by
the law of that State, but that implied trust, which
is the creature of equity, has not been abrogated.
Id.
(lb.) 402
22. The exercise of chancery jurisdiction by the
Circuit Court of the United States, sitting in Loui-
siana, does not introduce any new or foreign prin-
ciple. It is only a change of the mode of redress-
ing wrongs and protecting rights.
ld.
(lb.) 402

CHANCERY-3.

1. In cases of trust, where the trustee has viola-
ted his rust by an illegal conversion of the trust
property, the cestui que trust has a right to follow the
property into whosoever hands he may find it, not
being a bona fide purchaser for a valuable consid-
eration, without notice.

Oliver v. Piatt.

(333) 622
2. Where a trustee has, in violation of his trust,
investe I the trust property or its proceeds in any
other property, the cestui que trust has his option,
either to hold the substituted property liable to the
original trust, or to hold the trustee himself per-
sonally liable for the breach of the trust.
id.
(lb.) 622
3. The option, however, belongs to the cestui que
trust alone and is for his benefit, and not for the
benefit of the trustee.

Id.

(lb.) 622
4. If the trustee, after such an unlawful conver-
sion of the trust property, should repurchase it,
the cestui que trust may, at his option, either hold
the original property subject to the trust, or take
the substituted property in which it has been in-
vested, in lieu thereof. And the trustee, in such
a case, has no right to insist that the trust shall,
upon the repurchase, attach exclusively to the
original trust property.
Id
(lb.) 622
5. Where the trust property has been unlawfully
invested, with other funds of the trustee, in other
property, and the latter, in the hands of the trustee,
is chargeable pro tanto to the amount or value of
the original trust property.

[blocks in formation]
[blocks in formation]

8. Where, upon the face of the title papers, the
purchaser has full means of acquiring complete
knowledge of the title from the references therein
made to the origin and consideration thereof, he
will be deemed to have constructive notice there-
of. Id.
(lb.) 622

9. A co-proprietor of real property, derived
under the same title as the other proprietors, is
presumed to have full knowledge of the objects
and purposes and trusts attached to the original
purchase, and for which it is then held for their
common benefit.

[blocks in formation]

10. A purchaser by a deed quitclaim, without any
covenant of warranty, is not entitled to protection
in a court of equity as a purchaser for a valuable
consideration, without notice; and he takes only
what the vendor could lawfully convey.
ld.
(Ib.) 622
11. A warranty, either lineal or collaterial, is no
bar to an heir who does not claim the property to
which the warranty is attached by descent, but as
a purchaser thereof.
ld.
(Ib.) 622

12. Whether a bill in equity is open to the objec-
tion of multifariousness or not, must be decided
upon all the circumstances of the particular case.
No general rule can be laid down upon the subject;
and much must be left to the discretion of the
court.
Id.

[blocks in formation]

14. Lapse of time is no bar to a subsisting trust
in real property. The bar does not begin to run
until knowledge of some overt act of an adverse
claim or right set up by the trustee is brought
home to the cestui que trust. The lapse of any
period less than twenty years will not bar the cestui
que trust of his remedy in equity, although he may
have been guilty of some negligence, where the
suit is brought against his trustee, who is guilty of
the breach of trust, or others claiming under him
with notice.

[blocks in formation]

15. Where exceptions are taken to a master's re-
port, it is not necessary for the court formally to
allow or disallow them on the record. It will be
sufficient, if it appears from the record, that all of
them have been considered by the court, and
allowed or disallowed, and the report reformed ac-
cordingly.

ld.
(334) 622
16. There is no principle of the common law which
forbids individuals from associating together to
purchase lands of the United States on joint ac-
count at a public sale.

[blocks in formation]

17. The Supreme Court has no power to review its
decisions, whether in a case at law or in equity. A
final decree in chancery is as conclusive as a judg-
ment at law.

Washington Bridge Co. v. Stewart, (413) 658
18. In case of controversy, a court of a equity is
the proper tribunal to prevent an injurious act by a
public officer, for which the law might give no
adequate redress, or to avoid a multiplicity of suits
or to prevent a cloud from being cast over the
title.
(441) 671

Carroll v. Safford,

Black v. Zacharie,

19. The legal title to stock held in corporations
situated in Louisiana, does not pass under a general
assignment of property, until the transfer is com-
pleted in the mode pointed out by the laws of
Louisiana, regulating those corporations.
(483) 690
20. But the equitable title will pass, if the assign-
ment be sufficient to transfer it by the laws of the
State in which the assignor resides, and if the laws
of the State where the corporations exist do not pro-
hibit the assignment of equitable interests in stock.

« SebelumnyaLanjutkan »