No exception to a master's report based upon matters of fact should be heard by the court unless such matters have been brought to the master's attention, and exception taken before him.-Gay Manuf'g Co. v. Camp (C. C. A.) 67. Upon appeal from a decree after final hearing in equity, the court will not authorize an amendment to the bill which would require the introduction of new proofs.-American Bell Tel. Co. v. United States (C. C. A.) 542. A claim or interest which has not been set up, by the party entitled to assert it, at the proper stage of the suit, cannot afterwards be asserted, in subsequent proceedings by another party, as an objection to the relief sought by such party.-Compton v. Jesup (C. C. A.) 263. Jurisdiction. Injunctive relief is the ground upon which equity courts take cognizance of patent infringement suits. A bill merely for damages and profits is not sustainable, and it must appear that the remedy at law is inadequate.-Woodmanse & Hewitt Manuf'g Co. v. Williams (C. C. A.) 489. Complainant, after the acceptance of its bid for certain municipal bonds, refused to accept them, on the ground that they were invalid, and the municipality refused to return complainant's deposit, and threatened to hold it liable for loss. Held, that equity had jurisdiction of a suit to determine the validity of the bonds, and adjust the rights of the parties, as the remedy at law would be inadequate.-German-American Inv. Co. of New York v. City of Youngstown (C. C.) 452. A suit against a society of Shakers, consisting of numerous members, who are constantly changing by additions, withdrawals, and deaths, and whose property is held in common, without individual interest in any member, may properly be brought in equity, as the remedy at law would be inadequate.-Society of Shakers v. Watson (C. C. A.) 730. Complainant held licenses from the Cherokee Nation to mine coal. Defendants, claiming under licenses alleged to have been issued through mistake or fraud, entered on the lands, and mined coal, inflicting injury on complainant and on the estate created by the licenses. Held. that equity could enjoin defendants from mining.-Oolagah Coal Co. v. McCaleb (C. C. A.) 86. Equity has jurisdiction to determine the claims of rival licensees in coal mines where the license of one party is alleged to have been issued through mistake or fraud.-Oolagah Coal Co. v. McCaleb (C. C. A.) 86. Equity has jurisdiction of a bill by a bridge company against certain railroads to assert liability to the bridge company under a contract between it and a railroad company with which defendants had contracted for the use of said bridge, and in which contract they had agreed to assume the liabilities arising under the original contract.-Pittsburgh, C. & St. L. R. Co. v. Keokuk & H. Bridge Co. (C. C. A.) 19. Reformation of contracts. In order to justify the reformation of a written contract, on the ground of mistake, the testimony must be clear, unequivocal, and convincing, and must amount to more than a mere preponderance of evidence.-Bowers v. New York Life Ins. Co. (C. C.) 785. Laches. Where complainants, after actual notice that respondent, in possession of an estate in which they claim an interest, was holding adversely, delayed 17 years in bringing suit, they are barred by laches.-Dugan v. O'Donnell (C. C.) 983. The nonresidence of complainants will not of itself excuse laches.-Dugan v. O'Donnell (C. C.) 983. Close relationship between the parties will not prevent the application of the doctrine of laches if the delay is so great as to destroy evidence.-Dugan v. O'Donnell (C. C.) 983. Long delay in claiming a right which is not subject to any limitation does not constitute laches as against parties whose adverse right is based on void proceedings which the claimants were under no obligation to watch for or suspect.-Hodge v. Palms (C. C. A.) 61. Certain public lands within the indemnity limits of a grant to a railroad company were withdrawn from settlement by the passage of the granting act in 1867. In 1885 one G. settled on a part of the land. The railroad company contested his right to a patent, but a patent was issued in 1890. In 1891 the railroad company, for the first time, attempted to select land under its grant, but the selection was not approved. In 1892 the company brought suit to establish a claim to the land. Held, that it was barred by laches from relief in equity.-Southern Pac. R. Co. v. Groeck (C. C.) 609. Pleading. A defendant is only entitled to such advantage upon a plea to a bill in equity as the facts pleaded, though proven after replication, entitle him to.-American Graphophone Co. v. Edison Phonograph Works (C. C.) 451. I Bill of review. The rule that before a bill of review can be filed the decree must be performed does not apply to a party who is not required by the decree to do anything.-Hobbs v. State Trust Co. (C. C. A.) 618. Proof of a direct assignment of a patent from a patentee to complainant does not constitute a departure, although the bill alleges an assign- See "Appeal." ment from the patentee through two intermediate parties to the complainant.-American Ca Error, Writ of. Estates. ble Ry. Co. v. City of New York (C. C.) 227. Devised by will, see "Wills." Where a bill seeks both discovery and an accounting, the discovery must be regarded prima facie as incidental to the accounting, and, if there is no right to the accounting, the bill will be held bad upon demurrer.-Everson v. Equitable Life Assur. Co. (C. C.) 258. Multifariousness. A bill alleging that complainant has been induced, by false representations of certain individual stockholders and officers of a corporation, to purchase stock therein which has proved worthless, and also alleging numerous grounds upon which a dissolution of the corporation and an accounting are sought, is multifarious. Watson v. United States Sugar Refinery (C. C. A.) 769. Decree. Where several suits, ancillary to one another, are instituted in the several districts through which a railroad runs, to marshal liens and bring about a sale, and an identical decree is entered in all, providing for a unit sale, such suits are to be regarded as distinct, and the provisions of the decree as separately applicable to the portions of the road within the several districts, and accordingly parties to the suits cannot represent in one district the rights of lienors upon property lying in another district. Per Taft, Circuit Judge. Contra, per Lurton, Circuit Judge.-Compton v. Jesup (C. C. A.) 263. ESTOPPEL. One who has obtained the dismissal of specifications in opposition to his discharge in bankruptcy and the cancellation of the creditor's proof of debt, on the ground that such creditor, by leave of the bankruptcy court, has obtained a judgment against him, which is in full force, is estopped afterwards to set up his discharge in a suit on such judgment.-Davis v. Cornwall (C. C. A.) 522; Same v. Wakelee, Id. The heirs of a grantee of a Spanish grant dated 1788, who never paid anything for such grant, or any taxes on the land, or spent any money in the enduring improvements on such land, are estopped. 100 years later, from claiming an adverse title to such_land.-Muse v. Arlington Hotel Co. (C. C.) 637. EVIDENCE. A memorandum indorsed on the assessment roll of a municipal corporation to the effect that certain property is exempt from taxation is incompetent to prove it exempt.-Town of Darlington v. Atlantic Trust Co. (C. C. A.) 849. A statement, made by a deceased beneficiary in an insurance policy issued two years before, as to his understanding of the terms of the policy, is not admissible to show mistake in the policy, either as res gestæ or as a declaration of a deceased person.-Bowers v. New York Life Ins. Co. (C. C.) 785. In West Virginia, the declaration of a deceased person familiar with the land in controversy, made to his son on the spot before the controversy arose, is competent to prove a boundary pointed out at the time.-Robinson v. Dewhurst (C. C. A.) 336. A railroad was sold under a decree in a foreclosure suit before the claim of a party to the suit who asserted a lien had been adjudicated. A saving clause was inserted in the decree of sale providing that if his lien were sustained the purchaser at the sale should pay him the amount due, or that the court should resume possession to enforce the lien by resale or otherwise, declaring it to be the intention to preserve his A bill of particulars containing numerous rights. Held, that such saving clause did not items of work and materials may be proved, give the lienor an absolute right to payment, after destruction of the original memoranda without regard to the rank of his lien, but left from which the account was made up, by the him as he would have been if not a party to the evidence of the bookkeeper that he correctly suit.-Compton v. Jesup (C. C. A.) 263. transcribed the memoranda, and the testimony Where several suits, ancillary to one another, of the persons who made and furnished the are brought in the several districts through memoranda to him that the same were correct; which a railroad runs, to foreclose mortgages but the proof is sufficient where it consists only and marshal liens upon it, a decree in one of of the bookkeeper's testimony as to the correctsuch suits, unappealed from, is not conclusiveness of his transcription.-The Norma (C. C. A.) upon an appeal from the decree in another of 509; Merrill v. Sullivan, Id. such suits. Per Taft, Circuit Judge. Contra, per Lurton, Circuit Judge.-Compton v. Jesup (C. C. A.) 263. To show the amount of merchandise shipped, evidence is admissible of persons who testify from records made at the time from weekly re ports of the carrier, and since destroyed by fire. I sold and conveyed the land before notice of lis -Florida Cent. & P. R. Co. v. Bucki (C. Č. A.) 864. Account books of a municipal corporation are not public records, and facts appearing from them must be proved in the same way as facts shown in private books.-Town of Darlington v. Atlantic Trust Co. (C. C. A.) 849. A civil engineer who has made a survey of the locality may testify that there was no obstruction, and that the headlight of a train would be visible from points in the neighborhood of the scene of a collision.-Chicago, St. P. & K. C. Ry. Co. v. Chambers (C. C. A.) 148. Excessive Damages. See "Damages." EXECUTORS AND ADMINIS- pendens was filed, held erroneous; and held, further, that the title was not affected in the hands of the purchaser, and that, if the purchaser was an innocent purchaser for value, without notice, for the proceeds, in which he should be credited, an accounting might be had against the father not only with taxes and improvements, but with any money of his own used in purchasing the land or paying debts of the deceased.-Roggenkamp v. Roggenkamp (C. C. A.) 605. Question whether a creditor of a decedent's estate, who had one of its employés appointed within the California laws prohibiting an adadministrator, was in fact the administrator, ministrator from purchasing the estate.-Gray v. Quicksilver Min. Co. (C. C.) 677. Sufficiency of evidence to show that a purchase of property of a decedent by a company, an employé of which was the administrator, was fraudulent.-Gray v. Quicksilver Min. Co. (C. C.) 677. Express Companies. Factors and Brokers. See, also, "Descent and Distribution"; "Wills." Federal Courts. that the proceedings attacked were not valid. See "Courts." McCants v. Peninsular Land Co. (C. C. A.) 66. A decree of a probate court, granting administration of the estate of one who at his death Federal Question. was a resident of another state, and whose es- See "Courts." Fellow Servant. A decree of a probate court granting admin- See "Master and Servant.” istration of the estate of a decedent cannot af fect property conveyed by such decedent in his cy v. Same (C. C. A.) 64. Fog. Foreign Corporations. A decree of a Louisiana parish court granting administration, made upon a petition containing proper allegations, cannot be questioned See "Corporations." collaterally, on the ground that the succession was not vacant, or that there were no debts, or that the decedent died in another parish, or that no notice of the proceedings was given.Garrett v. Boeing (C. C. A.) 51. One assuming, without authority, to administer the estate of a deceased person, is nevertheless protected in doing whatever a lawful exector or administrator might do, and cannot be charged beyond the assets which came to his hands; and against these he may set off just debts which he has paid.-Roggenkamp v. Roggenkamp (C. C. A.) 605. Imposition of franchise fee, "Constitutional GARNISHMENT. Of receiver, see "Receivers." Where both the garnishee and principal debtor are nonresidents, and the debt is payable in the state of their residence, there is no property subject to garnishment.-Central Trust Co. of New York v. Chattanooga, R. & C. R. Co. (C. C.) 685. Right to garnish wages due by a foreign railroad corporation to its employés who are residents of another state.-Central Trust Co. of New York v. Chattanooga, R. & C. R. Co. (C. C.) 685. A decree whereby a father, who had adminis-road tered on his intestate son's 'estate without authority, and had completed the purchase of lands under a contract made by the son, and taken the title in his own name, was charged as trustee of the title for the son's minor heir, and ordered to convey the same, notwithstanding that he had Property can be made subject to garnishment only when within the jurisdiction of the court. -Central Trust Co. of New York v. Chattanooga, R. & C. R. Co. (C. C.) 685. Garnishment cannot be maintained in the United States courts without personal service on the principal defendant, or his voluntary appearance.-Central Trust Co. of New York V. Chattanooga, R. & C. R. Co. (C. C.) 685. For the purpose of jurisdiction of a garnishment proceeding, the situs of a debt or other chose in action follows the domicile of the creditor.-Central Trust Co. of New York v. Chattanooga, R. & C. R. Co. (C. C.) 685. General Appearance. See "Appearance." Grant. See "Public Lands." GUARDIAN AND WARD. In Washington the giving of a bond is an essential condition of the appointment of a guardian of a minor.-Hatch v. Ferguson (C. C. A.) 43. HORSE AND STREET RAIL ROADS. Liability to lien, see "Mechanics' Liens." The Iowa statute (McClain's Code, § 2008) making a judgment against any railway corporation, for injury to person or property, a lien superior to that of mortgages on its property, does not apply to street-railway corporations.-Manhattan Trust Co. v. Sioux City Cable Ry. Co. (C. C.) 82. HUSBAND AND WIFE. INDIANS. The Indians belonging to the Eastern band of Cherokees in the state of North Carolina have never become citizens of the United States, and the federal courts have jurisdiction to entertain a suit brought by the United States, as guardian of such Indians, for the protection of their interests.-United States v. Boyd (C. C.) 577. INDICTMENT AND INFORMA- Where perjury while testifying as a witness was charged to have been committed on June 7th, but was proved to have been committed on June 6th, held tha, as the perjury was not charged to have been contained in a written instrument, the variance was immaterial. - United States v. Matthews (D. C.) 880. Infringement. Of copyright, see "Copyright." Of patent, see "Patents for Inventions." Injunction. Against infringement of patent, see "Patents for INSOLVENCY. Of bank, see "Banks and Banking." The surrender by a railroad company of steel rails, not yet laid, to the seller, in partial extinguishment of the purchase price, is not a fraudulent preference, though made pending a motion for the appointment of a receiver under a stockholders' bill which seeks to procure a better management until arrangements can be made with creditors.-Illinois Steel Co. v. Putnam (C. C. A.) 515. H., in 1870, began living with a woman. In 1873 he located a land warrant, and received a patent in 1874. In 1876 he married the woman. Held, that the land was not community property, under the Washington statute. See "Trial." Hatch v. Ferguson (C. C. A.) 43. Land patented under a warrant for military service is a gift, and does not become community property under the Washington statute.Hatch v. Ferguson (C. C. A.) 43. See "Aliens." Immigration. Imposts. See "Customs Duties." INDEMNITY. Instructions. INSURANCE. Marine insurance, see "Marine Insurance." a In a policy of :einsurance, issued on an application for reinsurance of part of the risk on "cotton in bales subject to coinsurance clause," provision on a slip attached to the policy that it should be subject to the same risks, etc., as were assumed by the reinsured company, the policy running for a year, and part of the policies of the reinsured company being issued subsequently, binds the reinsuring company to indemnify the reinsured on any contract it may make, as well those not containing the coinsur Bonds of indemnity given by a fidelity insurance clause as those containing it. Per McCorance company are governed by the same principles as are policies of insurance.-Mechanics' Savings Bank & Trust Co. v. Guarantee Co. of North America (C. C.) 459. The beneficiary in a policy of accident insur- is that of debtor and creditor merely, and inance taken out and paid for by the insured need volves no trust relation; and, if the policy holdnot show an insurable interest in order to recover is dissatisfied with the amount of surplus aper.-American Employers' Liability Ins. Co. v. portioned to him, he cannot, in the absence of Barr (C. C. A.) 873. fraud, maintain a bill for discovery and accounting. Everson v. Equitable Life Assur. Co. (C. C.) 258. The "iron-safe clause" in a policy of insurance, requiring the insured, as one of the conditions of the policy, to keep a set of books, keep them in a safe, and produce them in case of loss, is a condition subsequent only, and substantial compliance therewith is sufficient. Per McCormick, Circuit Judge, and Bruce, District Judge; Pardee, Circuit Judge, dissenting. Western Assur. Co. v. Redding (C. C. A.) 708. A policy of accident insurance provided that the company's medical adviser might examine the body of the insured at any time. quest was made for an examination till some weeks after the insured's burial, when a request was made, not to the beneficiary, but to decedent's widow, and was refused. Held no defense to an action by the beneficiary.-American Employers' Liability Ins. Co. v. Barr (C. C. A.) 873. INTEREST. See, also, "Usury." In Wisconsin, when a judgment for defendant on a special finding is reversed, and judgment ordered for the plaintiff on the finding, the plaintiff is entitled to interest to the time of entry of judgment, upon the whole amount of principal, and interest shown by such finding to have been due him when it was made.-Metcalf V. City of Watertown (C. C. A.) 859. Interstate Commerce. Regulation of, see "Constitutional Law." Invention. An answer to an action on an accident insurance policy, which attempts to set up that the contract was not fully consummated, because requiring the assent of the home office to the See "Patents for Inventions." acts of an agent, but which shows that the agent was placed in a position to deliver a completed policy, and did so, and does not aver knowledge by the insured of the excess of authority, and which also attempts to set up concealment of material facts and false representations, but states no particulars, is insufficient.American Employers' Liability Ins. Co. v. Barr (C. C. A.) 873. JUDGMENT. Appealable judgments, see "Appeal." W. and others, claiming to be liquidators of a corporation in dissolution proceedings, intertion, claiming the attached property, and asking vened in attachment suits against the corporathe dismissal of the suits. Judgment was givattempted to limit their appearance in the aten against them. Held that, though they had tachment suits, they were estopped by the adverse judgments to set up a claim on the same ground in an action against the purchaser of the insur-attached property.-Frank v. Wedderin (C. C. A.) 818. An accident policy insured against death by accidental means, not covering death resulting from fighting, or while violating the law. The insured was shot during an altercation. Held, that the death was accidental, and the insurer was liable.-Robinson v. United States Mut. Acc. Ass'n of City of New York (C. C.) 825. A beneficiary named in a policy of life insurance has no such vested interest as to prevent the substitution of another beneficiary.-Robinson v. United States Mut. Acc. Ass'n of City of New York (C. C.) 825. When one effects insurance on his own life, designating another as 'payee, the latter may sue on the policy, without showing an insurable interest.-Robinson v. United States Mut. Acc. Ass'n of City of New York (C. C.) 825. It is not a defense to an action by the substituted beneficiary in a life insurance policy that the original beneficiaries have an action pending on the policy.-Robinson v. United States Mut. Acc. Ass'n of City of New York (C. C.) 825. In a policy of credit insurance the words "loss sustained by the insolvency of debtors owing the insured" means the balance remaining due, after deducting from the indebtedness of the insolvent to the insured, at the time of his failure, any payments made by such insolvent. Mercantile Credit Guarantee Co. of New York v. Wood (C. C. A.) 529. The relation between the holder of a matured semitontine policy and the insurance company The record of a judgment by which it is determined that a will was valid in the state of testator's real estate, that devises to charitable the testator's domicile, that it devised all the ing, is admissible in evidence in an action of uses were valid, and the donees capable of takejectment between privies to the parties to the suit, for the purpose of proving such facts.White v. Keller (C. C. A.) 796. the bond of a surveyor who was claimed to The record of a suit by the United States on have made a fraudulent survey, in which a verdict was rendered for the defendant, is not admissible in a suit between other parties to prove that the survey was correct.-Michigan Land & Lumber Co. v. Rust (C. C. A.) 155. against a railroad company for a tort causing Under Code N. C. §§ 685, 1255, a judgment injury to the person is superior to a mortgage executed after the tort was committed, though the action was not brought within 60 days from the registration of the mortgage.-Boston SafeDeposit & Trust Co. v. Hudson (C. C. A.) 758. |