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16. Non obatante Terediota Where a general verdict is rendered for plain-
tiffs, accompanied with special findings to interrogatories, which findings are
inconsistent with any theory upon which the plaintiffs could recover, defend-
ant is entitled to judgment non obgtatUs f>eredieto, 1871. Snyder v. Eobimon

(85 Ind. 811), IX, 788.

See Gold Contract.

1. A judgment creditor has no insurable interest in the property of his debtor.
1869. Orevemeyer v. Southern Insurance Co. (62 Penn. St. 840), 1, 420.


1. Oonfllot of. Where the United States court and a state court have a con-
current jurisdiction, the court first acquiring jurisdiction of any matter retains
it to the exclusion of the other. 1869. Etnee v. Rav)eon (40 Ga. 856), II, 581.

2. The unex e rdaad Jmiadlotlon of the United States courts over a question
does not oust a State court of jurisdiction when the question arises collaterally
by way of a defense to an action in which the State has jurisdiction of the
parties and the subject-maUer. 1872. WUkinaon v. Wait (44 Vt. 508), VIII, 891

3. Oontraot for ooostmction of ▼easels. The enforcement of a lien created
by State laws for labor performed and materials furnished in building vessels
belongs exclusively to- State tribunals. 1868. Foster v. The Richard Bueteed

.(100 Mass. 409), 1, 125. 1870. Sheppardy. Steele(^ IS. Y.SZ), 111, 060. 1870.
Sinton v. Steamboat Roberts (84 Ind. 448). VII, 229.

4. for equipment. Where a contract was entered into between a ship-

ovmer and a ship-chandler, both citizens of the State, for the supply of sails,
cordage, ropes, etc, for a schooner built and launched in another State, Tield,
(1) that the contract being for the original equipment of the vessel was not a
maritime contract, and so not within the admiralty jurisdiction of the federal
courts ; (2) that though the contract were within the admiralty jurisdiction,
yet in cases arising upon the lakes, that jurisdiction is not exclusive, but con-
current with that of the State courts over remedies given by State laws ; (8)
that the State statute creates a lien upon the vessel in such cases, which may
be enforced, notwithstanding subsequeut changes of ownership ; (4) that such
lien attached as soon as the vessel reached this State ; and that all persons
acquiring a subsequent interest in her, acquire it subject to such lieu ; (5) that
the act of congress concerning the necessity of registering bills of sale, mort-
gages, etc., relates to written conveyances only, and contains nothing which
can defeat liens under the State laws. 1870. Thorsen v. Schooner J, B, Martin
(26 Wis. 488), VH. 91, and note, 96.

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6. repairs. An attachment was issued against a yessel navigating the

Yazoo and Mississippi rivers, to recover for repairs. These rivers were navigable
by vessels of ten tons burden and upward from the sea ; the vessel was a steam*
boat owned and having her " home port " in Mississippi. Held, that the vessel
was within the maritime jurisdiction of the United States; that the Btate
courts had no jurisdiction of the subject-matter, and could noti>e invested with
such jurisdiction by the legislature of the State. 1869. Deverv. SteambocU
Hope (42 Miss. 715). II, 648.

6. A proceeding by attachment or provisional seizure, when taken out

against a vessel belonging to a port of one State, while lying in a port of
another State, to enforce a claim for repairs and materials furnished at the
latter port is a proceeding in rem or in admiralty, and the State courts are
without jurisdiction, notwithstanding an act of the legislature authorizing such
a proceeding. But in such a case, where the master has also been personally
cited and is sought to be made liable in his individual capacity, the State
courts, although without jurisdiction to proceed in rem by provisional seizure,
have jurisdiction of personal action. 1871. Southern Dry Dock Co, v. BUam-
boat J. D. Perry, Captain Baird and Owiwre (38 La. An, 89), VIII, 586.

7. BCaxltima demand — wharfage. A demand for wharfage is a maritime
demand cognizable in the courts of admiralty, and a State statute attempting
to confer jurisdiction upon a State court, by proceedings in rem therefor, is
void. 1871. Brookman v. HammiU (48 N. T. 554), HI, 781.

8. In an action at law upon a bill of lading, to recover for the loss of prop-
erty caused by a vessel navigating the Mississippi river, held, that the State
court had jurisdiction. 1871. Home Inturanee Company v. The Northwegtem
Packet Company (82 Iowa, 228), VII, 188.

9. Bftaritime tort A proceeding in rem against a vessel for the recovery of
damages for a maritime tort can be enforced only by the courts of the United
Stetes. 1870. r<n«n^ v. /S^ Prince JSoj^oZ (22 La. An. 888), II, 781.

10. Jnxisdiotion of State courts of actions for personal injuries on bays
and arms of the sea. In a suit by an administrator brought under a statute
of the State to recover for the loss of life of his intestate, caused by being run
over by defendant's steamboat in Narragansett bay, where the defendant con-
tended that the jurisdiction of the State court depended entirely on the saving
clause in the act of congress, 1789, chap. 20 §9, saving to suitors a common-
law remedy, and that this being a right of action given by statute, and not
existing at common law, was not within that saving clause ; held, that the
intention of the saving clause was to have a remedy or right of action in those
courts which proceed according to the course of common law as distinguished
from admiralty proceedings, and that the action was maintainable in the State
courts. 1869. Chase v. The American Steamboat Co, (9 B. L 419), XI, 274 ;
affirmed, 16 Wall. 522.

11. Oontraots as to patents. A State court has jurisdiction of an equitable
action on a bond conditional upon the validity of a patent. 1872. liiddlebrook
v. BroadbmU (47 N. Y. 448), VII, 457.

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12. Also, to compel performance of an agreement to assign a patent.

1871. Binnejf ▼. Annan (107 Mass. 94), IX, 10.

13. Also, of an action to rescind a contract for the sale of a patent

right, brought on the groond of the false and fraudulent representations of the
vendor as to its value. 1871. Page v. Diek&rdon (28 Wis. 694), IX, 582.

14. Bankruptcy. An assignee in bankruptcy may sue or be sued in the Stat^
courts, on daims for or against the bankruptcy estate. 1878. CogdeU v. Ezum
(69 N. 0. 464), XII, 657.

16. A State court has no jurisdiction of a suit by an assignee in bank-
ruptcy, to set aside a fraudulent conveyanoe. 1872. Ve<frhie$ v. Fritbie (25
Mich. 476), XII, 291.

16. An action by an assignee is bankruptcy, under section 85 of the

bankrupt law, to recover the value of goods transferred to defendants by the
bankrupt in fraud of the provisions of said act, is penal in its character, and
will not be entertained by the State courts. 1878. Brigham v. Clc^n{Sl
Wis. 607), XI, 623.

17. In an action brought in a State court, by an assignee in bankruptcy

to obtain control of certain property of the bankrupt alleged to have been
fraudulently conveyed by \dm,held, that the State courts had concurrent juris-
diction with the federal courts to make a degree of title and possession of the
property sued for. 1869. Bowie v. BaU (7 Bush. Ky. 66), III, 288.

181 Naturalization. A court having original jurisdiction of some actions
cognizable by the courts of law under what is known as the '* common law of
England," has " common-law jurisdiction" within the meaning of the act of
congress relative to the naturalization of foreigners. 1870. Matter cf Conner
(39 Cal. 98), II, 427.

19. A court in which the justice is the recording officer is not a court

having a clerk within the meaning of the act of congress, and has, therefore,
no jurisdiction over applications for naturalization. 1870. State y, Whittemore
(50 N. H. 245), IX, 196.

20. RemoTal of oausa. State courts have jurisdiction to hear an appeal
from an order removing a cause from a State to a federal court, under the act of
congress of.March 2, 1867. 1869. Akerleif v. Vilas (24 Wis. 165), 1, 166.

21. D«t«nlion in the military aenrioe. The State courts have authority
to inquire, upon a writ of habeas corpus, into the cause of detention of any
prisoner held within the State by a military officer of the United States, and
to order his discharge. 1870. In re Tarble (25 Wis. 390), lU, 85.

22. A minor, under the age of eighteen, enlisted, declaring himself over
eighteen years of age, but not swearing to the statement, and subsequently
escaped, and was arrested as a deserter. On petition of the father of the
recruit, a writ of habeas corpus was issued from a State court, and the prisoner
discharged. HM, tliat the State court had jurisdiction. (Dixon, C. J., dis-
senting). 1870. lb.

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23. Mandamtui from United Statoi againit lapearvlion. T. recovered judg-
ment in the United States court upon coupon bonds of certain railroad stock
issued by the county of L., the defense, that the supervisors had been enjoined
by the State court from levyinfi: taxes to pay such bonds, being held insufficient.
T. afterward procured a mandamus from the United States court, compelling
the supervisors to levy a tax to pay his judgment, which the supervisors
refused to do, because they had been enjoined by the State court, whereupon
an attachment was issued by the United States court against them and they
were arrested by the marshal. They were brought before the State court by
writ of liabeM eorpus. Held, that the United States court had jurisdiction of
the proceedings by mandamus, and that they must be remanded to the custody
of the marshal. (Bbok, J., dissented). 1869. Ex parte ffolman (^ Iowa, ^,
IV, 159.

24. Where Joxisdiotlon is obtained by frand. Where, for the purpose of
obtaining jurisdiction of the person, a resident of the State is induced by false
representations to go to another State, where he is served with a summons.
Held, (1) that the jurisdiction so acquired by the foreign tribunal is fraudulently
obtained ; and that that fact constitutes a good defense to an action, brought In
this State, upon a judgment rendered by it ; (2) that the defendant is guilty
of no laches in failing to appear in the action in which such judgment was
rendered for the purpose of moving to dismiss the proceedings on the ground
of the fraud ; but that the defense of fraud in acquiring jurisdiction is properly
interposed when, for the first time, the judgment is made a legal demand against
him. 1871.^ DurUap v. Oody (81 Iowa, 260), VII, 129, and note, 186.

26. Oourts have no power to enforce dlsoretionary power. The board
of commissioners of a county, in pursuance of an act of the legislature, ordered
that bonds of their county be issued for a loan to raise funds for building
county buildings. In an action for a perpetual injunction against such acts,
Jield, (1) that the board of commissioners was a court of inferior and limited
jurisdiction ; (2) that, where statutory powers are conferred on such a tribunal,
and a mode of executing such powers is prescribed, the mode prescribed must
be strictly pursued or the acts of such court will be coram non judice and
void ; (8) that, where such court has been intrusted with the exercise of dis-
cretionary powers, no court possesses the power to interfere with or control
such discretion, if the acts done are within the power conferred, and have been
performed in good faith. 1870. English v. amock (84 Ind. 115), VII, 215.

26. To recover duties imposed on articles after contract of sale. An
action by a vendor under act of congress of 1864, ch. 178, § 94 (18th U. S. Stat
at Large, 269), to recover the amount of taxes on the articles sold, hdd, that
the State court had jurisdiction. 1869. Ammidown v. Freekmd (101 Mass.
308), in, 859.

27. The domicile of a deceased person is the place of primary and exclu-
sive jurisdiction in the settlement of his estate. 1871. Leonard v. P%itnam
(51 N. H. 247), Xn, 106.

See Cbiminal Law ; Eoolbbiastical Law ; Injttnction.

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JURY, 223


1. On a motion for a n«w trial, the evidence of a jaror as to the motives and
inflaences which aifected their deliberations is inadmissible. Bat a jurTman
may testify to any fact bearing apon the question of the existence of any extra-
neous influence, although not as to how far that influence operated upon his
mind. 8o a juryman may testify in denial or explanation of acts or declara-
tions outside of the jury room, where evidence of such acts has been given as
ground for a new trial. 1871. Woodward v. LsaniU (107 Mass. 458), IX, 49.

2. The dxinking of Intozioating Uqaon by Jnxora after they have retired to
consider their verdict is such misconduct as will cause the verdict to be set
aside. 1869. Ryari v. Harrow (27 Iowa, 494), I, 802.

3. In a trial for murder, after the jury were charged and put In the

care of a bailiff, the bailiff, with two of them, went to a liquor and billiard
saloon, where other persons were drinking and playing billiards, and the bailiff
procured fur each of them a drink of brandy, ginger wine, nutmeg and sugar,
which they drank, and which was paid for by one of them. The evidence
showed that the bailiff asked the saloon-keeper if he couid not fit up something
for said jurors for the diarrhcea, but it does not appear where the other jurors
were at the time when the two with the bailiff were in the saloon. There was
no attempt to show that the jurors were really suffering from diarrhcea, how
much liquor they drank, what effect it had upon their fitness to deliberate on
the case, or in any other way to break the force of the showing made by the
defendant. The jury brought in a verdict of murder in the first degree. Held^
that this was such misconduct in the jurors as to require the setting aside of
the verdict, and the granting of a new trial. 1871. Dams v. The State (85
Ind. 496), IX, 760, and note, 764

4. The fact that a juror, in a prosecution for homicide, during the prog-

ress of the trial used intoxicating liquor, combined with other curative agents,
as a medicine, without medical advice, will not vitiate the verdict in the absence
of any showing that it was so used without the knowledge of the prisoner or
his counsel, or that its effects were intoxicating. 1871. State v. Morphy (88
Iowa, 270). XI, 122.

6. A deed offered In efvidenoe to prove the plaintiff's title is competent for
the consideration of the jury, and may be taken to their room with such other
documentary evidence as is ordinarily committed to the custody of a jury, not-
withstanding the deed contains conditions and reservations not binding upon
the defendant ; the jury being instructed that the deed is only competent to
prove the plaintiff's title to the premises, and is not to be considered at all upon
any other point. 1869. Moore v. Daoie (49 N. H. 46), VI, 460.

6. Instmotions. Where, after a jury have retired to consider their verdict,
they again came into open court and, at their request, there received additional
instructions in the absence of the defendant and his counsel ; hdd, (1) that such
Instruction was not a privy instruction or communication to the jury ; (2) that
the giving of notice to absent counsel or suitors, before proceeding in causes
In which they are interested, is a matter of grace or fkvor on the part of the

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oooit, and not a legal obligation or duty. 1870. Ckapmanw. Ths Chkagoamd
NorthtoetUm BaOwa^ Ccmpanif (26 Wis. 295), VII, 81.

7. PoiUiif. After a sealed rerdict was returned, but before it was opened,
one of the jnrj became insane. The court received the verdict in the presence
of the rest of the jnrj, and denied a reqaeet to hare them polled. HM^ emn*,
and that a temre de now shoold be granted. 1873. JfcrveU t. I>e9al (50 Mo.
272), H, 418.

8» Oontral of Twrdiot Ajorj, having agreed npon a Terdict, reduced it to
writing, sealed it, and separated. When prodaced in court, the next morning,
it was for the plaintiff, for $6,000, and was entered apon the minutes of the
court. On the polling of the jury, they failed to agree, and were directed by
the court to retire to their room. The jury, having retired, returned for instruc-
tions as to whether they could increase their verdict. Being instructed that
they might decide upon any verdict to which they all agreed, they brought in
a verdict for the plaintiff for $7,000. ROd, no error. Until the polling of the
jury takes place, and the assent of the jurors, either express or tacit, is given
to the verdict, and the jury is dismissed, and has become no more a jury in the
case, the verdict is, within certain limits, in the power of the jury, and, to a
certain extent, within the direction of the court. 1878. Warner v. The New
Terk Central BaOrcad Company (52 N. Y. 487), ZI, 724.

9. Qrand Jury. A judge has no right to require a grand jury to have the
witnesses on the part of the State examined publicly. 1878. State v. Branch
(68N. C.186),XII.688.

See CoHSTiTunoHAL Law ; Cbucikal Law.

JUBT TRIAL — Sse Cokstitutiohal Law ; Rkfrbbkcb.

A justice of the peace is not liable to an action for erroneously refusing to
grant an appeal, such refusal being a judidal act. 1870. Jordan v. Bdneon
(40 N. H. 199), VI, 508, and note, 518.

Under law making ten hours a day's work. See Contract.


1. A oorenant for quiet enjoyment is implied in every mutual contract for
the leasing and demise of land, by whatever form of words the agreement is
made. 1870. Jfo<j* v. PoteWw (42 N. Y. 167). 1, 500.

2. But the covenant, whether expressed or implied, only means that the

tenant shall not be evicted or disturbed by good title in the possession of the
demised premises or some part thereof ; it does not mean that the tenant shall
be guarantied from all molestation or damage from the wrongful acts of stran-
gers having no righl or title to the demised premises or any part thereof. 1872.
Moore v. Weber (71 Penn, St 429), X, 708.

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3. Thus a lease embraced a building, bailt of wood, the sides )>eing only

lathed aud plastered. Alongside of it was a brick building, built entirely on
another lot, owned by another person. The owner of the brick building removed
it, leaving the wooden building unprotected from the weather, on that side, in
consequence of which, the lessee's goods and stock in trade were injured. Hsld,
that the tenant had no right of action against the landlord for permitting the
brick building to be torn down. lb,

^ DeHandant had for many yean flowed plafaUfPi land by a dam, paying
an annual compensation therefor. In an action to reoover damages for such
flowage, hetd^ that relation of landlord and tenant existed between the parties,
and that plaintiff could not recover beyond the amount of the yearly compen-
sation, without having given notice to quit. 1878. MorriU v. Mackman (24
Mich. 879), IX, 124.

6. A landlord erected, without the tenanfii oonaent, a new building in the
back yard, against the demised house, whereby two of the rooms, previously
used as kitchen and bedroom, were made unfit for those purposes, and were,
by reason of that unfitness, abandoned by the tenant, HM an eviction, so as
to efilect a suspension of the rent. 1870. Boyce v. Guggenheim (106 Mass.
201), VIU. 822.

6* Duty of landlord as to repahnk Plaintiff occupied the lower portion of
a house and another tenant the upper portion. The roof and upper story hav-
ing been destroyed by fire, in an action by plaintiff against the landlord, the
judged charged the jury that it was the landlord's duty to proceed with dili-
gence, after the fire, to put on the roof, and that he was liable for damages to
plaintiff caused by delay. HM, drror, there being no express covenant to
repair, and the maxim, eic iUer$ tuo, etc., not applying. 1871. Doupe v. GfetUn
(4« N. Y. 119), VI, 47.

7. A oorenant by a lessor to erect a bollding on the leased premises does not
by implication impose upon him an obligation to re-build in case of the destruc-
tion of the building by fire during the term of the lease ; nor does the destruc-
tion of the building and the refusal of the lessor to build relieve the lessee
from his agreement to pay rent. 1870. CoweU v LunUey (89 Cal. 151), II, 480.

8. liability of landlord for negligant repairs. A landlord, being solicited
by his tenant to have an out-house repaired, gratuitously undertook to make
the repairs, and negligently and unskill fully performed the work, whereby
the tenant's wife was subsequently injured. HM, that the landlord was
liable for the ii^ury. 1870. GUI v. Middieton (105 Mass. 477), VII, 548.

9. liability of landlord for injuries occasioned by the leased premises.

A landlord is liable for injuries occasioned by ice and snow falling from the
roof of the demised premises, although the building was occupied by tenants
who had covenanted to keep the premises in repair, where it does not appear that
the roof was under the control of the tenants. 1869. Shipiey v. I\fty Aeao.
eiatee (101 Mass. 251), UI, 846; OMpley v. F\fty A$eociaUe (106 Mass. 194>
VIU, 818.

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10. Where there la no proTiskm hi a leue m regmrd to uijariee, it is

the daty of the pereoD having eontrol of the piemlees to keep a ecatUe ia the
sidewalk in repair ; and the owner of the premisee will not be liable to aa
injured partj for neglect to keep the Seattle in repair if it was in good oondi-
tion when possenkm was giTon nnder the lease. 1870. FUher r. TkirktU
(21 Mich. 1). IV, 483.

11. Defendant, owner of a bnildiiig, rented the lower storf to plaintiff

and the apper stories to oiher taaanta. There was, in the af^^er part, a water-
closet to which all the tenants had aoeees, and which, thongh properlj oon-
stnicted. had become ont of order br reason of the negllgenee of the tenants,
of whidi UiCt defendant had notiee. BM, that defendant was liaUe for
damages occasioned to plaintiff's goods bj reason of the orerilow of said closet.

1871. ManhaU y. Cohen {UQ^ 489), IX, 170.

12. Plaintiff fell throngh the eoToring of a coal hole in the sidewalk.

Defendant was the lessee of the premises to whioh the coal hole was appnr-
tenant. The injury occnrred by r ea s on of the imprc^r oonstmetion of the
<A>Tering. Held, that defendant was liable, separately, or jointly with the
leMor, and that no proof of notice of the defect to the lessee was necessary.

1872. irm'fM T. ir<wd (51 N.Y. 224), X, 608.

13. Whsre pr ops tty has been leased sabssqpMttt to mmmeMoa ai a moxU
gage thereon, the mortgagee, on entry for condition broken, may treat the tenant
as a trespasser, and bring ejectment, eren without notice ; bat if the mortgagee
receives rent from the tenant the relatioii of landlord or tenant wHl be
thereby created between them. The mere receipt of rent, howerM', will not
revive the tenancy for the entire unexpired term of the lease, bnt only from
year to year. 1871. Garttide v. Outlet (58 HI. 210), XI, 59.

14. Oovenant Jn lease — appraisement. Where a lessor and lessee of lauds
covenanted in the lease that, at the expiration of the temi, the valoe of the
baildings erected on the premises by the lessee should be appraised by apprais-
ers and paid by the lessor. BM, that the right of the lessee to recover for the
value of the baildings was not entirely dependent upon the making of the
appnUsement, bat that, nevertheless, he was bound to do all that was reason-
ably in his power to procure the stipulated appraisement ; also, that, in case
the appraisers first selected failed to agree, the leasee must use all reasonable
efforts in order to secure other appraisers ; and that whether he has done so is
a question for the jury. 1868. Mood v. HaH$hom (100 Mass. 117). 1, 89.

16. Removal of baHdings erected by tenant. A tenant erected buildings
which he had a right to remove under the lease, subsequently he took a new
lease, without reservation or mention of claim to the buildings ; the landlord
then conveyed the premises to L. ; whereupon the tenant removed the build-
ings. In an action by L. against his grantor for breach of covenant of seisin
and quiet enjoyment, heldy (1) that the tenant's right to remove the buildings
terminated with the acceptance of the new lease ; and (2) that the removal

Online LibraryIrving Browne Isaac Grant ThompsonThe American reports: containing all decisions of general ..., Volumes 1-12 → online text (page 29 of 51)