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By carrier, see "Carriers,” | 1.
Dismissal on hearing of bankruptcy proceedings, see "Bankruptcy," $ 1.
Although Alaska Pen. Code, $ 128, expressly makes common fame cow-
petent evidence in support of an indictment for keeping a bawdyhouse for
purposes of prostitution, such evidence alone is not sufficient proof to war-
rant a conviction, but there must be some evidence that the house was in
fact kept and used for such purposes.
-Hall v. United States, 155 Fed. 52..... .....84 C. C. A. 215
Of estate of bankrupt, see "Bankruptcy,” $ 4.
Ground of jurisdiction of United States courts, see “Courts," $ 2; "Removal
of Causes,” $ 1.
8 1. Jurisdiction, proceedings, and relief.
Carter's Alaska Code, pt. 4, § 504, which provides for appeals from the
District Court for the district of Alaska to the Circuit Court of Appeals
for the Ninth Circuit in civil causes where the amount involved or the
value of the subject-matter exceeds $500, does not authorize an appeal
from a decree granting or denying a divorce or awarding the custody of
their minor children to one or the other of the divorced parties.
-Leak v. Leak, 156 Fed. 473...
....84 C. C. A. 283
A decree of the District Court of Alaska granting or denying a divorce
or awarding the custody of minor children in a divorce suit is not ap-
pealable under Carter's Alaska Codes, pt. 4, 8504, which provides for
appeals only in cases involving money or property.
-Leak v. Leak, 156 Fed. 474.....
..84 C. C. A. 284
§ 2. Alimony, allowances, and disposition of property.
Under Carter's Alaska Codes, pt. 4, § 471, which authorizes the court
in a divorce suit in its discretion to provide by order that the husband
pay such an amount of money as may be necessary to enable the wife
to prosecute or defend the suit, and also for the care and custody and
maintenance of the minor children of the marriage during the pendency
of the action, the court may properly order the husband to deposit a suf-
ficient amount to pay the costs and expense of an appeal by the wife,
and may also allow to the wife the cost of medical attendance neces-
sarily incurred pending the suit for a minor child in her custody, but
it has no power to award her a sum to cover the cost of depositions pre-
viously taken by her; the allowance authorized by the statute being for
future expenses only.
-Leak v. Leak, 156 Fed. 474......
.84 C. C. A. 284
As evidence in criminal prosecutions, see "Criminal Law," : &
Residence as ground of jurisdiction, see "Courts," 8 2.
In Indictment, see "Indictment and Information," § 1.
In pleading, see “Pleading," $ 2.
Customs duties, see "Customs Duties."
Excise duties, see "Internal Revenue."
§ 1. Pleading and evidence.
It is permissible for a petition in ejectment to describe the land sought
to be recovered as all of a certain tract, except portions thereof embraced
in prior grants and patents from the state; but in such case, to support
a judgment for the plaintiff, the parts excluded must be accurately de
-Green v. Davis, 156 Fed. 352.
..84 O. O. A. 248
§ 1. Remedies of owners of property.
The owner of a lot abutting on a street, with title in fee extending to the
center of the street, subject only to the easement for street purposes, un-
der the law of Illinois may maintain a suit in equity to enjoin a corpora-
tion from appropriating and using the street for railroad purposes, and
the question whether the corporation is one to which the state statute has
delegated the power to make such appropriation by condemnation pro-
ceedings may be raised and determined in such suit.
-Greene v. Aurora Rys. Co., 157 Fed. 85.... .84 0. C. A. 589
See “Master and Servant."
Of imported goods, see "Customs Duties," $ 2.
Equitable estoppel, see "Estoppel," § 1.
Particular subjects of equitable jurisdiction and equitable remedies.
See “Cancellation of Instruments”; “Injunction"; "Quieting Title”; “Re
Enforcement of liabilities of stockholder of insolvent corporation, see "Cor-
Relief against judgment, see "Judgment," $ 2.
Restraining waste, see "Waste.”
Suits for infringement of patents, see “Patents," $ 5.
§ 1. Jurisdiction, principles, and maxims.
A bill in equity alleged that complainant owned certain stock and
bonds of a railroad company; that defendant represented that he had
contracted to sell a large amount of the stock and bonds of said com-
pany to another company and agreed to pay complainant the same prices
he was to receive for his stock and bonds and for those of other holders
which he might secure: that a written contract to that effect was en-
tered into between them and carried out, but that such representations
were false and fraudulent, in that defendant was to receive, and did re-
ceive, larger prices than those stated, the exact amount of which were
unknown to complainant. Held, that such bill did not state a cause of
action cognizable by a federal court of equity, complainant having on the
facts alleged a complete and adequate remedy at law by an action to
recover damages for the fraud, and the amount actually received by de-
fendant being as readily ascertainable in such an action as in an equity
-Martin v. Wilson, 155 Fed. 97.......
.....84 C. C. A. 13
An action at law is not as practicable, efficient, or adequate a remedy
as a suit in equity. where the controversy involves an account which
consists of many items, and a federal court has jurisdiction of it in
---Butler Bros. Shoe Co. v. United States Rubber Co., 156 Fed. 1....
84 C. C. A. 167
There is no comprehensive discretion reposed in the chancellor by
modern equity jurisprudence to make and unmake contracts of parties sui
juris subject to such limitations only as meet the approval of his con-
science, but courts of equity are now required as much as courts of law
to enforce contracts free from fraud, and to refrain from making contracts
for the parties on which their minds never met.
-McElroy v. Masterson, 156 Fed. 36.....
...84 C. C. A. 202
In the process of development, equity jurisprudence has assumed the
qualities of a composite system of settled rules and principles by which
the property rights of parties are measured and limited, and are ren-
dered more certain and stable.
- McElroy v. Masterson, 156 Fed. 36....
.84 C. C. A. 202
A lessee of mining claims under an executed lease for a term to com-
mence on a future date, on and after such date, although never having
been in possession, may maintain ejectment against another claiming title
who wrongfully withholds such possession, and, his remedy at law to ob-
tain possession by such an action being complete and adequate, a suit in
equity for that purpose and to establish his title cannot be maintained
even though other relief of an equitable nature is also prayed for, such
as an injunction to prevent waste, an accounting, and the cancellation of
instruments alleged to constitute a cloud on his title, which relief, if neces-
sary or proper, must be sought by an ancillary suit in aid of his action
-Johnston v. Corson Gold Min. Co., 157 Fed. 145....84 C. C. A. 593
§ 2. Laches and stale demands.
A delay of more than 10 years in bringing suit, and beyond the time
limited by statute for bringing an action at law, constitutes such laches,
prima facie, as will bar relief in equity, unless the delay was excusable
under the facts alleged.
-Citizens' Savings & Trust Co. v. Belleville & S. I. R. Co., 157 Fed.
..84 C. C. A. 577
Defendant railroad company issued stock to a county, receiving in par-
ment bonds of the county which it sold but which were afterward adjudg-
ed void. The stock was also afterward canceled at suit of a stockholder.
Subsequently complainant, which was a holder of certain of the bonds,
brought suit against defendant, and obtained a decree adjudging that de-
fendant held the stock issued on account of complainant's bonds in trust
for its benefit, and it was then issued to complainant. Prior to such suit,
and pending the suit for cancellation of the county's stock, defendant
declared and paid a dividend on its other stock, but purposely omitted
such stock upon which it denied any liability. In the suit of complaiu-
ant to compel the issuance to it of stock, it made no claim for such divi-
dend, but more than 10 years after the same had been declared made de
mand therefor and brought a second suit in equity for its recovery. Held,
that prima facie such suit was barred by laches, and that the delay was
not excused by general averments in the bill of want of knowledge of the
dividend of due diligence and concealment by defendant, without the alle-
gation of any facts to support such general averments.
-Citizens' Savings & Trust Co. v. Belleville & S. I. R. Co., 157 Fed.
..84 C. C. A. 577
Complainant had a judgment against T. in 1883 which he could not
collect. In January, 1839, two tracts of land were conveyed to S., a sis-
ter of T., who in February, 1889, conveyed them to Thomson, who in
November, 1895, conveyed them to Mrs. T. and Mrs. C., the wife and
daughter of S., respectively. T. died on March 14, 1896, and the deeds
were first recorded on March 16, 1896. Complainant brought suit to
subject the property to the payment of the judgment more than five
years after the deeds were recorded. The statutory limitation was three
years after discovery of the fraud. The complainant first discovered in
January, 1901, by inquiry among the friends and neighbors of T. that S.
was his sister, and by search in the indices of the records, the convey-
ances in question, and no reason why an earlier discovery was not made,
except the pendency of a suit to cancel the judgment, was shown. Held :
Complainant failed to establish any sound reason in equity why the
doctrine of laches should not be applied in analogy to the statutory limi-
tation, and he could not recover.
Ordinary diligence required him to examine the records in the name
of T., at least once in three years, and if he had exercised the same dili-
gence in 1896 or 1897 that he used in 1901, he would have discovered the
--Redd v. Brun, 157 Fed. 190.....
..84 C. C. A. 638
If by the exercise of ordinary diligence he could have discovered it in
time to have brought his suit within the limit fixed by the statute, he
was guilty of laches, and his suit cannot be maintained.
-Redd v. Brun, 157 Fed. 190.....
84 C. C. A. 638
If he failed to discover the fraud within the statutory limit, he must
plead and prove the time when he discovered it, the means by which he
found it out, the impediments which prevented its earlier discovery,
and the diligence he exercised.
-Redd v. Brun, 157 Fed. 190..
.84 C. C. A. 638
If a complainant would maintain a suit instituted after the expiration
of the statutory linit, he must plead and prove especial facts or circum-
stances which show that he was not guilty of laches which take his case
out of the ordinary rule and make it equitable to allow its maintenance
after the statutory period has expired.
-Redd v. Brun, 157 Fed. 190.......
....84 C. C. A. 638
The federal courts, sitting in equity, are not bound by, but they apply
the doctrine of laches in analogy to, the statute of limitations of ac-
tions at law, and, in the absence of extraordinary facts and circum-
stances, decline to sustain suits commenced after the statutory period.
-Redd v. Brun, 157 Fed. 190..
.84 C. 0. A. 638
§ 3. Pleading.
Filing a replication and taking the proofs waives no substantial in-
sufficiency of the facts set forth in a plea or answer to constitute a de-
-Butler Bros. Shoe Co. v. United States Rubber Co., 156 Fed. 1...
84 O. C. A. 167
A bill against a corporation, which asks for the cancellation of re-
leases alleged to have been fraudulently obtained by defendant, and fur-
ther asks that defendant be wound up on the ground of insolvency, and
also on the ground that its business is illegal, states a case cognizable in
equity, so that the bill cannot be dismissed on the ground that complain-
ant has an adequate remedy at law, because, when a bill states one cause
of action cognizable in equity, it is not subject to a motion to dismiss,
even though it states other grounds of suit not so cognizable.
-Haight & Freese Co. v. Weiss, 156 Fed. 328........84 C. C. A. 224
$ 4. Bill of review.
Fraud in obtaining a decree cannot be made the basis of a bill of re-
view, but only of an original bill to impeach the decree for fraud; the
radical difference between the two kinds of bills being that a bill of re-
view is a continuation of the original litigation, whereas a bill to impeach
a decree for fraud is new and independent litigation.
-Dowagiac Mfg. Co. v. McSherry Mfg. Co., 155 Fed. 524..
84 C. C. A. 38
Three certificates of stock in a mining company, indorsed in blank and
representing shares held by several co-owners, were deposited by them in
a bank under an option contract of sale (fully set forth in the opinion),
containing provisions for the delivery of the stock to the purchaser upon
payment of the purchase price, and for the surrender of the stock to the
depositors in the event of default in the payment of the purchase price.
The purchaser made default, and one of the depositors then called upon
the bank to make a distribution or division of the shares represented by
the certificates among the depositors according to their respective inter-
ests, and to procure from the mining company and deliver to the de
mandant a separate certificate for his interest. The bank did not comply
with the demand, and thereupon the demandant sued it for conversion.
Held, upon full consideration of the terms of the contract and of the rules
of interpretation before stated, that it did not impose upon the bank the
duty of distributing or dividing the stock among the several co-owners,
or of procuring for and delivering to each a separate certificate for the
shares to which he might be entitled, as between himself and his co-
owners, and that therefore the bank's failure to comply with the demand
did not constitute a conversion of the demandant's interest in the stock.
-Christian v. First Nat. Bank of Deadwood, S. D., 155 Fed. 705....