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as many days before the hearing as required by the rules of court in case
of ordinary motions in suits.

- Bernard v. Abel, 156 Fed. 649; In re Bernard, Id...84 C. C. A. 361
§ 2. Equitable relief.

A bill to impeach a decree for fraud, the relief sought being an injunc-
tion to restrain its enforcement, is not the same in purpose as an appeal,
and the court which rendered the decree has jurisdiction to entertain such
a bill, although an appeal from the decree is pending,
-Dowagiac Mfg. Co. V. McSherry Mfg. Co., 155 Fed. 524...

84 C. C. A. 38
$ 3. Merger and bar of causes of action and defenses.

A final decree of a state court in a suit brought for the cancellation
of a mortgage and foreclosure deed on condition of paying the mortgage
debt with interest and costs, even though on demurrer, is a bar to a sub-
sequent suit in a federal court for the same purpose against the same de-
fendants or their privies; the grounds relied upon in the pleading being
the same in both actions.
-Stewart v. Board of Trustees of Park College, 156 Fed. 773.....

84 C. C. A. 451


In criminal prosecutions, see “Criminal Law," § 5.


Of actions for divorce, see "Divorce," $ 1.
Of criminal prosecutions, see "Criminal Law," § 1.
Of particular courts, see "Bankruptcy," $$ 2, 3; "Courts."


Custody and conduct, see "Trial," $ 3.
Disqualification or misconduct ground for new trial, see “New Trial," § 1.
Instructions in civil actions, see “Trial," $8 1, 2.
Instructions in criminal prosecutions, see "Criminal Law," & 11.
Questions for jury in criminal prosecutions, see “Criminal Law," $ 10.
Right to trial by jury in bankruptcy proceedings, see "Bankruptcy," § 1.


By servants of defects, see “Master and Servant," $ 3.
Effect of ignorance of cause of action on limitation, see “Limitation of Ac-

tions," 1.


Affecting right to an accounting as to profits in suit to restrain unfair com-

petition, see "Trade-Marks and Trade-Names," $ 2.
Effect in equity, see “Equity," $ 2.


Mining leases, see "Mines and Minerals," $ 2.
Possession of tenant for landlord, see “Adverse Possession," $$ 1, 2.
Relevancy of evidence in action against lessee of theater, see “Evidence," $ 2.
8 1. Terms for years.

A lease to commence in futuro is grantable, and the fact that a lease
fixes a date in the future for the commencement of the term does not make
it an executory, rather than an executed, contract.

-Johnston v. Corson Gold Min, Co., 137 Fed. 145. ...84 C. C. A. 593
§ 2. Premises, and enjoyment and use thereof.

Defendants were the owners of a building consisting of several floors
leased to tenants engaged in the manufacture of shoes. There were two
stairways reaching to the several floors from different sides of the build-
ing, and on another side was a freight elevator, the entrance to which
opened on the street. There was no stairway from said entrance, and
there was a sign on the elevator shaft reading, "For freight only."
Plaintiff was a shoe workman, and, seeing a sign on that side of the build-
ing that vampers were wanted, asked a teanister the way into the build-
ing, and the teamster, who was going up with some le ther, took plain-
tiff with him in the freight elevator. Plaintiff was told to return the
next day, which he did, going down and coming back with some one who
was using the elevator. On the second day, not having been employed,
when he wished to go down, there was no one at the elevator, but the door
of the shaft was open, and he stepped in upon a trapdoor, which he sup-
posed was the elevator. In a moment the elevator ascended, opeuing the
trapdoor, and plaintiff was caught and injured. By the provisions of the
leases, the operation of the elevator was left entirely to the tenants, who
kept no one in charge, but each used it when occasion required. It was
rarely used except by some one bringing up or taking down freight. Held,
that plaintiff was not in the elevator by invitation of defendants or their
tenants, either express or implied, and therefore defendants owed him no
duty of care, and were not liable for his injury.
- Dissel v. Lennox, 156 Fed. 347.....

.84 C. C. A. 243


See “Public Lands."

See "False Pretenses."
Testimony of accomplices and codefendants, see "Criminal Law," $ 9.
§ 1. Prosecution and punishment.

A verdict of conviction in a prosecution for larceny hold not supported
by any legal evidence.
-Mickle v. United States, 157 Fed. 229....

.84 C. C. A. 672


See "Landlord and Tenant."


For inventions, see "Patents."

For mining, see "Mines and Minerals," $ 2.

Effect of proceedings in bankruptcy, see "Bankruptcy," $ 2.


See "Insurance," $ 1.


Of vessels, see “Collision," $ 2.


Of claim of patent, see "Patents," $ 4.


See “Adverse Possession."
Laches, see "Equity," $ 2.
Limitation of criminal prosecutions, see "Criminal Law," $ 2.

§ 1. Computation of period of limitation.

The statute of limitations begins to run from the time a right of ac-
tion accrues for a breach of duty or contract or for a wrong, without re-
gard to the time when actual damage results.
-Aachen & Munich Fire Ins. Co. v. Morton, 156 Fed. 654....

84 C. C. A. 300
An insurance company undertook to cancel a policy in accordance with
its terms by giving notice and returning the unearned premium. The
policy having been lost, a lost policy receipt was given, signed by the
owner of the property and mortgagees, to whom the policy was made pay-
able, by which they agreed that, if the policy was found, it would be sur-
rendered. The property was burned, and the policy, having been found,
was assigned by the mortgagees to a third person, who recovered there-
on against the company. Held, in an action by the company to recover
the amount so paid out by it from one of the mortgagees, based on an al-
leged breach of the cancellation agreement, that such breach occurred and
plaintiff's cause of action accrued at the time the policy was assigned by
defendant in violation of his agreement to surrender it, and that the stat-
ute of limitations commenced to run at that time.
-Aachen & Munich Fire Ins. Co. v. Morton, 156 Fed. 654..

84 C. C. A. 366
The statute of Colorado (section 2911, Mills' Ann. St.), which requires
bills for relief on the ground of fraud to be filed within three years after
discovery of the facts constituting the fraud, bars such suits three years
after the discovery of facts which would awaken a person of ordinary
prudence to an inquiry, which, if pursued with reasonable diligence, would
lead to a discovery of the fraud.
-Redd y. Brun, 157 Fed. 190...

.84 C. C. A. 638

§ 2. Pleading, evidence, trial, and review.

Under the common-law practice in force in Illinois, the question of limi-
tation cannot be raised on demurrer to a declaration.

-Gray v. Grand Trunk Western Ry. Co., 156 Fed. 736..84 C. C. A. 392

See “Copyrights."

The common law gives the author of a painting the exclusive right to
reproduce the same so long as he does not make publication, but on pub-
lication such right is lost, and he can only acquire the right to further
protection by a statutory copyright.

-Caliga v. Inter Ocean Newspaper Co., 157 Fed. 186..84 C. C. A. 634


Of mining claim, see "Mines and Minerals," 1.

Waste in removal of timber, see “Waste.”

A provision, in a contract for the sale and delivery of logs to be scaled
after delivery, that they shall be of merchantable timber, is not a war-
ranty that all logs delivered thereunder are merchantable, but merely fur-
nishes a description for the identification of such logs as fall within the
-Noyes v. Marlott, 156 Fed. 753....

.....84 C. C. A. 409
Plaintiffs entered into a contract with defendant to fell, cut, raft, drive,
and deliver a certain number of feet of logs of specified dimensions and
quality in a slough extending from a river, where defendant agreed to
construct a boom for their detention, to remove them to the banks of the
river or to the mill, and at the time of such removal to scale the same
and pay for each thousand feet so delivered and removed to the banks of
the slough or the mill, "and not otherwise." A portion of the logs were
so delivered, removed, and paid for; but the remainder, after being de-
livered into the boom, were carried away by a freshet and lost. Held
that, plaintiffs having done all that they were to do, complete possession
and title to the logs thereupon passed to defendant, and he became liable
for the purchase price on proof of the quantity delivered, and that
conformed to the requirements of the contract as to dimensions and
-Noyes v. Marlott, 156 Fed. 753...

.84 C. C. A. 403


On vessels, see "Collision," $ 2.


Use of mails in conducting lottery schemes, see “Post Office," § 1.


See “Logs and Logging."


Liability of employer for defects, see “Master and Servant," $ 3.


Power of circuit court of appeals to interfere by mandamus to circuit court,

see “Courts," $ 2.
§ 1. Subjects and purposes of relief.

Mandamus will lie to control the action of an inferior court when it
assumes to act beyond its jurisdiction, or where it refuses to take juris-

diction of a case and proceed to judgment therein when it is its duty to do so, and there is no other adequate remedy, but not to control its action in a matter which is within its jurisdiction to hear and determine. -Dowagiac Mfg. Co. v. McSherry Mfg. Co., 153 Fed. 524...

84 C. C. A. 38


See "Mandamus."


See “Insurance," $ 2.


See “Divorce"; "Husband and Wife."


See "Husband and Wife."


Construction of instructions in action for injuries to servant, see "Trial," $ 2. Evidence of damages in action for injuries to servaut, see “Damages," § 1.

§ 1. The relation.

A verbal contract between the owner of a vessel and a marine engineer for the services of the latter, in which his wages were fixed at a stated sum per month, but without any specified term of employment, constituted a hiring at will, and not by the month, and in the absence of any established usage to the contrary, either party had the right to terminate the employment at any time without notice, and upon the employé's discharge, he was entitled to wages only to the time of such discharge. -The Pokanoket, 156 Fed. 241...

...84 C. C. A. 49

$. 2. Master's liability for injuries to servant-Fellow servants.

The fact that a foreman having charge of a gang of men works with his hands, the same as the rest of the men, for the greater part of the time, or even all of the time, does not necessarily exclude him from being one "whose

principal duty is that of superintendence," within the meaning of the Massachusetts employers' liability act (Rev. Laws, c. 106, $8 71-79), for whose negligence, causing an injury to another employé, the master is liable. - New England Telephone & Telegraph Co. v. Butler, 156 Fed. 321...

84 C. C. A. 217 A ground foreman in mining operations conducted under a general superintendent or manager is a fellow servant with the gang of miners whose work he directs.

-United Zinc Companies v. Wright, 156 Fed. 571.....84 C. C. A. 337 The fact that a foreman in charge of a single job of work being done by defendant corporation, who worked with the men under him, had the power to hire and discharge them and to direct their movements in that particular work, did not erect that single job into a department of defendant's business so as to make the foreman a vice principal, but he remained a fellow servant with the men under him, and for his negligence resulting in an injury to one of such men defendant cannot be held liable.

-Vilter Mfg. Co. v. Otte, 157 Fed. 230...... ..84 0. C. A. 673

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