ACCORD AND SATISFACTION.
A board of levee commissioners made a settlement with contractors
employed to do the work on certain levees, by which it paid them a
certain sum and took a receipt in full of all demands. The parties
afterwards executed an agreement under seal, reciting the settle-
ment and receipt in full of all demands, a complaint of the con-
tractors that injustice had been done them in that settlement, and
the desire of the board to do full justice; and stipulating that two
engineers, one designated by each party, should measure the work
done, and render to the parties an estimate of the amount due to
the contractors for such work according to the original contract;
that if this should differ from the amount already paid, the differ-
ence should be paid or refunded accordingly; and that these two
engineers and a third, to be agreed on by them, should be arbitrat-
ors for the adjustment of all questions of difference; that, in the
adjustment of questions pertaining to the measurement, the con-
tractors should have the privilege of introducing all proper evidence,
and the board of rebutting that evidence; and that, before proceed-
ing with the measurement, the contractors should give written
notice to the board of the points to be proved and the character of
the evidence to be offered. The contractors thereupon gave notice
of their intention to introduce proof of several matters, some of
which did not concern the measurement; to which the engineer of
the board objected; and the arbitration fell through. Held, that
the settlement and receipt bound the contractors as an accord and
satisfaction, and they could not maintain a suit upon the original
contract to recover further compensation for the work. Hemingway
v. Stansell, 399.
ACTION. See Jurisdiction; Mississippi, 4; Parties, 2; Stockholder, 2;
United States, Suits by or against, 1.
ADMIRALTY. See Jurisdiction, 2; Maritime Law.
1. The court, upon the facts found by the Circuit Court, affirms the
decree whereby the steamer "New Orleans" was condemned to pay
the damages occasioned by her collision with a schooner. The
"New Orleans," 13.
2. The evidence which in another suit a part owner of the schooner gave
as to the extent and cost of the repairs put upon her, is not in this
suit admissible against the other part owners. Id.
3. An ocean steamer starting from a crowded slip, the motion of her
propeller caused a canal-boat to break her fastenings and swing
around against the propeller, whereby she was sunk. The steamer
had no lookout at her stern, by whom the peril of the canal-boat
might have been seen in time to stop the propeller and prevent the
collision. Held, that the steamer was in fault.
154.
4. Towage should be employed, when necessary to enable a large
steamer to leave a crowded slip or harbor without damaging other
vessels. Id.
5. Steamers and locomotives should be so managed and operated as
to do the least possible injury consistent with their substantial
usefulness. Id.
6. Those in charge of the canal-boat, in this case, having done all that
reasonable prudence required of them, by properly fastening their
boat, were held free from blame. Id.
7. A decree against two vessels at fault should be, not in solido for the
full amount of damages sustained by the libellant, but severally
against each for one-half of his damage and costs, any balance
which he shall be unable to enforce against either vessel to be
paid by the other or its stipulators, to the extent of her stipulated
value beyond the moiety due from her. The "Sterling" and The
"Equator," 647.
8. Inasmuch as the form of the decree was not in this case called to the
attention of the Circuit Court, the parties are required to pay their
respective costs in this court. Id.
See Jurisdiction, 1; Michigan, 1, 3; Mississippi, 1.
ALABAMA. See Constitutional Law, 2.
AMOUNT IN CONTROVERSY. See Appeal, 2, 6; Jurisdiction, 1–8;
Railroad Mortgage, 7.
ANIMALS. See Customs Duties, 3, 4.
APPEAL. See Conflict of Laws; Equity, 4, 6; Jurisdiction, 2, 3, 8; Levee
Board, 1; Practice, 11; Railroad Mortgage, 3, 4; Waiver.
1. A party to a suit cannot appeal from a decree therein rendered, if
he is not thereby affected. Farmers' Loan and Trust Company v.
Waterman, 265.
2. An appeal will be dismissed where it does not appear by the record,
or otherwise, that the value of the matter in dispute exceeds $5,000.
Parker v. Morrill, 1.
3. A decree is not final within the meaning of the act conferring appel-
late jurisdiction, unless upon its affirmance nothing remains but to
execute it. The court therefore dismisses an appeal by the defend-
ant in a foreclosure suit from the decree therein rendered, which
neither finds the amount due nor orders the sale of the mortgaged
property, although it overrules his defence, declares the complainant
to be holder of the mortgage, and, in order to ascertain the amount
due him and other lien creditors, and for taxes, refers the case to a
master, and appoints a receiver to take charge of the property.
Grant v. Phoenix Insurance Company, 429.
4. A suit for the foreclosure of a mortgage commenced in a State court
was removed to the Circuit Court, where a motion to remand it was
made and overruled. A final decree in favor of the complainant
was passed, whereunder the mortgaged property was sold. From
the order confirming the sale an appeal was taken. Held, that the
final decree, not disclosing a want of jurisdiction of the court below,
as to subject-matter or parties, will be examined here only to ascer-
tain whether the sale conformed to its provisions. Turner v. Far-
mers' Loan and Trust Company, 552.
5. In a foreclosure suit, pending when the lands and property were in
possession of a receiver, the State of Georgia, whilst declining to
become a party, presented a petition asking that he be required to
withdraw from the possession of a part of the property whereon
executions for State taxes had been levied prior to his appointment.
The petition was denied and dismissed. Held, that the action of
the Circuit Court cannot be reviewed upon the appeal of the State,
for the reason, if there were no other, that the order did not cou-
clude the rights which she acquired by virtue of the executions, or
of the levies made thereunder. Georgia v. Jesup, 458.
6. Where a foreclosure suit was brought, and the municipal corporation
within which the mortgaged property was situate was allowed to
intervene and set up a claim for taxes thereon, Held, that the
order of the Circuit Court rejecting the claim is binding upon the
corporation, and the latter is entitled to an appeal where the amount
of taxes is sufficient to give this court jurisdiction. Savannah v.
Jesup, 563.
ASSIGNMENT. See Contract, 5; Equity, 1.
ASSIGNMENT OF ERRORS. See Writ of Error, 3.
ATTACHMENT. See Mississippi, 1, 2, 5.
BANK AND BANKER. See Taxation, 1.
1. A composition between a bankrupt and his creditors, under sect. 17
of the act of June 22, 1874, c. 390, although ratified by the proper
District Court, did not discharge him from a debt or a liability
incurred by him while acting in a fiduciary character. Bayly v.
University, 11.
2. That section did not repeal sect. 5117, Rev. Stat. Wilmot v. Mudge,
103 U. S. 217, cited upon this point and approved. Id.
3. Where a judgment in a State court is rendered against one shortly
thereafter declared to be a bankrupt, a writ of error to that judg-
ment brought by his assignee is a suit, within the meaning of sect.
5057 of the Revised Statutes. Jenkins v. International Bank, 571.
4. The limitation of time in that section applies to a suit by the assignee
to recover a debt or other moneyed obligation, as well as to a con-
troversy concerning property or rights of property to which there
are adverse claims. Id.
5. Where the trustees of a bankrupt who were appointed under sect.
5103 of the Revised Statutes distributed the proceeds of the sale of
his property pursuant to an order entered by the proper District
Court sitting in bankruptcy, and affirmed by the Circuit Court in
the exercise of its supervisory jurisdiction, — Held, that the order is
binding, and that the creditors are thereby concluded. Merchants'
Bank of Pittsburgh v. Slagle, 558.
BILL OF EXCEPTIONS. See Practice, 11, 12.
BILLS OF EXCHANGE AND PROMISSORY NOTES. See Equity,
3; Negotiable Instruments.
1. Judicial notice is taken of the seal of a notary public, and such seal,
impressed upon either the paper or the wax thereunto attached,
entitles his certificate of protest to full faith and credit. So held,
where, in an action against the drawer of a foreign bill of exchange
payable in Norway, such a certificate made in that country was,
when put in evidence by the payee, accepted as proof of the present-
ment and non-payment of the bill. Pierce v. Indseth, 546.
2. The question as to whether the presentment was made in due time
is determined by the law of the place where the bill is payable.
Id.
3. The deposition of a lawyer of Norway, to the effect that the holder of
such a bill payable there at sight is allowed a year after its date
within which to present it for payment, was, by the court below,
properly admitted under the statute of Minnesota, which provides
that the existence, tenor, and effect of all foreign laws may be proved
by parol evidence, but that the court may, in its discretion, when
the law in question is contained in a written statute, reject such evi-
dence, unless it be accompanied by a copy thereof. Id.
1. The only questions open for examination on a bill of review for errors
of law appearing on the face of the record are such as arise on the
pleadings, proceedings, and decree, without reference to the evidence
in the cause. Shelton v. Van Kleęck, 532.
2. The truth of matters of fact alleged in such a bill is not admitted by
a demurrer thereto, if they are inconsistent with the decree. Id.
3. Where the decree in a foreclosure suit adjudged the sale of the mort-
gaged lands, the alleged new matter discovered, if it relates to the
proceeding in selling them, can have no effect on the decree. Id.
BOND. See Collector of Internal Revenue: Conflict of Laws; Constitutional Law, 3, 4; Customs Duties, 7-9; Internal Revenue, 1-3; Levee Board, 2; Negotiable Instruments; Railroad Mortgage, 1, 2.
Bonds issued in the name of an independent school district, in the State of Iowa, contain these recitals: "This bond is issued by the board of school directors by authority of an election of the voters of said school district held on the thirty-first day of July, 1869, in conformity with the provisions of chapter 98 of acts 12th General Assembly of the State of Iowa." Held, 1. That the recitals imply as well that the bonds were issued by authority of the election, as that the election was lawfully held, but do not, necessarily or clearly, import a compliance with those provisions which, following substan tially the words of the State Constitution, prohibit such a district from incurring indebtedness "to an amount in the aggregate exceeding five per centum on the value of its taxable property, to be ascertained by the last State and county tax lists previous to the incurring of such indebtedness." 2. That, in a suit on the bonds, the district is not estopped by the recitals from showing that the indebtedness of which the bonds are evidence exceeds the amount limited by the Constitution and laws of the State. School District v. Stone, 183.
BOND-HOLDERS. See Railroad Mortgage, 2, 4.
Quare, Are the waters of the Menominee River, which is the boundary between Michigan and Wisconsin, within the concurrent jurisdiction of both Wisconsin and Michigan. Geekie v. Kirby Carpenter Company, 379.
1. Bounty was not allowed by the act of Congress of June 30, 1864, c. 174, where vessels of the enemy were, during the rebellion, destroyed by the combined action of the sea and land forces of the United States. Porter v. United States, 607.
2. Property seized upon any water, of the United States, other than bays or harbors on the sea-coast, was not maritime prize, nor was any bounty paid by the United States for the destruction thereof. Id.
CAPTURED AND ABANDONED PROPERTY.
On the 12th of April, 1865, A., a resident of Memphis, purchased, in Mobile, from B., a resident of that city, both cities being then in the occupancy of the national forces, cotton, which was then in the military lines of the insurgent forces, in Alabama and Mississippi, the inhabitants whereof had been declared to be in insurrection. Between June 30 and December 1 of that year a portion of the cotton while it was in the hands of the planters from whom it had been originally purchased by the Confederate government, the agent of which had sold it, in Mobile, to B. on the 5th of April - was seized by treasury agents of the United States and sold.
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