See CAPTURED AND ABANDONED PROPERTY.
1. Indebitatus assumpsit would be a proper form of action at common law, to
recover money paid as usury. Under the code of Georgia, the action for
open account would seem to be applicable. Whitaker v. Pope,
2. A bill of particulars appended to a petition to recover money paid as usury,
which sets forth the usurious payments or general indebtedness for cash
paid by the plaintiff to the defendant, is sufficient.
The act of the law as well as the act of God can always be pleaded in a court of
justice, as an excuse for performing or not performing any given act. Smith
& Co, v. Commissioners of Tallapoosa Co.,
See INTEREST, 1, 2, 3. PRACTICE IN ADMIRALTY, 1, 2, 6, 7.
1. Where everything was done by the officers of a boat which reasonable care and
skill required in the navigation, neither the boat nor her owners will be
liable for damage to freighters which may result from her grounding. Lery
v. The Great Republic,
2. When the supreme court reversed a decree in admiralty and remanded the
cause to the circuit court, with instructions to render a decree against the
ship for the amount found due for supplies and repairs actually furnished
and really necessary, and the supplies and repairs were furnished upon a
bottomry bond which entitled the libellants to a premium of 19 per cent.
for the voyage: Held, that such premium should be included in the amount
to be decreed by the circuit court. The Grapeshot,
42
3. A neglect to keep a proper look out, which does not in any way contribute to
a collision, cannot be alleged as a ground on which to recover damages
caused by the collision. Shirley v. The Richmond,
58
4. A neglect of the well established rule, for navigating the Mississippi river, that
ascending boats shall run the points, and descending boats the bends, which
results in a collision and loss, renders the boat which disregards the rule
liable for the damages.
5. The 19th admiralty rule was intended to prohibit a joinder of proceedings in
rem and in personam in the same libel for the salvage of the same goods.
Nott v. The Sabine and Cargo,
211
6. A court of admiralty has not jurisdiction to try the question of title to certain
logs which have been incorporated into a raft and floated down a public
navigable river. Gastrel & Raymond v. A Cypress Raft,
213
7. A sale made in pursuance of a decree of a court of admiralty, obtained with-
out fraud, cuts off all claims of the original builders of the boat or other
creditors, and of her owners. Stewart v. Fagan,
215
8. A stevedore has no maritime lien upon a ship, for his services in loading and
stowing her cargo. Paul v. The Bark Ilex,
9. Where, on a libel in rem to recover for repairs to a steamer, the jurisdiction of
the district court was submitted to and the cause tried on its merits; after
appeal to the circuit court, the claimants could not for the first time set up that
the repairs were made in the home port of the steamer, and therefore did
not create a maritime lien, no such fact being averred in the pleadings or
shown by the evidence. Meagher v. The Steamboat Lizzie,
243
10. The extinguishment of a fire in a ship lying at the wharf of a city, by its fire
department, does not entitle the firemen to salvage, even though there
is no city ordinance requiring them to extinguish fires. Davey v. The Mary
Frost and Cargo,
306
11. Where the captain of a ship having goods on board was requested by the con-
signee to deliver them at once, and replied that he would begin discharging
them at 12 o'clock noon, or soon after, and did so, and gave notice thereof
to the consignee, who said his clerk would attend to them and take care
that they were all removed from the wharf, and the clerk neglected to emplo
drays sufficient to carry off the goods before night, and a portion of thes
were left on the wharf during the night, and the captain of the ship pile
them up and covered them with tarpaulins, and placed a watchman ove
them, and the ship's agent had general orders from the consignee not t
store his goods: Held, that there was a good delivery of the goods, and the
ship was not liable for damage done them by rain during the night. Ells-
worth v. The Bark Wild Hunter,
315
12. A vessel is unseaworthy that is not manned by the necessary officers and crew,
but no recovery can be had against her on that account for a loss that was
not attributable to such deficiency. The Planter,
490
13. The fact that a vessel without having encountered any tempestuous weather,
suddenly springs aleak within twenty hours after leaving port, so that her
officers are compelled, in order to save her from sinking, to throw overboard
more than one-third her cargo, raises the presumption that she was unsea-
worthy when she commenced her voyage.
Ib.
14, The fact that a vessel is not a common carrier does not relieve her from the
warranty implied in a contract of affreightment, that she is sound, staunch
and seaworthy.
Ib.
15. When the underwriters have paid the loss, a suit may be maintained in the
name of the insured for their benefit, against the vessel through whose fault
the loss occurred.
Ib.
16. A steamboat, while under impressment by the Confederate States, was sunk,
and was afterwards paid for in full by the confederate government. Held,
that the wreck thereby became the property of the confederate government,
and in the surrender of the confederate forces to the federal forces, became
the property of the United States. Leathers v. The Salvor Wrecking Co.,
See MARRIED WOMEN, 5. STATUTES CONSTRUED, 26, 27.
1. Where by the laws of a state, aliens are prohibited from acquiring and hold-
ing real property, a deed made by A. to B. upon a secret trust for C. who is
a foreigner, A. having no knowledge of the trust, is not void; the trust
only is void. Hammekin v. Clayton,
336
2. By the law of Mexico, which was in force in Texas from the 17th of March,
1836 to the 20th of January, 1840, aliens were prohibited from holding lands
except by titles issuing directly from the government.
Ib.
3. By the common law, an alien might hold real estate against every one and
even against the government until office found.
Ib.
4. The same rule prevailed in the civil law of Mexico and Texas. Therefore,
when an alien to the republic of Texas took a deed not emanating from the
government to lands within the territory of the republic, his title was good
against all persons until after some proceeding analagous to office found by
which his title was declared void.
Ib.
Where an action was hrought in the name of A. for the use of B., and it appeared
on the trial, that before suit brought, A. had assigned the claim to B., who,
therefore, held the legal title, an amendment under the code of Georgia
was allowed after verdict by striking out the name of A. from the petition.
Whitaker v. Pope,
463
See REMOVAL OF CAUSES, 5.
1. A proceeding in the district court in the nature of a suit in equity, brought
by the assignee and creditors of a bankrupt to set aside the claim of an al-
leged creditor, and to abrogate the lien asserted by him on the bankrnpt's
property, is appealable to the circuit court under section 4980 of the revised
statutes. Morris, Assignee, v. Brush's Executors,
354
2. A compliance with general order in bankruptcy XXVI, in relation to the
time of filing such appeal in the circuit court, is not necessary, to give the
court jurisdiction.
Ib.
3. But the order mentioned is a rule of practice in the circuit court, and if dis-
regarded, the appellee has prima facie ground on which to move to dismiss
the appeal.
Ib.
4. A transcript of the proceedings of the district court is not required to be filed
within the ten days prescribed for filing the appeal in the circuit court, but
only a statement of appellant's claim and a brief account of what has been
done in the district court and the grounds of appeal.
5. Where the decree of the district court disallowing a claim against a bank-
rupt estate was entered on January 21st, notice of appeal given January 27th,
and the appeal bond filed in the clerk's office of the district court on January
28th; and before the next term of the circuit court, but not until May 22ď,
the declaration of appellant, setting forth his claim and the history of the
proceedings was filed in the circuit court, at which time a transcript of the pro-
ceedings in the district court was also filed, held that the circuit court had jur.
isdiction of the case and could hear it or not in its discretion, according as it
might or might not be satisfied with the excuse offered for the delay in
filing the papers.
6. A district judge sitting in the circuit court may in a proper case enlarge the
time for filing an appeal in the circuit court.
Ib.
7. Penalty of bond for appeal fixed under rule 32 of the supreme court. Wil-
mer v. Atlanta & Richmond Air Line Railway Company,
See STATUTES CONSTRUED, 1. STOPPAGE IN TRANSITU.
See JURISDICTION, 9, 10, 11, 12.
A judgment rendered in a circuit court of the United States cannot be attached
by process issued out of a state court against the plaintiff in the judgment.
Thomas & Willis v. Wooldridge,
Attorneys at law, in the exercise of their proper functions as such, are not
hable for their acts when performed in good faith, and for the honest pur-
pose of protecting the interests of their clients. Campbell, Adm'r, v. Brown,
349
1. The bankrupt court, in a proceeding by two partners in a firm of three, to
have the partnership adjudicated bankrupt, has jurisdiction over the part-
nership property, although the third partner, in a proceeding in a state court
to settle the partnership, and to obtain a decree for the amount due him from
his copartners, has had himself appointed receiver and is in possession of the
partnership assets. In re Hathorn & Batchelor,
2. In such a case, the bankrupt court may enjoin such third partner from dispos-
ing of the assets of the partnership, or from any interference with them until
the question, whether or not the firm is bankrupt, can be tried.
lb.
3. A general creditor of the grantor cannot proceed to set aside a conveyance
either really or constructively fraudulent, unless he has a lien on the prop-
erty conveyed, or has reduced his claim to judgment. But this rule does not
apply to an assignee in bankruptcy. The adjudication of bankruptcy arrests
the proceedings of creditors to obtain judgments. The assignee may there-
fore proceed to impeach a deed of the bankrupt as fraudulent, although the
creditors have not reduced their claims to judgment, and although they have
no specific lien upon the property conveyed. Barker v. Barker's Assignee,
4. A suit brought by the assignees in bankruptcy of a bank, to recover money paid
as counsel fees by persons acting without authority, as commissioners for
the liquidation of the bank under the state law, is barred unless brought
within two years from the time the cause of action therefor accrued in favor
of the assignees. Miltenberger et al., Assignees, v. Phillips,
115
5. A discharge in bankruptcy must be pleaded. It cannot be set up after judg
ment as a reason why the judgment should not be enforced. Goodrich v.
Hunton,
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