Zabulon Parkar v. Thomas Bamker.
This is an action for damages, by the plaintiff. for the infringement of his patent, in using his percussion water wheel for mills, &c. No plea being filed, the charge in the declaration was admitted. A witness being sworn, proved the use of the wheel three months in the year; that three thousand feet of plank would be sawed in a day, and he estimated onefourth of the proceeds for the expense of the mill, one-fourth to keep the mill in repair, one-fourth for the hire of a sawyer, and the other fourth for profit, which amounted, in five. years, to the sum of four hundred and sixty dollars, for which the jury found a verdict. Judgment.
Several other cases were decided on the same principle.
A plea in abatement is not a waiver of process. Halsey v. Hurd, 14.
A proceeding in a State court by attachment, where a garnishee is
summoned, cannot be set up in bar as abatement to a creditors bill.
Wilkinson v. Yate et al.
By the laws of Illinois, when a married woman, who is a resident of
the State, conveys her real property by deed, it is the acknowledge-
ment which gives effect to it. Lane v. Dolick, 200.
The form of acknowledgement of her right of dower, different from
that by which she transfers her estate. Ib.
In a case where an informer may prosecute, the government may sue
also. United States v. Bougher, 277.
On a voyage from Ogdensburg to Chicago, the bill of lading promised
to deliver the merchandise in good order, the dangers of navigation
only excepted. Held, damages being shown, that the carrier must
show it was within the exception of the bill of lading. Hunt v. the
Propeller Cleveland, 76.
This being shown by facts, from which the exception can be fairly
inferred, and the shipper failing to show that the damage might
have been avoided, the carrier was held not liable. Ib.
It is proper, though not indispensable, to enter a protest after the
accident.
In case of a collision between a steamer and sail vessel, in which
the owners of the former libel the latter, the libelants must not only
show fault in the latter, but all precautionary measures on their
part. Fashion v. Ward, 152.
Allegations in pleading are admissions by the pleader, and need no
proof, unless denied and put in issue. Ib.
The protest of the captain and crew, made the morning after the col-
lision, when admitted in evidence, may be considered as evidence
corroborative of the witnesses in court. Ib.
Two seamen being discharged from the steamer London, at the port of
Detroit, made oath before a United States Commissioner, of the
amount due them as wages, who certifies the same to the District
Clerk; on which a summons was issued directed to the master of
the vessel, to show cause why proceedings should not be instituted
against the vessel.
The principle objection to the process was, that the certificates on
which it was founded did not state the residence of the District
Judge, or that he was absent-held insufficient.
A decree in admiralty is the judgment of the court, on the subject in
controversy. Fashion v. Ward, 195.
The opinion of the judge on collateral matters is not a part of the
judgment. Ib.
When damage is sought in case of collision, and fault on both sides
is shown, or no fault of either, the libel is dismissed. Ib.
The act of Congress of 3d March 1843, requires a vessel on the Lake
at night to show, while on the starboard tack, a red light, and a
vessel having the wind free, a white light, and reflectors to the
lights are required. In a collision between a brig and Schooner-
the brig was close hauled on the wind-having a white light, this
was a violation of the act so as to preclude the brig from recover-
ing a full indemnity. George Porter v. Schooner Miranda, 221.
There was some fault also in the schooner. The damages were
divided. Ib.
Great care is requisite when a vessel enters a harbor, especially
when there is wind, and vessels at anchor. Ward v. Schooner
Dousman, 23.
Apportionment of damages will not be made if the fault be doubt-
ful. Ib.
A steamer is bound to avoid a collision when practicable. Ib.
The libellant must show the fault is chargeable on the boat complained
of. Lucas v. Steamboat Thomas Swan, 282.
A case of inevitable accident is no ground for an action. Ib.
Where there are faults on both sides, damages are divided. Ib.
AGENTS.
On an appeal in admiralty, from the district court, reasonable dili-
gence should be used in prosecuting the appeal. Neil v. Steamer
Illinois, 413.
If the party delay to perfect the appeal for six months, and until a
day or two before the term of the Circuit Court, the appellee may
under the rule, notice the cause for a hearing, and the court will
require the appellant to take his depositions during the session of
the court, so as to come to a hearing. Ib.
At the home port of a vessel the local law must regulate the lien. lb.
A purely maritime lien may arise in every port, under the maritime
jurisdiction, unless it be in the home port. Ib.
The lien cannot arise under the local law and also under the mari-
time. Ib.
A steamer built at Cleveland, in Ohio, under a contract with parties
resident in New York, Cleveland is her home port until after her
first voyage.
Scott v. Propeller Plymouth, 463.
Painting a vessel before completed, is work done at the home port. lb.
Where the possession of a vessel is not tortious, but, under color
of right, a contract of affreightment made with the master will
bind the vessel. Jackson v. the Julia Smith, 404.
When the contract is violated, the proper measure of damages is the
value of the property at the place of shipment, with interest from
that time, unless there be other damages connected with and prox-
imate to the contract. Ib.
All vessels are required to use reasonable diligence to avoid collis-
ions. Buzzard v. the Scow Patrick, 491.
A vessel anchored in a river having a rapid current, should keep a
watch.
A sail vessel in descending a river, when there is no breeze, will be
carried by the current, and will not obey the helm, in such case the
vessel anchored in the current, by parting her helm may avoid the
floating vessel. Ib.
If no watch be kept on an anchored vessel she is liable, if a floating
vessel not under the command of her helm, come in collision. Ib.
The omission to have a watch on board the anchored vessel, amounts
to negligence. Ib.
Where a part of the cargo is thrown overboard for the safety of the
vessel and the lives of the passengers, a contribution may be re-
quired from the owner of the vessel and the cargo saved. Dike et al
v. Propeller St. Joseph, 573.
This is given in the exercise of a maritime jurisdiction and on the
principle of a general average. Ib.
Though there may be a remedy at law, on bonds given, yet that does
not take away the jurisdiction in admiralty. Ib.
Where a lien in admiralty attaches, it follows the proceeds into the
hands of assignees. Ib.
When an agent exceeds his powers in the adjustment of a controversy,
his principals in a reasonable time after knowledge of it, should
repudiate it; and if this be not done the principals may become
bound. Abbe and Colt v. Rood and Rood, 106.
If an agent enter into an arrangement, notifying the debtor that
he would submit it to the creditor for his ratification, unless he shall
ratify it, there is no binding obligation. 1b.
Agents. Alien. Appeals in Admiralty. Assumpsit. Bail. Banks.
An action being brought against the defendent charging him with an
abuse of his powers, as agent of the plaintiff, it is essential that
the plaintiff should allege he had acted as agent. Etna Insurance
Co. v. Sabine, 393.
Unless he was authorized he could not bind the company, and any
ratification of the company would excuse the defendant, 1b.
If the plaintiff ratified what had been done, it binds the company,
though the agent had no power. lb.
The conductor of a train of cars is bound to reasonable care for the
passengers, and at cross roads, or where the tracks lie very near
each other, more than an ordinary degree of care is requisite. Ib.
Any carelessness in loading a freight train of cars, or in not attend-
ing to the adjustment of a load of lumber by which an injury is
done to a passenger on another train, will make the owners of the
freight train responsible. Ib.
By the common law an alien can take lands by purchase though not
by descent. Normers Loan Co. v. McKinney, 5.
He may claim by grant or devise. Ib.
A title acquired by an alien is not divested until office found. Ib.
There is a close analogy between an alien and a corporation. Ib.
APPEALS IN ADMIRALTY.
If the appellant delay to protest his appeal, so that the record is filed a
very short time before the court commences, the appellant may notice
the cause for hearing or continue at his option. Bachus v. Schooner
Merango, 499.
No one should be permitted to take advantage of his own remiss-
ness. Ib.
Where the statute has run and a subsequent promise to pay is relied
on, the action must be on the new promise. The original debt is
not revived, and it is considered only as affording a good consider-
ation on the new promise. Kampshall v. Goodman, 190.
A recognizance taken by a Commissioner must describe an offence
punishable, or it is void. United States v. Hand et al, 274.
On the failure of a bank to pay the specie, it may be forced into
liquidation under the laws of Ohio, and receivers are appointed to
collect the debts and pay the liabilities of the bank. Bank of Cir-
cleville v. Iglehart, 560.
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