Before the passage of the act of March 3, 1835, forbidding it, 4 Stat. 757, it was lawful for the Secretary of the Navy to make allowances out of appropriations in gross to officers of the navy beyond their regular pay, for quarters, furniture, lights, fuel, &c., and the repeal of that act by the act of April 17, 1866, 14 Stat. 33, restored the right to make such allowances; and such as were made by him and were settled at the Treasury Department, between the date when the latter act went into effect and the passage of the act of February 25, 1871, 16 Stat. 431, were made in accordance with the executive construction of the statutes respecting the navy and the Navy Department prior to 1835, and this court will not at this late day question their validity. United States v. Philbrick, 52.
See LONGEVITY PAY; MARINE CORPS; SALARY, 1.
NEGLIGENCE.
In a suit in equity by an insurance company against a transportation com- pany, and the transferee of its property, to recover the amount paid by the insurance company, as insurer of goods alleged to have been lost, in transportation, by the negligence of the transportation company: Held, without passing on any other question, that negligence was not proved, and that the loss happened by perils excepted in the contract of transportation. Hibernia Ins. Co. v. St. Louis Transportation Co., 166.
NEGOTIABLE PAPER.
See CHATTEL MORTGAGE, 4.
NONSUIT.
See JUDGMENT, 2.
OFFICER.
See SALARY, 2, 3.
ORPHANS' COURT.
See LOCAL LAW, 3.
PACT DE NON ALIENANDO.
See LOCAL LAW, 19.
A respondent to a bill in equity in a state court, who allows a decree pro confesso to be taken against him in the lower state court, and is not a party to the appeal of the Supreme Court of the state, nor to the peti- tion for a writ of error to this court, cannot make himself a party here
against the objections of other respondents, who appeared and con- tested the cause in the state courts, and sued out the writ of error to this court. Marsh v. Nichols, 598.
See LOCAL Law, 16 (3).
PARTNERSHIP.
See BAILMENT, 3.
PATENT FOR INVENTION.
1. In view of the state of the art, claim 4 of letters-patent No. 190,368, granted to Asa Quincy Reynolds, May 1, 1877, for an "improvement in automatic fruit-driers," namely, "4. In combination with a fruit- drier, the outer wall of which is made up of the frames of the several trays, as explained, a suspending device, operating substantially as described, and supporting said drier from a point in or on the lower- most tray thereof, for the objects named," is not infringed by an apparatus constructed in accordance with the description in letters- patent No. 221,056, granted to George S. Grier, October 28, 1879, for an "improvement in fruit-driers." Grier v. Wilt, 412.
2. In a suit in equity for the infringement of letters-patent, prior letters- patent, though not set up in the answer, are receivable in evidence to show the state of the art, and to aid in the construction of the claim of the patent sued on, though not to invalidate that claim on the ground of want of novelty, when properly construed. Ib.
3. The reissued letters-patent No. 2355, dated September 11, 1866, granted to the Tucker Manufacturing Company as assignee of Hiram Tucker, for an improved process of bronzing or coloring iron, and No. 2356, of like date and grantee, for the product resulting from that process, are in fact for but one invention, and the new article of manufacture called Tucker bronze is a product which results from the use of the process described in the patent, and not one which may be produced in any other way: and they are not infringed by the manufacture, by the defendants, by the different process used by them, of an article which cannot be distinguished, by mere inspection, from Tucker bronze, Plummer v. Sargent, 442.
See INTERNAL REVENUE.
PETITION FOR REHEARING. See CASES AFFIRMED, 11.
As pleadings in Nevada are required to be construed in a sense to support the cause of action or defence, and as facts in the record not fully set forth in defendant's plea clearly show that the cause of action sued on in this case is the cause of action in the judgment pleaded in bar: Held, that the defendant's plea sufficiently avers all the facts necessary to constitute the former judgment a bar to this action. United States v. Parker, 89.
1. This court, on reversing a judgment of the Circuit Court for the plain-
tiff on a special finding which ascertains all the facts of the case, will order judgment for the defendant without further trial. Allen v. St. Louis Bank, 20.
2. When the defendant in an action at law denies each and every allega- tion in the declaration, and puts the plaintiff on his proof, it is not error to order stricken from the answer special defences which may set up under this general denial. Nemaha County v. Frank, 41. 3. An irregular act of practice by an attorney of record rebuked. Schley v. Pullman Car Company, 575.
1. The question of probable cause is a question of law, where the facts are undisputed; and the judgment of the court, in favor of the plaintiff, is conclusive proof of probable cause for the prosecution of the suit alleged to be malicious, notwithstanding its subsequent reversal by an appellate court, unless it is shown to have been obtained by means of fraud. This rule seems to reconcile the apparent contradiction in the authorities, is well grounded in reason, fair and just to the parties, and consistent with the principle on which the action for malicious prosecution is founded. Crescent City Co. v. Butchers' Union Co., 141. 2. The decree of the Circuit Court of the United States, relied on by the plaintiff in error in this case, as a defence, was sufficient evidence of probable cause for the prosecution of the suit, notwithstanding its reversal, on appeal, by this court. It does not detract from its effect that in another previous suit, between the plaintiff in error and
another defendant, the Supreme Court of Louisiana had decided the questions of law on which alone his right depended adversely to him. lb.
See MALICIOUS PROSECUTION.
An agreement by the payee of a promissory note to release the maker from the payment of the principal on the payment, in advance each year, until payee's death, of interest at a rate above the legal rate, is no defence in a suit by the payee's executor, without proof of such pay- ment until his death. Harmon v. Adams, 363.
See BAILMENT, 4;
GARNISHEE.
PUBLIC LAND.
See CALIFORNIA SCHOOL LAND;
TEXAS LAND GRANTS.
1. The provision in the constitution of Arkansas of 1874 that "no private corporation shall issue stock or bonds except for money or property actually received, or labor done; and all fictitious increase of stock or indebtedness shall be void" does not prevent the carrying out of an agreement between mortgage bondholders of an embarrassed railroad company in that state by which it was agreed that trustees should buy in the mortgaged property on foreclosure, and convey it to a new com- pany to be organized by the bondholders which should issue new mortgage bonds to pay the expenses of the sale, and other new mort- gage bonds to be taken by the bondholders in lieu of their old bonds, and full paid-up stock subject to the mortgage debt, to be delivered to and held by the bondholders without any payment of money; and the bonds issued under such an agreement are not subject to the pro- visions of § 5, 488 Rev. Stat. Ark., Mansfield's Digest, page 1057, respecting the legal rate of interest for certain classes of railroad securities. Memphis & Little Rock Railroad v. Dow, 287.
2. Trustees under a mortgage from a railroad company with covenants of warranty are entitled to protect the trust property against a forced sale under a prior incumbrance, and upon the payment of that incum- brance to have the benefit of its lien as against the company, and to be reimbursed the amount so paid by them with legal interest. Ib. 3. In this case unsecured floating debts, due by a railroad company for construction, were, in the absence of a statutory provision, held not to be a lien on the railroad superior to the lien of a valid mortgage on it, duly recorded, and of bonds secured thereby, and held by bona fide purchasers for value. Porter v. Pittsburg Bessemer Steel Co., 649.
See CLAIMS AGAINST THE United States, 4, 5.
RECOUPMENT.
See ASSUMPSIT, 1.
RELIGIOUS CORPORATION.
See LOCAL LAW, 17.
1. An application for the removal of a case from a state court, filed not only after the trial had begun, but when it had progressed far enough to get a verdict of the jury subject only to the decision of the court on questions presented by a demurrer to the evidence, is clearly too late. Bank of Maysville v. Claypole, 268.
2. Since the act of July 12, 1882, c. 290, took effect, a suit by or against national banks cannot be removed from a state court to a circuit court of the United States, unless a similar suit by or against a state bank in like situation with the national bank could be so removed. Leather Manufacturers' Bank v. Cooper, 778.
3. A case does not arise under the laws of the United States simply be- cause this court has decided in another suit the questions of law which are involved. Ib.
4. A case is not removable because a colorable assignment has been made to give a state court exclusive jurisdiction. Ib.
See CUSTOMS DUTIES, 1;
STATUTE, A, 1.
RETRAXIT.
See JUDGMENT, 2.
1. The sea-pay given to officers of the navy by Rev. Stat. § 1556 may be earned by services performed under orders of the Navy Department in a vessel employed, by authority of law, in active service in bays, inlets, roadsteads, or other arms of the sea, under the general restric- tions, regulations, and requirements that are incident or peculiar to service on the high sea. United States v. Symonds, 46; United States v. Bishop, 51.
2. A clerk in the office of the President of the United States, who is also appointed to be the clerk of a committee of Congress, and who
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