GENERAL INDEX TO THE FOUR VOLUMES OF HOWARD CONTAINED IN THIS BOOK. FORMED BY CONSOLIDATION. N. B.--Figures at right of title show volume to whose index it belongs. Figures in parenthesis refer to marginai paging of the volumes contained in this book respectively, while the black-faced figures indicate the page of this book on which the marginal paging referred to is found. 1. Where a running account is kept at the Postoffice Department between the United States and a postmaster, in which the postages are charged to him, and credit is given for all payments made, this amounts to an election by the creditor to apply the payments, as they are successively made, to the extinguishment of preceding balances. Jones v. The United States, (681) 870 2. This the creditor has a right to do in the absence of instructions from the debtor. The English decisions and those of this court examined. Id. (Ib.) 870 3. The Act of Congress of 1825 (4 Stat. at Large, 102), which exonerates the sureties if balances, are not sued for within two years after they occur, does not apply to this case, because, by this mode of keeping the accounts, the balance due from the postmaster is thrown upon the last quarter. ld. ADMINISTRATORS-6. See Executors and Administrators. ADMIRALTY−5. See Constitutional Law. ADMIRALTY—7. See Jurisdiction. AGENT-5. (lb.) 870 APPEALS AND WRITS OF ERROR-8. 1. Where an "action of jactitation" or "slander of title" was brought in a State court of Louisiana and removed into the Circuit Court of the United States by the defendant, who was a citizen of Mississippi (the persons who brought the action being in possession of the land under a legal title), and the defendant pleaded in re-convention, setting up an equitable title, and the court below decreed against the defendant, it was proper for him to bring the case to this court by appeal, and not by writ of error. ARBITRATION-5. 1. Although the charter of a company does not, in terms, give the power to refer, yet a power to sue and be sued includes a power of reference, that being one of the modes of prosecuting a suit to judgment. Alexandria Canal Company v. (83) 60 2. So, also, a power to agree with a proprietor for the purchase or use of land includes a power to agree to pay a specified sum, or such sum as arbitrators may fix upon. Id. (Ib.) 60 3. It is immaterial whether the power of reference is lodged in the president and directors, or in the stockholders asseinbled in general meeting; for the entire corporation is represented in court by its counsel, whose acts, in conducting the suit, are presumed to be authorized by the party. ld. (lb.) 60 4. Where the order of reference provides for the appointment of an umpire, it is no error if he is appointed before the referees had heard the evidence and discovered that they could not agree. Id. (lb.) 60 5. Where the agreement for reference contained a clause, providing that upon payment of damages to the owner of the land he should convey it to the other party, it was proper for the umpire to omit all notice of this. It was not put in issue by the pleadings, nor referred to the arbitrators. ld. ASSUMPSIT-5. (lb.) 60 2. Where the surety of a surety pays the debt of a principal, under a legal obligation, from which the principal was bound to relieve him, such a payment is a sufficient consideration to raise an implied assumpsit to repay the amount, although the payment was made without a request from the principal. Id. (lb.) 66 ATTORNEY-6. Where a citizen of Virginia sued, in the Circuit Court of Louisiana, two persons jointly, one of whom was a citizen of Louisiana and the other of Missouri, and an attorney appeared for both defendants, the citizen of Missouri is at liberty to show that the appearance for him was unauthorized. If he shows this, he is not bound by the proceedings of the court, whose judgment, as to him, is a nullity. Shelton v. Tiffin, (164) 387 ATTORNEY-7. It was error in the court below to reject the testimony of an attorney upon the ground of his being security for costs, when the party for whom he was security had already obtained a judgment against his adversary, and also upon the ground of his being interested, when he held certain notes only for the purpose of paying the money over to | in a State Court, after the commission of an act his clients, when recovered. 1. A decree of the Circuit Court, setting aside a deed made by a bankrupt before his bankruptcy; directing the trustees under the deed to deliver over to the assignee in bankruptcy all the property remaining undisposed of in their hands, but without deciding how far the trustees might be liable to the assignee for the proceeds of sales previously made and paid away to the creditors; directing an account to be taken of these last mentioned sums in order to a final decree, is not such a final decree as can be appealed from to this court. Pulliam v. Christian, (209) 408 2. The District Court of the United States, sitting in bankruptcy, had power to decree a sale of the mortgaged property of a bankrupt; and if there are more mortgages than one, and the proceeds of sale are insufficient to discharge the eldest mortgage, the purchaser will hold the property free and clear of all incumbrances arising from the junior mortgage. Houston v. City Bank of New Orleans, BANKRUPTCY-7. (486) 526 1. By the fifth section of the United States Bankrupt Act (3 Stat. at Large, 444), the surety upon a promissory note had a right to prove the demand against the maker, who became a bankrupt, and by the fourth section the bankrupt was discharged from all debts which were provable under the act. Mace v. Wells, (272) 698 2. Therefore, where the surety paid the note to the creditor, after the discharge of the bankrupt, and brought suit against the bankrupt for the amount, he was not entitled to recover it. Id. (lb.) 698 3. The proviso of the second section of the Bankrupt Act passed on the 19th of August, 1841, preserves all liens which may be valid by the laws of the States respectively. Act. Peck v. Jenness, Id. Id. (612) 841 4. In some of the States attachments are issued on mesne process, by which the property seized is made to await the result of the suit. This constitutes a lien, which is saved by the proviso in the Bankrupt (Ib.) 841 5. The various kinds of liens explained. (lb.) 841 6. Therefore, where an attachment was issued and the defendants afterwards applied for the benefit of the Bankrupt Act, a plea of bankruptcy was not sufficient to prevent a judgment from being rendered condemning the property under attachment. ld. (Ib.) 841 7. The fourth section of the statute, if it stood alone, would make a plea of bankruptcy a good plea in bar in discharge of all debts; but if the whole statute be construed together, this is not the re sult. ld. (lb.) 841 8. A rejoinder, setting forth that the District Court of the United States had decided that the attachment was not a valid lien upon the property, was not a good rejoinder. ld. (lb.) 841 9. The District Court could not oust the State court of its jurisdiction, which had already attached. Id. (Ib.) 841 10. A decree of the District Court of the United States, sitting in bankruptcy, whereby a person proceeded against, in invitum, was declared to be a bankrupt, is sufficient evidence, as against those who were not parties to the proceeding, to show that there was a debt due to the petitioning creditor; that the bankrupt was a merchant or trader within the meaning of the act; and that he had committed an act of bankruptcy. Shawhan v. Wherritt, (627) 8.47 11. The first section of the Bankrupt Act declares that the making of any fraudulent conveyance, assignment, sale, gift, or other transfer of lands, tenements, goods, or chattels, is the commission of an act of bankruptcy. Id. (Ib.) 847 12. No creditor can, by instituting proceedings of bankruptcy by his debtor, obtain a valid lien upon the property conveyed by such fraudulent deed, if he has notice of the commission of an act of bankruptcy by the debtor. It passes to the assignee of the bankrupt for the benefit of all the creditors. BOUNDARIES OF STATES-7. 1. The western and northern boundary lines of the State of Missouri, as described in the first article of the constitution of that State, were as follows: From a point i. the middle of the Kansas River, where the same empties into the Missouri River, running due north along a meridian line, to the intersection of the parallel of latitude which passes through the rapids of the River Des Moines, making said line correspond with the Indian boundary line; thence east from the point of intersection last aforesaid, along the said parallel, to the middle of the channel of the main fork of the said River Des Moines; thence, &c., &c. 2. The constitution of the State of Missouri was adopted in 1820. But in 1816, an Indian boundary line had been run by the authority of the United States, which, in its north course did not terminate at its intersection with the parallel of latitude which passed through the rapids of the River Des Moines, and in its east course did not coincide with that parallel, or any parallel of latitude at all. Id. (Ib.) 861 3. Missouri claimed that this north line should be continued until it intersected a parallel of latitude which passed through certain rapids in the River Des Moines, and from the point of intersection be run eastwardly along the parallel to these rapids. Id. (Ib) 861 4. Iowa claimed that this Indian boundary line was protracted too far to the north; that by the term rapids of the River Des Moines" were meant certain rapids in the Mississippi River, known by that name, and that the parallel of latitude must pass through these rapids; the effect of which would be to stop the Indian boundary line in its progress north, before it arrived at the spot which had been marked by the United States surveyor. ld. (lb.) 861 5. There being a bill and a cross bill, each State is a defendant, and this court can pass such a decree as the case requires. 7. Iowa is bound by the acts of its predecessor, the government of the United States, which had plenary jurisdiction over the subject as long as lowa remained a Territory; and the United States recog nized the Indian boundary line, 1st. By treaties made with the Indians; 2d. By the acts of the general land office; 3d. By Congressional legislation. Id. (Ib) 861 8. On the other hand, there are no rapids in the River Des Moines so conspicuous as to justify the claim of Missouri. Id. (lb.) 861 9. This court therefore adopts the old Indian boundary line as the dividing line between the two States, and decrees that it shall be run and marked by commissioners. (Ib.) 861 Id. CHANCERY-5. 1. Where the prayer of a bill in equity shows that the demand of the complainant is susceptible of definite computation, and that there can be no recovery over the sum of two thousand dollars, the appeal to this court will be dismissed, on motion, for want of jurisdiction. Sewall v. Chamberlain, (6) 25 2. Where a perpetual injunction was granted by a subordinate State court, and, upon appeal, the highest State court decided that the party in whose favor the injunction had been granted was entitled to relief, and therefore remanded the case to the same subordinate court from which it had come for further proceedings, this is not such a final decree as can be reviewed by this court. The writ of error must be dismissed, on motion. Pepper v. Dunlap, Id. (51) 46 3. It is not irregular for two mercantile firms to unite as complainants in equity in a creditor's bill. Nelson v. Hill, (127) 81 4. An objection that a bill is multifarious must be made before answer, and can be tested only by the structure of the bill itself. (Ib.) 81 5. The creditor of a partnership may, at his option, proceed at law against the surviving partner, or go, in the first instance, into equity against the representatives of the deceased partner. It is not necessary for him to exhaust his remedy at law against the surviving partner before proceeding in equity against the estate of the deceased. ld. (lb.) 81 6. Where there were two mercantile firmns and some of the members common to both, a creditor's bill was not multifarious when filed against the personal representatives of two of the deceased partners of the two firms, and also against the surviving partners of one of the firms." Id. 15. The following principles of equity jurisprudence may be affirmed to be without exception; namely, that whosoever would seek admission into a court of equity must come with clean hands; that such a court will never interfere in opposition to conscience or good faith; that it will never be called into activity to remedy the consequences of laches or neglect, or the want of reasonable diligence. Creath's Administrator v. Sims, (192) 111 16. Therefore, where a complainant prays to be relieved from the fulfillment of a contract, which was intentionally made in fraud of the law, the answer is, that however unworthy may have been the conduct of his opponent, the parties are in pari delicto. The complainant cannot be admitted to plead his own demerits. Id. (lb.) 111 17. Nor is it any ground of interference when a complainant applies to be relieved from the payment of a promissory note given under the above circumstances, upon which judgment had been recovered at law. The consideration upon which the note was given was then open to inquiry, and it is a sufficient indulgence to have been permitted once to set up such a defense. Id. (lb.) 111 18. The cases examined, showing how far and under what circumstances the liability of a surety becomes fixed upon him as a principal debtor. ld. (lb.) 111 19. Where the plaintiff in a suit voluntarily ab(lb.) 81 stains from pressing the principal debtor, but re7. The general principle with regard to injunc-ceives no consideration for such indulgence, nor tions after a judgment at law is this: that any fact puts any limitation upon his right to proceed upon which proves it to be against conscience to exe- his execution, whenever it may be his pleasure to cute such judgment, and of which the party could do so, this conduct furnishes no reason for the exnot have availed himself in a court of law, or of emption of the surety from liability, and especially which he might have availed himself at law, but was where the surety had united with his principal in prevented by fraud or accident, unmixed with any a forthcoming bond. fault or negligence in himself or his agents, will authorize a court of equity to interfere by injunction to restrain the adverse party from availing himself of such judgment. Truly v. Wanzer, (141) 88 8. Hence, where a party had remained for ten years in the undisturbed enjoyment of the property which he purchased, it was no ground for an injunction to stay proceedings for the recovery of the purchase money, to say that the original purchase was void by the laws of the State, but that he had neglected to urge that defense at law, or to say that he had heard that some persons unknown might possibly at some future tiine assert a title to the property. Id. (lb.) 88 9. Such an injunction, if granted, must be dissolved. Id. (Ib.) 88 10. By the laws of Louisiana, where there has been a judicial sale of the succession by a probate judge, a creditor of the estate, who obtains a judgment, cannot levy an execution upon the property so transferred, upon the ground that the sale was fraudulent and void. He should first bring an action to set the sale aside. Ford v. Douglas, (143) 89 11. The purchaser under the judicial sale having filed a bill and obtained an injunction upon the creditor to stay the execution, it was an irregular mode of raising the question of fraud for the creditor to file an answer setting it forth, and alleging the sale to be void upon that ground. He should have filed a cross bill. Exceptions to the answer upon this account were properly sustained by the court below. Id. (lb.) 89 12. But if the court be ow should perpetuate the injunction upon the defendants' refusal to answer further, the injunction should be free from doubt, in leaving the creditor to pursue other property under his judgment, and also at liberty to file a cross bill. If the injunction does not clearly reserve these rights to the creditor, it goes too far, and the judgment of the court below must be reversed. Id. (lb.) 89 13. In this case, the pleadings and proofs show that a mortgage executed by the debtor to the creditor was really for an unascertained balance of accounts, which the sum named in the mortgage was supposed to be sufficient to cover. Gear v. Parish, (168) 100 ld. (Ib.) 111 20. The authorities upon this point examined. Id. (Ib.) 111 21. By the laws of Alabama, an administrator de bonis non, with the will annexed, is liable for assets in the hands of a former executor. Taylor v. Benham, (233) 130 22. Where an executor has settled what appears to be a final account, it must be a very strong case of fraud proved in such a settlement, or of clear accident or mistake, to make it just to re-open and revise the account after the lapse of twenty years and the death of the parties concerned. Id. (Ib.) 130 23. Where a person who held land as trustee directed by his will that the whole of the property that he may die seized and possessed of, or may be in any wise belonging to him, should be sold, the executors had power to sell the land held in trust, as well as that belonging to the testator in his own right. Id. (lb.) 130 24. The trustee, by his will, having appointed residuary legatees, must be considered as devising the trust as well as the lands to these residuary legatees, who thus became themselves trustees for the original cestui que trust. (lb.) 130 Id. 25. The power in the executors to sell was a power coupled with a trust. Id. (lb.) 130 26. It might also be considered as a power coupled with an interest. Id. (lb.) 130 27. The distinction between these powers adverted to. Id. (lb.) 130 28. In order to avoid an escheat, and carry out the wishes of the testator, a court of equity will, if necessary, consider land as money, where a testator, who is a trustee, has directed the land to be sold, and will direct the proceeds to be given to the cestui que trust. 30. If, therefore, they were aliens, the land did not escheat on the death of the trustee, because land taken by devise does not escheat until office found, although land cast by descent does. (lb.) 130 31. The testator, who held the lands as trustee, having died in South Carolina, the executor took Id. out letters testamentary in that State, sold the Taylor v. Benham, Id. (233) 130 trust. (lb.) 130 (lb.) 130 (Ib.) 130 Id. (lb.) 130 Id. (lb.) 130 CHANCERY-6. (lb.) 130 into a partnership without the consent of all parties, (122) 370 Curtis v. Innerarity, (146) 380 6. They had paid a large part of the purchase mon- Id. (Ib.) 380 Shelton v. Tiffin, (163) 387 14. Where a worthless promissory note is imposed 15. The Civil Code of Louisiana (article 2412) en- Bein v. Heath, (228) 416 16. Where a wife mortgaged her property to raise (Ib.) 416 17. The fact of the application of the money may Id. (Ib.) 416 19. Where a wife mortgaged her property, and 20. But it is no objection to such a bill, as a rule of Forgay v. Conrad, (201) 404 (lb.) 404 United States v. Hodge, (279) 437 27. Payment under this mortgage could not be en- Id. (Ib.) 437 Bush v. Marshall, 3. When a mortgagor and mortgagee are citizens 4. If the assignment was only fictitious, then the Id. (Ib.) 666 Id. (Ib.) 666 9. Where an issue is sent by a court of equity to be McLaughlin v. Bank of Potomac, (220) 675 11. A note held by a bank for a debt due to it, and |