place of birth and the domicil of the parents made New York the place of
the domicil of the child. Ibid.

3. The domicil of origin can be changed only by choice, and a domicil
of choice cannot be acquired by the act of the minor, or of any other per-
son, except the parents or the guardian. Ibid.

DUTIES.

1. Where certain liquors were imported into the United States in casks,
which upon being gauged were found to be reduced in quantity by leak-
ags, it was held that no duties could be imposed except upon the quantity
which actually arrived in the country, and which is to be ascertained by
the gauger's return. Sturges vs. The United States,
335

2. Mode of recovering excess of duties, or estimated duties under Acts
of March 3, 1839; February 26, 1845; and August 8, 1846, considered
and commented on. I bid.

EQUITY.

See Injunction.

1. Where the courts of a State in their ordinary jurisdiction as courts
of equity, undertake to aid and direct an administrator in the execution
of his trust, and where the interests of the State's own citizens as well as
of non-residents are involved, and the non-residents are made parties to
the cause in the manner pointed out by special legislation, the rule of
comity requires that paramount authority should be yielded to the court
before which the proceedings were first instituted, and where the jurisdic-
tion first attaches, notwithstanding the courts may have concurrent juris-
diction, one being a Federal and the other a State tribunal. The Board
of Foreign Missions of the Presbyterian Church vs. McMaster,

2. A bill in equity may be maintained by one underwriter against the
insured and the other underwriters, on the same vessel for an account and
an adjustment of the loss among the parties, in order to prevent a multi-
tiplicity of suits. Insurance Company vs. Goodman,

526

- 481
3. Where A and B exchanged farms, A agreeing to pay B one thousand
dollars, in addition to the farm which was to be conveyed to him, and the
wife of A refuses to unite with her husband in the conveyance, which re-
fusal is by the contrivance of A, the court will not deprive B of the bene-
fit of a specific performance of the contract, and will refer the matter to a
master to settle the conveyance, so as to afford B complete indemnity.
Paul vs. Young,

-

4. Where a complainant, on the faith of an agreement with the defend-
ant, has put himself in a situation from which he cannot extricate himself,
this circumstance will induce a court of equity to give him relief. I bid.
5. Where a court of equity will decree a specific performance. Ibid.

FEDERAL COURTS.

See Constitutional Law.

FOREIGN SHIP.

See Patent.

FORGERY.

See Broker.

FRAUD.

See Divorce.

GUARANTY.

1. In case of guaranty, demand of payment of the principal debtor, and
notice of his default, are requisite to charge the guarantor, only where

412

the fact on which his liability is made dependent rests peculiarly within
the knowledge of the guarantee, or depends on his option. Bashford vs.
Shaw.

-

-

2. But where the contingency which determines the liability of a guar-
antor, is one which is known to him, or which he is bound to know, or
where each party has, in legal contemplation, equal means of information,
the guarantor must take notice at his peril. I bid.

- 609

3. In order to discharge a guarantor from liability, on the ground of
want of notice of the default of the principal debtor, there must be, not
only a want of the notice within a reasonable time, but there must be also
some actual loss or damage thereby caused to the guarantor.
And if such
loss or damage does not go to the whole amount of the claim, but is only
in part, the guarantor is not wholly discharged, but only pro tanto. I bid.
4. If the principal debtor be solvent when the note falls due, and due
notice of the default be not given, and the principal afterwards, and be-
fore notice, becomes insolvent, the guarantor is discharged. Ibid.

5. The continued insolvency of the principal debtor from the time of
the maturity of the debt, as a general thing, dispenses with the necessity
of the notice, in order to charge the guarantor. Ibid.

6. Where the undertaking of the party is to guaranty the payment of
the note of another, after final process, the prosecution of the claim to final
process against the maker of the note is essential, in order to charge the
guarantor. Ibid.

7. But an omission to bring suit against the original debtor, within a
reasonable time, will not discharge the guarantor from liability, where
the terms of the guaranty do not describe the degree of diligence to be
used in the proceeding, by suit, and where in consequence of the contin-
ued insolvency of the principal debtor from the time of the maturity of
the debt, the guarantor suffered no less by the delay. Ibid.

GUARDIAN.

1. Where a resident in Louisiana died intestate, leaving two minor
children surviving him, who had been placed, in the father's lifetime, in
the care of an uncle in the State of New York, and he having, after the
father's death, been duly appointed their guardian there, an application
made in Louisiana by the uncle to set aside proceedings in that State,
appointing the grandmother tutrix will be refused; neither will the court
decree a sum of money to be paid to the New York guardian for the sup-
port and education of the children. Powers vs. Mortee.

2. Authority conferred on a guardian in New York can give him no
right to come into Louisiana, and take the minor's property there, which
is already in the possession of a legal tutrix. Ibid.

3. The rights and duties of guardians are strictly local. Ibid.

4. The domicil of the minor must follow the domicil of the father.
I bid.

HABEAS CORPUS.

1. The doctrines laid down in 3 Am. Law Register, 729, re-affirmed.
2. Where a habeas corpus is issued by a master on behalf of slaves, al-
leged to have been carried away by force from him, and the defendant is
committed for a contempt in not making a proper return to the writ, the
court will not entertain a motion to quash the proceedings upon the peti-
tion and suggestion of one of the negroes that she is and was absenting
herself from her master voluntarily, and that she is not nor ever was in
the custody, possession, power or control of the defendant; such slave
not coming or being brought personally within the jurisdiction or before
the court, in order to make the application. United States ex relat.
Wheeler vs. Passmore Williamson.

3. A writ of habeas corpus will not be allowed in the first instance,
where it appears on the face of the petition that the relator must be re-
manded at the hearing. Ibid.

427

5

4. The legality of a commitment for a contempt by one court, cannot be
inquired into by another court, especially one of a different sovereignty
(as is the case between the federal and State courts,) on habeas corpus or
otherwise. Ibid.

5. Nor is it material in such case that there was a want of jurisdiction
over the original proceeding, in the course of which the commitment for
contempt was made. Knox, J., dissenting. Ex parte Passmore William-

6. The 7th section of the Act of Congress of the 2d of March, 1833, au-
thorizes any judge of the United States to issue the writ of habeas
corpus where an officer of the United States is imprisoned "for any act
done or omitted to be done, in pursuance of a law of the United States.
Ex parte Robinson, Marshal.

7. It is the proper remedy where a marshal is imprisoned by the sen-
tence of a State judge as for a contempt in not producing the bodies of
certain persons named in a writ of habeas corpus, issued by such judge,
and if it appears from the evidence that such persons were legally in the
custody of the marshal pursuant to the provisions of the Fugitive Slave
Act, and that his refusal to produce them before the State judge was a
paramount duty by the terms of the said act, the marshal is entitled to his
discharge under the said 7th section of the act of 1833. Ibid.

8. In ordering his discharge on a habeas, a judge of the United States
does not assume a jurisdiction to review or reverse the sentence or judg-
ment of the State judge, but merely exercises a power expressly conferred
by an Act of Congress. Ibid.

9. Although the authorities are not uniform as to the right of a State
judge to issue the writ of habeas corpus, where the imprisonment is under
the authority of a law of the United States, it is well settled, that when
the fact is proved that the imprisonment is under such authority, the ju-
risdiction of the State judge is at an end, and all subsequent proceedings
are coram non judice. Ibid.

INFANT.

See Comity.

1. Where an infant, a native citizen of the State of New York, and domi-
ciled in the City of New York, and having a guardian duly appointed at
the place of domicil, was clandestinely, and adversely to the wishes of the
guardian, removed from his jurisdiction and taken to England— Held,
That the guardian was justified in attempting to recover the custody of
the ward, by invoking the aid of the English Courts, and that the ex-
penses of such proceedings were a proper charge on the infant's estate.
In Re Dawson, an infant.

27

617

- 241

2. The Surrogate, in respect to minors residing in his county, has the
same extent of authority as to the appointment of guardians as was possessed
by the late Court of Chancery of this State, whose jurisdiction was commen-
surate with that of the English Court of Chancery. The statute directing
such notice to be given to the relatives residing in the county as the Sur-
rogate shall think reasonable, does not exclude that officer from directing
notice to any parties likely to be interested in the welfare of the minor,
whether residing in the County or State, or even in a foreign country. Ib.
3. In making the appointment of guardian, the Surrogate's power and
discretion are entirely unlimited, except by such known and established
principles as govern the conscience of all Courts of Equity. Relatives,
whether residing in another county or State, may be appointed to the
guardianship, if they are proper persons, and give the requisite security.
The consent of relatives is not requisite to the appointment. The autho-
rity of the Surrogate is not limited in this respect-the relatives have no
control in the matter, and they have no interest as parties, but receive
notice merely to inform the court so as to make the best appointment for
the welfare and interests of the child. Ibid.

4. The Surrogate possesses power to remove a guardian, on proper cause
being shown. Ibid.

5. The powers of a guardian appointed by the Surrogate are not restricted
by locality, more than in the case of any other officer in this State. He
is recognized as the lawful guardian throughout the bounds of the State.
He cannot, in a strict sense, exercise authority out of this State, but he is
no more a local officer than an executor, or administrator, or a guardian
appointed by the Court of Chancery. Except as connected by the Con-
stitution of the United States, which does not touch the civil domestic
government, New York is as much a foreign State, relatively to the other
States of the Union, as England is relatively to France. Ibid.

INJUNCTION.

1. By the charter of the Wilmington and Manchester Railroad Com-
pany, it is provided, that when any land or right of way is required for
the construction of the road, and the company and the proprietors of the
land cannot agree upon the value thereof, a commission shall issue from
the Court of Common Pleas to assess the value, whose return shall be
made to the same court, and upon payment or tender of the value so
assessed, the lands or right of way shall vest in the company. Held, that
the company were not authorized to enter on the land for the purpose of
constructing the road until they had procured an assessment to be made,
and had paid or tendered the amount assessed, and that an injunction
was properly granted to restrain their proceedings. Bird vs. the Wil-
mington and Manchester Railroad Company.

2. Legislative license to corporations to enter upon and appropriate the
lands of an individual against his consent, is against common right, and
such acts should be strictly construed. Corporations deviating from the
line prescribed by the act, or transcending the authority vested in them,
may be restrained by injunction. Ibid.

3. As ancillary to the relief by injunction, it is competent for the Court
of Chancery to decree damages for waste or injury already sustained, the
same to be ascertained by an issue quantum damnificatus, or in cases where
neither the facts nor amounts are complicated, by reference to the master
of the court. Ibid.

INSURANCE.

See Abandonment.

922

1. An insurer is liable for a total loss only where an abandonment has
been made and actually or constructively accepted, or where there has
been in fact an actual or technical total loss. The doctrine of some deci-
sions, that he can be made thus liable by reason of even the highest
probability" of an actual or technical loss, without acceptance of an aban-
donment, held to be unsound. The Marine Dock and Mutual Ins. Co. vs.
Goodman.
481
2. Where an insurance has been effected in the name of one "for the
benefit of whom it may concern," and he abandons, the other parties
interested, even if he is to be considered prima facie their agent for that
purpose, may, where they have not in fact concurred, disavow the agency
within a reasonable time, either expressly or by their acts, and thus repu-
diate the abandonment. The taking possession and sale of a vessel, by a
mortgagee whose interest was insured under such general words, after an
abandonment by the mortgagor who was the nominal insurer, but before
acceptance thereof, held, to be a dissent from the abandonment. Ibid.

3. After an abandonment has been made, but not agreed to, the taking
possession of and raising and repairing the vessel by the underwriter,
accompanied, however, by an express refusal to accept the abandonment,
is no waiver of his right to treat it as a case of partial loss, if it prove to
be so, provided there be no assertion of title or act of ownership on his part.
That the underwriter must in such case repair and tender the vessel in a rea-

sonable time, is not, it would seem, necessary. Reynolds vs. Ocean Ins.
Co., 22 Pick. 171, so far disagreed to.

Ibid.

4. The American doctrine of a technical total loss doubted.

Ibid.

5. In determining whether a technical total loss has been incurred, upon
a valued policy, the actual value of the vessel at the time of the disaster
is to be taken, and not the valuation of the policy, and the proportion of
loss is to be ascertained by deducting the cost of repairs from the value of
the vessel when repaired. Ibid.

6. Where a steamboat under a valued policy had been snagged and sunk
in a river in Alabama, and the underwriters while refusing to accept an
abandonment, had the boat raised, taken to Mobile, and there repaired,
but the expenses of raising the boat had been greatly increased on account
of misrepresentations by the master as to her condition at the time, it was
held that the question of a technical total loss was to be determined by
deducting what would have been the reasonable cost of raising the vessel,
in addition to the cost of taking the vessel to Mobile and repairing her
there, from the value of the vessel when the repairs were completed.
Before leaving the vessel the master had dismantled her without necessity,
held also that the cost of restoring the vessel to her former condition in
this respect was not to be included in the computation. Ibid.

7. The court considering the case to have been one only of partial loss,
and the boat having been sold by the mortgagee subsequently to the
repairs, it was held that the underwriters were entitled to claim as against
the insured, for the work done and materials furnished in and about rais-
ing, taking the boat to Mobile and there repairing her. Ibid.

8. An account in this case was directed to be taken, as follows: 1.
The underwriters to be allowed the reasonable (not the actual) cost of
raising and taking the boat to Mobile, the reasonable cost of taking care
of her till possession taken by the mortgagee, the reasonable cost of
repairs, and any deductions required by the policy. 2. The underwriters
to be charged with two-thirds of such cost of raising, taking to Mobile,
and repairing. Ibid.

9. The insured upon a partial loss is to be allowed the reasonable cost
of taking the vessel to the place of repairing, though in the course of her
voyage, where the nature of the disaster is such that she has ceased to
earn freight or passage money. Ibid.

INTEREST.

Though a mortgagee, on a sale of the mortgaged premises under a prior
incumbrance, is entitled to receive (besides the principal) interest out of
the surplus proceeds only to the day of sale, yet it still continues to run on
the debt secured, until the actual receipt of the money on the final distri-
bution. Hence, in such case, the creditor may subsequently recover in
an action on the bond, any interest which has accrued between these two
periods, notwithstanding that the mortgage itself has been satisfied.
Gordon vs. Shallcross.

JURISDICTION.

See Admiralty, Corporation, Constitutional Law, Equity, Orphans' Court.
1. The federal courts are excluded from jurisdiction of suits upon such
bonds, issued to a corporation or citizen of the same State of the obligor,
by Sect. 11 of the Act of Congress of 1789, to establish the judicial
courts of the United States. Clarke vs. City of Janesville,

2. The power to naturalize is made a judicial power by the Act of Con-
gress. Ex parte Frank Knowles.

3. Congress cannot confer any judicial power upon a State court. Ibid.
4. The provision of the Constitution of the United States, which gives
Congress the power to establish "An uniform rule of naturalization," is
construed to mean-that the rule when established shall be executed by
the States. Ibid.

309

591

598