continued. Running of Statute -Writ of Error - In See ERROR - BRINGING AND PERFECT- State - Statutes do not run against. See STATES LIMITATION. United States Statutes do not run against. What constitutes Statute. See JUDGMENT · CONCLUSIVENESS, 19. What constitutes Statute. LIS PENDENS continued. Scope and · Bar - What constitutes Effect.] Plea of another suit brought for the same cause of action in the court of another state since the last continuance is bad. Renner v. Marshall, 1 Wheat. 215. 9. A foreign attachment out of a state court, issued after the beginning of an action in a federal court for recovery of the debt attached, held not pleadable in defence to the action. Wallace v. M'Connell, 13 Pet. 136. 10. A question pending in a court of competent jurisdiction cannot be raised and agitated in another court by adding a new party and raising a new question as to him, along with the old See LANDS OF STATES-VIRGINIA AND one as to the former party. Memphis v. Dean, KENTUCKY, 60. LIQUIDATED DAMAGES constitutes, etc. See DAMAGES, 44 et seq. 8 Wal. 64. 11. The pendency of an earlier suit is not a What bar where the identity of the parties, of the case made, and of the relief sought are not such that if the case were decided the decision would not avail in bar as a former adjudication. Watson LIQUIDATED DEMANDS — Matter of Debt, Set- V. Jones, 13 Wal. 679. 13. It is no ground of abatement of an action at law that a suit in equity is pending in which the plaintiff asks for a decree for the same money, as the result of the action may be necessary for the perfecting of the decree. Kittredge v. Race, 92 Ú. S. 116. 14. The pendency of a prior suit in a state court is not a bar to a suit in a federal circuit court, or in the supreme court of the District of Columbia, by the same plaintiff against the same defendant for the same cause of action. Stanton v. Embrey, 93 U. S. 548. 15. The pendency of a proceeding for seizure and sale in a Louisiana state court cannot affect the right to sue for the debt in the federal court. Gordon v. Gilfoil, 99 U. S. 168. 16. Although, by the letter of the Louisiana code, the exception of lis pendens may be taken 5. The doctrine of lis pendens has no applica- only where the former suit is pending before tion, where there were three distinct and inde-another court, the spirit of the law permits the pendent suits, with an interval of one year exception although both suits are pending in the between the first and second, and of two years same court. Fleitas v. Cockrem, 101 U. S. 301. between the second and third. Lee County v. Rogers, 7 Wal. 181. 6. What is embraced in a lis pendens. son v. Jones, 13 Wal. 679. Wat 7. A purchaser pendente lite is as conclusively bound to the result of the litigation as if he had been a party from the outset. Tilton v. Cofield, 93 U. S. 163. 17. In such a case, the plaintiff may be required to elect whether to submit to judgment on the exception, or to discontinue the first suit and pay the costs thereof. 1b. 18. Semble that where a suit in equity for an infringement has been brought in the name of the patentee, with the consent and concurrence of the licensee under a license giving him exclusive GENERAL RULES, 13. Purchaser pendente Lite. See SPECIFIC PERFORMANCE, 50, 51. Suit pending in another Jurisdiction junction. See INJUNCTION, 24. LITTORAL PROPRIETOR See WATERS. In general. LOST INSTRUMENT — continued. Secondary Evidence of Contents of Lost Will. Specific Performance-Lost unacknowledged LOTTERY Under Charter of City of Washington-Drawing, what valid.] The charter of the city of Washington did not empower the corporation to force the sale of tickets in lotteries thereby authorized, in states whose laws proInhibited such sales. Cohens v. Virginia, 6 Wheat. 264. LOBBYING Contracts respecting — Illegality. See CONTRACT - LOCATION Lands See LANDS. In general. Meaning of the Word. 2. Under its charter the corporation was liable to the holder of a ticket for the amount of a prize drawn thereon in a lottery drawn for the improvement of the city, notwithstanding a sale of the lottery to a dealer for a gross sum, by managers appointed by the corporation, the exercise of the power conferred by the charter being on account of the corporation, and at its risk. Clark v. Washington, 12 Wheat. 40. 3. The city sold all the profits in the lottery and delivered the tickets to the purchaser for sale. After the drawing the purchaser presented a ticket which had drawn a prize, and an un See St. Louis Smelting & Refining Co. divided half of which he had sold without notice LOST INSTRUMENT - Proof - Suit in Equity thereon.] A special count on a lost instrument is not necessary to the admission of secondary evidence of its contents. Renner v. Columbia Bank, 9 Wheat. 581. 2. If the equity of a bill depend on the loss of a deed, an affidavit of loss should be annexed to the bill; but the omission thereof, although cause for demurrer, is waived by the filing of an answer. Findlay v. Hinde, 1 Pet. 241. 3. Equity has no jurisdiction of a suit on a lost draft, where it does not appear that the plaintiff has searched for the draft in the place where it would be most likely to be found; as, for instance, the draft having been left with a referee, and no search having been made of the files of the court to which the referee made his report, nor appli to the city, and received its value. It was held Power of State to regulate, notwithstanding See CORPORATION LOUISIANA Cession to United States Admission to the Union - Right to Religious Liberty.] The treaty of April 30, 1803 (8 Sts. 200), for the cession of Louisiana, took effect as of its date. United States v. Reynes, 9 How. 127; Davis v. Concordia Parish, Id. 280. 2. The stipulation in that treaty for the protection of the inhabitants in their property, etc., ceased to operate when Louisiana was admitted into the Union. New Orleans v. De Armas, 9 Pet. 223. 3. Although the act of March 2, 1805 (2 Sts. 322), granted to the inhabitants of the territory of Orleans the rights secured to the people of the Northwestern territory by the ordinance of 1787, so far as they had been conferred on the people of the Mississippi territory, yet the political right M. MAGISTRATE—Incompetency to sit, as affecting | MALICIOUS PROSECUTION Discharge from Imprisonment. See INSOLVENCY, 30. Powers, etc. In general. continued. the crime for which he was prosecuted. Wheeler v. Nesbitt, 24 How. 544. 4. Want of probable cause gives rise to a re See COURT-IN GENERAL; JUSTICE OF buttable presumption of malice. Ib. 5. To maintain an action for malicious prosecution, the plaintiff must prove both malice and Carriage out the want of probable cause. Thus, an instruction to the jury that, to excuse the defendant, it must appear that he had probable cause, or that he acted bona fide without malice, is not error as against the plaintiff. 16. MAINTENANCE Effect Purchase from one out of Possession.] The English statute of main tenance, although it avoids the contract between the parties, does not authorize the dismissal of a suit between other parties, although the suit be in furtherance of the object of the contract. Boone v. Chiles, 10 Pet. 177. 2. In Michigan, the common law of maintenance as to a purchase of land of which the vendor is out of possession, is not in force. Roberts v. Cooper, 20 How. 467. MALICE — Element of Right of Action. See LIBEL AND SLANDER; MALICIOUS Element of Crime — In general. MALICIOUS PROSECUTION What constitutes Malice and Probable Cause - Damages.] The rule that in an action for the malicious institution of civil proceedings, proof of probable cause, concurrence of malice and the want of probable cause being essential to the maintenance of such an action, is a defence, applies where the defendant has instituted proceedings in bankruptcy against the plaintiff pending a suit to recover a debt incurred by a firm of which the defendant alleges the plaintiff to have been a member, and, the suit having been decided in the plaintiff's favor, the proceedings in bankruptcy have fallen to the ground. [BRADLEY, J., dissenting, on the ground that nothing short of the actual existence of the relation of debtor and creditor can justify the institution of proceedings in bankruptcy.] Stewart v. Sonneborn, 98 U. S. 187. 2. And in such case, as in general, action taken in good faith on the advice of reputable counsel, given on a full statement of the facts, must be deemed to have been taken on probable cause. [BRADLEY, J., dissenting.] Ib. 6. Whether the inference of malice is a reasonable one, on the facts proved, is a question for the jury. Ib. 7. Thus, an instruction that, if the arrest was wanton and reckless, and no circumstances existed to induce a reasonable and dispassionate man to believe in the guilt of the accused, the jury ought to infer malice, is not error as against the plaintiff, being favorable to him rather than otherwise. Ib. 8. The fees of counsel prosecuting the action are not an element of damages in an action for malicious prosecution. Stewart v. Sonneborn, 98 U. S. 187. 3. Probable cause consists in such facts and circumstances as would excite belief in a reason- depends able mind that the person charged was guilty of❘ Courts See pl. 78-100. In general On what the Remedy What Courts may apply it State Federal Courts.] In modern practice the issue of a writ of mandamus does not depend on prerogative power, but is regarded as ordinary process in cases to which it is applicable Kentucky v. Dennison, 24 How. 66. 2. A state court cannot issue the writ to a federal officer. McClung v. Silliman, 6 Wheat. 598. 3. The power of the circuit courts to issue it is confined to cases in which it is necessary for the exercise of their jurisdiction. McIntire v. Wood, 7 Cranch, 504; Bath County v. Amy, 13 Wal. 244. See Kendall v. United States, 12 Pet. 524. 4. They cannot use the writ as an original and independent remedy, but only to enforce rights where jurisdiction has already been acquired. Heine v. Levee Commissioners, 19 Wal. 655. 5. They may issue it when necessary to the exercise of their jurisdiction and according to the common law. Knox County Commissioners v. Aspinwall, 24 How. 376. 6. The circuit courts, having power to issue writs of mandamus only where they are ancillary or necessary to jurisdiction already acquired, cannot issue such a writ to compel a municipal corporation to levy a tax to pay bonds not yet put in suit. Bath County v. Amy, 13 Wal. 244. 7. Nor is it otherwise under the act of May 19, 1828 (4 Sts. 278), conforming proceedings at law in the federal courts to proceedings in the state courts, in a state where a mandamus is a civil action such as might fall within the original jurisdiction of a circuit court under section 11 of the judiciary act, the act of 1828 having no effect to enlarge jurisdiction, but merely to regulate procedure. Ib. 8. The district courts having no power to issue the writ, except where it is ancillary to jurisdiction already acquired, cannot issue it at suit of an assignee in bankruptcy to compel a state auditor to deliver certificates for the amount of taxes paid by the bankrupt, pursuant to a statute declaring the taxes illegal, and directing the auditor to issue such certificates, the proceeding being original. Graham v. Norton, 15 Wal. 427. 9. Section 13 of the judiciary act of 1789 is inoperative as a grant to the supreme court of power to issue writs of mandamus, otherwise than for the purpose of exercising appellate jurisdiction, in cases of which it has not original jurisdiction under the constitution. Marbury v. Madison, 1 Cranch, 137. MANDAMUS — continued. who has been disbarred for a matter of which that court had no jurisdiction, e. g. a contempt committed before another court. [MILLER, J., dissenting.] Ex parte Bradley, 7 Wal. 364. 12. So it lies to a circuit court to enforce the return to the state authorities of a colored man convicted of crime by a state court but taken into custody by a marshal, under a writ of habeas corpus cum causa, for a supposed denial of the equal protection of the laws on the trial, it appearing that there had been no such denial as to justify the intervention of a federal court. Virginia v. Rives, 100 U. S. 313. 13. A justice of the supreme court, holding its August term under the act of April 29, 1802 (2 Sts. 156), has no power under that act to allow a rule to show cause why the writ should not issue. Ex parte Hennen, 13 Pet. 225. 14. When issued to compel Public Officers to perform their Duties · To compel Performance of Ministerial Acts, but not to control Judgment or Discretion.] Semble that mandamus will lie to compel performance by a public officer of a ministerial act in the doing of which the relator has an interest. Marbury v. Madison, 1 Cranch, 137. 15. The supreme court cannot issue a mandamus to the register of a government land office, commanding him to enter an application for land, although the highest state court may have refused to issue the writ on submission by the register to its jurisdiction. M'Cluny v. Silliman, 2 Wheat. 369. 16. Nor will mandamus lie to compel either the commissioner of the general land office or the secretary of the interior to issue a patent for land, the statutes requiring such patents to be signed by the president. Browning v. McGarrahan, 9 Wal. 298. 17. Nor to compel the commissioner of the general land office to issue a patent, where there are numerous questions of law and fact depending on circumstances resting in parol proof yet to be obtained, and where the exercise of judicial functions, some of them of high character, is required; nor where it is reasonable to presume that there are persons at the time in possession under another title, who should have an opportunity to defend. United States v. Commissioner, 5 Wal. 563. 18. The circuit court of the District of Columbia has jurisdiction to issue a mandamus to the postmaster-general, to compel him to do a merely ministerial act which the relator has a 10. The issue by that court of a writ of man- complete right to have performed, and as to the damus requiring the secretary of state to deliver performance of which the law gives no discrecommissions to justices of the peace in the Dis-tion. [TANEY, C. J., and BARBOUR and CATRON, trict of Columbia is an exercise of original juris- JJ., dissenting.] Kendall v. United States, 12 diction, not conferred by the constitution nor Pet. 524. conferable by congress on that court. 1b. 11. Mandamus lies from that court to an inferior court to the supreme court of the District of Columbia, for instance-to restore an attorney 19. But not to compel the head of an executive department to perform an act not merely ministerial, but involving the exercise of judgment. Decatur v. Paulding, 14 Pet. 497. |