and passengers. If, in erecting a depot at Stanberry, company had included in the same building an eating-house and sleeping rooms, for the accommodation of its employes and patrons, I don'ot think it could be questioned but what the eating-house and lodging rooms would be deemed to be appurtenant to the railway. If the company, instead of including the hotel as part of the depot, erect a separate building therefor, this does not in my judgment change the rule, even if the building is not immediately contiguous to the depot, but separated therefrom by a public Rtreet. So as long as the evidence shows that the object and purpose of the company, in the erection of the building,was to use the same for the convenience and comfort of its employes and passengers, and thereby directly contribute to the proper carrying on of its business of a common carrier, I see nogood·reason fOll holding that a building so erected and used is not to be deetned appurtenant to the railway . Furthermote, the mortgage. expressly embraced, not only the depots and depot grounds, butalso.the "real estate" owned by the company.. Under the facts of this case; it sooms to me that,litS between the mOrtgagor and' the mortgagees, the property in question. comes within the terms of the mortgage, and that the mortgagees are entitled to the benefit thereof, The insurance was taken out for the benefit of the parties interested, and was not an insurance on the interest of the mortgagor, as separate from that of the rnortgagees,and hence the proceeds of the policy belong tOrthe parties entitled to the property. The order should be that the amount due on the policy should be paid to McKissack, for the benefit of the mortgagees holding under the mortgage of February 15, 1879.
,(])istriet Oourt, D. SouthOarolina. Octobllr, 1887.) , One is guilty, under section 5438, Rev. St., who presents a claim which he believes tbbe true and just, but which he seeks to substantiate by affidavits. certifiea.tesior depositions of persons who to his knowledge depose or certify to material facts of which they kpo1V nothing. (Syllabus. by the ((ourt.)
CLAIMS AGAINSTTHlil UNITED FOR FRAUD.
Moultrie· GOl,l,rdin, for H. 4.: De SaU8sure, Asst. Dist. Atty., for the State.
SIMONTON,J., (charging the jury.) The defendant is indicted before you under section 5438, Rev. St. The offense charged, in substance, is making, or causing to be made, presenting, or causing to be presented, a c]aitl1against, the government, knowing such claim to be false, fictitious,
UNITEDS'l'ATES V, JONES.
or fraudulent; and also,fdrt'hepurpose of obtaining,. or aiding toobtain, payment of such claim, using, or causing to be used, a false certificate, affidavit,or deposition. The undisputed facts are these: One John Jones, a private in Company F, Twenty-fifth regiment U. S. C. T., died at Fort Snelling, Minnesota, in 1883. In his pocket was a letter purporting to be from his brother, William Jones, Charleston, South Carolina. A letter was addressed to William Jones, 9 Burns lane, Charleston, South Carolina, giving information of the death of John Jones. It came into the hands of defendant. After retaining it for some months, he met with one Nelson, a claim agent, and'showed him the letter. Under the advice of Nell;lon, he made out a claim for the back· pay, etc., of the deceased soldier,. leging himself to behis only surviving brother and heir at law. His claim was fortified, as required by law, by the affidavits of two persons swearing to the knowledge of the facts stated in the application, Gibbs and Brown. The claim was allowed. Before it was paid, one John Jones claimed the property of the deceased soldier, alleging that he was thl:J father of the soldier, and of another son, William, and that thedefend ant was in nowise related to or known to him. Thereupon the claim of defendant was suspended and this prosecution begun. Full testimony has been produced before you. The defendant has made his statement in person, and insists that he did have a brother named John Jones,and that he honestly believed that he and the dead soldier were the same person. Gibbs, one of the witnesses used to substantiate his claim under oath, now swears that he knew nothing of the relationship between the defendant and the dead soldier; in oUier/words, he says now that his affidavit was false. You have heard Nelson, the claim agent. To reach your verdict, you must first inquire whethel the statement and claim of the defendant that the deceased soldier, J oho Jones, was his brother, are true in fact. If you come to the conclusiOlI that the deceased soldier was not his brother, then you must inquirp whether the statement and claim made by the defendant, that he was his brother, were fraudulent as well as untrue. The claim was fraudulent as weUas untrue if the defendant knew that it was untrue, or, perhaps I should say, if defendant did not believe it to be true. And even if he hone8tly believed the claim to be true, and .that the dead soldier was his brother, nevertheless the claim and presentation of it would be fraudulent if, in presenting it, he used, or caused to be used, a false certificate, affidavit, or deposition, knowing it to be false. All the circumstances attending the preparation and presentation of the claim have been detailed before you by the witnesses, and have been commented upon by the counsel. You have heard Gibbs, one of the persons whose affidavits sustained the claim, declare that he really knew nothing of the facts he swore to. Is this true? Did the defendant know that the affidavit of Gibbs was false? Did he know this at the time it was made, or did it comeio his knowledge before it 'Was presented with his claim to the department? Did he induce Gibbs to make the affidavit? Did he do this' knowing that Gibbs really knew nothing of the
facts stated in it? Or, on the other hand; was the defendant the dupe of the claim agent, acting blindly under his dictation, not knowing the means employed in preparing, substantiating, and presenting the claim? The answer to these questions you must find in the evidence. If the defendant knew, before it was sent on, that the affidavit of Gibbs was false,-that is, that Gibbs swore to facts which were not within his knowledge,-and, notwithstanding, directed or suffered his claim to be presented, he is guilty under this indictment, even if you believe that he really was the brother of the deceased soldier, or if he wItS honestly convinced that the dead John Jones was his brother. Of course, if he made the application knowing that he was not the brother of the dead soldier, he is guilty. The defendant is an illiterate colored man. If you, believe, from the evidence, that he was acting wholly under the advice and control of Nel, son, the claim agent, not knowing or understanding what was being done, then give him the benefit of the reasonable doubt, and acquit him. The jury found the defendant guilty, and recommended him to mercy.
WESTINGHOUSE AIR-BRAKE CO. 'V. CARPENTER.
(Circuit Oourt, S. lJ. Iowa, E. lJ. October 22, 1887.)
PATENTS FOR INvENTIONS-INFRINGEMENT-PRELIMINARY INJUNCTION-EXPIRATION OF PATENT. '
There being little doubt as to the validity of the claims of the reissued patent which are embraced in the moving papers, and as to the infringement thereof by defendant, a preliminary injunction is ordered, even though the patent will soon expire. The last years or months of a patent are often the most valuable, and the patentee is entitled to the benefit thereof.
Motion for Preliminary Injunction to restrain defendant from infringing the fifth, sixth, seventh, and eighth claims of reissue No. 8,291, to George Westinghouse, Jr., for improvements in pipe couplings. The motion was resisted, on the ground, among others, that certain claims, which were not embraced in the moving papers, were expanded and void, and should have been disclaimed before suit brought. W. Bakewell, Goo. H. Ohristy, Nathl. French, and J. Snowden Bell, for complainant. Banning &: Banning and Anderson, Da"m &: Hagerman, for defendant.
BREWER, J., (orally.) We shall not attempt to discuss the various questions which were argued with such signal ability and care by counsel in the case, but simply state our conclusions. On an application for a preliminary injunction the court considers always tne relative situation of the parties, and the injury or benefit which may result to either from the granting or the refusing of the injunction. Such an order is spoken