844

FEDERAL REPQRTER,

vol. 48.

ness of the location of the granted lands by the officers of this government:wl:lOse duty it was to locate them. Smelting Co. v. Kemp, 104 U, S.645;French v. Fyan, 93 U.S. 169; Marquezv. Frisbie, 101 U. S. Q. $.. v. Atherton, 102 U. S. 372; U. S. v. Schurz, Id. 404; Patter3 Sawy. 172; (Jhapman v. Quinn, 56 Cal. 266. Thoseare questions with which defendants can have nothing 10 do. In respect to lands so, patented it is impossible that any question under the homestead laws of the United States can arise, so long as the patent stands, for ,those laws apply obly to the lands of the government. Theissue or not the lands in controversy in this suit are embraced by the grant to De Celis, Rsdefined in the patent, presents no federal question. It merely involves the location of the boundary lines. These views render it unnecessary to consider the technical objections made to the bott'd; An order "'ill be entered remanding the case to the state It came, at the cost of the parties bringing it here.

& .MANUF'G Co.

t:I. MANHATTAN

EL. Ry. Co.

(Circuit Court, {S. D. New :York. November 7,18lJL)
EQUITY l'R.lCTiCiB-MOTION lIOR DECRBBON, BILL AND ANSWER.

tor a decree upon bill and answer must be made, not at ohamber.. the equity term after the cause is put upon the calendar.

In Equity. Suit by. the CarripbellPrinting-Press & Manufacturing Company against the Manhattan Elevated Railway Company for infringement: cif. a patent. On motion for an injunction pendente lite and for a decree for an accounting. Denied. . Tha:patent in question in this case is No. 401,680, issued April 16, 1889, tlYEdward S. Boynton, assignor of the complainant, for an improvemehtin valves for pneumatic pipes or tubes. A motion for a preliminary injunction was denied by Judge LACOMBE, (47 Fed. Rep. 663,) and the defendant then filed its answer, admitting the validity of the patent in suit, title, and infringement, but denying that it had ever made any gains or profits by reason of its unlawful use of the patented devices. and also denying that it had thereby damaged the complainant except nominally. Tothis answer a general replication was filed; and thereafter complainant moved, upon the bill, answer, replication, and all proceedings had, for an order directing that defendant be enjoined pendente lite; and for a decree for an accounting pursuant to the prayer of the bill; sucm other and further relief as to the court might seem just. Oharle8 D6 Hart BrWJer and Philip R. Voorhies, for complainant. Da'lJie8,SiMt &TOW1l8end and Ma'!fMdw& Beach, for defendant. BROWN, J. The settled practice of this circuit is that, upon a billand !l.nswer, application for judgment must be made, not at chambers, but at

i

J. L. MaTT IROI\-\VORKS tl.

MANUF'G

co.

345

the equity term after the putting of the cause on the calendar. This may be done on short notice, after' evidence of such damages has been taken as would warrant sending the cause to the commissioner. Motion denied, without prejudice.

J. L.

MOTT IRON-WORKSV. STANDARD MUmF'G

Co.

(Circuit Court, W. D. Pennsylivanw.. December 12,18111.)
DEPOSITIONS-FILING-STIPULATIONS.

When the parties to an equity cause stipulate that testimony may be taken before anv otllcer or magistrate, qualified to administer oaths, withou.t special appointn:uint by'thecourt as an examiner, the depositions thus taken must be filed of as requfred by equity rule 67, in cases where an examiner is regularly appointed; and the party in whose behalf the testimony was taken has no right to it.

,

InEquity. Suit by the J. L. Mott Iron-Works against the Standard Manufacturing Company. Heard upon motion to compel the filing of depositions. Motion granted .. OonnoUy Bro8., for the motion. Francis Forbes, opposed.'
REED, J. It appears that, by stipulation between counsel for the parties, it was provided that testimony on behalf of the respectivE! parties might be taken before any officer or magistrate, qualified to administer oaths, without special appointment by the court ,as an examiner. Un!ler this stipulation notice Wll,S given bycomplainarit's counseltpat they would take proofs for· final hearing in the city of Brooklyn. At the time fixed by the notice, one James Foley was called by the complainant, and examined orally by counsel for both parties, before Richard P.Marle, United States commissioner. A certain form ofw8stevalve'marked by the commissioner was produced by complainant,ll.Qd used in the examination and cross-examination of the witness. After that hearing, counseUor the parties stipulated that the testimony taken before Mr. Marle might be retained by complainant's counsel until the next hearing, to be fixed by counsel.' Subsequently notice was given to defendant's counsel by complainant'st counsel that the testimony of Mr. Foley would not be filed. A motion was then made by defendant's counsel for an order compelling the filing of the testimony and the exhibit used in the examination of the witness Foley. Upon the argument it was contended by defendant's counsel that the defendant was entitled to have the testimony and the accompanying exhibit filed, so that, if complainant did not see fit to use them on final hearing, the defendant might avail itself of the testimony, if it desired. On the other hand, complainant took the position that itmight use the testimony or. not, as fit; and, if defenqant desired the testimony, and examine Mr. Foley as its witness. The equity rule requires