81 FEDERAL REPORTER.
and immunities of the state. The state speaks authoritatively in her constitution, and through bel' legislature, and the legislature can speak with authority only through a concurrent resolution or a joint resolution, or an act, and these last two must be approved by the governor. In the present case the legislature has spoken. All the property of the state not in public use was placed under the control of the sinking fund commission, who are authorized to sell the same, and the proceeds of such sale or sales are appropriated to the sinking fund of the state. Gen. St. 1882, §§ 60-63, and Acts Assem. 1883 (18 St. at Large, p. 380). In 1890 the commissioners of the sinking fund were authorized, empowered, and required to sell that certain building in the city of Columbia, with the lot on which it stands, known as the "Agricultural Hall," and the proceeds of the sale, it was directed, should be turned over to the trustees of Clemson Oollege. 20 St. at Large, p. 707. Thus,the state, by its legislature, not only required tbe sale of this property, but also disposed of the proceeds of sale. Under this authority, solemnly adjudicated upon in this court, and decided to be ample, this property was sold, and, by the same adjudication, held rightfully sold to the plaintiff in this case. Where, then, is there room for any pretense that the petitioner or anyone else is tenant of this building, and where is the authority to anyone to lease it? The petitioner, however, alleging that he does not claim through either the plaintiff or defendant, relies upon the fact that no notice of lis pendens was filed in this case. According to the petition, Mr. Tindal was in possession by authority of law in 1893, and his right of possession, under the operation of the act of the legislature, ceased when he went out of office, in 1895. The judgment of the court was entered on 7th May, 1894. That judgment was notice to all the world of the fact that it declared Wesley the owner of the property. When it was entered, the suit was no longer pending. The lis was merged in the judgment. Besides this, under section 153 of the Code of Civil Procedure, the failure to file notice of lis pendens protects .only some subsequent purchaser or incumbrancer. The petitioner is neither a purcbaser nor an incumbrancer; nor has he averred or shown that the party for whom he is tenant is either such purchaser or incumbrancer. The prayer of the petitioner is denied, and his petition dismissed.
UNITED STATES v. 164
8 / 100
PROOF GALLONS OF DISTILLED SPIRITS.
(District Court, S. D. Ohio. W. D. June 30, 1897.)
INTERNAl. REVENUE-FoRFEITURE PAPEHS, PROCEEDINGS-PRODUC'l'ION OF BOOKS AND
In a proceeding for forfeiture, based on a charge of fraud in violation of the internal revenue laws, the government will not be reqUired, on motion of an intervening claimant, to produce, for the inspection of such claimant, all books andwritlngs in its possession containing evidence pertinent to the Issues; nor to produce or furnish copies of the original measurements ot the packages containing the goods in question, such measurements being
PRIES'f V. COATES CLIPPER MANUF'G GO.
on tIle In the office of a collector of internal revenue outside the district where the proceeding is pending.
Harlan Cleveland, for the United States. Sidney G. Stricker, for claimant. SAGE, District Judge. This case is before the court on motion to require the government, before trial, to produce to the attorney for the intervening petitioner any and all books or writings in its possession or power, which contain: First, evidence pertinent to the issues, -that is to say, any and all reports or returns of the gaugers who gauged and inspected the brandy in question; second, any and all reports or returns made by the distillers or wholesale liquor dealers in whose possession or control said brandy has ever been; third, any and all writings or correspondence or copies thereof between any of the parties who may have had any connection with the removal or shipment of said brandy. The demand is as sweeping and comprehensive as it could be made, and, if sanctioned by the order of the court, would compel the government to submit its entire evidence to the inspection and examination of counsel for the defendant in advance of the trial, which, in a proceeding for forfeiture based upon a charge of fraud in violation of the internal revenue laws of the United States, ought not to be allowed. But in the brief of counsel for the intervener the demand is modified to "seeldng a discovery of the original measurements of the packages, the only existing evidence of which is the return of the gauger under form 59! as made to the revenue department, which is in its exclusive possession and control, and which can be reached by no other process than this motion." The intervener is a wholesale liquor dealer, who claims to have purchased the packages from the distillers. But the United States attorney has not in his possession these original measurements. They are technically, it is true, in the possession of the government, that is to say, of the internal revenue department, but they are on file in the state and district where the brandy was distilled, and the intervener is entitled, upon application, to an inspection, or to a certified copy of them. It is not the duty to transport the originals here for the or province of the convenience of the intervener and his counsel, or to procure certified copies for that purpose. The originals are in the proper custody directed by the law, but not within this jurisdiction. If the intervener wishes to inspect them, he will have to make his application there, or procure from the collecto'r of the proper district certified copies. The motion will be overruled.
PRIEST v. COATES CLIPPER MANUF'G CO. (Circuit Court, D. Massachusetts. June 25, 1897.) No. 475.
change of proportions, resulting in no new function, and no new advantages of a striking character, and is therefore void for want of invention.
In halr clippers, involves, in substance, merely a rearrangement of parts and
The Priest reissue, No. 11,411 (original No. 478,461), for an Improvement