Volume 10 — Federal Reporter

<p>1. Equity Pbactice — Testimony fob Final Heaiiing.</p> <p>Under the equity rules of the supreme court, after notice from the plaintiff that ho desires the evidence to bo adduced in the cause to he taken orally, all the evidence is to be so taken, subject to the power of the court, for special reasons, to annul the usual effect of such notice and order it to be taken on written interrogatories.</p> <p>2. Same — Testimony Taken in Fobeign Countbies.</p> <p>By analogy, after such notice has been given, where testimony in a foreign country can be taken orally, it ought not, except for special reasons, to bo taken otherwise. What would in any given case bo sufficient special reasons, must be left to be decided in each case.</p> <p>S. Same — Depositions undeb Section 866, Rev. St.</p> <p>Depositions may be taken under dedimus potestatem, under section 866, “ according to common usage,” now as at any time hitherto. The words “ common usage,” in regard to suits in equity, refer to the practice in courts of equity.</p> <p>4. Same — Depositions de Bene Esse.</p> <p>The provision for taking depositions de bene esse is still in force in equity cases. The mode of taking such depositions is the same as that provided for by the amendment to equity rule 67.</p>

<p>Demurrer to Complaint.</p>

<p>1. Municipal Bonus — Recitals—Bona Fide Purchasers — State and Federal Courts.</p> <p>A statute of a state authorized commissioners, appointed for a town, to borrow money and execute bonds for the town in aid of a railroad company, and provided that they should exercise their authority only upon the condition that the assent of a majority of the taxables should be obtained, which should be proved by the affidavit of one of the assessors of the town. The statute made it the duty of the assessors to make such affidavit when the requisite assents should have been obtained. Neld, that bona fide purchasers of the bonds are ■ not required to show that the requisite number of taxables assented to their issue, as the affidavit of the assessor is conclusive in their favor; and that the decision of the highest court of the state to the contrary, if rendered after the rights of such purchasers were aoquired, is not binding upon a circuit court of the United States.</p>

The plaintiff and defendant, on May 8, 1880, entered into a contract for tlie sale and delivery of cattle, and $100 was paid the defendant on the contract. Subsequently this contract was rescinded, and another one entered into, varying somewhat in its terms, and the $100 retained by defendant as part performance. The defendant claims this latter contract was made on Sunday and is void.

<p>1. Bait,roads — Injury to Passengeh — Contributory Negligence.</p> <p>A passenger, on a train that had approached a station and was still moving slowly, stood on the lower step of a car, in the act of stepping to the platform of the station, when, in consequence of the car being moved forward with a jerk, he was thrown upon the platform and injured. Reid, that he was guilty of contributory negligence in attempting to alight from the train while it was in motion.</p>

<p>Motion to Demand.</p>

<p>3. ExecutoR — Account against, by Legatee.</p> <p>An account against an executor in behalf of a legatee is a matter of course in a court of equity.</p> <p>2. Same — Statute of Limitations Not a Bar to Remedy — Rights Not Barred by Lapse of Time.</p> <p>The executor being au express trustee, the statutes of limitations do not bar the remedy. Lapse of time, under certain circumstances, does bar the remedy. But where an executor qualified December 6, 1865, and made no settlement until July 19 ,1872, because the assets were not collected and the estate not ready for settlement before that time, a bill filed July 7,1876, was within the strictest rule as to lapse of timo, considering tlio rights of the plaintiff under the will.</p> <p>o. Equity Jurisdiction oj? Federal Courts — Not Affected by Settlements in State Courts.</p> <p>A state statute enacting that settlements made in the county court “ shall be prima fade evidence in favor of the accounting party,” cannot operate to restrict the plenary jurisdiction of the federal courts of equity to enforce the trusts of a will at the suit of a legatee. Those courts will not assume the general administration of the estate, but will require the executor to account de now for the purpose of ascertaining the share due the legatee.</p> <p>4. Power on Court over Settled Accounts — Effect of Want of Notice of Settlements.</p> <p>If such a settlement ho pleaded as a settled account, the court may, irrespective of any statute, order it to be so taken and to stand before the master as prima faeie evidence. But this is never done unless it appears that the legatee had notice of the making of the settlement.</p> <p>5. Production and Proof of Accounts in Federal Courts — Equity Rule 79:</p> <p>•The old mode of proving the account, item by item, has been abolished by equity rule No. 79. If the executor sets up a settlement in the county courts by his answer, and proves it by his deposition, the court will order the master to treat it as presented under that rule.</p> <p>6. Request for Delay to Save the Bar of the Statutes Must Be Specific and to a Period Certain — When Insufficient.</p> <p>A request by the executor for delay, to save the bar of the statute of limitations of two years and six months in favor of dead men’s estates, must be for a definite length of time, agreed on by the parties, or fixed by reference to some designated event which may occur, and thereby render the period certain. A request in writing, made in the following words: “I request that you do not enforce your claims of all descriptions against the estate of John N. Pulliam, by suit or legal proceedings, as the assets of the estate are not yet collected by me sufficient to pay the debts due and owing by John N. Pulliam. By your ' delaying to sue it shall not prejudice your claims, as I will not avail myself of the statute of limitations applicable to executors, administrators,” etc., — held to be insufficient.</p> <p>7. Will — Rights of Creditors.</p> <p>A testator cannot, by directing the order of appropriation of the assets, defeat the rights of creditors.</p> <p>8. Same — Exoneration of Legacy — Executor as Trustee — When Charged Personally.</p> <p>But a testator may exonerate a legacy by charging the debts upon other property in a way that will make the executor a trustee to execute the will, and charge him personally, if he so disregards the directions of the will as to injure the legatee.</p> <p>9. Same — Duty of Executor as Trustee — As to Property in Other State— Title to Trust Property — Liability to Legatee for Yalue of Property Not Administered.</p> <p>Where a testator directed his debts to be paid out of his other property, real and personal, in exoneration of a legacy to his wife, granting the necessary powers of sale to his executor, he must execute the trust fully; and if real property be situated in another state, he must execute the will there by doing whatever is necessary for that purpose, if he qualifies in the state of the domicile of the testator. An executor so qualifying has the title of the trust property wherever situated, and he cannot separate the trusts and examine the will in one state, leaving out the others. He becomes personally liable to the legatee if he so executes the trust as to injure her by taking her legacy to pay debts that might have been otherwise paid if he had carried out the will in all its parts. He will be charged in this account with the value of the property not administered as if he had sold it and realized the money.</p> <p>10. Same — Liability of Executor in State of Testator’s Domicile — Federal Rule of Equity Decision as to Property in Other Jurisdiction —Unaffected by Local Statutes and Decision^.</p> <p>The principle that an executor in the state of testator’s domicile becomes, under a will making him testamentary trustee, charged with the trusts of the will, is one of general equity decision, and is wholly unaffected by state statutes and decisions, limiting his liability as executor in the state courts in relation to property in another jurisdiction. These local laws may restrict his powers and limit Ills liability qua executor in that stale, but do not affect the equity powers of the federal courts over him as a trustee. The rule is the same in the equity courts of the state of Tennessee.</p> <p>11. Same — Extent of Liability of Executok as Trustee.</p> <p>But an executor neglecting to execute the trusts of a will is not absolutely liable for the legacy to the injured legatee, but only to the extent of what he actually receiyes, and this will be reached by charging him as if ho had sold the property at proper time and received its value, unless there has been supine negligence to charge him further.</p> <p>12. Deed os Gift — Delivery, IIow Pkoved — IIandwkiting of Deceased Subscribing Witness, How Pkoved.</p> <p>If a subscribing wit ness be dead, his handwriting cannot be proved by another subscribing witness, seven years after death of grantor, to establish delivery of the deed so as to set it up against a will charging the land with the debts.</p> <p>13. Evidence — Declarations of Husband Rot to Charge Wife — Aoqujes-CT5NCE BY DUKESS.</p> <p>The declarations of a husband that he had burie.d a large quantity of gold coin in a place known only to his wife and her brother, do not prove that she appropriated the coin to her own use. The relation of husband and wife will often secure, by duress, acquiescence in the false statements of each other. A cross-hill after his death, by his heirs, will not be sustained on such declarations to charge her with the treasure.</p>

<p>1. PRACTICE — 1ÍEIIEARING—INTERLOCUTORY DECREE.</p> <p>A petition for rehearing is not necessary where there has been only an interlocutory decree ordering an account; nor is it irregular to consider at the hearing, on exceptions to the master’s report, all questions determined in the former decree.</p> <p>2. Same — Btll by Legatee fob an Accounting.</p> <p>A specific legatee, filing a bill for a general account of the administration, is not confined to the particular errors alleged in the bill, as she might be if slio were surcharging and falsifying a stated account.</p> <p>3. Executor — Liable for Loss by Depreciation in Price prom Delay of</p> <p>Sale — Extent of Liability.</p> <p>An executor who delays for 14 and 20 months to sell cotton of the estate, for no other reason than a belief that it will advance in price, will be held for all losses by depreciation in price, although he may have dealt with his own cotton in the same way. He thereby becomes liable absolutely for the value of the cotton at the time he should have sold it, and will not bo credited with a loss incurred by the failure of his factor, although the factor at the time was of good credit.</p> <p>4. Same — Liable for Interest on Specific Legacies.</p> <p>Specific legacies bear interest from the death of the testator. Therefore, where certain notes belonging to a wife before her marriage were bequeathed specifically to her by the husband’s will, and certain other properly was also given to her specifically, she is entitled to interest although the property was used hy the executor for the payment of debts which would have been lawful if there had been a deficiency of other assets.</p> <p>ó. Same — Principles of Equity Governing the Liability of Executor for Interest.</p> <p>* Upon an examination of the cases, the principles upon which a court of equity will charge an executor with interest on balances found against him are stated to he: (I) Where he keeps in his hands moneys which it is his duty to invest or pay to the persons entitled, he will be chargeable with interest when ho makes interest, or is presumed to have done so, because ho has used the fund for himself, or mingled it with his own funds, or kept it idle during an unnecessary delay in settling his accounts. (2) He will not he chargeable with interest on the theory of a quasi criminal penalty for a breach of trust. (3) The presumption that he has made interest does not arise where no funds, as a fact, come into his hands, or were immediately paid out in good faith for a purpose erroneously supposed to be lawful. (4) What is to be deemed an unnecessary retention of funds is a question of fact, depending upon the circumstances of each case; but the court will not act on mero inferences, and the balances retained must be to a considerable or substantial amount compared with the whole estate. Held, the/ref ore, where the executor was charged by the master with losses on sales of cotton incurred by his negligent delay in selling it, and for money paid to a creditor after the claim was barred by the special statute of limitations in favor of decedent’s estates, that he was not, on the facts of the case, chargeable with interest on these sums. Held, also, that he was not chargeable wiih interest on a small balance of §500 used by Mm in paying his own debts, the estate amounting to as much as §30,000, and it appearing that he had waived all compensation. Held, also, that interest will not he charged from the filing of the bill, hut only from confirmation of master’s report, unless the executor,was liable for it in the first instance.</p> <p>6. Executor de facto — Extent of Liability — As Agent and Attorney.</p> <p>A person named as executor in the will, who refuses to qualify and renounces the trust, hut who becomes the de facto executor and assumes the whole management of the estate, will be liable, as executor, for assets actually received by him, but not for losses incurred by his negligence for which the lawful executor is liable; and this, although he received the assets as the agent and attorney of the lawful executor in cases where he has not delivered them over to him. He is liable also as agent and attorney.</p> <p>7. Same — An Express Trustee of an Implied Trust — Cannot Hold Adversely without Notice.</p> <p>The common statute of limitation of six years is not a defence to a bill in equity seeking an account and satisfaction by a legatee against such person. He is, in that case, an express trustee, the trust being implied from the contract of agency, and not against the contract upon the evidence. This distinction explained. Nor can such a trustee denude himself of his trust and hold adversely, without notice to the cestui que trust.</p> <p>8. Estates of Deceased — Appropriation of Assets — Creditor Holding Debt Barred by Statute, an Express Trustee.</p> <p>A creditor of the testator, holding a debt barred by the special statute of limitations in favor of decedent’s estates, cannot receive or appropriate assets to the payment of his debt so barred, without becoming liable to the executor and legatee in equity, for the money so wrongfully paid to himself, and he must refund it, with interest; nor is he protected by the common statute of limitations from the time of the appropriation, being an express trustee, under the circumstances above stated, until the cestui que trust has been notified.</p> <p>9. Same — A State Statute Limiting Time for Presentation of Claims a Rule of Property as to Trusts, and is Binding on Federal Courts Sitting in Equity.</p> <p>A statute of Tennessee, which provides that unless a creditor shall, within two or three years, as the case may be, present his claim to the executor or bring suit thereon, it shall be forever barred and the executor liable to account for any payment made, is not only a statute of limitations, but a rule of property relating to trusts, which the legislature of the state alone can make, and as such it is binding on the federal courts sitting in equity.</p> <p>10. Will — Real Estate — Legacy Charge on Land.</p> <p>If a will exonerates a specific legacy by charging the debts upon all the estate, real and personal, the land is not liable to the specific legatee unless, on a deficiency of personal assets, the specific legacy has gone to pay debts.</p> <p>11. Will — Husband and Wife — Post-Nuptial Bond — Satisfaction.</p> <p>A specific legacy, given to a wife by a will, is a satisfaction of a post-nuptial bond for like amount, unless the intention clearly appear to the contrary.</p> <p>12. Bill for Account and Satisfaction of Legacy — Formal Parties — Jurisdiction.</p> <p>Where a citizen of another state, being a specific legatee, filed a bill against the executor and residuary legatees for an account and satisfaction of her legacy, held, that the court had no jurisdiction to decree an account and relief in favor of residuary legatees, citizens of the same state with the executor, who had filed no cross-bill, and were only .defendants for the purpose of ascertaining the rights of the plaintiff.</p>

<p>1. Suits against Collectors to Recover Duties — Liability of Government IN.</p> <p>A suit against a collector of customs.is a private suit, and there is no claim, against the government until a certificate of probable cause under section 989, Rev. St., has been obtained from the court; then the government assumes a certain liability.</p> <p>2. Same — Judgment in — Liability for Interest on.</p> <p>Liability of government for interest on a judgment against collector must he created by statute. It cannot be implied.</p> <p>S. Same — Refunding of Duties — Acts of Congress Relative to.</p> <p>The various acts of congress relative to refunding of duties illegally exacted, and interest thereon, reviewed and commented on, and the conclusion drawn that the liability assumed by government does not include the payment of interest upon judgments recovered against collectors of customs, and that such interest cannot be collected.</p> <p>4. Same — Interest as Damages on Writ of Error.</p> <p>The allowance of interest as damages on a writ of error, under section 1010, Rev. St., and under rule 23, Sup. Ct., and the form of mandate affirming, with interest, a judgment where collector is plaintiff in error, does not affect the question. They belong solely to putting the judgment in shape.</p> <p>5. Same — Interest on Judgment in — Liauility or Corrector.</p> <p>There is no personal liability on the part of the collector, after the making of a certificate of probable cause, to pay the interest on judgments obtained against him. Under section 989, Rev. St., he is not liable for such interest if the government is not</p> <p>U. S. v. Sherman, 98 U. S. 565, and Brshine v. Van Arsdale, 15 Wall. 75, cited and explained.</p> <p>Circular of the commissioner of customs of March 16, 1881, upheld.</p>

<p>Error to the District Court.</p>

<p>1. Jueisdiction of Federal Courts Ovjsb Bankrupt's Property Fraudulently Assigned.</p> <p>The district and circuit courts have jurisdiction oí a plenary suit brought by any person against the assignee in bankruptcy to assert a claim of superior title to property of the bankrupt fraudulently assigned before proceedings in bankruptcy. This jurisdiction is not affected by the fact lhat other parties than the assignee in bankruptcy are necessary parties to the suit.</p> <p>2. Receiver of State Court — Title to Property Assigned by Debtor in Fraud of Creditors — Effect of Proceedings in Bankruptcy.</p> <p>The receiver of a judgment debtor appointed in supplementary proceedings in the state court, under the New York Code of Procedure, does not acquire ipso facto, by virtue of such appointment, a title to property previously assigned by the debtor in fraud of creditors, nor any lion thereon, until suit to set it aside, or other legal proceedings or notice of his claim to treat the assignment as void; and if no such suit or proceedings are brought or taken by such a receiver until after the commencement of proceedings in bankruptcy, the receiver has no title in the property superior to the assignee; nor can he thereafter, under the rule established by the supreme court, (Glenny v. Langdon, 98 IT. B. 20,) maintain an action to vacate the fraudulent assignment.</p> <p>3. Same — How Vested with Title to Debtor’s Property.</p> <p>Such a receiver represents his judgment creditor only, and, like a receiver in a judgment creditor’s bill, does not become vested with the title to such property except through an action to which the fraudulent assignee is a party.</p> <p>4. Same — Recognition in Foreign or Independent Tribunals by Comity Only — Not Entitled to Obtain Preference Over Other Creditors.</p> <p>A receiver, as an officer of the court that appoints him, is recognized in foreign or independent tribunals by comity only. Semite that this comity is not to be extended so as to confer preferences in favor of particular creditors to the detriment of the general creditors whose interests foreign or independent tribunals are charged with protecting, and that such a receiver is not entitled to the aid of a federal court, sitting in bankruptcy, in obtaining a preference over other creditors entitled to its protection.</p> <p>5. Assignment for Benefit of Creditors — Proof of Fraudulent Intent Requisite to Bet it Aside — Not Invalidated by Delinquencies of As-signee.</p> <p>An assignment for the equal benefit of all creditors should not be set aside in favor of one creditor as fraudulent except upon clear and convincing proofs of fraudulent intent. If complete and perfect in itself, and not fraudulent in its inception, it is not invalidated by the subsequent remissness or inefficiency or errors of judgment of the assignee.</p> <p>6. Same — Subsequent Acts of Debtor when Not Evidence of Fraudulent Intent.</p> <p>The subsequent employment, of the assignor or the continuance of the business for working up the old stock, or the fulfilment of outstanding contracts, and the purchase of necessary goods therefor, held, in this case, not sufficient evidence of an original fraudulent intent.</p>

In Bankruptcy. Petition to sot aside and annul a certificate of discharge filed ky a creditor against the bankrupt, to which he has demurred. The petitioners allege that a final discharge was granted on the ninth day of June, 1881, but that the register’s certificate of conformity was premature, because of a failure to comply with certain prerequisites required by law in the course of the proceedings.

<p>In Equity.</p> <p>Action by the plaintiff, as assignee in bankruptcy of Eugene M. Cammeyer, to set aside as fraudulent and void against creditors a mortgage for $1,000 made by the defendant Sarah Eish to Augustus Cammeyer, and by him assigned to defendant Patrick Lambert. The facts, as admitted or proved, were as follows:</p> <p>On the twenty-ninth of January, 1874, Eugene Cammeyer executed to his mother, Sarah Eish, a deed of the house and lot 151 Bergen street, Brooklyn, where they both lived, subject to a prior mortgage of $4,000, for the consideration of $10 and natural love and affection. The deed was at the time ■ handed to his mother, who was told what it was. It was immediately taken back by Eugene, who kept it in his possession until he caused it to be recorded on March 6, 1874. Eugene Cammeyer was then in business in New York, had become embarassed, and the conveyance to his mother was intended for his own future use. On the second of March, 1874, for the purpose of raising money for the benefit of Eugene, his mother executed the bond and mortgage in question for $1,000 to Augustus Cammeyer, brother of Eugene, without consideration, which was recorded on the eighteenth of March, and was-designed to be negotiated and money raised upon it by the sale and assignment of it to ’some purchaser. Similar sales of second mortgages were frequent at that time. It was offered by Augustus to the defendant Lambert at a discount of 15 per cent., who examined the property himself, and employed his son, an attorney, to examine the title, and both being found satisfactory, Lambert, on the twenty-first of March, paid $850 and received from Augustus Cammeyer an assignment of the bond and mortgage, which was recorded on that day. The assignment contained an express covenant that the whole amount of the mortgage was owing upon it, and that there was no defence or offset thereto. Of the $850, $114.50 was applied at the time of the assignment in payment of taxes upon the property for the year 1873, and the balance, $735.50, was paid over to Augustus Cammeyer, by whom it was given to Eugene.</p> <p>Lambert was a builder in Brooklyn, accustomed to buy second mortgages, and 15 per cent, discount was not an unusual rate at that time. Lambert had no previous acquaintance with or knowledge of either of the Cammeyers or Mrs. Eish, and no knowledge of the business of Eugene in New York, but was informed that they lived with their mother in the house in question. The negotiation of the sale of the mortgage was conducted entirely by Augustus, and Eugene did not appear in the transaction.</p> <p>On the nineteenth of March, 1874, a petition in bankruptcy was filed against Eugene Cammeyer in New York, on which an adjudication was had, and the plaintiff appointed assignee on the twenty-ninth of April folio wing. Lambert had no knowledge or notice of the proceedings in bankruptcy against Eugene when he took the assignment of the mortgage from Augustus Cammeyer, two days afterwards. On the first of May, Mrs. Eish conveyed the property to the assignee by bargain and sale deed. Afterwards the plaintiff commenced this suit, asking that the conveyance to Mrs. Eish be declared void, as made in fraud of creditors, and that the mortgage and assignment of it to Lambert be declared invalid for the same reason. The defendant Lambert alone answered, claiming protection as a bona fide purchaser. Augustus Cammeyer and the attorney of Mr. Lambert, his son, who ehieily conducted the negotiations, both died before any testimony was taken. Lending this suit the property was sold by the plaintiff, and sufficient of the proceeds to cover the mortgage in question was paid into court to abide the event of the suit. ISfo question of usury was raised by the pleadings or at the trial.</p>

<p>1. Letters Patent — Cutting Attachments for Sewing-Machines — Infringement.</p> <p>Tlie first, second, and eighth claims of reissued letters patent No. 7,860, for an improvement in cutting attachments for sewing-machines, the distinguishing feature of which is the cutting against the edge of the stock in a line parallel with the line of feed, are infringed by the defendant’s machine.</p>

<p>1. Letthrs Patestt — Water-Closet—Infringement.</p> <p>The first claim of letters patent No. 155,814, for an improvement in water-closets, construed not to necessarily include the tube, m, as one of the elements of the combination described in it, and held, that the combination is patentable and infringed by the defendant.</p>

Libel by the Society for Distressed and Decayed Pilots against the steamship Lord Clive, to recover an amount equal to full pilotage of the vessel as a penalty for the refusal of the steamship to accept the services of a pilot. The penalty was claimed under the act of assembly of Pennsylvania of March 29, 1803, (4 Sm.

In June, 1881, the ship Mary Stewart was chartered by Reynolds Bros., of Norfolk, to load with cotton. By the charter-party, Reynolds Bros, agreed to furnish and pay for the stevedoring, and the ship agreed to furnish the tackle necessary for loading. The officers of the ship had no control over the manner in which the stevedoring was carried on, but the ship was entirely under the control of the stevedores while loading. The ship furnished a three-inch rope.

In Admiralty. The Bonnie Lee was a passenger and freight steam-boat, making regular trips on the Mississippi and Red rivers, between New Orleans and Shreveport, Louisiana; was owned by Noah Sooville, and was being run, under charter, by the New Orleans & Red River Transportation Company. Jefferson B. Posey was the second clerk of the boat. On August 7, 1880, in accordance with the usual public advertisements, the Bonnie Lee left New Orleans, bound for Shreveport.

Action in rem for salvage. The libel alleged that the Yallette dry-dock, lying in liew Orleans, on the right bank of the Mississippi river, was run into by a steam-ship that was about leaving port, and was considerably damaged and left in great danger of sinking. The steam-tugs of libellant and others came and rendered assistance by pumping, which saved the dry-dock, and they were therefore entitled to salvage.

<p>1. CHARTER-PARTY — REPRESENTATIONS IN.</p> <p>Tlie representation of the registered measurement of a vessel in a charter-party is to he taken as merely descriptive, when the evidence shows that it was known to neither of the parties at the time the contract was entered into, and neither party was entrapped or mislead thereby, and when the contract, taken as a whole, shows that the real consideration actuating the charterers was the actual carrying capacity of the vessel.</p> <p>2. Same — CosfSTBUOTios op.</p> <p>The court will not, at the instance of a party, construe a contract so that it would be necessarily void at the option of said party, if it does not apjjear that both parties intended it should be so construed.</p> <p>3. Same — Measure op Damages for the Violation op.</p> <p>The amount of damages to be awarded for the violation of a charter-party must be estimated by the rules of the commercial and admiralty law, and be the actual damages suffered, and not- the amount of the stipulated penalty, although that might be the measure of damages under the law of the place where the charter-party was made.</p>

<p>1. Collision — Duty on Steamer on Approaches® Tug and Tow.</p> <p>Where a steamer is approaching a tug and tow in a dangerous part of a narrow stream both are hound to exercise special vigilance and caution. The steamer has'no right to proceed unnecessarity, so as to be set possibly by the tide upon the tow’s side of the stream, but should stop betimes, if need be, to allow the tow to pass.</p> <p>2. Same — Tu® and Tow — Duty on — Danger Signals.</p> <p>A tug and tow being in a bend of a narrow stream, and upon the side towards which the tide directly sets, should not occupy unnecessarily the full half of the stream. If they do so, the tug is bound to give danger signals upon the first indication of possible collision, and to change her course betimes and give way as much as possible, and stop if necessary.</p> <p>3. Same — River Navigation — Both in Fault.</p> <p>Where the steam-tug B. B. was coming down the Raritan river against a flood tide with a tow of 14 loaded canal-boats, in all about 95 feet wide by 300 feet long, attached to the tug by hawsers 40 fathoms in length, and was in a bend of the river from 350 to 400 feet wide on the side towards which the flood tide was setting from a straight reach below the bend, and the steamer A. was coming up the river with the tide, each having proper lights and duly signalled by the other when half a mile apart to keep to the right, and where each kept on in full view of the other’s lights, and both ported at about the same time, but too late to avoid a blow from the tug upon the port quarter of the steamer, whereby the course of the latter was so changed as to carry her with the tide against the tow, whereby one of the canal-boats was sunk: Held, — upon contradictory testimony as to the place of the collision in the stream, each vessel claiming that she was hugging her own side of the river, — that the tow fully covered her own half of the stream, and that both the tug and steamer were in fault.</p>

In Admiralty. Action for seaman’s wages. This action yras brought by the libellant (colored) to recover his wages as cook on board the ship Paul Revere, on her voyage from New York to Yokohama and back, from June 24 to September 24, 1879.

Charge of Judge Cox, of the District of Columbia, delivered on the twenty-fifth day of January, 1882, in the celebrated case of Charles J. Guiteau for the assassination of James A. Garfield, late president of the United States, on the second day of July, 1881. Plea of insanity. Yerdict: Guilty.

<p>1. Removal of Causes — Jurisdiction, When Attaches.</p> <p>Where a removal is authorized, the parties being citizens of different states, the matter in dispute exceeds $500, exclusive of costs, the petition is in due form, and a bond executed and filed, jurisdiction ceases in the state court and attaches here, and all further proceedings in the state court are coram. non judiee.</p> <p>2. Same — Jurisdiction over Incidents'.</p> <p>The jurisdictional limitation to $500 has reference to the sum in dispute between the plaintiff and defendant, and the right of applying creditors to come in and have their claims adjusted and allowed is a mere incident over which this court will necessarily exercise jurisdiction.</p>

<p>In Equity. On demurrer to bill.</p>

In Equity. In the case of the Southern Express Go. v. St. Louis, Iron Mountain & Southern By.

In Equity. Bill for relief. This bill, brought by.Christine J. Burgess, of Providence, Rhode Island, against sundry citizens of Massachusetts, charged that the defendants Graffam and Newhall severally obtained judgments against her, in Massachusetts, upon pretended debts not justly due them, of $28 and $30, respectively, with costs; and that they and the attorney and deputy sheriff, and the other defendants, conspired to deprive her of a house and land in Melrose, used by…

<p>Motion for new trial.</p>

<p>1. Agency — Accounting with Principal.</p> <p>Whore in an accounting with the principal an agent sells the property of his principal under instructions, at various dates, upon a fluctuating market, the subsequently placing all the sales as of one date is improper, and he will be liaable to his principal for the balance between what he received and what he accounted for.</p>

The plaintiff, in his petition, states that Phillip H. Worley, deceased, died on or about the twenty-second of October, 1880, intestate, and that the plaintiff is the duly-appointed administrator of his estate; that the defendant is a corporation organized and existing under the laws of Illinois; that among the papers of decedent were two policies or certificates issued by the defendant, whereby the defendant agreed and contracted to pay to the devisees of said decedent,…

At Law. On motion for a new trial. This is an action at law upon a policy of fire insurance to recover damages for the destruction by fire of a certain building.

<p>On Demurrer to a Plea in Abatement.</p>

<p>1. Doties — Limitation of Action to Recover — Notice to Importer of Decision of Secretary.</p> <p>Under section 2931 of the Revised Statutes the importer is not entitled to notice of the decision of the secretary upon an appeal from the collector, and the limitation of 90 days within which the importer may commence an action under said section to recover duties alleged to have been illegally exacted commences to run from the date of said decision, and not from the time the importer may have knowledge of it.</p>

<p>Motion for a New Trial.</p> <p>These causes being of a like nature were, by order of court, tried together.</p>

This was a motion pendente lite to restrain Thomas T. Crittenden, governor of the state of Missouri, from selling, or advertising for sale, the Hannibal & St. Joseph Eailroad.

<p>1. Practice — Interpleader—Deposit op Amount Claimed.</p> <p>Tho provision of section 820 of the New York Code of Civil Procedure, whereby a defendant against whom an action upon contract is pending may, before answer, upon proof that a person, not a party to the action, makes a demand against him Cor the same debt, be discharged from liability to either by paying into court the amount of the debt, has been adopted into tho practice of the United States courts for the districts of New York, under section 914 of the Revised Statutes of the United States.</p> <p>2. Same — Jurisdiction—Subsequent Action in State Court.</p> <p>The jurisdiction of a United States court in an action pending in it, after notice of motion by defendant for an order to substitute as defendant a person making a demand for the same debt as that sued for in the action, and to release tho defendant, upon his paying into court the amount of the debt, from liability to either that person or the plaintiff, cannot be affected by a subsequent action brought in a state court by such person against the defendant.</p>

<p>1. Attachments — Section 915, Rev. St. — Constructive Service.</p> <p>Under section 915, Rev. St., in actions for tbe recovery of money only, tbe United States courts are authorized to issue attachment and garnishee process only where the court has acquired jurisdiction of the person of the defendant. As to what effect the adoption by the court, by general rules, of the attachment laws of the state in which it is held would have, where such laws authorized constructive service in such cases, qumre.</p> <p>2. Same — Sections 739, 915, Rev. St. — Case Stated.</p> <p>In an action for the recovery of money only, on a promissory note, commenced in the southern district of Ohio, by a resident of that state, against a resident of the state of Texas, the defendant not having been found and served within the district, but the petition alleged' that the defendant had property and credits within the districts, and attachment and garnishments were issued therein, held, (1) that under section 739, Rev. St., the action could not be maintained in that district; and (2) that under section 915 the court had no power to issue attachments or garnish - tics.</p>

<p>Motion for Stay of Proceedings.</p>

On Error to the District Court. I. The court erred in privately communicating with one of the jurors while they were deliberating upon their verdict. Wharf. Cr. Pr. (8th Ed.) §§ 714, 830; 2 Grah. & Wat., ISTew Trials, 360; State v. Alexander, 66 Mo. 148; Sargent v. Roberts, 1 Pick. 341; State v. Patterson, 45 Yt. 308; Taylor v. State, 42 Texas, 504. Authorities to the next point also cited. II. The court erred in denying the defendant’s motion to have the jury polled. 3 Bl.

<p>1. Membership in Corporation as Assets.</p> <p>Membership in a corporation, organized for business purposes, is property which passes to the assignee in bankruptcy, under sections 5044 and 5046 of the Revised Statutes, and which creditors of a bankrupt are entitled to have applied to the payment of their debts.</p>

<p>1. BANKRUPTCY — RESIDENT ALIENS.</p> <p>Resident aliens may take the benefit of the bankrupt act.</p> <p>2. Sam — Insufficient Grounds for Withholding Discharge.</p> <p>Omissions from the schedule or inventory which were unintentional, the result of an oversight or mistake, and not wilful, should not bar a discharge.</p> <p>3. Same — Payments through Inadvertence.</p> <p>Payments made to employes several days before filing the petition, through inadvertence or a mistaken sense of duty, should not deprive bankrupts of their discharge. So payment of attorneys’ fees is not such a preference as will prevent a discharge.</p> <p>&. Same — CONVEYANCES jn Absence of Concealment.</p> <p>Conveyances oí stocks made by bankrupt to Ms wife, long before bankruptcy, and in the absence of concealment, are no ground for withholding a discharge.</p> <p>5. Same — Violation of Provisions of Bankrupt Act — Evidence.</p> <p>Where the estate of the bankrupts yields a large percentage of the indebtedness, and where the only evidence adduced by the opposing creditors is the examination of the bankrupts before the register, the court should be clearly satisfied, upon the proof submitted, of the violation of the bankrupt act before withholding a discharge.</p>

<p>In Bankruptcy.</p>

<p>In Equity. Reissue of patent.</p>

Final Hearing on Pleadings and Proof. Bill for injunction against infringement of letters patent No. 215,-679, dated May 20, 1874, for a new and useful apparatus and improvement in processes for making beer. The answer denied both the novelty and the infringement.

<p>In Equity. Motion for injunction.</p>

<p>In Equity. Petition for preliminary injunction.</p>

<p>1. Collision.</p> <p>A steamer witli a long tow, about to pass another steamer, also with a tow, is bound to avoid the latter.</p> <p>2. Same — Lookout.</p> <p>Steamers navigating on the thoroughfares of commerce are bound to have a lookout, independently of the helmsman.</p> <p>3. Same — Lights.</p> <p>Steam-vessels, “ when towing other vessels,” must exhibit two bright white mast-head lights vertically, in addition to their side lights; and all vessels, whether steam or sail vessels, when lying at anchor in roadsteads or fair-ways, must exhibit a white light in a globular lantern at a height not exceeding 20 feet above the hull. In navigation a vessel aground is in circumstances similar to a vessel at anchor, and a steamer aground should exhibit the single light required of steamers at anchor.</p> <p>4. Damages Divided.</p> <p>Where both steamers contributed to the collision the damages will be divided.</p>

The steam-ship Glenbervie, having brought a cargo of fruit from Italy to New Orleans, under a charter-party providing that she should be discharged with customary dispatch, her owners instituted this suit against the consignee to recover demurrage for unusual and unnecessary detention in discharging, and for sundry items of charges made against her by the consignee in settling for the charter-money.

<p>1. Etomovau OR Cause — Showing Required.</p> <p>It must affirmatively appear on the record, or hv facts in the petition, that the case could not have been heard and tried at a term before the application was made.</p> <p>2. Same — Consturction or Section 3 oe Act or March 3, 1875.</p> <p>The construction of the statute is that if the case is in a condition where it can be tried in conformity with the law and the practice of the court, then an application after tiiat term in which it is in that condition comes too late</p> <p>3. Same — Application under Act op 1867.</p> <p>The statute of 1867 does not permit a citizen of the state in which a suit is brought to make application to remove on account of prejudice, but only the citizen of another state, where the suit is between such citizen and the citizen of the state in which the suit is brought.</p>

Demurrer to Bill in Equity. The bill was filed in the United States circuit court for the eastern district of Pennsylvania by Samuel D. Earns and George 0.

<p>1. Removal op Cause — Remand.</p> <p>When the jurisdiction of this court is not clear, from the facts as presented, as to whether one of the defendants, a citizen of the same state as the plaintiff, is a necessary or only a formal party, and there is not a controversy wholly between citizens of different states and which can be fully determined as between them, the case will be remanded to the state court.</p>

<p>1. Conte act of the Republic of Texas — Teust.</p> <p>The contract, made hy the republic of Texas, acting by Samuel Houston, president, on the eighth of January, 1844, with Charles Fenton Mercer, was valid and binding on the republic. That contract created an express trust in favor of Mercer and his associates, of all the unlocated lands then lying within the limits fixed by the contract, to secure the performance of the contract.</p> <p>2. Annexation of Texas.</p> <p>By the compact of annexation the state of Texas assumed all the obligations, liabilities, and duties, including those resulting from the express trust, theretofore bearing on the republic of Texas, in relation to said contract with Mercer.</p> <p>S. Contract — Teust.</p> <p>Under the constitution of the United States, and the resolutions and compact of annexation, the state of Texas has been and is without power, by any law, to impair the obligation of the said contract, or the trust resulting therefrom.</p> <p>4. Statute of Limitations — Trustee.</p> <p>Neither lapse of time, nor any defence analogous to the statute of limitations, can be set up by the trustee of an express trust as a defence to his ability to execute the trust.</p> <p>Hanooek Y.WaUh, 3 Woods, 351, followed.</p> <p>C. CbrtAxn Proceedings and Judgment Void.</p> <p>The proceedings had and the judgment rendered in the district court of Navarro county, in the years 1847 and 1848, wherein A. C. Horton, acting governor, for the benefit of the people of Texas, was plaintiff, and Charles Fenton Mercer and associates, unknown, were defendants, were absolutely null and void for want of legal notice to the defendants.</p> <p>6. Texas — Contracts—Trusts.</p> <p>The state of Texas, by law, has never repudiated the contracts with Mercer, or the trust resulting therefrom.</p> <p>7. Equity Jurisdiction — Injunction.</p> <p>The court of equity has jurisdiction to prevent, by injunction, the waste, alienation, or destruction of a trust estate.</p> <p>8. Jurisdiction of Federal Courts.</p> <p>While the circuit courts of the United States have no jurisdiction to entertain a suit against a state of the Union, they have jurisdiction of, and will entertain a suit brought by, a proper party against an officer of a state who, under color of 'his office, but without lawful authority, is wasting, alienating, or destroying a trust estate, although the state may be the trustee and remain silent.</p> <p>Davis v. Gray, 16 Wall. 203.</p> <p>9. Same — Equity Pleading.</p> <p>In such a suit, where the state is no party, and yet is declared to be the trustee of an express trust, the defendant is without right or interest to plead in defence a repudiation by the trustee, to shield himself from unlawful conduct.</p> <p>10. Same — Specific Performance — Decree for Title.</p> <p>Where the relief asked is in the nature of specific performance of the contract, or, at least, a decree for title, it is imperative that'the party required to perform, or who holds the legal title, should be before the court ; and such party, who is in this instance the state of Texas, not being a party to these proceedings, this court has no jurisdiction to grant such relief.</p>

<p>1. Capital Stock.</p> <p>Stock in an incorporated company in Louisiana is property, and not a credit; and it is transferable and salable by actual contract thereto, and a delivery of the certificate.</p> <p>Smith v. Slaughter-house, 30 La. Ann. 1378.</p> <p>2. Same — Pledge—Liens and Privileges.</p> <p>It can, therefore, be pledged by contract and the delivery of the certificate, and when pledged in this manner the pledgee takes it subject to all the liens and privileges the law puts upon it; but no lien or privilege can attach except by or under operation of law.</p> <p>3. General Incorporation Law.</p> <p>The charter of a company, formed under the general incorporation law, cannot create any privilege unknown to the law of the state, unless the power was expressly given in the general law, which it is not.</p>

In Equity. Decision upon defendants' motions to strike replications from the files, and to dismiss bill of revivor, and upon complainants’ motion to withdraw replications, and amend bill of re-vivor.

Action for damages alleged to have been sustained in consequence of the defendant building a dike extending into the Mississippi river. Upon the trial of this case, without the intervention of a jury, the court finds the facts to be: ,. That prior to 1874, and for several preceding years, the current of the Mississippi river was constantly eroding the east river bank, owned by the plaintiff.

Action of Contract. The plaintiff sued as receiver of the Dodge & Stevenson Manufacturing Company, a corporation established under the general laws of New York, having its principal place of business at Auburn, in Cayuga county.

<p>1. INSURANCE — PRELIMINARY PROOFS — ARBITRATION.</p> <p>The conditions in a policy of insurance requiring preliminary proofs, and a reference to arbitration in case of difference, are conditions precedent to suit upon the policy.</p> <p>2. Same — Delay for Payment after, Preliminary Proofs.</p> <p>The clause providing that “ payment of any loss or damage shall be made within GO days after satisfactory proof thereof shall have been made to the company,” moans that suit cannot be maintained until GO days after delivery of preliminary proofs, which are or should be accepted as satisfactory; and a suit commenced before the expiration- of said 60 days is premature, and the commencement of a suit is the issuance of process, not its service upon defendant.</p> <p>3. Same — 'Examination of Insured.</p> <p>An examination of the insured under oath is consistent with a demand improper preliminary proofs.</p> <p>4. Same — Waiver of Defects in Preliminary Proofs.</p> <p>The insurer who rejects as defective preliminary proofs without specifying the defects, hut refers the insured to the condition of the policy which defines wliat they must contain, with a notice that he insists upon an exact compliance with that condition, waives no right to urge the defects in such proofs.</p> <p>5. Same — Same.</p> <p>The policy requiring the insured to furnish as particular an account as the nature of the case will admit of, will not be complied with by a statement in which there is not even an attempt made to enumerate the articles lost, or to give their kind or value; and a reference to the books and invoices of the insured, even when they had been in the possession of the insurer after the loss, will not bo sufficient, as it is the duty of the insured to make out the particular statement.</p> <p>6. Same — Arbitration Clause.</p> <p>The arbitration clause, which requires the award of arbitrators as to the amount of damages, is a valid contract, and a compliance or attempted compliance with it is a condition precedent to suit.</p> <p>7. Same — Sufficiency of Preliminary Proofs.</p> <p>The sufficiency of preliminary proofs, there being no question of waiver involved, is a question of law for the court, and not a question of fact for tho jury-</p>

<p>1. CONSTITUTIONAL LAW — STATE TAX ON ALIEN PASSENGEBS.</p> <p>The act of the legislature of the stale of New York, passed May 31,1881, and known as chapter 432, Laws 1881, which provides that a tax of one dollar be levied upon every alien passenger who shall come by vessel from a foreign port to the port of New York, and that out of said tax the commissioners of emigration of Now York shall expend all such sums as may be necessary to enable '.hem to execute the inspection laws of the state of New York, with the execution of which they are or may bo charged, which inspection laws have reference to the examination of said passengers, and that any balance of said tax shall be paid into the treasury of the United States, is a regulation of commerce with foreign nations, and as such is unconstitutional and void.</p> <p>2. Same — Same—Inspection Laws.</p> <p>Such act cannot be maintained under article 1, § 10, of the constitution of the United States, as a law laying a duty on imports to execute an inspection law. “Imports” and “inspection laws,” within the meaning of that section, have reference solely to merchandise, and do not include persons.</p> <p>Henderson v. The Mayor, 92 U. S. 239, cited and applied.</p>

<p>1. Statutes of Limitation.</p> <p>Where the laws of a state provide that “when a cause of action has arisen in a state or territory out of this state, or in a foreign country, and by the laws thereof an action cannot ho maintained by reason of the lapso of time, an action thereon shall not be maintained in this state,” the removal of a debtor into this state, after a residence in another state sufficiently long to avail himself of the bar of the statute of that state, will not revive the cause of action in this state.</p>

In this case a rule for retaxation of costs was granted*upon a motion founded upon an affidavit of the defendant, who had pleaded guilty. A copy of the rule was duly served upon the marshal, and he filed an answer in support of the costs as taxed, and the matter was heard in open court.

In Bankruptcy. Exceptions to register’s report upon an application for discharge. One of the specifications against the discharge was that the bankrupt had not delivered to the assignee a horse, phaeton, and harness belonging to him. On this point the register reported as follows: “The horse, phaeton, and harness are also charged as being the bankrupt’s property, and not delivered to the assignee. Of this the bankrupt says: ‘The horse called ‘Major,’this my daughter claimed.

Hearing on Bill, Answer, and Proof. The material facts of the case, as shown by the evidence, were as follows: The firm of E. & C. Stokes failed on January 18, 1878. Eof a number of years they had received goods on storage from various persons, and had issued warehouse receipts therefor. At the time of their failure the Philadelphia Warehousé Company held a number of these warehouse receipts, on which it had made large advances.

In Bankruptcy. Exception to report of register upon application of bankrupts for discharge. The discharge was resisted on the ground of unreasonable delay in applying for it. On this point the register reported as follows: “A petition was filed against the bankrupts November 17, 1873, and in January, 1874, John Dobson was appointed assignee. He does not appear from the record to have accepted the trust, although an assignment executed by the register is among the papers.

<p>On Bevlew from the District Court.</p>

Exceptions to master’s report in three cases — two of them by the Bigelow Carpet Company, for infringement of letters patent Nos. 10,870 and 10,778, for designs for carpets; and the third by the Hartford Carpet Company,'for infringement of letters patent No. 11,074, for designs for carpets. The respondents had made no defence, and final decrees haying been entered against them, the cases were referred to a master to ascertain and report the damages.

<p>The facts are set forth in the opinion of the court.</p>

Action for damages for a collision which occurred in Mobile hay on the fifth of January, 1878, between the sloop-smack Charles Henry and the steam-ship Alabama, both being under way. The defence alleged that the smack did not have a proper watch on deck; did not have her lights properly set and screened; and did not have the torch-light at her bows, as required by the laws of navigation.

<p>1. Collision — Division of Damages.</p> <p>Where, in case of a collision between two vessels, there is mutual fault, the damages should be equally divided between the owners.</p> <p>2. Same — Measure of Damages — Repairs—Detention.</p> <p>The damages to he divided in such cases are those necessarily resulting from the collision. If repairs are necessitated their actual cost should be taken into account. If the injured vessel is hound on a voyage and is detained by reason of the collision, the loss from detention also constitutes part of the damages.</p>

<p>1. InjuRed Seaman — "Wages oe, etc.</p> <p>Jn case oí injury by fault or negloct of officers, the seaman is entitled to full wages until restored, and reimbursement for keep and -medical attendance. But when he is sent to hospital, without expense to himself, no allowance can be made for keep and medical attendance.</p> <p>2. Same — Passage Home.</p> <p>In such a case, where the seaman is sent to a hospital in a port other than that at which he was shipped, he is entitled to his passage home, or the cost thereof.</p>

<p>In Admiralty. Petition for leave to become co-libellants.</p>

<p>Motion to Bemand.</p>

<p>Motion to Bemand.</p>

<p>1. Jurisdiction of Circuit Courts — Transfer of Negotiable Paper to Give Jurisdiction.- •</p> <p>Where a citizen of one state transfers mortgage notes held by him to a citizen of another state, or a foreigner, who thereupon, by virtue of his citizenship, brings suit upon the same in a circuit court, the circuit court will take jurisdiction of such a suit, although the transfer was made for the purpose of giving the court jurisdiction, provided such transfer be not accompanied with an agreement to retransfer the property to the grantor after the termination of the litigation. The court, in the absence of such agreement, will not inquire into the motives which induced the transfer.</p> <p>De Lmeaga v. Williams, 5 Sawy. 574, followed.</p>

<p>1. CORPORATIONS— GUARANTY Olf DlVIDWlYD — PoWHR OB’ DTRTCCTORS.</p> <p>An agreement between two corporations, wliereby one guaranties the other a certain specified annual dividend on its capital stock, is not a guaranty to its stockholders severally, hut to the corporation, and the power to modify the terms of such guaranty is in the directors of such corporations, not in the stockholders. Where such power is fairly exercised by the directors, in view of all the circumstances, and in good faith, a court will not interfere, even though, on the same facts, it might have arrived at a different conclusion.</p>

The complainant in this bill asserts title as against the respondents to certain lands in Osceola, Dickinson, and O’Brien counties, in the state of Iowa, amounting to 189,184.59 acres. The controversy concerns the overlapping or conflicting limits of two congressional railroad land grants made in the same act without express priority.in or provision for the disposition of the overlapping lands.

Suit by plaintiff against defendant, B. Gf. Lockett, on a promissory note for @6,000. It was payable to order of Macon Bank & Trust Company, and indorsed to plaintiff by J. W. Cabaniss, cashier.

Motions for a New Trial. Separate judgments having been rendered against each of them, both of the defendants in the above-entitled causes move for a new trial. The motion of the Union Railway & Transit Company assigned as error: (1) That the verdict is unsupported by the evidence, but is contrary thereto, and is against the evidence and the weight of evidence. (2) That the verdict is for the plaintiff, whereas it ought to have been for the defendant.

Eule for Contempt. The relator recovered a judgment in the circuit court of the United States against Lauderdale county for $25,664.32, interest and costs, On bonds and coupons issued by the county in aid of the Memphis, Paducah & Northern Eailroad, which judgment was affirmed by the ■supreme court.

<p>1. Cbiminai. Law — Information under Section 5480 of the Revised Statutes— Scheme to Defraud.</p> <p>The sending through the mail of a letter calculated to induce the purchase of counterfeit money at a low price, for the purpose of putting it off as good money, constitutes an offence such as is created by section 5480, ReV. St., notwithstanding the absence of evidence showing an intention to defraud any particular person.</p> <p>2. Same — Same—Corpus Delicti — Admissions by Defendant.</p> <p>The gist of the oil'ence is the abuse of the mail. The mailing of the letter and the letter itself, showing its unlawful character, constitute the corpus delicti. That defendant was the sender, may be proved,by his admissions to that effect.</p> <p>3. Same — Same—Evidence as to Handwriting.</p> <p>It is not allowable to permit the jury to inspect a copy of such letter, made hy the accused in their presence, for the purpose of comparing the handwriting. To allow this would be to permit the accused to make evidence for himself. Nor can the evidence of an expert, not proven to be acquainted with the handwriting of the accused, he received as to whether such letter and copy were in the same handwriting.</p> <p>4. Same — Evidence of Handwriting — State Statute.</p> <p>The statute of a state permitting a comparison of writings for the purpose of determining handwriting, has no effect upon criminal proceeding's in the courts of the United States.</p>

<p>1. LuTTiais Patent — Pitching Barrels — Infringement.</p> <p>The transfers of the title to tlie patent granted to Gottfried & Holbecfe May 3, 1864, for a now and improved mode of pitching barrels, traced from the transfers of tlie original paionte.es to 1he Iransfer of date December 15, 1879, from Stromberg to Gottfried. Held, so far as hero shown, that Gottfried's present source of title is this transfer from Stromberg of date December 15, 1879 ; and that, therefore, he cannot prosecute a suit for infringement against one to whom Stromberg sold a machine, November 25, 1872, containing tho patented improvement, because privy to Stromborg’s prior grant; as Stromberg cannot prosecute a suit against such prior grantee neither can he.</p>

Upon a bill filed by complainant a final decree had been entered restraining respondents from infringing complainant’s reissued letters patent No. 8,460, for improvement in waxing paper. Deported in 9 Fed. Eep. 43. Subsequently respondents constructed another machine for making waxed paper, whereupon complainants applied for an attachment, alleging that this latter machine was within the prohibition of the decree. The facts are sufficiently set forth in the opinion.

<p>1. Rank of Liens and Mortgages upon Vessels — Rev. St. $ 4192 — Admeralty Rule No. 12.</p> <p>Section 4192 of the Revised Statutes, relative to the recording of conveyances and mortgages on vessels, gives no lien or other priority to mortgages and conveyances than they had before the act was passed, except to recorded conveyances and mortgages, over mortgages and conveyances not recorded, in certain cases. It affects mortgages and conveyances of vessels as the various registry acts of the states affect conveyances and mortgages of lands. And as, prior to this recording law, liens, whether maritime or domestic, under the maritime law or under the state law, had priority over mortgages, so now they should have priority.</p> <p>The John T. Moore, 3 Woods, 61, criticised.</p> <p>2. Same — Stake Decisis.</p> <p>But frequent decisions in the fifth circuit having held the contrary, the doctrine of stare decisis must govern in this case, and it is now held, in conformity therewith, that “the lien of a mortgage on a vessel, duly recorded according to section4192, Rev. St., is inferior to all strictly maritime liens, but is superior to any subsequent lien for supplies furnished in the home port, given by state legislation.”</p> <p>Baldwin v. TheBradish Johnson, 3 Woods, 582, followed.</p>

<p>In Equity. Application in chambers for temporary injunction.</p>

In Equity. The United States being the owner of a lot in the city of Memphis, leased it to the defendant for a term of five years at an annual rent of §2,100. The defendant erected thereon certain brick buildings, which remain on the land, and one of the covenants of the lease permitted them to he removed at the termination of the lease.

<p>1. NUISANCE — BlilDGE OYER NAVIGABLE IilVEK.</p> <p>A bridge constructed over a navigable river under tlie authority of congress and of the legislature of the state in which it is situated, in the manner authorized by law, is a legal structure, and cannot be held to be a public nuisance, or otherwise unlawful.</p> <p>2. Regulation of Commence — Powkb of Congress.</p> <p>In the exercise of its power to regulate commerce, congress may authorize the construction of a bridge over a navigable river of the United States, and it may itself approve the design or plan of its construction, or devolve that duly upon the secretary of war.</p> <p>3. Nottfication of Api’koval of Plan.</p> <p>It is competent for the secretary of war to convey notification of his approval of the design and plan of the bridge in any way which would be effectual, and notice given through a subordinate is sufficient.</p>

<p>1. INTERNAD REVENUE — ERRONEOUS OR. ILLEGAL TAXATION — INJUNCTION.</p> <p>Where a tax is assessed, upon manufactured articles liable to duty, by a person in office and clothed with authority over tlie subject-matter, its collection cannot be restrained by injunction in any court of equity of the United States, however erroneously or illegally it has been assessed.</p> <p>2 Jurisdiction and Power of Assessors.</p> <p>The power of assessing taxes on tobacco against tobacco manufacturers necessarily covers the question of quantity, rate of tax, amount of tax, and persons liable to tax, and mistakes in any of these respects are only errors, and not such absence of jurisdiction as to make the proceedings wholly null and void.</p> <p>S. Statutory Prohibition.</p> <p>Section 10 of the act of congress of March 2,1867, (14 St. at Large, 476,) amendatory of section 19 of the act of congress of July 13,1866, (14 St. at Large, 152,) contains a provision additional to the provisions of the latter statute, as follows : “And no suit for the purpose of restraining the assessment or collection of a tax shall he maintained in any court.” Id.</p> <p>4. Rights Preserved under Statute.</p> <p>Section 34 of the act of congress of March 2,1867, provides as follows : “This act shall not be construed to affect any act done, right accrued, or penalty incurred under former acts. ” Reid, that, under this section all rights are saved; hut that the right to a remedy is merely a remedy which congress could take away without affecting any “ right accrued.”</p>

<p>1. Practice — Production ov Books, etc.</p> <p>In requiring- the production of hooks or writings in evidence in actions at law, federal courts are not governed by the provisions of state statutes, but by the provisions of section 721, Rev. St.</p> <p>2. Same — Discretion or Court.</p> <p>In ordering the production of books, etc., in evidence, the court will exercise its discretion, following the practice, in such cases, in chancery.</p>

This is a civil action to recover land. The evidence and the legal questions presented in the argument are stated in the charge of the court.

This was an action on the official bond of James E. Roberts, as Indian agent, upon vouchers disallowed by the accounting officers in the settlement of his accounts. Amount claimed, $693.38. The defence was that all money received by him had been lawfully expended, and that ,the vouchers were improperly disallowed.

<p>1. Statute op Limitations.</p> <p>Coupons detached from bonds are substantially copies of and partake of the nature of the bonds from which they are detached, and the statute of limitations which applies to them is the one which relates to sealed instruments. Hence they are not barred by lapse of time short of 20 years.</p>

<p>1. Crimes — Retaining Pension Monet — Who Liarle.</p> <p>To be liable under section 5485 of the Revised Statutes for tho crime of wrongfully withholding from a pensioner the whole or any part of the pension allowed,, it is not necessary that the defendant is tho regular attorney for tho pension claimant, recognized as such at tho pension office. If ho be an agent or at i orney, or any other person, it is sufficient.</p> <p>2. Commissioner oe Pensions — Rinding Conclusive.</p> <p>Where the commissioner- of pensions liad passed upon the claim, and found claimant to he entitled to the pension, and had directed it to be paid, such finding is conclusive as to the rights of tho claimant.</p> <p>3. Evidence — Statements oe Witness — Credibility.</p> <p>Statement of a witness, made before trial, of facts which, if true, would lend to show bias on his part in favor .of the defendant, are properly admissible in evidence as to his credibility.</p> <p>4. Testimony oe Party to Record — Practice.</p> <p>To exclude a party to the record as a witness for the defendant, not only must objection ho made for incompetency, hut such objection must be sustained by tho court at the trial.</p> <p>5. Weight oe Evidence — Province oe Jury.</p> <p>The jury, in weighing the testimony of tho defendant when he stood contradicted by two witnesses, may consider the circumstance of tho omission to call as a witness one who, as the evidence showed, was fully able to confirm his testimony, if it was true, without assigning any reason foe such omissice.</p>

<p>1. Copyright.</p> <p>An advertising card devised for the purpose of displaying paints of various colors, consisting of a sheet of paper having attached thereto square hits of paper painted in various colors, each square having a different color, with some lithographic work surrounding the squares advertising the sale of the colors, is not the subject of a copyright.</p> <p>2. Method.</p> <p>The exclusive right to employ a particular method of advertising wares cannot he acquired under the copyright laws.</p>

<p>1. Patents — ImpkovemeNts—Salt Bottle.</p> <p>A patent for an improvement on a prior invention is infringed by an improvement on a later patent if it contains the distinguishing characteristic oí the prior invention.</p>

<p>1. AdmiRALty Practice — Conflicting Testimony.</p> <p>Where the testimony of the libellant and the ship’s officers conflicts, and one of the officers of the ship is not examined on the points in dispute, that circumstance goes to the discredit of the ship’s officers.</p> <p>2. Same — Testimony of Experienced Mariners, Grade of — Weather Reports of Signal Service.</p> <p>The testimony of experienced mariners, of approved credibility, as to the character of the weather, and the practical effect of the wind and ocean swell, or other such facts occurring at sea under their own observation, is a higher and more reliable grade of evidence than the weather reports of the signal service from observations taken on land, and will he preferred by the court in passing upon such facts.</p> <p>3. Salvage — Elements of Amount Awarded.</p> <p>The amount awarded as salvage comprises two elements, viz., adequate remuneration given by way of compensation according to the circumstances of each case; and a lounty given to the salvor for the purpose of encouraging similar exertions in future cases. The relative amounts of each of these elements given depend on the special facts and merits of each case.</p> <p>4. Same — Ingredients of Service.</p> <p>In addition to the six main ingredients of which a salvage service is composed, as announced in the case of The BlaBmaM, 10 Wall. 1, the court will take into view, as an important consideration, the degree of success achieved, and the proportions of value lost and saved; and will award a higher proportion, even on large values, in cases where both ship and cargo are saved with substantially slight injury, than in cases where only the ship or only the cargo, or only portions of it, are saved.</p> <p>5. Same — Award of — What Included in Estimate of Yalue.</p> <p>A ship on a voyage from Galveston to Liverpool was wrecked at the Virginia capes. Both ship and cargo were saved by salvors, and enabled to complete the roja,ge. One-half the gross freight to be earned on arriving at Liverpool was included by the court in estimating the value of the property saved.</p> <p>6. Same — One-Fourth Combined Value of Vessel and Cargo and Half of Freight Awarded.</p> <p>A steamer worth, with her cargo and freight, $200,000, was stranded on Cape Henry, within 100 yards .of the shore, where the currents of the Chesapeake bay, encountering those of the ocean, are often very dangerous. Salvors, with a large force of vessels, wrecking apparatus, and men, after a week of hard and dangerous labor, in which the highest degree of skill was shown, succeeded in getting ofE both vessel and cargo so successfully as to allow them to proceed on their voyage after repairs to the ship. One-fourth of the combined value of the vessel and cargo, and of half the freight, was awarded as salvage. ,</p>

<p>In Admiralty. On appeal from the district court.</p>

Motion to Dismiss for Want of Jurisdiction. The parties to the original bill in this case were James 0. Moore and James E. Yeatman, as assignees in bankruptcy of J. O’Fallon and Samuel Hatch, and George W. Hall, Peleg Hall, and Robert Aull, trustees of Hall & Hall, plaintiffs, and John O’Fallon, James O’Fal-lon, and Anna M. O’Fallon, defendants. The case was dismissed by a supplemental bill as to the assignees of O’Fallon & Hatch.

Demurrer to the Bill. The defendants demurred to the hill in this ease upon the following grounds, viz.: (1) Because it contains no matter of equity whereon this court can ground any decree or give complainant any relief as against defendants. (2) Because said bill does not show any privity between the plaintiff and defendants which would entitle it to call upon these defendants to account to it in this court.

<p>1. Foreclosure — Necessary Parties.</p> <p>In a suit by the bondholders of a railroad company holding bonds secured by a first mortgage on a part of the road and a second mortgage on the rest of the road, and praying that an account be taken of the earnings received from the different-parts of the road, and for payment of the amount due to the plaintiff, or, in default, for a foreclosure of the mortgage; and asking that a receiver be appointed, and for other relief, — the trustees of the second mortgage, under which the plaintiff claims, are necessary parties.</p> <p>2. Non-Resident Parties — Appearance, how Secured.</p> <p>If they are residents of another state, the statute of 1875, a. 137, § 8, provides for summoning all such absent parties, where there is property within the jurisdiction upon which a lien is claimed.</p> <p>3. Mortgage — Provisions of Statute Part of the Contract.</p> <p>Where a state statute provides for the rights and duties of trustees of a corporation, it relieves the parties from providing therefor in each mortgage executed under the laws of such state.</p>

<p>In Equity. Motion to set aside service of subpoena.</p>

<p>1. Equity Practice — Interrogatories nr Bill— Sufficiency of Answer.</p> <p>Under the rules in equity defendants are required to answer specifically only such interrogatories in the bill as by the note thereunder written they are required to answer; otherwise they need answer only as specifically as the stating part of the bill charges.</p>

<p>1. Deceit — Right of Action Not Assignable.</p> <p>The right of action for damages for a deceit is not assignable, and does not pass to the assignee of the bankrupt</p> <p>2. Assignment.</p> <p>As a rule, only such actions are assignable as survive the death of a person, and would go to his executor or administrator. Where there is nothing, such as would survive the death of a person, there is nothing capable of being 1 ransferred.</p> <p>3. Case Stated — Right of Action.</p> <p>Where the assignee of the purchaser from the assignees of a bankrupt of all the assets of the bankrupt remaining in their hands, brings an action for pecuniary damages arising from alleged false representations made to the bankrupt and to his assigns through which certain first-mortgage railway bonds deposited as security lor certain notes of one of the defendants were given up, held, that whatever right of action the bankrupt may have had, this chose in action did not pass to his assignees, and therefore no right of action passed to the plaintiff.</p>

<p>1. Banks — State Taxation — Returns, what Deductions Allowed — '“ Profits” Defined.</p> <p>In ascertaining tlie “amount of iirofits which, have accrued or heen earned and received ” by a bank, for which it was required to make returns by section 121 of the act of June 30, 1864, (13 St. at Large, 284,) embezzlements during the period covered by the returns may be deducted. By “profits” is meant net profits after deducting expenses and losses from whatever sources connected with the business.</p> <p>2. (Returns of Profits — Deduction of Losses nr Embezzlement.</p> <p>Where, for the years 1866, 1867, and 1868, the defendant, in making its returns, deducted the amounts paid by it for state taxes upon the value of the shares of capital stock, and required by the state law tó be paid “ out of its funds,” and suit being now brought for a duty of 5 per cent, on the amount so paid by the bank on account of the state tax, on the ground that it was unlawfully deducted from the returns made, and it appeared that the amount of losses by embezzlement suffered by the bank during each year was greater than the amount so paid for taxes and deducted from the returns, and that such losses had not been deducted, because not discovered by the bank till after the returns made and its duties paid thereon, held, that its returns being in fact fully equal to all the bank’s profit for those years, no further duty could be recovered.</p> <p>3. Judgment on Demurrer — Going Back to First Fault.</p> <p>Upon demurrer the whole record is presented, and judgment goes against the party in whose pleading there is found the first substantial fault.</p> <p>4. Pleading — Insufficient Allegations in Complaint.</p> <p>Where the complaint claimed duty for alleged insufficient returns for the year 1870, under section 121 above referred to, but did not state that the defendant had “neglected to or omitted to make a return of dividends or additions to its surplus or contingent funds as often as once in six months,” and, upon an answer claiming the right to deduct the state tax, as above stated, the plaintiff demurred to the defence for insufficiency in law, held, without passing upon this defence, that the complaint was insufficient, and judgment should be ordered for the defendant unless plaintiff amended as allowed.</p>

<p>1. Advertising for Supplies by Superintendent op Indian Appairs — Payment por.</p> <p>Tlie defendant, as superintendent of Indian affairs, published advertisements in two newspapers inviting proposals for supplies, upon tlie authority of a general order to that effect, addressed to his predecessor in office by the commissioner of Indian affairs, in which it was stated that the order was made by the direction of the secretary of the interior, and attached copies of said order to the bills for publishing such advertisements. Reid, that the publication of such advertisements was authorized by the secretary of the interior within the meaning of section 3828 of the Revised Statutes, and that the payment thereof was a lawful expenditure of the public money entrusted to the superintendent, and ought to be allowed in his accounts.</p>

Action of Tort for Libel. On demurrer. The defendants published in their newspaper, the Boston Daily Advertiser, an article concerning an attempt of Edward Crane, the plaintiff, to procure the election of directors of the New York &. Now England Bailroad Company at the then recent annual meeting.

<p>In Bankruptcy. Motion to punish for contempt.</p>

<p>1. Void Sale under Judgment for Taxes.</p> <p>A sale of lands to the highest bidder under an execution issued upon a personal judgment for taxes, recovered under the statute of California of May 17, 1861, (St. 1861, p. 471,) requiring the sale of the “ smallest quantity that any one will take and iiay the judgment,” and the tax deed issued upon such sale, are void.</p> <p>2. Mexican Grant Patent.</p> <p>A patent issued upon the confirmation of a Mexican grant under the act of congress of 1851, to ascertain and settle land titles in California in an action at law, is conclusive evidence, as against one having no patent, not only of the validity of the grant, hut of the correct location- of the claim confirmed, so as to embrace the lands as described in the patent.</p> <p>3. Patents — Decrees of Confirmation — Conflict of.</p> <p>A claim to certain small tracts of land, church buildings situate thereon, and appurtenances, was confirmed under the act of 1851; in due form surveyed and lopated under the act of 1860; and patented as so located to Joseph S. Alemany, bishop of Monterey. Another grant, of much larger dimensions, was confirmed to Eulogio de Celis, the boundaries described in the decree of confirmation, including the said lands so patented to Bishop Alemany, without any exception of said lands in said decree. The certified survey and plat of said grant subsequently approved by the order or decree of the district court, and the patent issued thereon, in express terms reserved and excepted the lands before patented to Bishop Alemany, thereby excluding them from the operation of the patent issued to De Celis. Reid, that whether the said survey.and patent rightfully or wrongfully excluded said lands, the patent was conclusive as to the title in an action at law, and the patent including the lands must prevail over the patent excluding them, and the decree of confirmation upon which it issued.</p>

<p>1. Customs Duties — Warehouse Bonds — Rishts and Liabilities of Sureties.</p> <p>Sureties in warehouse bonds given to the United States, under section 2964 of the Revised Statutes, have the same rights and liabilities as ordinary sureties, except as modified by the special laws and regulations concerning the collection of revenue.</p> <p>2. Warehouse Bonds, how Interpreted.</p> <p>Warehouse-bonds must be interpreted in reference to the statutes and authorized regulations in force belonging to the warehouse system, and in so far as by design or necessary effect they modify the ordinary rights of the sureties, they are controlling, and to this extent must be regarded as parts of the contract of suretyship.</p> <p>3. Same — Statutes, how Construed.</p> <p>Statutes not designed to affect the rights and liabilities of third parties, but only to guide the officers of the government in the performance of their duties, are to be construed as directory to them only, and as not creating any obligation to sureties, or forming any part of their contract.</p> <p>4. Same — Sale of Abandoned Goods.</p> <p>The provision in the act of August 5,1861, (12 St. at Large, p. 293, § 5; section 2971, Rev. St.,) that warehoused goods, not withdrawn within three years, “shall be deemed abandoned to the government and sold,” etc., was not designed merely for the security of the government, and to recover its duties in the particular case, but to secure in all cases, so far as possible, the prompt payment of duties within three years, and for this end to cut off peremptorily, after that period, the right of any person to pay the duties and withdraw the goods. Until the amendment of July 28,1866, (14 St. at Large, p. 230, § 10,) the policy thus enacted involved a forfeiture of any surplus value from the sale. The sale of the goods by the government, as directed, is an incident of the abandonment declared by the act, and an inseparable part of the proceeding.</p> <p>5. Surety — Bights Defined.</p> <p>A surety’s ordinary right to pay the debt and take possession of the goods at the end of three years, is, therefore, cut off by the act, and his right to pay any deficit, and proceed for indemnity against his principal, is also suspended until after the sale.</p> <p>6. Remedy by Suit upon the Bond.</p> <p>The proceeding by abandonment and sale is a substitute for the ordinary remedy upon the bond after the lapse of three years. Immediate suit by the goYernment upon the bond, before sale, would involve such inconsistencies that the common-law remedy must be deemed suspended by necessary implication until after the sale of tho goods.</p> <p>7. Right of Payment and Subrogation — When Gut Ope.</p> <p>Until after such sale the surety in a warehouse bond has at no time any right of payment, of subrogation, or snit. for indemnity against his principal, and his risk continues necessarily till that time. As the statute of 1861 forms in legal effect a part of the bond for tho purpose of cutting off his ordinary right of payment and subrogation, and of terminating his risk at the end of three years, it must also be held to form a part of the contract for the purpose of fixing the time when the suspension of his ordinary rights shall cease.</p> <p>■8. Contracts op Sureties, how Interpreted.</p> <p>Contracts of sureties are interpreted striatissimi juris as respects the subject-matter or the duration of their risk, and any change in either, without the sureties’ assent, operates as a discharge.</p> <p>9. Sabe op Abandoned Goods.</p> <p>The statute of 1861 directing a sale according to the prescribed regulations of tho treasury department, the regulations so established providing for quarterly sales, and the sale of the abandoned goods at tho next salo after three years, arc all material parts of tho surety’s contract, because they fix and determine the duration of his risk.</p> <p>10. Same — Postponement—Surety Discharged.</p> <p>Where, upon such goods being advertised for sale at a regular quarter-day, pursuant to the statute and regulations, the secretary of the treasury, at the request of a purchaser of tho goods in bond, intervened by order, and directing a postponement of the sale until further orders without the surety’s consent, held, that the latter was discharged. Semble mere delay by the officers of the government in selling as directed would not discharge a surety, the government not being answerable for mere laches of its officers.</p> <p>11. Same — Defect op Were Debay.</p> <p>Mere delay by a creditor in disposing of his securities, unless specially requested by the surety to proceed, is no defence; if so requested, it is a defence only to the extent of the damages proved.</p> <p>12. Same — Importer not Discharged by Postponement.</p> <p>The importer being liable as principal, and not being in the situation of a surety having- a right of indemnity against any other principal, held not discharged by the postponement of the sale.</p>

<p>Motion for leave to file and serve a bill of exceptions nunc pro tunc.</p>

On Demurrer. An action was brought on a parol contract, made by the defendant in Connecticut with the plaintiff, at the time residing there, but whom the defendant had the year before seduced in the state of California. In consideration of the seduction the defendant promised to pay the plaintiff annually during her life, for her board, the sum of $500, in monthly payments, and also such sums, not exceeding $500 a year, as should be necessary for her clothing.

<p>Motion to Set Aside Yerdict.</p>

<p>1. Practice — Extension on Time to Take Testimony.</p> <p>The time to take testimony extended, where such testimony, if admissible under the answer, applies equally to other cases in which the time to put in proofs had not expired.</p>

<p>1. Letters Patent — Shade-Holders eor Lamps — Construction of.</p> <p>Reissue 7,511, granted to B. B. Schneider, February 13, 1877, for an “ improvement in shade-holders for lamps,” held to be limited to the particular form of shade shown in the drawings, as nothing is said in the specification or claims as to the shape or size or proportion of the parts of the shade.</p>

<p>1. Letttsks Patent eoe Designs — Test oe Identity.</p> <p>Tlie true test of identity between two designs is their sameness of effect upon the eye of an ordinary observer, bringing to the examination of the designs that degree of observation which men of ordinary intelligence give.</p> <p>2. Same — Evidence oe Identity — Compahison jby Count.</p> <p>Where, in a suit upon design patents, the only proofs introduced were the patents and the alleged infringing article, held, that the designs being of a simple character, the absence of testimony as to identity did not make it improper for the court to compare them and determine the question of identity from such comparison.</p> <p>Semble this practice is not to he extended to all patents for designs.</p>

In Equity. Demurrer to bill, The plaintiff, .by bis bill, alleges— “ That heretofore, to-wit, on the first day of January, A. D. 1880, your orator, by virtue of mesne assignments duly recorded in the patent-office of the United States, became and now is the sole owner of all right, title, aird interest in and to certain letters patent of the United States, within and for the state of Missouri, on an improved lantern; that on the tenth day of January, 1880, he licensed the…

<p>1. Patents — Improvement on G-as Stoves.</p> <p>Tile combination of a flange around the top of a burner may make a new burner and a new combination on a burner, so as to be patentable, but the patent would only cover the precise form of burner so made, and would be infringed only by a burner of that exact form, or by such a flange with some other form of burner.</p> <p>2. What not Invention.</p> <p>Perforations of annular series are mere workmanship, not invention.</p>

<p>1. Lbttbtss Patent — Baling Short-Cut Hat — Basis of Profits.</p> <p>Where the only claim oí the patent infringed was for “ pressing and binding short-cut hay into bales,” sliort-cut hay being known before, the only profits to be allowed J'or such infringement are the extra profit due to selling such hay when baled, over selling it when loose or prepared for market in other known ways. .</p> <p>2. Same — Same—Burden of Proof.</p> <p>It is the duly of the plaintiffs to give evidence separating such profits; otherwise only nominal profits can be allowed.</p>

<p>1. Design in Trimming — Infringement—Injunction.</p> <p>A design for trimming, produced by embossing on fluting machinery, confers the exclusive right to impress that appearance, and an imitation of the design -will be restrained by injunction.</p>

<p>1. Patents — Assignment—Title—Parties.</p> <p>Where an assignment is made the motive is not material. The legal title passes to the assignee, who may maintain suit for infringement without joining the patentee.</p>

<p>1. TENDER of Pilot Service.</p> <p>Semble that a tender of pilot service by a river pilot, to a vessel bound on a voyage to Portland, is not valid if made below Astoria, and before tlie vessel lias reached the pilot-ground of such pilot.</p> <p>2. Amendment of Statute.</p> <p>Semble that section 1 of the act of December 20, 1865, (Sess. Laws, p. 33; Or. Laws, p. 707, § 12,) giving half pilotage for a tender of pilot service to a vessel navigating the Columbia or Wallamet rivers above Astoria, was passed in contravention of section 22 of article 4 of the constitution of the state, and is therefore void; but if considered valid, then section 1 of the act of October 25, 1870, (Sess. Laws, p. 51; Or. Laws, p. 710, § 27,) declaring that such vessel, when “towed by a tug or steamer,” should not be required “ to take a pilot or pay half pilotage,” is also valid, and therefore a pilot is not entitled to recover half pilotage for a tender and refusal of pilot service.</p>

<p>In Admiralty. Suit in rein.</p>

<p>1. Removal op Suits — Act op March 3, 1875.</p> <p>Under the second clause of the second section of the act of March 3, 1875, (18 St. 470,) when in any suit mentioned therein there is a controversy wholly between citizens of differcnt.states, which can bo fully determined as between them, then either one or more of the plaintiffs or the defendants actually interested in such controversy may, on complying with the requirements of the statute, remove the entire suit.</p> <p>Barneij v. Latham, 103 U. S. 205, followed.</p> <p>2. Same — Warrantor.</p> <p>And one who was not sued by the plaintiff, but was brought into the suit as warrantor, on the motion of the defendant, has the same right to remove as if he had been an original defendant.</p> <p>3. Landlords and Warrantors — Sections 4788, 4789, Revised Code op Texas.</p> <p>The same rights are given landlords in suits for lands by section 4789 of the Revised Code of Texas, as in the same kind of suits are given to owners and warrantors by section 4788 of same Code.</p>

This is an action brought upon a judgment for $3,000, with interest and costs, obtained by the plaintiff against the defendant in the district court of the parish of Caddo, Louisiana, on the twelfth of April, 1879. The judgment in Louisiana was obtained on a policy of fire insurance issued by the defendant to the plaintiff, through John W. Taber, its agent at Shreveport.

At Law. Action for damages for personal injuries sustained by an employe-through alleged negligence of a railroad company. Pending on motion for new trial.

<p>1. Titus — Ejectment.</p> <p>In cases of ejectment plaintiff must recover on the strength of his own title, and that title must be a legal one. An equitable title will not suffice to maintain ejectment in this court, though it may in the courts of the state under the proceedings authorized by the stat e statutes.</p> <p>Bhdrbv/m v. De Cordova, 24 How. 423.</p> <p>2. Paktneusiiip in Lands.</p> <p>The holder by conveyance or bequest of one partner’s share in the lands of a partnership cannot maintain ejectment for it; his remedy is in equity.</p> <p>Gloyett v. Kübwrne, 1 Black, 246.</p> <p>3. Estoppel.</p> <p>The declaration of a stranger cannot operate as an estoppel upon the defendant.</p>

<p>1. Corporations — Liquidation.</p> <p>Creditors of a corporation, who are at the same time members of it, as such members have assented to the laws of the state of its creation, which control the settlement of its affairs, upon its being dissolved; i. e., they have assented that the officers by whom, and the place and manner, shall be such as the laws of that state nrovide. The effect of this contract and assent makes the territorial extent of the authority of the person charged with the liquidation co-extensive with the authority of an assignee in bankruptcy, or a receiver of a national bank, springing from the territorial effect of a national law.</p>

<p>1. NATIONAL Bank — Comptroller of the Currency — Rev. St. $ 5234.</p> <p>The comptroller of the currency has no power to compound or settle claims of a national hank against its debtors; that requires the authority of the court, under Rev. St. § 5234. Quaire, can he direct their discontinuance i</p> <p>2. National Bank — Liability of Stockholders — Rev. St. 5151.</p> <p>Under section 5151, Rev. St., owners of stock in a national bank are liable for its debts, and persons who hold themselves out or allow themselves to be held out as owners of stock, are also liable, whether they own stock or not.</p>

<p>1. Horse-Racing — Negligence—Foul Rtding — Liability op Owner.</p> <p>The owner of a horse entered for a race takes all the risks incident to the race; and if a horse is intentionally fouled, or purposely runs against or interferes with a competing horse in the race by the rider, the employer of such rider is liable for damages for any injury which results.</p> <p>2. Same — Foul Riding, What ts — Riders—Rule op Butt.</p> <p>If a jockey attempts to take the track ahead of another horse before his horse is a clear length ahead of the other horse, or if he crowds the other horse, so as to impede him, or compels his jockey to hold him in, or change his course to avoid a collision, it would be foul riding; and the fact that the rider who attempts a foul runs as great risk to himself and his horse as he imposes on his competitor, will not justify him in attempting a foul.</p> <p>3. Trial — Conflict op Evidence — Province oe Jury.</p> <p>In case of a conflict of evidence the credence to bo given to the testimony of a witnesses for the jury to determine.</p> <p>4. Measure op Damages.</p> <p>In an action for damages for the death of a horse, caused by the collision of a competing horse in a horse-race, the damages must be estimated at what is shown by the evidence to have been the value of the horse killed.</p>

Indictment for Deprivation of Civil Bights. It charged that one John Bun tin deprived James H. Vines and others, children of Jacob H. Vines, of a right secured by the constitution and laws of the United States, to-wit, the right to attend the only public school situated in a certain subdistrict in Washington township, Clermont county, Ohio; said children being entitled to attend said school, and said Buntin then being the teacher of said school, and excluding said children…

<p>1. PATENTS — OPERATION OF DEVICES.</p> <p>Where the plan of operation in two sots of devices, intended to produce the same result, is radically different, the one is not an infringement on the other.</p> <p>2. Same — Methods Simtdar — Infbin&bment.</p> <p>Where the method pursued by a subsequent invention is substantially the same as that under a prior invention, it is an infringement.</p>

<p>1. Letters Patent — Improvement in Neck-Ties — Reissue—New Matter.</p> <p>The specification of reissue No. 7,909, granted October 9, 1877, for an “ improvement in neck-ties,” is an effort to enlarge the scope of the patent beyond what is warranted by the original; and the second claim thereof, if construed to mean anything more than the original, covers new matter,</p> <p>2. Same — Same—Same—Construction of.</p> <p>Such reissue must be limited to but two ways of fastening the pin to the shield of neck-ties, — (1) by rivets passing through the body of the pin and headed,, and (2) by rivets punched out of the body of the pin and bent over or clinched on the shield, — and is not infringed by the invention described in letters'patent No. 206,673, in which the pin itself is bent and then passed through the shield, part of it being on one side of the shield and part on the other.</p>

<p>1. Letters Patent — Improvement in Printins Types — Patentability.</p> <p>Letters patent No. 139,365, granted David W. Bruce, May 27, 1873, for an “improvement in printing types,” are not void for want of patentability as being merely for increasing the size of types for figures, nor, wlien construed in connection with, the specification, are they anticipated by the fact that types for figures cast with the body of the type two-thirds the width of the body of the line, were known and in use before.</p>

<p>In Equity. On motion for injunction.</p>

In Admiralty. This case having been once argued in the district court, the judge, after considering the case, directed a reargument. It was then at his request, and with the assent of counsel, reargued before both the district and circuit judges as if on appeal.

<p>1. Collision — Sailing-Yesel—Tug and Tow.</p> <p>Where a tug with boats in tow, lashed upon each side of her, being in all 130 feet wide, was proceeding up New York bay at about two knots an hour, and the schooner D. M. A. came up from behind upon a course about north by east, at the rate of six to seven knots per hour, and was sailing close-hauled by the wind, which was about north-west, but variable, and approached the center of the tow to within 200 yards and headed nearly directly upon the tow, and designed to go to windward, but, being unable to do so, ported her helm in order to go to leeward, and in so doing came into collision with the stern of the tow, sinking some of the boats and injuring others, held, upon contradictory evidence, that the facts were as above stated, and that the schooner was alone in fault in coming too near to the tow before properly shaping her course to avoid it. •</p>

<p>1 Tug — Ltaistjs for Loss of Tow.</p> <p>Wliore a canal-boat in tow was stranded by the negligence of the tug having her in tow, and in consequence of a depression or hole in the surface of the bar on which siie was grounded a part of her bottom fell out at the receding-of the lido, held, that the tug was liable for the damage.</p>

<p>1. Common Agent — Joint Liability on Carriers.</p> <p>Where several boats are severally owned by different corporations, and are all run, each for its own account, in one “line,” which line is itself another corporation, and all the corporations are represented by the same person as agent, who signs bills of lading for goods shipped upon one of the boats as agent for the “line,” held, that said agent was a common agent for all, but in his representative capacity acted separately for each, and that hence there was no joint interest and no joint liability, and for goods shipped by one boat the owners of the other boats could not be held liable, as they did not undertake the safe carriage thereof.</p> <p>2. Agent — Power to Bind Principad.</p> <p>An agent, though he have power to transact the joint business of many, cannot therefore bind one of his principals in the separate business of another principal.</p>

<p>1. Oral Contract — Charge m — Notice to be Given.</p> <p>Wliere an oral contract was entered into b3r tlie libellant, who agreed to take on his canal-boat a cargo of malt, and hold and transport the same at the rate of five dollars per day for 80 days, and if at the end of 30 days the cargo was still on board, from that time the libellant should be paid the “going rates” until the cargo was removed, it was held that the latter stipulation was an essential part of the contract, and that the owner of the cargo was entitled to specific notice of a change in the contract at the expiration of that time, and to be required to remove the cargo or pay the new rates.</p>

Libel filed by the owner of the schooner Ann S. Brown against the steam-tug Henry Chapel, to recover for injuries alleged to have been caused by negligent towage.

<p>1. Shipping — Delivery of Cargo — Usages of Port.</p> <p>It is the duty of the vessel to make delivery of cargo, and where the bill of lading is silent as to the particular place and mode of delivery, it must be made according to the usages and regulations of the port, or the arrangements made with the consignee.</p> <p>2. Demurrage.</p> <p>Where, on the arrival of a vessel, an arrangement was entered into between the ship’s agent and the respondents, consignees of a part of the cargo, that the vessel should go to a particular dock, and that such part of the cargo should he delivered in lighters to be sent by the respondents to receive it, held, that such an arrangement, so long as it is unrevoked and is acted on by either, is binding upon the othex-, and as the vessel, upon the faith of such arrangement, went to the dock agreed upon and waited for lighters to be sent by the respondents, the latter are estopped to deny that the deteniion was by their procurement and for their benefit, and that they are liable for demurrage.</p> <p>3. Same — Costs, when not Allowed.</p> <p>Where the claim of the libellant was in part upon a basis not sustained, and another portion of it was abandoned, costs were not allowed.</p>

Libel by the master of the bark Samuele against Jose de Bessa Guimaraes to recover freight on 800 bales of cork-wood.

<p>1. Pubtac Lands — Known Mines — Goad.</p> <p>■Whatever may have been originally the proper construction of the word “mines,” as used in the pre-emption act of 1841, (5 St. 456,) the act of July 1, 1864, (13 St. 343,) gave a legislative construction to the term, which thenceforth attached to all known “ coal-beds or coal-fields” in whichno interest had before become vested, and withdrew such coal lands from the operation of all other acts of congress.</p> <p>2. School and Goal Lands — State Selections.</p> <p>After July 1,1864, known coal lands were not subject to selection by the state, in lieu of sections 16 and 36, for school purposes; and the secretary of the interior had no authority to list such lands to the state on such selections.</p> <p>3. Patent Yacated — Lien Lands.</p> <p>Where the state selects a tract of land in lieu of a like quantity of unavailable school lands, which traGt so selected is not subject to selection, and the same is listed over to the state by the secretary of the interior, and by the state thereupon patented to private parties, a court of equity, upon a bill filed by the United States, will annul the selection, listing over, and patent, whether the unlawful acts arose out of fraud, inadvertence, or mistake, or errors of law committed by the officers upon known facts, as to the authority of the state to select or the secretary of the interior to list over.</p> <p>4. Bill Filed by Attorney General.</p> <p>Where a bill in chancery to annul a patent to land is filed in the name of the United Stales, having the signature of the attorney general of the United States, subscribed by his authority, the court is authorized to entertain the bilL</p> <p>5. Tested Rights — Power of Congress.</p> <p>The state has no indefeasible vested right to select lands in lieu of sections 16 and 36, from any particular class of lands, at anytime before selection actually made. Until selection, congress may withdraw any lands from the operation of laws permitting their selection.</p>

<p>1. CONTRACT — MEASURE OF DAMAGES FOR BREACH OF.</p> <p>Defendants ordered plaintiffs to manufacture a certain water-wheel, to be shipped to them by a certain date, agreeing to pay for the same in money and notes. Plaintiffs fulfilled their contract and tendered delivery, but defendants refused to receive the goods or pay for them, they having had the opportunity to inspect them, and making no point that the goods were not perfect. Held, that plaintiffs are entitled to recover, as their true measure of damages for non-fulfilment, the contract pxice of the article, though uo title had passed.</p>

In Chancery. This proceeding is in effect the same as garnishment, and the courts hold, and public policy requires, that municipal corporations should be exempted from ans wering in mere proceedings to collect debts. Merwin y. Chicago, 45 Ill. 138; Chicago v. Halsey, 25 Ill. 596; Triebel v. Colburn, 64 Ill. 376; Dillon, Mun. Corp. § 65.

In Equity. This is a bill in equity filed by the complainant to quiet the title to certain real estate, situated in the city of St. Louis, by removing a cloud therefrom, caused, as is alleged, by the execution to the defendant’s grantor of a certain tax deed. It is alleged that the pretended tax sale, and the deed executed in pursuance thereof, were void because of the failure to comply with the provisions of the statute of Missouri concerning tax sales.

<p>1. Criminal Procedure — Arrest and Removal op Offenders por Trial.</p> <p>Section 1014, Rev., St. in conferring criminal jurisdiction on commissioners appointed by tlie circuit courts, declares that proceedings before them shall be agreeably “to thé usual mode of process” in the state where they are appointed ; from which it may be inferred that it was the intention of congress' to assimilate all proceedings for hdlding persons accused of crime to answer before a court of the United States, to the proceedings had for similar purposes by the laws of the state where such court is held,</p> <p>2. Court Commissioners — Authority to Commit.</p> <p>The commissioners have authority under the state statutes to commit defendants to county jails. The mittimus must be directed to the marshal, commanding him to convey the prisoner into the custody of the jailer, and it must also direct the jailer to receive the prisoner and keep him in close custody until discharged or taken from his custody by some proper process of law. Commissioners have similar powers in United States cases as justices of the Deace have in state cases.</p> <p>3. Authority op Marshal.</p> <p>The commitment of the prisoner to the county jail is not an absolute commitment, as the marshal can take the prisoner out of the custody of the jailer when it becomes necessary for him to complete the service by capias by producing the body of the prisoner at the ensuing term of court.</p> <p>4. Same — Order op Court or District Attorney.</p> <p>Section 1030, Rev. St., directs that “no writ is necessary to bring into court any prisoner or person in custody, or for remanding him from the court into custody, but the same shall be done on the order of the court or district attorney.”</p> <p>6. Marshal — Powers Depined.</p> <p>Section 788, Rev. St., provides that marshals in each state, in executing the laws of the United States, shall have the same powers as sheriffs in executing the laws of the state. The proper practice in the execution of their powers suggested.</p>

<p>1. Beal Action fob. Possession of Land.</p> <p>An action, brought to try the right of possession to a'parcel of land under the statute of Massachusetts, (Gen. St. c.140, § 3,) by a mortgagee against a mortgagor after condition broken, for possession of the premises, where either party may require that a conditional judgment be entered ascertaining the amount of the debt, and awarding possession to the demandant, unless the tenant shall pay .the amount so ascertained within two months, is a substitute for an entry upon the-land for the purposes of foreclosure, plus a judicial determination of the right of entry.</p> <p>2. Same — Assignee—Jdbisdiction.</p> <p>The circuit court has jurisdiction in a real action for the possession of land brought by an assignee of the note and mortgage.</p> <p>3. CoBPOBATIONS — AUTHORITY OF OFFICERS.</p> <p>Where the treasurer of a savings bank, having the authority to do so, executed an assignment of a mortgage in the name of the bank in due form, and indorsed the note to a dona fide pure7iaser, the title passes, notwithstanding he perpetrated a fraud upon the bank, and converted to his own use the purchase money.</p> <p>4. Same — Estoppel in Pais.</p> <p>A corporation is estopped to prove, as against dona fide purchasers, either irregularity or fraud upon the part of its officers when acting within their authority.</p>

<p>1. Customs Revenue — Surety on Warehouse Bonds — Liability—Settlements after One Tear Conclusive.</p> <p>Where the surety in a warehouse bond in 1872 became bound for the withdrawal of the goods within three years, upon payment of the duties “ to which they shall then he subject," and the goods were accordingly withdrawn within that time and the duties paid in full as then liquidated, but upon discovery of an error, seven years afterwards, a reliquidation was made showing a deficiency of §400, for which the surety was thereupon sued on the bond, held, that the surety was not liable.</p> <p>2. Same — Liquidation by Collector Pinal and Conclusive.</p> <p>It is the legal duty of the collector, not of the surety, to ascertain and liquidate the duties. Such liquidation is “final and conclusive” upon all persons interested, unless appealed from, and determines the amount of the legal duties to which goods are “ then subject.” Withdrawal and payment according to the liquidation existing at the time is a fulfilment of the terms of the bond for the time being, and the surety cannot be held except upon the bond.</p> <p>3. Importer — Liability of.</p> <p>The importer is liable irrespective of the bond, and, as against him, a reliquidation, prior to the act of 1874, might have been made at any time after-wards.</p> <p>4. Surety- — Continuance of Risk.</p> <p>The necessary continuance of a surety’s risk upon such a bond does not exceed the three years named in it, or the additional period until sale of the goods not withdrawn as provided by law. A reliquidation of duties after the lapse of this period is not legal as against him, because it would in effect raise up a new obligation, and involve a continuance of his risk after the expiration of the utmost limit contemplated in his contract, and would, therefore, involve an alteration of his contract in an,essential particular.</p> <p>5. Same — Contract Construed — Effect of Liquidation.</p> <p>The surety’s contract being only for the payment of duties upon withdrawal, semble liquidation by the government is by the terms of the bond a condition precedent to the payment and withdrawal, and, in the absence of fraud, reliq-uidation should not be enforced against the surety after a delivery and payment of duties as once liquidated.</p> <p>6. Statute Limiting Time for Liquidation Construed.</p> <p>Section 21 of the act of June 22, 1874, (1 Rev. St. 81.) is designed to apply to past liquidations ; and a reliquidation, in the absence of fraud, cannot be made more than one year after settlement, according to a prior liquidation.</p> <p>7. Same — On Prior Payments — Statute, when Begins to Run.</p> <p>The payment in this case having been made before the passage of the act, the one year named in it commences to run from the time the act took effect.</p>

<p>1. INTERNAD REVENUE JjAW — COLLECTOR — PAYING MONEY UNDER DECREE OF Court.</p> <p>Whore a decree of forfeiture is rendered in a suit for a breach of the internal revenue law, and the defendant, pursuant to a compromise with the government, pays a sum of money into court, and A. and B. are adjudged entitled to a portion of the fund paid as informers, and the court makes a final order of distribution, and issues checks to C., collector of internal revenue of the district, and no appeal is taken, and C. pays A. and B. the amounts to which they have been held entitled, he cannot be held liable on his official bond for the amounts so paid, whether the informers are legally entitled thereto or not.</p> <p>2. Same — Tnforwbr.</p> <p>Whore money is paid into court under circumstances like those above stated, the right of the informers to their proportion of the sum paid is not affected by the fact that a part of such sum is designated to cover taxes.</p>

<p>1. Reopening Cause — Gkounds foe, Insufficient.</p> <p>A motion to “ reopen ” a causo, and allow defendant to take additional testimony, was denied; tlie defendant not stating that the evidence was not accessible at the trial, or that it was not then known to Mm, or that it is material.</p>

<p>On Writ of Error.</p>

On Exceptions to Petition. Plaintiff alleged that on the ninth of August, 1865, defendant, being indebted to plaintiff, gave him in payment thereof five first-mortgage construction bonds of the'Vicksburgh, Shreveport & Texas Railroad Company; that in May, 1879, in a certain suit of Jackson v. Vicksburgh, Shreveport & Texas B. Co. and others, ■which had been brought on behalf of all the holders of similar bonds issued by said company, it was finally decided by the supreme…

Motion to retax clerk’s costs for a transcript, on appeal to the supreme court. The clerk had collected 15 cents per folio for a transcript, and a like rate for an appeal bond drawn by the attorneys, and also a fee for approval of the bond in open court by the judges.

<p>1. Taxation oe Costs on New Trial Denied.</p> <p>On trial of an action removed from the state court to the United States circuit court, under the act of 1875, a verdict for plaintiff for $29,997 was rendered, and a motion for new trial was argued and denied. On taxation of costs thereafter, the clerk allowed interest on the amount of the verdict from the day of rendition, and an item for “ copy of coroner’s record ” used in evidence, and disallowed items of stenographer’s charges and for service of summons in the state court; from which taxation both parties appealed to the court. Held, that the act of 1853 (section 828, Rev. St.) is not exclusive, and as the item of interest on amount of verdict is within the equity of section 996, it is taxable ; that the items for service of summons and copy of coroner’s record might be allowed, and the item for stenographer’s charge was properly disallowed, no order of court therefor having been made or consent to its taxation given.</p>

<p>1. ASSIGNMENT FOB BENEFIT OF CREDITORS — UNLAWFUL PREFERENCE.</p> <p>Whore, in a deed oí trust, the trustee is directed, firstly, to pay all tlio costs and expenses incidental t o its execution; secondly, a note executed by the grantors to their attorneys; thirdly, to pay all tlio creditors who might apply wit hin 30 days, 33% per cent, on their debts, provided they would release the balance of their demands; fourthly, to pay all other creditors, who should apply within 60 day's after said assignment was made, the amount due them in full, if there should be money sufficient for that purpose, and if not then a pro rata share to each, provided they should release the remainder of their debts, if any; fifthly, to all other creditors the amount duo them, out of any surplus which may remain after the before-mentioned payments, — is fraudulent and void as against non-assenting creditors.</p> <p>2. Same — Bights of Non-Assenting Creditors.</p> <p>When an assignment is made in which a participation in the assets is dependent upon entering a release of the remainder of the debt due, and there is no provision made for a distribution of the surplus among non-assenting creditors, such assignment is per se fraudulent and void.</p> <p>S. CREDITORS, WHEIT NOT BOUND.</p> <p>Non-assenting creditors, not present at tlie time the deed of trust was executed, are in no way bound by the agreement of the assenting creditors to the release of a portion of their debts, in an assignment made by the debtor for their benefit.</p>

<p>1. Patents — Want of Notbht.</p> <p>The employment of sheet metal as a lining for the bottom of a vessel to contain liquids involves no invention.</p> <p>2. SAME — PRELIMINARY INJUNCTION.</p> <p>Where the questions as to the complainant’s rights under his patent are doubtful, they will not be entertained on a motion for a preliminary injunction.</p> <p>3. Same — When Injunction Granted.</p> <p>When the validity of the patent is not assailed, and the proof of infringement is clear, the court will grant a preliminary injunction.</p> <p>4. Provisional Injunction.</p> <p>Where the defendants are entirely responsible, and complainant can be adequately compensated, irreparable damage is an indispensable element in an application for a provisional injunction.</p>

<p>1. Labels — “ Hostetter’s Stomach Bitters IherutoemeNT.</p> <p>The label'and method oí preparation for market oí “ Hostetter’s Celebrated Stomach Bitters” is infringed by that adopted for “ Clayton & Bussell’s Celebrated Stomach Bitters,” inasmuch as the latter is plainly copied from the former by design, and its general eifect is such as to deceive an ordinary observer having no cause to use more than ordinary caution.</p>

<p>1. PLEADING — SUFFICIENCY of an Answeb.</p> <p>Semble that an allegation in an answer that the respondent is “ ignorant ” of a matter alleged in the libel is sufficient.</p> <p>2. Vessels — Lien fob Lajbob — Home Poet — State Law.</p> <p>The libel alleged that S. contracted with R., the owner of a steam-boat, to repair her in her home port, and employed the libellants to work at said repairs as ship carpenters. Held, that upon the facts stated, and under the lien law of Oregon, (Sess. Laws 1876, p. 9,) which gives a lien upon a boat for the value of labor done thereon at the request of a contractor with the owner, the libellants had a lien for their wages which might bo enforced in the admiralty in a suit inrem, irrespective of the state of the accounts between S. and It., or the failure of S. to fully perform his contract.</p> <p>3 Lien of Matebtal-Man — ÍTatube and Waiveb of.</p> <p>The lien of the material-man, under the Oregon act, does not depend upon any expressed intention or conscious purpose on his part to claim it, but it is an incident which the law attaches to the performance of the labor or the delivery of the materials under the circumstances stated, and can only bo waived or discharged by an agreement or understanding with him to that effect.</p>

<p>In Admiralty.</p> <p>cited 5 Ben. 63, 70, 71; 2 Bed. Bep. 722; 4 Ben. 864; 8 Chi. Leg. News, 401; 3 N. Y. Wkly. Dig. 425; 2 Low. 482; 17 Wall. 666; 1 Dill. 460; 2 Low. 173; 5 Ben. 74, 78.</p> <p>cited 1 Abb. Adm. 340? 490; Etting, Adm. 69, 74; 2 Olcott, 120; 3 Mason, 6; 3 Sumn. 144.</p> <p>(On general subject of maritime liens, see 21 Am. Law Beg. 1, 82; 16 Am. Law Bev. 193. — [Bep.)</p>

<p>1. CONTKAOT— CONSTRUCTION.</p> <p>A written contract was entered into in /August, 1875, between B. on one side and certain parties residents of another state, by their attorney, S., on the other side. By the contract, the parties, through their attorney, agree to sell to B. a quantity of timber lands, the price to bo determined by an estimate to toe afterwards made of the amount, of pine timber upon each description of land at 82.50 per acre for the stumpage. They also agree to sell to B. the pine timber upon certain other lands described, at the rate of $2.50 per thousand feet for stumpage. B., on his part, agreed to build a saw-mill worth $9,000 upon one of the 40-acre tracts, to be selected by him; and the other parties agree to give him title to the 40-acre tract so selected for the mill site, which B. is to have the privilege of mortgaging to an outside party in the sum of $6,500, and then he is to give a second mortgage back to the vendors to secure the faithful performance of the contract. After the execution and delivery of the contract, B. borrowed from H., the plaintiff in this suit, upon the strength of the contract, about $10,000, to build and complete the contemplated mill. After the mill was*built, B. gave to II., the plaintiff heroin, a deed intended as a mortgage of the mill and mill site, to secure him for his advances, without the knowledge of S., the agent of the vendors, and before they had made any conveyance of the land to B. Afterwards the vendors brought suit in the state court to enforce a specific performance of the contract, and obtained a decree for that purpose against B., from which an appeal was taken to the supreme court, and the decree affirmed, H. not having been a party to the suit. Held, that B., under the contract, was at liberty to select any 40-acre tract for the mill site, whether one of the forties he was to purchase or one of those from which he was to buy the timber.</p> <p>2. Same — -Lien dob, Moneys Advanced.</p> <p>Where moneys were advanced upon the strength of a contract, and a subsequent conveyance was received to secure such advances, the party so making the advances is, under the circumstances of the case, justly and equitably entitled to a lien upon the mill forty as against the owners of tliq land, but not exceeding the sum mentioned in the contract.</p> <p>3. Same — Pakol Modifications — Not to Affect Equities.</p> <p>Where a party had agreed to advance money upon the strength of a written contract, he becoming the third or outside party named in the contract, any parol or other modification of the written contract unknown to him cannot affect his equities, whether made before or after the time he made the advances.</p>

<p>1. Equity — Enjoining Pboobediugs at Law.</p> <p>Where there is an equitable title in a defendant to an action of ejectment, the court of equity, at his suit, will restrain the proceedings in such action, and direct the cause to proceed in the court of equity, where all defences can be considered, and where in a single nroceeding the whole controversy, in all its aspects, may be settled.</p> <p>2. Same — INJUKCtiok—BELiEif.</p> <p>Where a person is in possession of land by a good, equitable right and title, and he is so circumstanced as that the legal estate is either in himself or in another as trustee for him, and an action of ejectment is brought against him by the one claiming as well the equitable as the legal right, and denying the legal as well as the equitable title of the person in possession, a court of equity will grant relief by way of injunction, inasmuch as the plaintiff' in ejectment would, recovering in the action, hold merely as trustee for the defendant in such action.</p>

<p>1. "Will — Bequest in Trust — Charge on Land — Release.</p> <p>“Where a testator gave money in trust to a trustee, to be by him invested and held in trust for the use of the beneficiary for life, and after her death for others, the will declaring the money to be until paid a charge on the lands devised by him, and the will not expressly authorizing any one to give an acquittance for the money so charged on the lands devised, a paper, signed and acknowledged by the beneficiary of the trust and no one else, containing a mere statement made by her that the money had been invested to her satisfaction; and that she released the lands and the trustee from all liability therefor, is not a release, nor is it effectual for any purpose whatever.</p> <p>2. Release of Mortgage — Beneficiary to Join.</p> <p>Where the trustee invested certain money in a mortgage on the land devised, he had no power under the limitations in the will to collect the amount due on the mortgage and release the same without the consent of the beneficiary, evidenced by her being a party to the deed of release, and signing, sealing, and acknowledging it. Such mortgage stands unaffected by the release.</p> <p>S. Same — When Effectual.</p> <p>Where the trustee had made a loan and taken a mortgage to secure it, and the loan being long overdue, he would, in the absence of some express restriction in the will, have the right to receive the money and the power to execute a -release of the mortgage.</p> <p>4. Same — "When Ineffeotuat-.</p> <p>A release oí a mortgage without a surrender of tlie note is ineffectual. So, where the note secured by a mortgage is passed to a third party, a subsequent release of the mortgage by the mortgagee, without the surrender of the note, is void, as the assignment of the note operates as an assignment of the mortgage.</p> <p>5. Sale oi? Land taros k Ordeb of Court — Lien fob Purchase Moneys.</p> <p>Where the trustee was authorized by the court to make a sale of certain land and simultaneously invest the purchase money in a mortgage on the same land, and he sold the land under the order of the court, but received no consideration, and no mortgage was ever given, the trustee had no authority,without a further order of the court, to afterwards receive the purchase money in cash, or make a deed for the land; and the proceedings in the court ordering the sale and the investment of the purchase money were sufficient to put any one dealing with the property upon inquiry as to why the mortgage had not been given. The lien for the purchase money was not lost by the execution of the deed by the trustee.</p>

In a cause pending in the supreme court of Arkansas, on appeal from the chancery court of Pulaski county, wherein the state was complainant and the above-named railroad company (as intervenor) was defendant, that court decreed foreclosure of a mortgage executed by a former company, owner at the time of the road, and ordered a sale of the road and rolling stock.

<p>In Equity. Final decree.</p>

In Equity. The above-entitled causes, being of a like nature, were consolidated for the purposes of trial.

<p>1. Indictment undeb Section 5392, Bey. St. — Perjuby—Bank Om-icee’s Report.</p> <p>Tlie oath oí a cashier o£ a national hank, in a report to the comptroller of the currency, is a declaration within the moaning o£ section 5392, Rev. St.; as such report, so verified, is required by the provisions of section 5211.</p> <p>2. Same — Same—Same—Certainty or Pbeading.</p> <p>Where the indictment contained the averment that such report was “made to the comptroller of the currency, and verified, as aforesaid, as by law required,” held, upon a motion to quash, that such averment was sufficiently certain to sustain the indictment.</p>

<p>1. Indictment under Section 5209, Rev. St. — Sufficiency of.</p> <p>An indictment under section 5209, Rev. St., which charges the making of a false entry in a report with intent to deceive the comptroller of the currency, cannot be sustained, as he is not an agent appointed to examine the affairs of a national bank within the meaning of the statute.</p> <p>2. Same — Same.</p> <p>Where, in an indictment under said section, a bank officer was charged with making a report with intent to deceive “whereby, by means of a false entry therein by him made,” held, upon amotion to quash, that this language might be sufficient to support a finding that he made a false entry in a report within the meaning of the statute.</p>

<p>On Motion for New Trial.</p>

<p>Indictment for Embezzling Letters by a Person in the Postal Service. On motion to quash.</p>

This was an information filed for a condemnation of a “collection of antiquities” seized by the customs officer for alleged fraudulent importation with the intent to evade payment of legal duties. It was admitted upon the trial that the articles in question constituted a “collection of antiquities.” They were imported from France in October, 1878, designed for sale. Being supposed to be free of duties they were entered as free and warehoused.

<p>Motion for a New Trial,</p>

The plaintiffs’ cause of action is ordinary county warrants, in the form prescribed by statute, issued before the thirtieth day of October, 1874, and presented to the county treasurer for payment, and by him indorsed “not paid for want of funds, ” more than five years before the commencement of this suit.

A statute in Arkansas authorizes the county court at stated periods to call in all the outstanding warrants of the county “in order to redeem, cancel, reissue, or classify the same.” An order for the cal] is required to be made by the county court, and notice of the time fixed for the presentation of warrants under the call must be given in a mode provided by the act, and all warrants not presented at or before that time arc barred.

<p>1. Name — Right to Change.</p> <p>At common law a man may lawfully change his name, and he is hound by any contract into which he may enter in his adopted or reputed name, and by his known and recognized name he may sue and be sued.</p> <p>2. Pleading — Insufficient Plea.</p> <p>In a suit by husband and wife, in her behalf, a plea which alleges that the surname in which they sue is not the husband’s real name, but which does not deny that it is his known and recognized name, is bad.</p> <p>3. Guardian — Appointment—Scope of Authority under.</p> <p>An appointment bjr an orphans’ court in Pennsylvania of a guardian for certain designated estates of a non-resident minor, lying within the jurisdiction of the court, does not operate so as to constitute the appointee the general guardian of all the estates of such mipor within the commonwealth, but the guardianship is limited to the particular estates mentioned in the petition and order.</p> <p>4. Trust Deed — Rights of Beneficiary — Minority—Effect of Marriage.</p> <p>Where B., in consideration of love and affection for his granddaughter, a minor, set apart for her separate use certain bank stock, the trust deed providing that she should not “ sell, dispose of, or charge” said stock or its dividends without the consent and concurrence of such guardian or trustee as the proper court might appoint for her, but giving her “the full right to use and enjoy” for her “ own use” and that of her family all the dividends, the cestui que trust having attained her twentieth birthday, and being then married, held, that she was entitled to receive the dividends directly from the bank without the intervention of either guardian or trustee.</p>

<p>1. Insolvency — Funds in Hands of Assignees — Not Attachable by Foreign Creditors.</p> <p>The funds in the hands of the assignees, appointed hy the court as trustees in insolvency proceedings, under state insolvent laws, are not subject to attachment by non-resident creditors of the insolvent.</p> <p>2. Same — Validity of Assignment — Rule of Decision.</p> <p>The supreme court of the United States having recognized the validity of assignments under the state insolvent laws to defeat liens attempted to be acquired by non-resident creditors, subsequently attaching; and having decided as to such assignments of property within the state that state insolvency laws are not repugnant to the federal constitution, which prohibits states from passing laws impairing the obligation of contracts, — -no reason exists why prior decisions of the supreme court of the state, though long acquiesced in, holding a contrary doctrine, should continue to be the rule of judicial decision.</p> <p>8. Bankrupt Act — Effect on State Insolvent Laws.</p> <p>The adoption of the United States bankrupt act merely suspended the operation of state insolvent laws.</p> <p>4. State Insolvent Laws — Amendment.</p> <p>Where the operation of the state insolvent laws, which have never been repealed, is revived by a repeal of the United States bankrupt act, a subsequent amendment effected by a repeal of the old law, and at the same instant reenacting it with the amendments incorporated, it cannot be held to prevent the continuous operation of the old law.</p>

<p>1. LETTERS Patent — Improvement in Sleeve Supporters.</p> <p>Tlie invention, described in letters patent No. 202,735, granted to J. P. Lind-' say, April 23, 1878, for an “ improvement in sleeve supporters,” which consists of a clasp at each end of a connecting web or strap, is not merely a new application of the invention described in letters patent No. 156,429, granted to said Lindsay, November 3, 1874, for “stocking supporters.” It is an article complete in itself, and involved invention.</p> <p>2. Same — Abandonment under Section 4894, Rev. St.</p> <p>Section 4894, Rev. St., which provides that upon failure to prosecute an application within two years after action is had thereon by the patent-office, it shall be regarded as abandoned, refers to the application, not the invention, and does not prevent a subsequent application for the same invention.</p> <p>3. Same — Same—Defences.</p> <p>Such subsequent application can derive no aid as to time from the prior abandoned application. The applicant must stand, as to defences in suits on the patent, as if the new application were the first application.</p> <p>4. Same — Patentability—Recognition by Public.</p> <p>Where-an article is of great utility, has superseded older articles, and is largely recognized by the public and licensees as a useful invention, there is a strong presumption in favor of its patentability.</p>

In Equity. The complainant alleged in his bill that he had recovered a judgment against the defendant, in a suit before a justice of the peace of the city of St. Louis, for the sum of $52 and costs; that execution had been issued, but that no property had been found subject thereto; that it was wholly fruitless; that the' defendant owned no property subject to execution issued by any court of the state of Missouri; that said judgment and costs remained wholly unpaid, and…

<p>1.Letters PatbNt — Master’s Fees — Practice.</p> <p>TIio provailing practico in the district oi' Massachusetts, in’eases of accounting upon adjudged infringements of patents, is to charge the master’s compensation on the plaintiJTs in 1he first instance, to be recovered in costs if the linal decree is for the complainant.</p>

<p>1. Ad-vikat/ty — Lien of Ship weight foe ’Repairs.</p> <p>A shipwright has a common-law lion for the amount, of his repairs upon a vessel taken to his yard and put upon the ways for such purpose, though the mate in the employ of the owner remain about her and sleep aboard.</p> <p>2. Same — Repairs—Liability of Part Owner.</p> <p>Buch a lien, without regard to the absolut e necessity of the repairs, is legal to the ext ont of the interests of the part owners of the vessel in possession who directed such repairs to be made, though not binding upon a part owner who gives express notice of bis dissent to the repairs.</p> <p>3. Same — Right of Possession.</p> <p>The shipwright in such a case has the same common-law right to maintain his possession that the part owners had who employed him.</p> <p>4. Rights of Part Owners Dissenting.</p> <p>If the repairs be necessary, whether the share of the part owner-who expressly dissents be bound or not, he cannot derive any benefit from the subsequent use of the vessel without allowance for the repairs.</p> <p>5. Common-Law Lien Protected.</p> <p>The common-law lien of a shipwright in possession is recognized and protected in admiralty where the vessel is seized under process of the court in other proceedings.</p> <p>6. Case Stated.</p> <p>Where H., a shipwright, made repairs upon a vessel in his yard beyond what was necessary, and enlarged her at the request of the owners of seven-eighths, but with notice of dissent from the other part owner ; launched her in course of the work; retained her in the stream adjacent to his yard; worked upon her daily until three days prior to the time when she was seized by the marshal under process of this court upon a libel by another for supplies, and the vessel was still unfinished in her forecastle and her center-board not being in, but in the shipwright’s yard; and the mate in the employ of the owner had continued on the vessel from the time she was taken for repairs to the ship-yard until she was seized by the marshal, sleeping on board; and the captain with his son, after she was launched, having been more or less aboard with the shipwright’s assent, though forbidden to interfere; and the marshal, upon coming to arrest the vessel, being forbidden by H. on the ground that she was in his possession: Held, that the presence of the mate, and also of the captain upon sufferance, were not sufficient evidence of any surrender of the vessel by H.; that the vessel continued in his possession in the stream, as upon shore, at the time when she was seized by the marshal; and that H. was therefore entitled to intervene as a claimant for the protection of his interest as against the shares of those who employed him.</p>