Volume 108 — Federal Reporter

The appellant is a creditor of the Toledo, St. Louis & Kansas Oity Railroad Company, holding six notes, for §10,000 each, which matured in May and .(uno, 1893, and are renewals of notes originally made January 6, 1892, payable to the order of S. H. Kneeland, and indorsed by him. The railroad company became insolvent, and in May, 1898, a receiver was appointed by the court below, upon a bill filed by general creditors.

. Appeal from the Circuit Court of the United States for the Western Division of the Northern District of Ohio. The appellant is a erodlfor of the Toledo, St. Louis & Kansas City Railroad Company, and its debt is evidenced by the promissory notes of the company executed in part payment for certain locomotives purchased by it.

Joel Bertrand Bullard was appointed postmaster at Mexia, Ala., on June 15, 1898. He gave bond in the form required by law, in the sum of $1,500, payable to the United States, with W. P. Agee, D. A. Frye, George Staffens, and C. D. Slaughter as sureties. As such postmaster Bullard received sums of money and became indebted to the United States on his money order account to the amount of $1,116.01.

This action was brought to recover damages for a personal injury, suffered by plaintiff in error on the 24th day of November, 1898, while in the employ of the United States as a postal clerk in the railway mail service. His work as such clerk was in a post-office car provided for the purpose, and consisted in the reception, assortment, and distribution of mail matter in said ear, on what is called the “run” between Cincinnati, Ohio, and Indianapolis, Ind.

This action was brought by J. D. Currier, the defendant in error, against the Tennessee Coal, Iron & Railway Company, a corporation under the laws of Tennessee, the plaintiff in error, in the circuit court of Jefferson county, Ala., and was duly removed to the United States circuit court for the Southern division of the Northern district of Alabama. It is an action for damages on account of personal injuries received by Currier through the alleged negligence of the company.

<p>1. Appeal — Review—Tp.tal to Court — Findings op Fact.</p> <p>When a common-law action is tried to the court, its findings of fact are conclusive on appeal; and, if the facts found are sufficient in law to support the judgment, it must stand, unless the court erred in admitting or rejecting evidence over the objection of the complaining party.</p> <p>2. Same — Objections to Evidence — Sufficiency.</p> <p>An objection to a question propounded to a witness, that it is “immaterial,” is insufficient to support an assignment of error based on the action of the court in overruling it; such objection being tantamount to no objection at all.</p> <p>3. Same — Questions not Raised Below.</p> <p>Objections to questions propounded to witnesses not brought to the attention of the lower court, and its opinion taken thereon, cannot be reviewed.</p> <p>4. Same — Harmless Error — Proper Cross-Examination op Witness.</p> <p>In an action to recover possession of an alleged placer-mining claim, 'defendant was allowed to ask a witness on cross-examination if he would, as a placer miner, undertake to work the ground in question, and make it pay as a plaeer mine. Held', that the question was clearly within the limits allowable, but that, if the ruling had been erroneous, plaintiff: could not complain, as the witness’ answer was not prejudicial to him.</p> <p>5. Same — Objections to Leading Questions.</p> <p>An objection that a question propounded to a witness is leading will not be reviewed on appeal.</p>

Id. Error to the Circuit Court of the United States for the Northern District of Ohio. , This action was brought to recover damages for a personal injury sustained by the defendant in error while in the employ of the plaintiff in error as a lineman. Speaking generally, the work of a lineman consisted in stringing wires, putting up and taking down poles, digging holes, and the like.

<p>J. Appeal — Instructions—Exceptions—Sufficiency.</p> <p>Where instructions given at plaintiff’s request embrace several distinct propositions, a general exception to the giving of the instructions, and to' each and every part thereof, is not sufficient to support an assignment of error which only relates to one proposition included therein.</p> <p>2. Samio — Refusal to Give Instructions.</p> <p>A general exception to the refusal to give instructions, including several distinct points, is not sufficient to support an assignment of error.</p> <p>8. Street Kailroads — Negligence—Evidence—Admissibility.</p> <p>Where the receiver of a street railroad defends an action for the negligent killing' of an alleged passenger on the ground that she was not a passenger on the ear, and did not receive any injuries through defendant's negligence, the clothing worn by deceased at the time of the acei-di nt is admissible for the purpose of her identification, and as tending to show the nature and extent of her injuries.</p> <p>4. Appeal — Misconduct op Counsel.</p> <p>Where an assignment of errors, on the ground of misconduct of counsel in his argument to the jury, does not contain a reference to the record showing an exception to the remark when made, and the ruling of the court thereon, as required by a rule of court, it will not ho considered on appeal.</p> <p>6. Same.</p> <p>Where objection to misconduct of counsel in his argument to the jury is first made on the motion for new trial, it will not be considered on exceptions to the action of the court in overruling the motion, since exceptions should have been taken thereto at the time of the making of the improper argument.</p>

Petition for Revision of Proceedings of the District Court of the United Elates for the Western Division of the Western District of Tennessee, in Bankruptcy.

<p>In Bankruptcy. On consideration of final dividend sheet and allowances to officers and attorneys.</p>

<p>Appeal from the Circuit Court of the United States for the District of Massachusetts.</p>

<p>1. 'Internal Revenue — Tax on Functions of State Government — Limit of-Federal Authority.</p> <p>The United States and the states act separately and independently of each other in the field within which each is sovereign, and neither have power to impose a tax which will interfere with the exercise of the sovereignty of the other within their own sphere, either by taxing their functions or the means by which they are exercised. A power in the federal government to exact a tax upon the right to qualify, under a state law, for the performance of the duties of a state office, is inconsistent with the existence of any supreme governmental authority in the state, and the converse is true as regards the power of the state to tax the means. employed by the federal government to carry into execution the powers vested in it by the constitution.</p> <p>2. Same — Stamp Tax — Bond of State Officer.</p> <p>A stamp tax imposed by the United States upon a bond required by a state from'an officer as a prerequisite to the exercise of the duties of his office is, in necessary legal effect, a tax upon the officer’s right to qualify, and upon the exercise by the state of its governmental functions, and the fact that the tax is required to be paid before the officer has qualified is unimportant.</p> <p>3. Same — Bond of Rotary'Public — War Revenue Act of 1898.</p> <p>A notary public, appointed under the laws of a state by the governor, is a state officer, employed in the exercise of functions belonging to it in its governmental capacity, and a bond which he is required to execute for the faithful discharge of the duties of his office, as a condition to Ills qualification, is an instrument exempt from the stamp tax imposed by the war revenue act of 1898, within the plain meaning of the proviso to Schedule A, exempting states in the exercise of functions belonging to them in their ordinary governmental capacity.</p>

<p>1. Circuit Court op Appeals — Judicial Notice — Sessions op District and Circuit Courts.</p> <p>The circuit court of appeals will take judicial notice as to whether, at the time a grand jury was impaneled and returned hills of indictment, as specified in the transcript on a writ of error, both the district and circuit courts were in session, and as to who were the presiding judge and clerk thereof.</p> <p>■2. Indictment — Formal Imperfection — Order to Remit prom Circuit to District Court— Necessity.</p> <p>The grand jury which found an indictment being impaneled in the district court, and haying returned the indictment in that court, an'd all the proceedings thereafter being had therein, an order remitting the indictment from the circuit to the district court was neither necessary nor proper, notwithstanding it was entitled “In the Circuit Court,” as that is merely a formal imperfection, not necessarily prejudicial to accused, nor having the effect to return it to that court, or vitiating the same.</p> <p>3. Record on Writ op Error — Return op Indictment — Sufficiency.</p> <p>The record on writ of error as to the return of an indictment showed a minute entry reciting the return by the grand jury on November 21, 1899, of 52 bills, each of which was indorsed “A true bill.” and signed by J. W. P. as foreman, and the file mark, signed by the clerk, indicating that the indictment was filed on the same day on which the minute entry was made. In addition the bill of exceptions recited that it was shown by the government that the indictment in question was received by the judge of the district court, and that the entry on the minutes was as follows: “The grand jury came into court, and returned 52 bills of indictment, each of which was indorsed ‘A true bill.’ and signed by J. W. P. as foreman, and that the bill in this case was one of the bills of indictment thus returned by said grand jury; that the day of such return of said grand jury is November 21, 1899; that the clerk of the said United States district court thereupon placed said case for trial upon the docket of the district court.” Eeld, that while the record of either the minute entry or file mark, or of both together, was ■ insufficient to identify the indictment as properly returned into the district' court by the grand jury, the defect was cured by the recitals in the bill of exceptions.</p>

<p>In Error to the District Court of the United States for the Eastern District of Pennsylvania.</p>

The plaintiffs in error, Isaac F. Gantt and Stephen Shine, together with George Nolen, were indicted in the court below under section 5440 of the Revised Statutes.

<p>TRADE-NAME — COPENHAGEN SNUFF — INFRINGEMENT— UNFAIR COMPETITION — Injunction.</p> <p>Complainant, a Pittsburg manufacturer of snuff, used the name “Copenhagen,'-' adopted by his predecessor as a trade-mark, in labeling tbe jars iu which it was sold, and advertised it in the usual forms of the name as used in various languages. It was not. intended thereby to denote that it was imported, but was adopted to secure Scandinavian customers. Defendants, retail dealers in snuff, bought for the purpose of sale, from a Chicago manufacturer, several jars labeled “Kjobenhavn Sims,” to indicate that it was imported, so as to likewise secure Scandinavian trade. Otherwise the jars and labels, and the smell, tasty, appearance, and quality of the article, did not resemble those of complainant. They sold it without intending to deceive, and there uvas no evidence that any one was misled. Held, that no right to a geographical name as a trademark proper could be acquired, but that, conceding that complainant had acquired such a right to use the word “Copenhagen,” there was no infringement thereof, and, no intent to unfairly compete with him, and his bill for injunction should be dismissed.1</p>

<p>In Equity. Suit for infringement of a patent. On linal hearing.</p>

Tn Error to (be Circuit Court of the United States for the Northern Division of the Northern District of Illinois. The plaintiff in error, who is the guardian of Moses Crawford, insane, brought this action in right of his ward as tlie equal co-owner with the defendant, the Weir & Craig Manufacturing Company, of letters patent of the Uniied States No. 379,353, granted on January 31, 1888, to James A. Cunning and Prank P. Woolen, for a device used for scraping hogs.

<p>In Equity. Suit for infringement of patent. On final hearing.</p>

<p>In Equity. Suits for infringement of patent. On rehearing. For former opinions, see 95 Fed. 474, 98 Fed. 297, and 99 Fed. 1003.</p>

<p>Patents — Validity—Infringement.</p> <p>* The Coddington patent, No. 307,746, claim 1, as to sealing-wax composed of certain designated substances and finely-ground fibrous material, hold infringed by the Propfe patent, No. 363,022, claiming- a sealing-wax composed of certain named substances and “fibers of asbestos wool.’’</p>

<p>Appeal from the District Court of tlie United States for the District of Massachusetts.</p>

This is an appeal from the decree of the district court for the Eastern district of New York in favor of the libelant. The facts of the case are stated by the district judge (99 Fed. 298) as follows: “The Benlarig was chartered in London, July 1, 1808, by her owners, to Erdmann & Sielcken, of Batavia, to carry a cargo of sugar from Java.

<p>Appeal from the District Court of the United States for the District of Massachusetts.</p>

<p>Appeal ironi the District Court of the United States for the District of Minnesota.</p>

<p>Collision— Barge and Anchored Drudge — Improper Anchorage and Insufficient Lights.</p> <p>A dredge lay anchored in the channel of the Schuylkill river, with her two scows abreast between her and the shore, the three occupying over 80 feet in width, when, (luring a foggy night, a barge in tow of a tug, coming up tlie river in line with the dredge, came in collision with it, and both were injured. The barge had no rudder, and her movements were controlled entirely by those of the tug, to which she was fastened > by two lines. The dredge carried two lights, but they were not such as were required by the Philadelphia harbor regulations, nor so placed, being about ;> feet below the upper deck. She was also in violation of tlie spirit of such regulations, by lying ill tlie channel with the two scows abreast of lier. She had no watch, and gave no signals. She was directly in the patii of the tug, and her lights were not seen by tlie latter, which, however, succeeded in escaping collision after the outline of the dredge was seen, but not in time to save the tow. Held, that as between the dredge and barge, the tug not being a party, the dredge was solely in fault for the collision.</p>

In October, 1891, a collision occurred in the Detroit river between the steamers Conemangh and New York, which resulted in the sinking of the Oonemaugh, the total loss of her cargo, and in a slight loss to the New York. The Erie & Western Transportation Company, as owner of the Conemaugh and as bailee of her cargo, filed a libel in the district court against the propeller New York to recover the damages sustained hy the Conemaugh and for the damages to her cargo.

Appeals from the District Court of the United States for the Southern District of Mew York.

<p>Federal Courts — Appellate Jurisdiction — Appeals prom Supreme Court op Hawaii.</p> <p>Act April 30, 1900, providing a government for the territory of Hawaii, provides for two systems of courts in such territory, by establishing a federal district court, having the jurisdiction both of a district and a cirnut court of the United States, and over which the circuit court of appeals of the Ninth circuit is given appellate jurisdiction, and by retaining- the system of local courts established by the republic of Hawaii, to be known as “Territorial Courts.” Section 10 provides that all actions at law, suits in equity, “and other proceedings” pending at the time of the taking- effect of the act in the courts of the republic of Hawaii shall be carried on to final judgment and execution in the corresponding courts of the territory of Hawaii. Section 86 provides that “the laws of the United States relating to appeals, writs of error, removal of causes and other matters and proceedings as between the courts of the United States and the courts of the several states, shall govern in such matters and proceedings as between the courts of the United States and the courts of the territory of Hawaii.” Held, that suits in admiralty pending in the courts of the republic at the date when the act took eifeet, although not mentioned in terms, were embraced in the provision of section 10, as “other proceedings,” which should he continued to final judgment in such courts, and that a decree entered by the supreme court of the territory in such a suit after the act took effect was not appealable to the circuit court of appeals of the Ninth circuit, hut was reviewable only by the supreme court of the United States, under the same conditions and upon the same grounds that a judgment of the supreme court of a state would be.</p>

<p>1. Federal Courts — Jurisdiction—Diverse Citizenship.</p> <p>In so far as diverse citizenship was concerned, an action by a citizen of Massachusetts was properly- brought in the circuit court for the New Hampshire district for the death of a resident of the former state against a railroad company incorporated by the concurrent action of several states, including those named.1</p> <p>2. Death Caused by Negligence — Statute Authorizing Recovery — Penal or Remediad — Suing Thereon in Foreign Courts.</p> <p>Pub. St. Mass. 1882, c. 112, § 212, punislies railroad corporations by fine of from $500 to $5,000 for negligence causing death, to be recovered by indictment for the benefit of the widow and. children and next of kin of decedent. It does not. however, expressly provide how the punishment shall he determined between the two extremes. It further provides that they shall also bo equally liable in damages, assessed with reference to the degree of culpability, to be recovered in an action of tort by 1lie decedent’s executor or administrator for the use of the same persons specified in case of indictment, but that only one remedy is to be available for the same cause. Held, that the statute, while in form penal, was not strictly so, and the civil remedy in the alternative must he regarded as remedial in an international sense, authorizing action to be brought thereunder in the federal courts or the courts of another state.</p> <p>8. Action dor Personal Injury — 'Contributory Negligence.</p> <p>Contributory negligence is no defense under the statute unless it was the true cause of the injury complained of.</p> <p>4. Common Carriers — Statute Authorizing Actions for Deaths of Passengers — APPLICATION TO RAILROADS.</p> <p>Special provision being made by Pub. St. Mass. 1882, c. 112, § 212, for actions against railroads as common carriers for negligence resulting in the death of passengers or employes, section 6, c*. 78, providing for actions against common carriers in general for the deaths of passengers does not apply to railroad companies, and should be interpreted as though reading ‘•common carriers other than those especially provided for.”</p> <p>5. Action by Administrator — Capacity to Sue — Evidence—Decree Granting Administration — Conclusivenicss.</p> <p>Plaintiff, a New Hampshire administrator of the estate of a person who resided in Massachusetts at her decease, brought suit in the circuit court for the district of New Hampshire against a railroad corporation incorporated by concurrent legislation of New Hampshire and Massachusetts, containing a count laid at common law, which was afterwards amended, by the consent of the circuit court, so as to rest on Pub. St. Mass. 1882, e. 112, § 212. Defendant objected to the plaintiff’s capacity as administra I,or on the ground that the intestate left no estate, and that, therefore, in view of the New Hampshire statutes limiting- the jurisdiction for granting administration to a probate judge for some county in which the deceased had estate, the prohate was void. The only thing on this point which appeared in the record was that the plaintiff testified, in answer to question by iho defendant, that the intestate’s estate was an “unsettled claim” against the defendant, and that he did not think she had any other estate in New Hampshire. Held, first, that that was insufficient to "support the claim of the defendant, because, even if the administration could he attacked collaterally, the proof's on that point should ho full and exact, covering every ground on which the probate jurisdiction could bo sustained beyond reasonable cavil; second, that, as, apparently, there was a bona fide assertion of such an “unsettled claim,” that was sufficient assertion of an estate to establish prima facie probate jurisdiction, and to put the defendant corporation on a trial of the merits without permitting it to try out the question of its liability for the purpose of demonstrating that the administration was void.</p> <p>6. Same — Assets.</p> <p>It was also held that, inasmuch as the record does not show that the habitat of the defendant corporation is limited to any particular comity in New Hampshire, it cannot be maintained that a claim against it in behalf of a nonresident is not assets within the county where the administration was granted.*</p> <p>7. Action against Railroad — Wrongful Death — Pleading—Amendment— Departure — New Cause of Action — Limitations.</p> <p>The declaration in a.n action by an administrator in the New Hampshire circuit court stated a cause of action against a railroad company at common law for injuries to plaintiff’s intestate, coupled, possibly, in view of the allegation of death, with some thought of the supplementary damage's given hy the New Hampshire statutes. By an amendment thereof it declared under Pub. St. Mass. c. 112, § 212, specially authorizing actions against railroads for wrongful death, and limiting actions thereunder to one year from the time of the injury. Helé, that the amendment was a change of the ground of action, constituting a departure, and that inasmuch as the one-year limitation which followed the remedy under the Massachusetts statute had expired when the amendment was offered, the action was barred. Railway Oo. v. Wyler, 15 Sup. Ot. 877, 158 U. S. 285, 39 L. Ed. 983, applied.</p>

<p>Street Railroad — Mortgage—Foreclosure and Reorganization — Rights of Bondholder.</p> <p>A committee haying charge for first mortgage bondholders of the foreclosure sale an'd reorganization of a street-railroad company were authorized to purchase the road and other property for their benefit, and organize a new corporation to operate it. The bonds concerning- which the agreement related were bonds on which there had been a general default .on May 1, 1897, and the bondholders agreed to surrender such bonds to the committee, and that the latter should “use the said bonds and coupons” to pay for the property purchased. Bonds were deposited, subject to an order of the committee, pursuant to an agreement under which the holders of receipts for bonds were “entitled to receive for each bond deposited a new noncumulative income mortgage bond [against the new company] for each bond deposited.” One of the depositors, though consenting to the reorganization as planned, detached and retained coupons maturing on and after May 1, 1897, and subsequently collected the same from the proceeds of the mortgage sale; thereby obtaining more for himself than the other bondholders, who deposited such coupons for the committee’s use in purchasing under the foreclosure. Held, that he could , not claim bonds against the new organization in the hands of the committee without producing or surrendering the defaulted coupons which he detached, or paying the money collected therefor out of the proceeds of the foreclosure.</p>

<p>In Equity. Suit for relief against a judgment on the ground of fraud.</p>

Statement of the History and Pleadings. No solution of the questions involved, in this suit can properly or satisfactorily he arrived at without a thorough knowledge of the facts and of the pleadings. Held: and intended to mention in behalf of their interests and other creditors, reminding them of your telegram to them, &c., thus placing you before them as not only being worthy of recognition, but fully capable of holding important positions in their employ.

<p>FOREIGN Corporation — Action—Servicio on Directors.</p> <p>Where a foreign corporation is doing business in the state, service made on a director of the corporation within the state, having his permanent residence in the state, — the cause of action having arisen in the state, — is valid, under Code Civ. Proc. § 482. 1</p>

<p>1. Evidence — Admissions in Pleadings.</p> <p>Admissions or declarations of defendant contained in a pleading served by liim on the adverse party in another pending case may be offered in evidence by plaintiff in the case at bar, though not a party to the action in which the pleading is served.</p> <p>2. Privileged Communications.</p> <p>A communication to a counselor, in the course of his professional employment, by persons other than the client or his agent, is not privileged.</p>

This is an action on a contract. At the close of the evidence the court directed a verdict in favor of the defendants. The writ of error challenges the judgment which followed that verdict. The material facts established when the court directed the verdict were these: The plaintiff in error, John W. Kauffman, was in 1895 the owner of certain real estate in the city of St. Louis, Mo., at the northwest corner of Ninth and Olive streets.

<p>1. Minins Claims — Priority of Location — Effect of Patent.</p> <p>A patent lor a mining claim is not conclusive as to the date of location, such fact not being- one which it is essential for the land office to determine in issuing the patent; hence the failure of the owner of an adjoining claim, where the two overlap, to contest the application, is not an admission on his part of the priority of location of the patented claim which concludes him and debars him from thereafter contesting the question in tlie courts.</p> <p>8. Same — Ovt,rlaxtin& Claims — Limit of Underground Rights.</p> <p>The law contains nothing granting, under any circumstances, to a claim owner, a greater length of the discovered ledge underground than he owns of its apex; hence where two claims overlap along the apex of a ledge, although the end lines of the senior location converge, and meet within the other claim, so as to terminate the rights of its owner at that point, the ow ner of the junior claim cannot take up the ledge in its downward course beyond such point:, and continue to. follow it within the limits of his own end lines, but his underground ownership of the ledge is ' bounded by the extension of the plane passing through the line of the senior claim, which bounds his rights along the apex, where such line and his own end line, -which marks his other boundary, converge in the direction of the dip of the vein.</p> <p>8. Same.</p> <p>Ledges may be followed between the end-line planes of a claim without any limitation as to their dip or course.</p>

Keeper’s Fees. The property in charge of the keeper is situate in Crum Canon, remote from habitation, and consists of mines, mining machinery, tramway, mining implements, boarding house and furniture, blacksmith shop and tools, store building and merchandise' therein contained, official residence and office and furniture, bunk houses for men, mining supplies, cord wood, quartz mill and machinery, located about 18 miles from the town of Battle Mountain, in Lander county, Nev.

<p>1. Bankruptcy — Exemptions.</p> <p>Where a bankrupt claimed exemption out of a stock of goods in trade, and the referee found that the goods had been paid for, the bankrupt was entitled to an exemption therein, under Code Va. 1887, § 3030.</p> <p>2. Same — Claim—Sufficiency.</p> <p>Code Va. 1887, § 3039, provides for an allowance of an exemption out of a stock of goods on selection by the householder in writing, describing each parcel or article, and aiiixing to each his cash valuation thereof. Held, that a claim by a bankrupt of an exemption out of a stock of goods, ' claiming such stock in bulk, is an insufficient compliance with the provisions of the Code.</p> <p>8. Same — Sale of Goods. ’</p> <p>Code Va. 1887, § 3630, provides for an exemption to a householder of real and personal esiate, including money to the value of not exceeding @2.000. During the time between a petition in bankruptcy and an adjudication the bankrupt disposed of goods for which lie had paid to the amount of @332.89, and also sold certain goods for which he had not paid, and for the proceeds of which he accounted to the trustee. Held, that the proceeds derived from goods sold by the bankrupt were exempt, where, with other property claimed by him, they did not exceed in value @2,000.</p>

<p>In Bankruptcy. -></p>

<p>Bankruptcy — Exkcution Sat-rs — Action to Set Aside.</p> <p>In a suit by a trustee in bankruptcy to recover from certain judgment creditors of the bankrupt moneys received on the judgments by levy and sales made within four months of the adjudication in bankruptcy, judgment will be entered for 'defendants, where in the case stated it is not alleged that, at the time the liens under the writs of scire facias were obtained, the execution debtors were insolvent, under liarikr. Act 1898, § 67, cl. “f,” providing that levies obtained through “legal proceedings against a person who is insolvent” at any time within four months prior to I he filing of petition shall be deemed null and void on an adjudication in bankruptcy.</p>

<p>In Bankruptcy. • On motion to vacate stay.</p>

<p>1. BANKRUPTCY — DISCHARGE—CONCEALMENT 01’ ASSETS.</p> <p>After tiie appointment of a trustee in bankruptcy proceedings, the concealment of asset's which were not turned over to a receiver previously appointed by a state court, and who is entitled to possession of such assets, is equally a concealment from the trustee, and warrants the refusal of a discharge to the bankrupt.</p> <p>3. Same — False Oath- — Specification Conformed to Proof.</p> <p>A willfully false statement in the schedule of a bankrupt that all his property has gone into the possession of a state receiver, when in fact he has property which he did not turn over to such receiver nor schedule, constitutes the making of a false oath, which debars him from the right to a discharge. The specification may bo conformed to the proof.</p>

<p>In Bankruptcy.</p>

<p>1. BANKiierTCY — CoMPiiOMrsB oí’ Claiii — -Acceptance by Crkditors — Disaw proval by Court.</p> <p>Bankr. Act, § 27, provides that the trustee “may, with approval of the court.” compromise any controversy arising- in the proceedings. Section 5tSa provides that creditors shall pass on all matters submitted to them at their meetings by a majority vote. Section 58 (7) provides Cor notice to creditors of proposed compromise of any controversy. Held, that the action of the creditors on any compromise offered on claims due the es-tele of the bankrupt is not conclusive, but may, for good cause,, be disallowed by the court, under section 27, as the compromise, when determined, must be carried out and executed by the trustee under the "approval of file court.”</p> <p>2. Same.</p> <p>Where a trustee recovered judgment for $10,117 for a preference received, and Ihe case was appealed, acceptance by a majority of the creditors of ¡b!iH> in compromise of such claim, against the trustee's objections, will be set aside.</p>

<p>Bankruptcy — Procedure—Testimony of Bankrupt.</p> <p>Where depositions or testimony of a bankrupt have been taken at any time during previous proceedings, they may be admitted in subsequent proceedings, where the person who took the notes of the bankrupt’s examination testified that they were truly and correctly taken.</p>

<p>In Bankruptcy. On petition for involuntary adjudication.</p>

<p>In Bankruptcy. Appeal from Decision of Eeferee James M. Olm-stead.</p>

Petition by importers to review the decision of the board of ; meral appraisers affirming the classification for duty of certain imported merchandise.

<p>1. Patents — Anticipation—Burden of Proof.</p> <p>Wliere anticipation has been clearly shown, if the date of the application ho taken as the date of invention, the burden of proof is transferred to the patentee to establish by satisfactory evidence that the invention was made at an earlier date.</p> <p>2. Same — Patentable Invention.</p> <p>In contemplation of law, an invention does not exist until the inventor’s theories and ideas have been reduced to practical form; it cannot be predicated of mere speculation and conjecture, but must be based on something ascertained, definite, and certain.</p> <p>. 3. Same — Anticipation—Electrical Distribution.</p> <p>The Kennedy reissue patent, No. 11,031 (original No. 407,294), for an improvemenv, in the method of distributing and regulating alternating electric currents by secondary generators, is void for anticipation.</p> <p>4. Same — Prior Public Use — Experimental Use by Inventor.</p> <p>The inventor of a system of electrical distribution, designed primarily to regulate the current in an electric lighting system, established a temporary lighting plant in a small town at the expense of the company by which lie was employed, and for three months furnished a limited number of lights to customers, for some of which a charge was made. The purpose, however, was entirely experimental, — to test the device in actual use. and to enable the inventor to perfect and improve it, — and the portions of the apparatus which embodied the invention were kept locked from public inspection. Held, that such use did not constitute a prior public use of the invention, whioh invalidated a patent thereof granted .on an application filed more than two years later, after the device had been perfected.</p> <p>5. Same — Infringement—Electrical Distribution.</p> <p>The Stanley patent, No. 469,809, for a system of electrical distribution, was not anticipated nor invalidated by prior public use of the invention, and is valid. Claims 1 and 3 also held infringed.</p>

<p>Patents — Ixfiunoement—Metai.iac Box — Stkaps.</p> <p>The Dana patent. No. 371,tS7, for an improved metallic box strap, construed. ami held not infringed.</p>

<p>Patents — ■Validity and Inb’rinsement — Phenacetin.</p> <p>The Hinsberg patent, No. 400.086. for the chemical product known commercially as “phenacetin,” which is a valuable remedy, largely used by the medical profession since its production by the patentee, Iteld not anticipated, valid, and infringed.</p>

<p>Action on Patent — Plea—Sufficiency.</p> <p>In a suit on a patent, a plea alleging that the patent expired 22 days after the bill was filed, and before defendant was required to answer, is sufficient where a preliminary injunction was not moved lor, and the bill does not allege prior adjudication, nor acquiescence, nor any fact on which such a motion could have been founded.</p>

<p>In Error to the Circuit Court of the United States for the Southern District of ISTew York.</p> <p>George W. McGill, & citizen of the state of New York and resident of the city of New York, brought four actions at law against Holmes, Booth & Hay-dens, a Connecticut corporation, before.the United States circuit court for the Southern district of New York, to recover royalties under the contracts annexed to the complaints for the succeeding quarters of-a year from April 1, 1895, to- July 1, 189G. The four suits were, by order of court, consolidated, and were referred by written consent of the parties to Hon. William G. .Choate “to hear find determine all the issues herein, a Jury having been waived, ail'd Judgment may be entered upon Iris report or decision as such referee with the saine'force' and effect as. if the issues had been heard and decided by the court uiider.'stipulation for a trial by the court without the intervention of a Jury.”; Judgment was 1‘iiipml in the consolidated suit in favor of the plaintiff for £21),:>15.9(5 in accordance with the report of tlie referee. This writ of error was brought to review Hie judgment. The questions in the case are upon the construction of a contract dated March 23, 1870, and three amendments or additions thereto.</p>

<p>In Equity. Suit for infringement of patent. On final hearing.</p>

<p>Appeal from the Circuit Court of the United states for the District of New Jersey.</p>

<p>Patents — Validity—Determination on Demurrer.</p> <p>A patent cannot be held invalid on demurrer unless its validity so- clearly appears on its face that no evidence could sustain it.</p>

<p>Patents — Construction of Claims — Supports for Strmet-Caii Bodies.</p> <p>Claims 1 'and 2 of tlic Brill patent. No. 478,218. for ail improvement in car trucks, designed to prevent the oscillation or galloping movement of a street-car body incident to its being supported on a comparatively short wheel base, by the use of both spiral and elliptical springs, are limited by the prior art to the particular construction shown in the specification, iii which the two sets of springs are sc arranged that (he elliptical springs are not brought into action until the spiral ¡springs, which normally support the weight of the car, have begun to compress. As so construed, held not infringed.</p>

In Admiralty. Appeal from the District Court of the United States for the Northern District of Illinois. The Graham & Morton Transportation Company filed its libel in personam in the court below to recover a sum of money claimed to be due on a policy of marine' insurance issued to it by the Chicago Insurance Company.

<p>Salvage — Computation of Award — Value of Property Salved.</p> <p>A cargo ol- sugar in port, on which the duty liad keen paid, subject to repayment in case of its destruction before landing, was exposed to danger of injury or destruction by iire, and the court made an award to the salvor equal to 10 per cent, of the value of the sugar, líela, that such award must be computed on the value of the sugar with the duty unpaid, since' that was its actual value and the amount saved to the owner. The remaining sum, which wont ro make up the market value of the sugar with the tax paid, represented no propeity interest in the thing- salved, but merely the tax, which could not properly be the sabject of salvage; and its loss, moreover, would have been the loss of the government, which had no interest in or relation to the property, and could not be made a. party, or affected by the salvage award.</p>

<p>In Admiralty. Suit in rem to recover damages for breach of charter.</p>

<p>Towage — -Liability op Tug pok Ixjuky to Tow.</p> <p>A tug held in fault for an injury received by a schooner in tow, by striking against the piling at the side of a railway bridge, the draw of which was not opened in response to the tug’s signal, on the ground that it failed to act with sufficient promptness in stopping the tow, as was its custom, being familiar with the locality, and with the fact that the draw might he found closed, wlien.the tug c-ame in full view of it, on account of the near approach of trains.</p>

Iliis cause comes here upon appeal from a, decree of the district court, Southern district of New York (97 Red. 343), dismissing a libel to recover damages for the alleged nondelivery of certain merchandise shipped on the Asiatic Prince from New York in December, 1895, and January, 189(5, to ihe port of Santos, in Brazil.

<p>1. Admiralty— Review on Appeal — Questions of Fact.</p> <p>In cases on appeal in admiralty, the decision of the district court on questions of fact, depending upon contradictory evidence taken in open court, -will not be reversed, unless clearly against the evidence.</p> <p>3. Seamen — Injury 'While in Service — Duty of Ship.</p> <p>Under the maritime law, a seaman who receives an injury while in the service of the ship is entitled to medical care, nursing, and attendance, and to a cure, so far as cure is possible, at the expense of the ship, and it is the duty of the master, for the performance of which the owners are responsible, to take all reasonable measures to that end.</p> <p>8. Same — Taking Injured Seaman to Nearest Port — When Required.</p> <p>Libelant was mate on a schooner which left San Francisco on a cod-fishing cruise in Alaskan waters, all the crew being on a lay. When 500 miles from Port Townsend libelant was struck by the main boom, without fault on the part of any one, and his leg was broken in two places. There was no surgeon on board, nor any one competent to treat the injury. Libelant asked to be taken back to shore, and the wind was favorable, but the master proceeded to Unalaska, 1,750 miles from the place of injury, which he reached in 16 days, and from that port libelant was sent back to San Francisco. By reason of the delay and the motion of the ship, libelant suffered much additional pain, and his injury was rendered permanent. Held, that it was the duty of the master, under the facts shown, to at once proceed to Fort Townsend, which was the nearest available port where libelant could have received proper care and treatment, and that his failure to do so rendered, the owners liable iia 'damages.</p>

<p>Appeal from the District Court of the United States for the Northern District of California.</p>

This cause comes liere upon appeal from a decree of the district court, Eastern district of New York, dismissing a libel for damages sustained by libelant’s barge No. 11 in consequence of a collision with the steamer Kennebec.

<p>1. Eemovai, oi-' Causes — Timm b-or Fir,bug Petition.</p> <p>Although the statutes oí Indiana do not prescribe the time for filing pleadings, and there are no rules of court fixing- such time, the same being fixed in each case by order, yet, under 1 Burns’ Rev. St. 1891, ¶ 403, requiring- the courts to direct the making- up of issues without unreasonable delay, and Id. § 348, which provides that “the judgment on overruling the demurrer shall be that the party shall plead over,” where a demurrer to the complaint was overruled on the third day of the second term after that to which the summons was returnable a petition for removal filed on the fourth day of the succeeding term is presumptively too late to come within the provisions for removals in the judiciary act of 1887-88, and the federal court will not take jurisdiction unless it affirmatively appears from the record that the state court extended the time to answer to that date.</p> <p>2. Same — Trial of Issue oe Law in State Court.</p> <p>Under the removal provisions of the judiciary act of 1887-88, a defendant cannot remove a cause after the trial in the state court of an issue of law on demurrer to the complaint for want of facts.</p> <p>3. Same — Sufficiency ob- Petition — Citizenship of Corporation.</p> <p>An averment in a petition for removal filed hy a corporation defendant that it “was at the time of the commencement of the suit, and still is, a citizen and resident” of another state named, is insufficient to show jurisdiction in a federal court, where It is not shown by the record that it was created by the law of such state.</p>

<p>Action at Law. On demurrer to declaration.</p>

<p>Pubijc Lands — Attachment of Raixroad Grant — Prior Pre-emption.</p> <p>In order that a pre-emption settlement made under the act oí 1841 on offered public lands should prevent the attachment of a subsequent railroad grant of the same land, it must have been followed by proof and payment by the settler within 12 months, as required by section 15; and where such proof and payment were not made, and after the expiration of the time therefor tile railroad company filed its map of definite location, which brought the land within the limits of the grant, it passed to the company thereunder as if no pre-emption had ever attached.</p>

In November 1898, upon the hill of Mark T. Cox, lames A. Blair and .Tames W. Paul .Tr„ in the Circuit Court for the Southern District of Illinois, against the Terre Haute & Indianapolis Railroad Company, seeking certain equitable relief growing out of its relations with the Terre Haute & Peoria Railroad Company, the appellant was appointed receiver of the first mentioned road, and as such took possession of, and operated the railroad up to and including the time when the…

Appeal frpm the Circuit Court of tbe United States for the District of Indiana. Tlie suit below was by tlie appellee as administratrix of tlie estate of Robert M. Ray, deceased, against the appellants, to recover damages for tho death of Kay occurring on the 20th oí April, 180!). The .Baltimore & Ohio Railroad Company being in tho hands oí receivers appointed by the Circuit Court for the District of Indiana, this action was by way of petition in the reeeiversliii) suit.

<p>1. Boundaries — Evidence—Declaration of Deceased Surveyor.</p> <p>Under the rule established by decision in Texas, which, as a rule of property, is binding upon the federal court* sitting in that state, declarations of a deceased surveyor in regard to the lines and corners of a survey which was originally made by him, made on the ground while pointing out a monument placed there by him in making the survey, are admissible in evidence in an action involving the location of the survey, although at the time the declarations were made he was part owner of the land embraced in such suivey, and interested in a controversy then pending as to its boundaries. The objection that such declarations were self-serving is not fatal, since they could not be used as evidence during his lifetime, or while his testimony was obtainable.</p> <p>2. Aw’Hal — -Review or IvstiujotioKs — Exceptions.</p> <p>a general exception to a charge, which does not direct the attention of the trial court to the particular portion or portions to which objection is made, raises no question for review in the appellate court.</p> <p>Pardee, Circuit Judge, dissenting.</p>

In Error lo Hie Circuit Court of the United States for tlie Northern Division of the Northern District of Illinois. The defendant in error brought suit to recover damages for the den ill of her intestate, .John Olsen, who was drowned in the Illinois river through falling from a temporary bridge or scaffolding whiie in the service of the Lafayette Bridge Company. The declaration contains six counts.

<p>1. Discovery — Requiring Production os' Books or Papers — Action rob Penalty.</p> <p>In a qni tam action under Rev. St. § 4901, to recover the penalties thereby imposed for falsely marking an article as patented, the defendant cannot be compelled, under section 724, to produce books or papers containing evidence against himself, either for use in evidence or for the inspection of. the plaintiff before the trial. Such an action is penal in character, while section 724 expressly applies only to cases where the party might be compelled to produce the hooks or papers ‘‘by the ordinary rules of proceeding in chancery,” which never allowed a hill of discovery to be maintained in aid of an action for a penalty or forfeiture.</p> <p>2. Same — Waiver of Privilege.</p> <p>The fact that a party produced certain books or papers in an equity suit is not a waiver of his privilege to refuse to produce them in another action against him to recover a penalty, in which they are desired to furnish evidence against him.</p>

<p>1. Libel — Action for Damages — Evidence.</p> <p>Xu an action for libel based on the publication by defendant in its newspaper, of an article purporting to give1 an account of the plaintiff’s arrest on a criminal charge and removal to another state for trial, and making certain libelous statements regarding the plaintiff to the effect that he was a member of a gang of cattle thieves, defendant filed a plea in justification and also a plea in mitigation of damages, in the latter of which pleas was embodied an article, subsequently published by the defendant, which stated that the case against the plaintiff had been dismissed and that he had been able “to convince the prosecutor that the charges were false.” Defendant also averred in its plea of justification that the criminal case “was never tried on its merits,” and counsel for the defendant in his opening statement said to the jury, in substance, that the criminal proceeding was dismissed as against the plaintiff because he turned state’s evidence. A contested issue arose during the trial and was sub-initted to the jury as to whether the defendant filed its plea of justification in good faith, believing or having reason to believe that the plaintiff was guilty of the crime charged against him. The trial judge admitted in evidence over an objection of the defendant the entire record of the criminal case against fie plaintiff, consisting in part of a sworn statement of itie prosecuting attorney, -which he had filed, giving- his reasons for the dismissal of the action without a trial; but in doing so the trial judge instructed the jury that such evidence should not be considered as bearing upon the question of plaintiff’s guilt or innocence of the charge made against him. Held, that such action was proper; that in view of the false inferences which might bo drawn from the statement made by the defendant’s attorney in his opening, arid from the statements contained in the defendant’s pleas, the plaintiff was entitled to show all of the circumstances attending the dismissal of the criminal proceeding', so far as the record of the court in that case would disclose; that the entire record in said case was also admissible as bearing upon the issue whether the defendant had filed its plea of justification in good faith, inasmuch as it nnpoared that ¡he defendant was fully acquainted with the contents of the entire record in the criminal case before such pica was filed. Sanborn, Circuit Judg'd, dissenting.</p> <p>2. Basie — Plea in Mitioatiok of Damages — Evidence or Good Faith.</p> <p>In those states where by statute a plea in mitigation of damages may be filed in connection wiüi a plea of justification, and evidence in support of Í fie former plea may be received although the latter plea is not established, an issue concerning the good faith of the defendant inheres in every action for slander or libel where a plea in justification is filed and is not sustained by the proof, since the jury, in determining whether punitive damages should bo assessed, are entitled to consider whether the jilea was interposed in good or in bad faith, and evidence having any legitimate tendency to develop the defendant’s motive should be received. Sanborn, Circuit Judge, dissenting.</p> <p>3. Same — Issues and Proof.</p> <p>Where the plaintiff in an action for libel or slander introduces in evidence facts not pleaded by him, to create an inference of express malice, and to lay a foundation for punitive damages, the defendant may, in ’turn, prove facts not pleaded, but which have a tendency to rebut such inference.</p> <p>4. Same — Flea of Justification-.</p> <p>Where an article published by defendant, which is made the basis of an action for libel, in substance charged that plaintiff was a member of a band of cattle thieves, and the agent through whom stolon cattle were sold, a jilea of justification must allege specific instances of the theft of cattle by plaintiff, or of the receipt and sale by him of stock, knowing them to have been stolen; and the evidence in support of such plea must be confined to the instances so pleaded.</p> <p>6. Same — Evidence—Co-Whtenoy of Party’s Own Declarations.</p> <p>in an action for libel, 'defendant filed a plea of justification, in which it was alleged that plaintiff had received certain cattle, knowing them to have been stolen, and that such cattle had been cut out from his herd by a person deputized by the sheriff for that purpose. Held, that plaintiff was ontilled to show, either by his own testimony or that of other witnesses, what was said and done at the time he was notified by the person so deputized that the stolen cattle had been found in his herd, including the statement made by him to such person in explanation of the manner in which such cattle came into his possession.</p>

<p>1. Action on Guaranty — Affidavit or Defense.</p> <p>A guaranty stated that it was attached to a note in suit. The statement of claim averred “that at the tune the money wasi loaned and said note was given, and as an inducement therefor, said defendants guarantied” the payment of the note, and executed a certain written undertaking. The affidavit of defense alleged that one of the plaintiffs was not present when the paper was executed, and that he did not request one of the guarantors to execute the same. Heidi not to suiliciontly traverse the averments of the statement.</p> <p>2. Same — Acceptance.</p> <p>The written guaranty, being attached to the note and delivered with it, was an absolute, and not a conditional, obligation, requiring notice of acceptance.</p> <p>3. Same — Vaeying Written Contract.</p> <p>Where a written guaranty was conditioned to collect certain claims, and to pay the full amount due on a note attached, an affidavit of defense averring that the obligors were not able to collect, and substituting for an absolute agreement to pay on a day certain one to pay only in case they collected, was insufficient, as varying the terms of the written instrument.</p>

<p>1. FIXTURES — LANDLORD AND TENANT — MACHINERY PLACED ON LEASED PREMISES.</p> <p>Whore ground was leased as a site for a factory building, which was subject to the right of removal by the tenant at the end of the term, machinery placed in such building by the tenant does not become a pan of the realty.,</p> <p>% Same — MORTGAGOR and Mortgagee.</p> <p>Under the laws of New York, a mortgage of a factory built by a lessee on leased ground carries with it, as fixtures, all machinery which is firmly attached to the building, and which is necessary to its character and use as a factory, but not portable articles or machines not attached to the building, nor bolting which may be removed without disturbing the building, or the machinery or shafting attached to it.</p>

<p>In Bankruptcy. On motion to vacate stay.</p>

<p>1. Bankruptcy — Stay op' Execution against Trustee.</p> <p>The assets of a "bankrupt in the custody of a court of bankruptcy are distributable under its order alone, and are not subject to levy by a sheriff to satisfy a judgment against the trustee, who is entitled to an order restraining such a threatened levy,</p> <p>a. Same — Replevin against Trustee — Damages and Costs.</p> <p>Costs awarded by a state court against the trustees of a bankrupt, as substituted defendants in an action of replevin pending at the time of the bankruptcy, should be allowed and paid in full from the bankrupt estate; but a judgment for damages for detention of the property is entitled to no preference over other claims against the bankrupt, where the trustees never had possession of the property, and were not responsible for its detention, but after their appointment did all that could reasonably be demanded of them, consistent with the protection of their rights, to assist the plaintiffs in obtaining possession of it.</p>

<p>Bankruptcy — Electior of Trustee — Authority of Attorney to Vote.</p> <p>The mere relation of attorney at law for creditors of a bankrupt does not authorize such attorney to vote in behalf of his clients at the election of trustee.</p>

<p>In Bankruptcy. Proceeding by trustee to restrain sale of property of the bankrupt under attachment.</p>

<p>1. Bankruptcy — Exemptions.</p> <p>Where, after bankrupt had duly made claim for exemption of certain specified personal property, the property was sold by the receiver, with other property of the bankrupt’s estate, by order of the court, but without prejudice to the rights of the bankrupt to apply for the proceeds of the sale of such property claimed as exempt, the court will surrender the money into which it had converted such property in the same manner it would have surrendered the property if it had not been converted.</p> <p>3. Same — Invalid Levy — Waiver.</p> <p>Certain creditors, a few days before an adjudication in bankruptcy, levied on the property of the bankrupt on an execution on a judgment on a note waiving the benefit of the exemption law. The execution was enjoined as an illegal preference, and the property passed to the receiver. Held that, as the preference created by the execution was illegal, the waiver of the exemption as against the enforcement of the debt on valid lawful process fell with the enjoined unlawful preference execution.</p> <p>8. Same — Estoppel.</p> <p>An execution of a judgment creditor on a judgment waiving exemptions was set aside as an unlawful preference under the bankrupt law. The creditor thereafter filed his claim waiving any lien he might have acquired under said execution. Held, that he was estopped from afterwards claiming a preference against the exempt property.</p>

<p>Chinese Exclusion Act — Finality op Action op Executive Officers — Power op Courts to Review.</p> <p>Under the Chinese exclusion act of August 18, 1894 (28 Stat. 390), where an immigration officer has made an order for the deportation of a Chinese person as belonging to a class not entitled to remain in this country, which has not been appealed from, a court has no jurisdiction to review the legality of such order in habeas corpus proceedings.</p>

This appeal is from a decree adjudging the validity, and infringement by the appellant, of claim 3 of letters patent of the United States No. 322,393, issued on July 14, 1885, to C. and A. Potts for a clay disintegrator. The specification, in so far as it need be quoted, Fig. 4, which shows a vertical section, and the claims of the patent are as follows: "Our invention relates to an improved machine for finely dividing and tempering clay.

<p>1. Patents — Infringement—Knittins Machines.</p> <p>The Powell patent, No. 510,934, for a weh-holder actuating mechanism for automatic knitting machines, embodies an invention of high merit, which resulted in making a substantial advance in the “art, and as such is entitled to favorable regard. Claims 1 and 2 construed, and held infringed by the Leicester Mills machine, which employs different, but mechanically equivalent, mechanism to accomplish the same result in substantially the same way.</p> <p>2. Same.</p> <p>Infringement is not avoided by adding a new function to an element of a combination which does not affect its performance of the function of the patent.</p>

<p>Appeal from the Circuit Court of the United States for the Eastern District of Pennsylvania.</p>

<p>Appeal from the Circuit Court of the United States for the District of New Jersey.</p>

The following is the opinion of the circuit court (LOWELL, District Judge): This is a bill in equity for the infringement of design piatent No. 29,914, for a seam-welting strip. The defendant has demurred to the bill for want of' invention in the patent. That the question of invention, though purely an issue of fact, may sometimes be raised by a demurrer to a bill in equity, is now settled.

<p>1. Patents — Patentability—Issues.</p> <p>The rule applied Umt, witli reference to questions of patentability, and of the range of the claims in a; patent issued t.o an inventor, in a suit on such patent, the court will not allow parties to frame their issues in such way as to take from it the scrutiny of such questions.</p> <p>2. Same- — Construction or Claims — Limitation isy Proceedings in Patent Office.</p> <p>Where the invention of a patentee is of a narrow and doubtful character, necessarily to be carefully limited, and substantial objections to his claims were- made by the patent office, to which he yielded, he must be held to the result of the proceedings on his application, and be restricted thereby.</p> <p>3. Same — Invention—Snow Um’ers.</p> <p>The Chase patent, No. (¡20,278, for a shoe upper, claim 3, Is void for lack of patentable invention.</p>

The action in the Circuit Court was to restrain the infringement of Letters Patent No. 578,614, issued to William Hoskins and William A. Spinks. March 0, 1897. for a substitute for billiard-chalk. The material portion of the patent, together with the claims sued upon, is as follows: "Our invention relates to an improved substitute for billiard-chalk.

<p>Appeal from the Circuit Court of the United States for the District of Indiana.</p>

<p>In Admiralty. Libels to recover for salvage services.</p>

<p>Shipping — Construction op Charter — Covenant nor Docking — Damages for Delay Occasioned by Foul Bottom.</p> <p>A charter of a steamship for a period of about six months, hire to continue until her redelivery at some designated port, contained a provision that “steamer is to be docked, bottom cleaned, and painted whenever charterers and master think necessary, at least once in every six months, and payment of the hire to be suspended until she is again in proper state for the service.” At the expiration of six months the ship was in a South African port, and the charterer desired to bring her to the United States for redelivery. She had not been docked or cleaned during the term of the charter, and the charterer demanded that she be taken to Cape Town and docked. The owner refused, and the ship was delayed on the passage home on account of the foul condition of her bottom. Held, that the charter provision was, in legal effect, an absolute engagement on the part of the owner to have her docked and cleaned at least once in six months, or else to allow the charterer his actual loss resulting from the failure, and that such provision continued in force so long as tlie hire continued; that neither the fact that the master did not deem the docking necessary nor that she could not be docked at Cape Town released the owner from such engagement.</p>

<p>Tn Admiralty. Suit by foreign seamen to recover wages.</p>

<p>1. Marine Insurance — Separate Vai,cations op Hull and Machinery.</p> <p>Where the hull and machinery of a steamship are separately valued in a policy of marine insurance, the parts thus separated are to he treated as distinct insurances, to he applied to each part as though each were insured by an independent policy.</p> <p>2. Same — Partial Loss — Deductible Average.</p> <p>A marine policy on a steamship contained two separate valuations, one including die “hull, tackle, apparel, furniture, stores, outfit, fittings, electric light plant, and dynamo,” and the other the “engines, propeller wheel or wheels, boilers, and machinery.” It contained clauses providing that, “in the event of particular average, the assurers only to be liable for tbe excess of one-half per cent, upon the entire value,” and “average payable on each valuation as if separately insured, or on the whole.” EeM, that the effect of the latter clause was to entitle the assured to treat the policy as a single policy on the whole, or as two separate policies, for the purpose of computing the deductible average in case of a partial loss, and that in case of a loss by injury to the hull in collision, which did not effect any of the items included in the second class, the half per cent, deductible under the franchise clause should be computed only on the amount of the first valuation; the words “entire value,” as used in the first clause, having reference in such case to the class of which the hull formed one item, as the subject of separate insurance.</p> <p>3. Same — Construction of Policy.</p> <p>Ambiguities or contradictions in different clauses of a policy, in the absence of any controlling indications of intent, are to be resolved against the insurer.</p>

<p>Appeal from the District Court of the United States for the District of Massachusetts.</p>

<p>Negligent Discharge of Cargo.</p> <p>Where a hill of lading consigned a canal boat alongside of a steamer for the purpose of transferring a cargo of iron from the canal boat to the steamer, and the iron was properly put in slings in the hold of the canal boat, and two of the loads fell, from contact with the side of the ship, ' because there was no guy to control the slings in rising, the canal boat was not liable for the resulting loss.</p>

<p>1. Shipping — Vessels Moored to Others — Liability for Negligence.</p> <p>Two scows owned by libelants were moored to tbe breakwater in Erie Basin by strong lines, which were sufficient to withstand any strain which such vessels would have put upon them had not the three respond- - ent scows moored to them on the outside. The following morning the wind was high, and there was danger of the vessels breaking away, but the masters of respondent scows took no- measures to assist In strengthening the fastenings. The masters of libelants’ scows called out to them of the danger, but their suggestion was unheeded, and beyond that they did nothing. The lines finally parted, and libelants’ scows were drifted against other objects, and sunk. Held that, while the action of respondents in tying up to the other scows was lawful, and in accordance with the custom of the port, it -was their duty, when the safety of all the vessels required it, to put out lines to assist in making them secure; that it was also the duly of the masters of libelants’ vessels, having knowledge of the danger, and that nothing was done by the outlying scows, to use some diligence to strengthen their lines for the protection of their own vessels, and that the damages should he divided, one-third to he borne by libel-ants and two-thirds by the outlying scows, as between themselves to he divided equally.</p> <p>2. Tug akd Tow — Mooring of Tow During Storm — Liability of Tug.</p> <p>A tug, during stormy weather, took her tow to a proper place, where she could safely outride the storm, and left her, moored to other scows, and in charge of her master. During the storm, the tow, although having-knowledge of the danger, and ample opportunity, took no measures to extend lines of her own to the breakwater, to. which the inner scows were „ moored, or to assist in strengthening their lines, in consequence of which such lines partéd, and she was held liable for resulting injury to the other scows. Held, that there was no ground for placing such liability upon the tug, which was not charged with the duty of seeing that her' tow was equipped with proper lines, or that she made proper use of them.</p>

<p>Tow — Collision with Wreck.</p> <p>Two wrecks were sunk in about mid-cliannel of a river about 1,000 ieei apart. Their positions were known to the captain of a tow, and were marked by buoys, and at night should have been lighted. A tow and tug-had passed the wreck safely at night, but a following tow, the wrecks not being properly lighted, ran upon one of them. There was nothing extraordinary in the wind or tide, but the size of the tow had probably something to do with the result; although it was not too large to go with safety sufficiently far to the west of the wreck to escape the danger. jjeln That, as plaintiffs had full knowledge of the obstructions and their location, they should have so regulated the size of the tow and its navigation as to have cleared them, and were liable for the resulting injuries.</p>

<p>In Admiralty. Libel and cross libel for collision.</p>

<p>Collision — Tow and Anchored Vessel — Insufficient Lookout.</p> <p>One of three scows in tow of a tug came in collision in the night with a schooner anchored, in the neighborhood of Craven Shoal, south of the Narrows, in Dower New York Bay. The night was clear, and the schooner had two bright lights, which could be seen a long distance, but the pilot of the tug did not see them, nor the lights of another schooner anchored near, until within 200 feet. While the evidence was conflicting, the weight of it showed that the schooner was within the west anchorage grounds, and that the tug was to the westward of the channel. Held!, that the fault for the collision must be attributed solely to the tug, by reason of her negligence in failing to sooner seé the anchored vessels.</p>

<p>Oh Motion to Remand to State Court.</p>

<p>1. Insurance — Transfer or Proiuorty.</p> <p>A policy oí insurance against lire declared that the transfer of the property insured, without the consent of the insurer, would avoid the policy. When the property covered by such a policy is transferred to a third party, with (lie consent of the insurer, a new contract arises between the insurer and the transferee of the property, in effect the same as the issuance of a new policy.</p> <p>2. Same — Construction of Policy.</p> <p>When a policy of insurance is issued to A., loss, if any, payable to A., or B., as interest may appear, this is a contract to insure B. as well as A. to the- full extent of his interest; and, if A. indorse on the policy a disclaimer of an interest in the property covered hy the policy, B. is the only party insured under this contract, and may bring suit upon it in his own name and in his' own right.</p> <p>8. Same — Removal op Causes.</p> <p>An action brought by B., a Virginia corporation, under these circumstances, in the state court, against a corporation of another state, is removable into the federal court, at the instance of the defendant corporation, notwithstanding that neither the defendant corporation nor the plaintiff corporation is a resident of South Carolina.</p> <p>(Syllabus by the Court.)</p>

In Equity. On motion for preliminary injunction. The complainants are Samuel Pearson, a citizen of the South African Republic. Edward Van Ness, a citizen of the state of New York, and Charles 11. Pierce, consul general of the Orange Free State. whose citizenship is not set forth. In their original bill herein they aver, in substance: That the United States are at peace with the South African Republic and the Orange Free State, and that Great Britain is at war with the same.

<p>L Equity — .Tuktsdictioit—Adequate Remedy at Law.</p> <p>A bill alleged that complainant, by a contract with defendant, purchased the entire crop of hops to be raised by defendant the ensuing season, and made advances thereon to enable defendant to raise and secure the crop, the agreement being that complainant should market the same, and that, after the advances were deducted, the remainder should be equally divided between the parties; that defendant had refused to deliver the hops, but liad secreted the same and falsely understated the amount. An injunction was prayed to restrain defendant from disposing of such hops. Held, that the bill stated a cause of action in equity for an accounting and division of the profits in accordance with the contract; that the allegation of ownership in complainant was merely luci-dental to such relief, and did not restrict complainant to its remedy at law by replevin or trover, — the entire facts alleged, in effect, making the parties partners in the profits of the crop.</p> <p>«3. Contracts — Construction.</p> <p>By a contract, complainant agreed to purchase a crop of hops to he raised by defendant, and to advance, as required to enable defendant to secure the same, seven cents per pound; the proceeds of the hops, when sold by complainant, above the amount of the advances, to be equally divided between them. The contract further provided that defendant might, at his option, retain half the crop, by paying to complainant seven cents per pound for the same. Defendant obtained advances to an amount considerably exceeding seven cents per pound on the crop actually raised, and afterwards sought to exercise his option to retain half the crop by paying the sum of seven cents per pound to complainant. EM, that the contract contemplated an equal division of the profits, and that defendant could not exercise his option to retain half the crop in specie without repaying one-half of the advances actually received.</p>

In Ejectment. Proceedings stayed by a third person. The original petition stated that the plaintiff was in possession of the batture, a tract of land within the limits of the city of New Orleans, and that the defendant ousted him of his possession, and still kept him out. Besides a claim of $150,000 for damages, it concluded with a prayer that the plaintiff might he restored to his possession.

<p>In Error to the Circuit Court of the United States for the Eastern District, of Pennsylvania.</p>

<p>Nation Ai. Banks — Stockholders Subject to Assessment — Pledgee.</p> <p>A pledgee of shares of stock in a national bank as collateral security for a debt due him from the owner, with power of attorney to transfer the same' on the books of the bank, does not become a stockholder, and liable to an assessment as such on the failure of the bank, contrary to his intention, by causing the stock to be transferred into the name of an employe, who holds it for the benefit of all parties interested, nor by any other action which is required or is proper for the protection of both Ms own interests and those of the pledgor, and not inconsistent with his retention of the stock merely as pledgee, such as paying an assessment required by the comptroller to make good the impaired capital of the bank, and charging the amount to the pledgor.</p>

<p>In Error to the Circuit Court of the United States for (lie District of Colorado.</p> <p>This was an action founded on coupons cut from certain bonds issued by (he county of Ouray under the provisions of an act of the general assembly of ¡he state of Colorado approved April 17, 1890, authorizing the issue of bonds, among other purposes, for the satisfaction of judgments. The bonds recited that they were so issued “in satisfaction at par of judgments and accrued Interest thereon which had been rendered in the courts of record in this state against Ouray county.” An answer was tiled setting up several defenses, to which, for tlie purposes of the present case, no reference need be made. A demurrer, duly interposed to that answer, was sustained by the trial court, and an amended answer was thereafter tiled, in which, among other defenses now requiring no consideration, the defendant, now plaintiff in error, alleges aw follows: "As an amended seventh defense to tlie plaintiff’s complaint, tlie defendant alleges that there is no record of any judgment by any court against the defendant tor which the bonds were issued, the coupons of which are sued on in this action.” A demurrer was interposed to this seventh defense and overruled. Thereuxion the plaintiff, now defendant in error, filed a replication denying the allegation of the answer to the effect that no judgments had been rendered against the county, and affirmatively pleading as follows: “And for a fur Liter replication to the seventh answer, as amended, plaintiff avers that he is the owner of the bonds described in the complaint and the coupons upon which this action is brought, and that he acquired the same before the maturity of said bonds or of said coupons, for a valuable consideration, and without notice of any defect: that in each of said bonds so acquired h.v him as aforesaid, this defendant expressly declared, as appears from the copy of the bond in the complaint set forth, that said bonds, and each of them, were issued by the defendant under and by virtue of an act of the general assembly of the stale of Colorado entitled ‘An act to enable the several counties of the state to rotund their bonded debt which has matured or may hereafter mature, and to issue bonds in satisfaction of bonds and matured bonds,’ approved April 17, A. 11. 1899, in satisfaction at par of judgments and accrued interest thereon which had been rendered in the courts of record of this state against said defendant, upon tlie truth of which declaration and recital this plaintiff relied in (lie purchase of said bonds, and upon the faith and strength of which he paid the consideration therefor, as he had a right to do, and as defendant intended he'should do; and plaintiff avers that defendant should not now be permitted to show that the declaration or recital so made by defendant was false and untrue, to the damage of plaintiff in the premises: and plaintiff further avers that said defendant, by reason of such reriuil and declaration and the reliance of plaintiff thereon, is estopped from claiming, for the purpose of defeating plaintiff’s right to recover in this action, that there is no record of judgments recovered, or that there are no judgments, or that such judgments are void for any reason whatsoever.” A demurrer was interposed to this replication and sustained by the trial court. Plaintiff declined to plead further, final judgment was rendered for tlie defendant, and the case was brought to this court by writ of error. The case was heard at the May term. A. 1). 1899, and the judgment of tlie lower court was reversed, and remanded, with directions to take further proceedings in accordance with the views expressed in the opinion. Geer v. Board, 38 0. O. A. 250. 07 Fed. 435. The mandate of this court was filed in the court below, and when the case came on for a trial plaintiff moved for judgment on the pleadings. Defendant objected on the ground that an issue of fact was raised by the replication to the amended answer. Upon an adverse intimation of the court, the defendant asked leave to amend the answer, so as to make it unquestionably clear that the defendant disputed plaintiff’s right to recover as an innocent purchaser without knowledge of the facts claimed by it to avoid the bonds. The' court refused to allow the amendment, and sustained plaintiff’s motion, and rendered judgment on the pleadings for the plaintiff in the sum of $9,139.20. Of this sum $6,720 represents the principal called for by the coupons, and the balance, $2,419.20, represents the interest thereon from the date of maturity of the coupons to the date of judgment. Exceptions having been duly saved, a second writ of error was sued out, bringing the ease here for review. The defendant, by its assignment of errors, -challenges the correctness of the court’s action in rendering a judgment on the pleadings, and in allowing interest on the face of the coupons after their maturity to the date of rendering judgment.</p>

On the 22d day of August, 1898, S. H. Hall & Go. delivered to the Minneapolis, St. Paul & Sault Ste. Marie Bailway Company 243 sacks of potato starch at Minneapolis, Minn., which by the terms of the bill of lading were to be carried to Frederick Road Station, Md., if on its road, and, if not, to be delivered to another carrier on the route to its destination. The bill of lading upon the day of its execution was duly indorsed to the plaintiff.

Action at Law on a Policy of Life Insurance. The plaintiff instituted this action to recover on a policy of insurance issued by the defendant on the life of her son. By stipulation in writing, trial by jury was waived, and the cause submitted to the court.

<p>On Motion to Vacate Judgment.</p>

On January 12, 1898, J. B. Hughes, the defendant in error, purchased a foundry property, consisting of an acre of land, more or less, described by metes and hounds; “also all the fixtures, tools, and implements on said property used in connection with the foundry situate on said property, and now in the possession of said J. B. Hughes.” The consideration for this purchase; was one promissory note for $1,500 executed by Hughes to the vendor on the day of the purchase,…

<p>At Law. Action on bond of contractor for public work.</p> <p>Action at law to recover $171,300.76, with interest from Ma.y 8, 1895, for damages on account of failure to construct a timber dry dock in accordance with the contract, and accompanying plans, drawings, and specifications. The dry dock is situated at the navy yard, Brooklyn, N. Y., and is known as “No. 3.” The action was brought against the contractor, Augustin Walsh, and his surety, John D. Crimmins. The government put in its direct case, with the exception of the proof of the amount of ‘damages sustained and rebuttal; counsel for defendants conceding, for the purpose of making a motion to direct a verdict in favor of the defendants, that the government had spent $171,3(>0,70 upon the dock. After this concession on the part of defendants’ counsel, the court stated that with the exception of the examination of Rear Admiral Bowles, who had charge of the work of repair, and any rebuttal, the court would now declare the case closed on the part of the plaintiff, and allow the defendants to open, and put in their testimony on the main case, if they should choose to put In any, and to put in their testimony of acceptance of, and payment for, the dock by the government. The defendants thereupon opened, and put the defendant Walsli on the stand, whose testimony, both direct and cross, was taken, after which counsel for the defendants moved ihat the jury be directed to bring in a verdict in favor of the defendants, which motion, after argument, was duly granted, the court allowing an exception to the plaintiff.</p>

<p>1. HEARSAY AND SELF-SERVING STATEMENTS — It TIDE MUST BE ENFORCED "WITH Jealous Care.</p> <p>Tixe rule forbidding the admission of self-serving statements and hearsay testimony as evidence is vital to the protection of the rights of person and property, and must be guarded against encroachment with jfealous care.</p> <p>3. Self-Serving Statements and Hearsay Deposttf.d in a Public Office Incompetent Evidence.</p> <p>The self-serving statements of a, county or municipality, made by its officers or agents, and written statements of third parties deposited or filed in its ofiices, are incompetent evidence to prove the facts they relate, in an issue between it and a private party, in the absence of statutory provisions which qualify them. The same rules of evidence govern the trial of an issue between a xirivate party and a municipal corporation which control the triql of a like issue between individuals.</p> <p>8. Section 93á, Mu,ns’ Ann. St. Colo., Relative to Copies of Papers in Public Offices, Construed.</p> <p>Seed ion 932, Milis’ Ann. St. Colo., which provides that copies of writings duly filed or deposited in county offices shall be prima facie evidence in all cases, makes such copies prima facie evidence of the contents of the original writings, hut it does no more. It does not qualify the copies for admission in evidence in any ease in which the originals were not qualified.</p> <p>A Copies of Certain Writings 'Found in County Clerk’s Office Incompetent Evidence in Action by Tjeiird Party against the County.</p> <p>Copies of county warrants and of lists thereof on the letter heads of Chase & Taylor, aggregating $65,884.72, found in 1898 in the office of a county clerk of a county which in 1882 exchanged with Chase & Taylor funding bonds aggregating $75,000 for its warrants, are incompetent evidence that any of these warrants were exchanged for any of 15 bonds, of $1,000 each, originally issued to Chase & Taylor, in an action thereon by a subsequent bona fide bolder.</p> <p>6. County Clerk’s Account Book Incompetent to Prove Truth of Its Statements in an Action between the County and a Third Party.</p> <p>• A county clerk’s account book, which was not kept in compliance with any statute, but which contained summary statements at the end of each six months of the state of 15 county funds, and of the aggregate amounts of county warrants drawn, canceled, and outstanding, is incompetent evidence of the truth of these statements, in an action between the county and a third party, because it is a self-saving statement of conclusions drawn from original records and writings not produced.</p> <p>6. Funding Bonds not Void because Debt Funded Exceeds Constitutional Limitation, as They Create no Debt.</p> <p>Funding bonds neither create nor increase a debt, but simply change its form; bonce they are not void because the debt funded exceeds the constitutional limitation.1</p> <p>7. Bonds Funding Excessive Debt Presumptively Valid if Any Part of the Debt Funded might have been So.</p> <p>Each county bond is a separate promise, and the basis of a separate cause of action against a county. Where the facts and conditions might have, been such under the law that any part of the excessive debt funded might have been valid, the legal presumption is, in an action on the bond, that these facts and conditions existed, and that the bond in action was issued to fund a valid portion of the debt, because the presumption is that the county officers faithfully discharged their duties, and issued the bond only after ascertaining the validity of the debt for which it was exchanged.</p> <p>8. County Warrants Prima Facie Valid.</p> <p>County warrants are prima facie evidence of legal obligations of the county.</p> <p>9. Lake County, Colo., Funding Bonds of 1882 Presumptively Valid.</p> <p>While the Lake county refunding bonds of 1882, aggregating $500,000, evidenced a debt in excess of the constitutional limitation, they are presumptively valid, because that county might in 1882 have issued any one of them in exchange for valid outstanding warrants for debts incurred prior to September 1, 1879, when the limitation first took effect, or for debts incurred after that date in each year for current expenses for which a levy of taxes was made; and in an action on any one of these bonds the presumption is that it was issued to fund such a lawful debt.</p> <p>10. Burden of Proof to Show Invalidity of Tiif.se Bonds is on County.</p> <p>The burden of proof on the issue of the validity of the bonds under the constitutional limitation is upon the county, because each bond and the warrants for which it was exchanged are prima facie evidence of the validity of the debt they represent; and these presumptions must prevail unless the county proves by a fair preponderance of competent evidence that the debt for which the bond was given was unauthorized and void.</p> <p>11. Unnecessary Averments Require no Proof.</p> <p>Unnecessary averments in a pleading, which are not essential to the statement therein made of the cause of action, require no xiroof, are mere surplusage, and do not affect the issues.</p> <p>12. Error without Prejudice no Ground for Reversal.</p> <p>Alleged errors which the record conclusively shows could not have affected the decision and judgment work no prejudice and constitute no ground for reversal.</p> <p>13. Ruling on Motion for New Trial for Newly-Discovered Evidence not Review arle.</p> <p>The ruling of the trial court upon a motion for a new trial on the ground of newly-discovered evidence rests in the discretion of the court, and, in the absence of gross abuse of that discretion, does not constitute an error of law, and cannot be reviewed in a national appellate court.</p> <p>Caldwell, Circuit Judge, dissenting.</p> <p>(Syllabus by the Coiirt.)</p>

In Bankruptcy. The following- is the report of the referee in bankruptcy: It has previously been determined in this case that a secret partnership existed between the bankrupt and her husband, F. J. Harris, and that the property assigned by the bankrupt for the benefit of creditors, and now held by the trustee in bankruptcy, was the same property that constituted the actual partnership property of the secret partnership.

<p>Petition for Revision of Proceedings of the District' Court of the United States for the Eastern District of Pennsylvania, in Bankruptcy.</p>

<p>1. Bankruptcy — Discharge—Fraudulent Concealment op assists.</p> <p>Facts and circumstances showing a fraudulent concealment of assets by a bankrupt, which will defeat Iris right to a discharge, must be proved, and will not be deduced as a matter of doubtful inference, from other facts and circumstances.</p> <p>2. Samp,.</p> <p>A bankrupt and his wife were stockholders in a company which owned and conducted a retail drug store. The property of the company was convoyed to a trustee, with power to sell the same, and was subsequently sold to the bankrupt’s wife; the purchase money being furnished by a wholesale house, which organized a new company to take the property, retaining half the stock, and assigning the other half in equal shares to the bankrupt and his wife, but delivered to them but one share each, re-tainiug tlie remainder as security for tlie purchase money advanced. This transaction was eight months before the filing of the petition in bankruptcy. The bankrupt scheduled but the one share of stock held by him. Held that, in the absence of evidence of actual fraudulent intent, or that the stock in the hands of the wholesale house was worth more than the bankrupt would be compelled to pay to obtain it, its omission from the schedule did not constitute a fraudulent concealment of assets, or the making of a false oatli, which barred his right to a discharge.</p>

<p>Bankruptcy — Avoidance op Limns — - Attachments.</p> <p>An attachment on mesne process under the statutes of Massachusetts, which creates a lien, under the decisions of the courts, enforceable, however, only by obtaining judgment and issuing execution thereon within a limited time", is not discharged, under Bankr. Act 1898, § 651', by the iiling of a petition in bankruptcy against the defendant more than four months after such attachment was levied, although the judgment was not obtained until within the four months; nor are the judgment and execution issued thereon rendered void by such section, since they do not affect with a lien the property attached, but only enforce the lien already exisimg, and which, having attached more than four months before the filing of the petition, is, by necessary Implication, preserved by the act.</p>

<p>Bankruptcy — Suit to Recover Fund from Trustee — Right of Lien Claimant to Intervene.</p> <p>An action was brought in a circuit court against the trustee of a bankrupt to recover personal property of which defendant had taken possession as a part of the bankrupt’s estate, but of which plaintiff claimed to be the owner. The court found plaintiff to be the owner of the property, and rendered judgment for its recovery. Pending the action defendant had sold a part of the property by order of the bankruptcy court, and with plaintiff’s consent. After the judgment he surrendered to plaintiff the remaining property, but refused to turn over the proceeds of that sold; and plaintiff instituted proceedings, by rule to show cause, in th'e circuit court, to require its payment. Defendant answered the rule, setting up certain claims on behalf of the estate for taxes and insurance paid on, the -property, and that the same was subject to a lien in favor of bankrupt’s landlord. On a hearing the court dismissed the rule, remitting plaintiff to his remedy in the court of bankruptcy. The circuit court of appeals reversed such decision on appeal, on the ground that plaintiff’s ownership of the proceeds of the property sold, as well as the property remaining, was adjudicated by the original judgment, and directed the entry of an order by the circuit court making the rule absolute. After the cause ha'd been remanded, the landlord of the bankrupt intervened, claiming a landlord’s lien, under the statute, against the property for rent due prior to the bankruptcy, which he sought to enforce against the. fund in the hands of defendant. Held, that such fund, having- been received by defendant, in his official capacity, under the orders of the bankruptcy court, was in custodia legis; that such question was not presented to or passed upon by the circuit court of appeals; and that the intervener, not having been a party to the action, was not concluded by the judgment, and was entitled to assert his claim to a lien against the fund.</p>

<p>Prosecution for the Obstructing and Opposing Officers of the United Slates in the Execution of Process. On demurrer to information.</p>

<p>Navigation Laws — Forfeiture of Foreign Vessel.</p> <p>Where a British vessel sailed from the Island of Margarita to Jamaica, which, by the ordinary laws of navigation, is closed against vessels owned by citizens of the United States, and the captain landed there, and brought out passengers, and came to an American port, she is forfeited under the navigation laws providing that any vessel owned by British subjects, coming or arriving from any port or place in a British colony closed against the United States, shall be subject to forfeiture, though the vessel did not enter the port in Jamaica, hut stood off and on while the captain was on shore.</p>

' The appellants, C. Nicolini and M. G. Guerrero, composing the Galveston Export & Import Company, on September 16, 1896, entered into an agreement with O. R. Harms, master of the schooner J. M. Mclnnis, which recited that the parties (Harms of the first part, and the company, of the second part) “do. agree on the chartering of said vessel to the said party of the second part for a voyage from the port of Galveston to any port or ports of the Gulf of Mexico, as the party of…

<p>In Admiralty. Suit for collision.</p>

<p>In Admiralty. Libel and cross libel for collision.</p>

<p>ColusioN — Dredge at Anciior- — Misleading Light.</p> <p>A dredge anchored in the East river, while at work, besides her staff light, carried another white light, considerably lower down, not required by the rules, and which was mistaken by a tug coming up the river with a tow in the evening, the two lights being similar to those customarily carried by a tug in motion, but without a tow, the lower being visible only astern. The tug did not discover the mistake until within 300 -feet, and her tow came into collision with the dredge, and injured it. Held, that both were in fault, the dredge for carrying a misleading light, and the tug in not sooner discovering that the dredge was stationary,</p>

<p>In Admiralty. Suit for collision. On exceptions to libel.</p>

<p>1. Pleading — Amendment of Petition— Missouri Statute.</p> <p>Rev. St. Mo. 1899, § 661, which provides that “a petition or answer may be amended by the proper party, of course, * * * at any time before the answer or reply thereto shall be filed,” contemplates that such amendment shall be made in open court, or if in vacation by leave of court, and does not authorize a plaintiff to amend his petition in vacation before the return day of the summons; nor is such authority conferred by section 638, which merely provides that any party filing an amended pleading in vacation shall give written notice of the time of filing the same to the adverse party or his attorney.</p> <p>2. Game — Notice of Amendment — Service on Attorney.</p> <p>A statutory provision requiring notice of the filing of an amended pleading to be given to the adverse party “or his attorney” requires such service either upon the party or his attorney of record in the cause, and notice of the filing of an amended petition in vacation, before the return day of the summons, is not given, under such a provision, to a defendant who has not entered his appearance, by its service upon an attorney, although such attorney may thereafter appear for defendant in the cause.</p> <p>3. Removal of Causes — Amount in Controversy — Amf,ndmknt of Petition.</p> <p>An action to recover damages in the sum of ?10,00<> was brought in a state court of Missouri in vacation, and summons, together with a copy of the petition, as required by statute, was served on defendant. Before the next term of court to which the summons was returnable, plaintiff filed with the clerk an amended petition in which he prayed judgment for less than 82,000. Such amendment was not authorized by statute, nor was notice of its filing served on defendant as required when an amendment was properly filed in vacation. Held, that it was ineffectual to reduce the amount in controversy so as to prevent the removal of the cause ' on a petition filed on the return day by defendant, which, was a nonresident of the state.1</p>

<p>L' Appeal — Review—Action Tried to Court.</p> <p>Where an action is tried by stipulation before the court without the intervention of a jury, and a general finding made, the only matters reviewable are the rulings made during the progress of the trial to which exception was taken and preserved by bill of exceptions. Unless so presented, questions discussed and determined by the opinion of the court cannot be reviewed. ,</p> <p>2. Judgment — Effect as Adjudication — Interlocutory Decree.</p> <p>A decree in a suit in equity which merely determines the invalidity of a contract, and refers the case to a master to state an account between the parties, is interlocutory, and not a final adjudication which can be pleaded in bar of a subsequent action between the same parties involving the validity of the same contract.</p> <p>3. Federal Courts — Jurisdiction—Pendency of Suit in State Court.</p> <p>The pendency in a state court of a suit in equity to determine the validity of a contract and the rights of the parties thereunder does not deprive the federal court of jurisdiction to- entertain an action at law between the same parties brought by the defendant in the suit in the state court to recover a sum claimed to be due under such contract; the suit at law not being one which affects the custody of property, either actually or constructively.</p> <p>4. Municipal Corporations — Validity op Contracts — Manner op Execution.</p> <p>Where the statutes governing a city do not in terms require a contract to be entered into by ordinance, the city cannot avoid a contract which it recognized as valid and acted under for years on the ground that its execution was authorized only by a resolution of the council.</p> <p>5. Appeal — Review—Sufficiency op Objection to Evidence.</p> <p>A general objection to the admission in evidence of a contract on the ground stated that it was “incompetent, irrelevant, and immaterial” is not sufficiently specific to raise the question of its validity in an appellate court.</p> <p>6. Pleading — Sufficiency—Waiver of Objection.</p> <p>A defendant who answers a count of the complaint without objection to its sufficiency waives merely formal defects, and cannot raise the question of its insufficiency because it adopts allegations of a separate count without repeating them, by an objection to the introduction of evidence thereunder, the effect of which would be to compel a reformation of the pleading after the commencement of the trial.</p>

<p>Municipal Corporations — Special Assessments — Constitutional Law.</p> <p>The rule for making special assessments for street improvements prescribed by, Ky. St. §§ 2832-2839, which provide that such improvements shall be made at the exclusive cost of the owners of lots in each fourth of a square, to be equally apportioned according to the number of square feet owned by the parties, respectively, within the abutting fourth square, or the limits fixed by ordinance, when the land is not defined into squares by bounding streets, is not unconstitutional.</p>

<p>Appeal — Appealable Order — Denial op Preliminary Injunction.</p> <p>Under section 7 of Act March 3, 1891, creating Hie circuit courts of apRonls, as amended "by Act June G, 1900, an appeal to such court does not lie from an interlocutory order denying a preliminary injunction.</p>

The Metropolitan National Bank of Chicago, Ill., the plaintiff in error, sued Peter Jansen and John Jansen, the defendants in error, upon a note in the sum of $5,000, dated at Jansen, Neb., November 4, 1895, but made payable at the office of C. B. Congdon & Co., the payee of the note, in Chicago, Ill.

<p>In Error to the Circuit Court of the United States for the Western District of North Carolina.</p>

<p>1. National Banks — 'Liability of Stockholders for Assessment — Defenses.</p> <p>The officers o£ a national hank have no- power to incur-a liability on the part of suc-li hank after it has gone into liquidation which will be binding on the shareholders, and a judgment on a liability so created, rendered against the hank by collusion of the officers, is not conclusive on the shareholders.</p> <p>2. Same — Action by Keckiver— Conclt:siyeness< of Assessment.</p> <p>The iact of an assessment by the comptroller upon the stockholders of a national bank does not conclude such stockholders as to the validity of the debts to pay which the assessment is made, and they are entitled to their day in court upon that question before being required to pay the assessment in an action against them by Ihe receiver. Where the defendants in such an action assert the invalidity of a judgment against the bank which is the basis of the assessment, the. appropriate procedure would seem To bo for them to file a bill in equity to determine the validity of such judgment, and to enjoin the action against them, giving bond fertile payment of the judgment therein in case the injunction should be dissolved after hearing.</p> <p>KOIE. After the filing of this opinion the suit was compromised.</p>

<p>In Error to the Circuit Court of the United States for the Western District of Texas.</p>

<p>BAXKRrrTCY — 'Validity oig Lies- — Bankrupt's Right of Exkmpttox.</p> <p>Under the laws of Wisconsin, which give a right of exemption from a stock in trade to the value of $200, the goods to be selected by the debtor, a mortgage taken by a creditor on the entire stock of an insolvent debtor, which exceeds $200 in value, within four months prior to the debtor’s bankruptcy, and with knowledge of the insolvency, is avoided as a preference by the bankrupt as to all the goods, where the right of exemption is waived by the bankrupt, both on the ground that the mortgagee cannot claim the exemption on behalf of the debtor under the state law, and for the further reason that, tlxe exempt goods never having been selected, If the mortgage be treated as applying- to them alone it is void for uncertainty of description.</p>

In Bankruptcy. On review of a portion of the order made by the referee respecting the disposition of a fund arising out of fire insur-anee placed upón the property of the bankrupt, and the payment of the loss thereunder.

<p>1. Bankruptcy — Order Determining Claim to Homestead Exemption— Finality — Absconding of Bankrupt in Contempt.</p> <p>An order made by a court of bankruptcy under the authority conferred by Bankr. Act, § 2, cl. 11, determining- in general terms the location and extent of a bankrupt’s homestead exemption, but committing Hie matter to the referee to fix its boundaries, is Interlocutory, and not a final adjudication; but, even if final, it remains subject to the power of the court to set it aside during the term, and the court is justified in exercising such power where it is made to appear that the bankrupt is in contempt of an order requiring him to pay to the trastee a sum of money which he is wrongfully withholding, that he failed to include in his schedule other money and property of large amount which lie fraudulently transferred, and that since the making of the order he, with liis wife and family, has abandoned his residence in the alleged homestead and left the country; and upon a rehearing of the claim to the homestead exemption such acts of the bankrupt may properly be considered upon the question of liis good faith in relation to such claim. Whether the' bankrupt in such case has such standing in court as entitles him to be heard by counsel, or to maintain a petition for review, quaere.</p> <p>2. Same-Title to Homestead — Abandonment after Adjudication.</p> <p>Under the provision of Bankr. Act, § 70a, that the trustee shall be vested with the title of the bankrupt as of the date he was adjudged a bankrupt, “except in so far as it is to property which is exempt.” where the location and extent of a bankrupt's homestead are uncertain and in dispute because of Ms excessive claim, the title to all the property may properly be treated as vesting in the trustee sub modo, subject to such exemption as shall finally be awarded and defined, and especially where, as under the laws of Wisconsin, the bankrupt had power to alienate the property by his individual conveyance, subject, in case he was married, only to a reservation of the homestead right; and where, before such award or setting aside of the homestead has been made, it is abandoned by the bankrupt and his family, the title of the trustee becomes absolute for the benefit of Hie estate.</p> <p>Jenkins, Circuit Judge, dissenting.</p>

<p>In Bankruptcy.</p>

<p>In Bankruptcy. On certificate of referee in relation to disallowance of claims.</p>

<p>In Error to the Circuit Court of the United States for the Eastern District of Pennsylvania.</p>

<p>IMPERSONATION OP UNITED StATKH OFFICES — INDICTMENT-DUPLICITY.</p> <p>Act April 18, 1881, declares that any person who, with intent to defraud ei liter the United States or any person, falsely assumes or pretends to be an officer or employe acting under the authority of the United States, or any officer of the government thereof, and who shall take unto himself to act as such, or who shall, in such pretended character, demand or obtain from any person, or from the United States, or any department or any officer of rite government thereof, any money or other valuable thing, shall be deemed guilty, etc. Held, that such statute created two offenses; the first of which included as an essential element the use of such assumed position to extort money or property by wrongfully asserting a pretended claim of the United States, and the second comprehending the extortion of money not under the guise of asserting a claim due to the United States, but including the holding out of the offender as an officer for the purpose of giving him such credit as will entitle him to successfully demand money from another for his private use, with intent to defraud; and hence an indictment charging that defendant feloniously, and with intent to defraud H., did falsely assume and protend to be an officer acting- under the authority of the United States treasury department, and dirt then and ¡.here feloniously, and with intent to defraud said H„ take upon himself to act as such officer, and as a part, of the same sentence including- the charge, “and did then and there, in such assumed and protended character as such officer, demand and receive the sum of $10,” was demurrable for duplicity.</p>

<p>On Petition for a Writ of Habeas Corpus and Order to Show Cause.</p>

<p>Trade.-Mabks — Descriptive Words — “Steed Shod” Shoes.</p> <p>The words “Steel Shod,” when applied to hoots or shoes whose soles are studded with steel nails to render them more durable, are essentially descriptive, and cannot be exclusively appropriated by one manufacturer as a trade-mark.1</p>

<p>Patent — Validity—Infringement.</p> <p>The Crary. patent, No. 477,517, for improvements in typewriting machines designed for printing in hooks of record, claim 1, contains a single novel feature, consisting of a mechanical connection between the table on which the book rests and the leaf-supporting platen by which the latter can be adjusted at whatever,elevation may best suit the thickness of the book, and rigidly held in such place. Held not anticipated, and valid, and, in view of the prior condition of the art, sustains a construction broad enough to cover any such means of adjustment, and, as so construed, is not infringed by a device which is adjustable to and from the table, and where its platen is a swinging plate, which, when it is supported on the open book, receives the type mechanism, but is kept in its place by the support it receives from the book.</p>

<p>In Equity. Suit for infringement of patent. On demurrer to bill.</p>

<p>Appeal from the Circuit Court of the United States for the District of Indiana.</p> <p>In the suit below the appellants alleged infringement of four patents, under which they are manufacturing a machine for weaving wire fence in situ. These are, Tetters Patent No. 289,507, granted W. J. Davisson, December 4, 1883, and later assigned to appellants; Letters Patent No. 356,322, granted A. L. Kitsolman, one of the appellants, January 18, 1887; Letters Patent No. 357,067, granted T. M. Connor, February 1. 1887, and subsequently assigned to appellants; and Letters Patent No. 505,G07, granted appellants as assignees of John C. Pope, September 26,1893. The particular claims charged to be infringed are the second and third of the Davisson patent; the first, second, ninth, tenth, eleventh, fifteenth and twentieth of the Kitselman patent; the second and third of tho Connor patent; and the first, ninth and tenth of the Pope patent.</p> <p>Figures 1 and 2 of the Davisson patent — one of the four in suit, and referred to in the opinion^-will serve to show the twisting spindles and wire-reels in position for operation; Figure 0 is an enlarged sectional view of the twisting-sj)indies; and Figure 10a vertical section of a x'eel-case and a wire-reel In position thereon. They are as follows:</p> <p> </p> <p> </p> <p> </p> <p>The specifications oí tlio Davisson patent are as foilovs:</p> <p>“A series of hollow vortical spindles, A A, having their ends journaled in vertical sliding hearings B B. are mounted oil a suitable main frame, O C. Each of said spindles is provided at its upper end with a cogged pinion, a, which is provided with a projecting cylindrical hub having a bearing in a plate, b, secured to frame 0. Pinions a are each provided with a square central perforation, and the upper entl of each of the spindles is squared and fitted to slide freely through said perforation, the purpose being to revolve; the spindle by means of the pinion, and to allow a vertical movement of the spindle through 1he pinion. Each spindle A is given an intermittent reciprocating motion by moans of a cam, D. mounted on the driving-shaft, E. and a lever, P, pivoted at one end to a rod, c, extending across from one side of tlie main frame to the other, and connected at the free end with the sliding bearing B by means of a short link, d. A friction-roller, e, is adjustably secured to lever E over cam D, there being a cám and a level- for each spindle. Earns D are jilaced alternately on the driving-shaft, with their flat faces on opposite sides of the shaft and their high portions overlapping, so that at eaeli half-revolution of the driving-shaft each alternate spindle is raised, as seen in Eig. 1; but on account of the overlapping of the high portions of the films there are two points in each revolution whore the spindles are all at their highest point at the same time, for a purpose hereinafter explained. Across the top of each spindle is secured a square cross-bar. f.</p> <p>“Ci 6 G 6 are cylindrical cases formed of sheet metal, having a central huh, g, which has a square central hole which fits over, and is adapted to slide upon the cross-bars Í. The cases fit are open on one sido, and each carries within it a reel, II, which is adapted to turn on hub g. The wire Cor forming the meslies of the fabric is wound upon said reels, and they are prevented from slipping- oil the hub by turn-buttons h h, all as clearly shown in Fig. 10.</p> <p>‘‘For the purpose of preventing- the wire-reels and their cases from being-thrown off from the ends of cross-bars f, a narrow bar, i, having- upturned ends j j. Fig. 0, is placed in a groove in ilie top edge of cross-bars f. said groove being of such depth that the upturned ends of bar i may be drawn down flush with the top surface of f. üaid cress-bar £ is centrally secured to the upper end of a tube, I, which slides in spindle A. The interior of spindle A is enlarged at the top to receive a spiral spring, k, which surrounds tube I and forces the upturned ends of bar i above the surface of f. A pin, 1, fastened to the exterior of tube I, projects through a slot in the side of the spindle and slops the upward movement of the tube and the bar i.</p> <p>“J is a rack-bar engaging pinions a a. and adapted to slide forward and backward endwise, and to revolve said pinions and their respective spindles alternately in opposite directions. Rack-bar .1 Is reciprocated by means of a grooved cam. m, on one side of the driving-wheel, (shown clearly in Fig. ó,) a. lever. L, pivoted to the main frame at n, and having a pin projecting into grooved cam m, a bell-crank, M, to the short arm of which the free end of iever L is connected, and a rod, N, pivoted to the end of: the rack-bar and adjustably connected to the long arm of lever M.</p> <p>•‘O O are shipper-bars for shifting üae wire-reels from one set of spindles lo another. Said bars are pivoted at their ends la cross-heads o o, and said cross-heads are rigidly secured at their centers to two upright shafts, p r, which shafts are raised twice in each revolution of the driving-shaft by means of cams s and t, secured on the driving-shaft, and levers u and v, pivoted at one end to the rod e, and connected at the other end with shafts p and r. Shaft r, after being raised, is given a partial revolution by means of cam-shaped projections w w on the side of cam 1:. Fig. 2. Said projections engage alternately pins x y on a lever, z, the opposite end of which is/forked, and engages a rod, 1. secured to shaft r by means of two short arms, 2 and S.</p> <p>"P I* are reels carrying the wires for forming the edges of the fabric. 43 are guides for said wires.</p> <p>“For the purpose of holding spindles A in position, 1 secure upon each spindle a dog, 6, and provide a catch-plate, R, which plate is provided with notches 7, adapted to fit over said dogs. Said plate is attached to short arms 8, 9, which are pivoted to brackets attached to the main frame. Arm 9 is extended outward beyond its pivot, and is connected with lever v by a rod, 10 the effect being, when said lever is raised, to throw plate It downward and engage the dogs on the spindles.</p> <p>“For the purpose of taking up the finished fabric, rolls S T are mounted on shafts journaled in the main frame. The bearings of roll T are movable, and the surfaces of the rolls are held in close contact with the fabric by means of a spring, 11, at each end of roll T. A reel, U, for storing the finished fabric, lies in the’ slotted bearings on the supports rising from the main frame. One turn of the fabric having been taken about said reel and secured thereto, the reel is thereafter revolved by frictional contact with roll T, on which it rests. Roll S is revolved intermittently by means of a ratchet-wheel, 12, secured to its shaft, a pawl, 13, and a rod, 14, connected to shaft p.</p> <p>“The operation of my machine is as follows: The wire from reels P P is carried upward through the outside spindles, A A; or, if a narrower fabric is desired, it may be carried through either of the other spindles, and four of the incased reels carrying wire for forming the meshes are placed on alternate spindles, as shown in Fig. 1. The wire is led from each of these reels through an opening in the case, and all of the wires are passed between take-up rolls S T and passed once around reel II, and there secured. Power is now applied to the driving-shaft E, and as it- revolves rack J is thrown forward and the spindles A are revolved, making two> complete revolutions, and thereby twisting together the wires on the opposite ends of the cross-bar f on the central spindle and passing the wires on the cross-bars of the outside spindles around the straight wires from reels P P. When these revolutions have been accomplished, the intermediate spindles carrying no reels have been raised by their respective cams D and levers F to the level of the spindles carrying the wires, and catch-plate R has engaged dogs 6, at the same time depressing bars i by striking pins 1 downward. At the same time the shafts p r have been raised by cams s t and levers u v, carrying upward the shipper-bars O O till they are level with the cross-bars f, which are now all in line, and the forks of the shipper-bars embrace between them the reel-cases G. The cam projection w on one end of cam t now passes between pins x y, engaging y, and lever z, being thereby vibrated and engaging rod ], partially revolves shaft r, by this means moving the shipper-bars O O endwise, and thereby shifting the casos G and their reels to the intermediate pross-bars, f, which before carried no reels. The spindles first carrying the reels now fall, and those now carrying the reels are revolved by the return of rack J to its first position and a new series of meshes formed. At each upward movement of the upright shaft p pawl 13 engages ratchet-wheel 12, and the finished fabric is drawn upward and wound upon reel U.</p> <p>“When short sections of fabric are to be made — as for gates — straight rods may be substituted for the side wires, and the expansible reel removed.”</p> <p>The claims of the above patent relied upon as infringed are the second and third, and appear below:</p> <p>“2. In a machine for making wire fabric, a series of spindles arranged in a line and mounted in bearings on a suitable supporting-frame, and having on each spindle a cross-head carrying reels for wire on opposite sides of the axis of said spindle, substantially as specified.</p> <p>“3. In a machine for making wire fabric, two or more hollow spindles adapted to admit the passage through their axis of wires forming the edges of the fabric, and having on each spindle a cross-head carrying reels for wire on opposite'sides of the axis of said spindle, substantially as specified.”</p> <p>The pertinent drawings and specifications of the Kitselman patent are as follows:</p> <p> </p> <p> </p> <p> </p> <p>“Referring to the drawings, in which like letters of reference denote corresponding- parts in all the figures, A designates the main frame or casing' of my improved wire-fabric machine.</p> <p>“"When the apparatus is to he constructed in portable form, so' that it is adapted for use; in the open field, road, or other place for putting up or constructing fences as the fabric is turned out or manufactured by the same, the carrying-frame A comprises the vertical standards or uprights a a and a', which are arranged parallel with each other and connected and braced by suitable cross or transverse pieces, a2; but the shape of this trame is immaterial, and I would have it understood that I hold myself at liberty to vary and change the samp as may be desired.</p> <p>“When the machine is to be transported and used in the open field, it is mounted upon supporting rollers or wheels B and B', which are arranged in pairs at the front and rear ends thereof, respectively. The front rollers or wheels, B, are provided with smooth or plane peripheries and ¡ravel on the smooth surface of a board or oilier suitable tack, B», that is placed on the ground or other place, and the rollers B' are provided with teeth on their peripheries, as clearly shown in the drawings, the said toothed wheels meshing with the racks b. that are arranged at the sides of the board or track Bs and rigidly affixed or secured thereto in any suitable manner. The toothed wheels mesh with the toothed surface of the track, so that when they are rotated by the means which 1 will presently describe the main frame and the various parts of ihe operating mechanisms will be drawn along and thus fed at the required or proper rate, and the wheels B, with the smooth peripheries, are arranged comparatively close together, so that they will bear on the track between the racks or toothed surfaces at the sides of the latter, whereby the frame is rendered very steady in its movement</p> <p>“The toothed supporting wheels are rigidly affixed in any suitable manner to a common shaft, b', so as to rotate or turn therewith, and this shaft is jour-naled in suitable bearings on the main frame at the lower rear side thereof. One of the ends of this shaft b' is extended beyond the sides of the vertical main frame, and to this extended end is rigidly affixed a ratchet-wheel b2, with the tcetli of which engages the pointed or free end of a pawl, b3, that is pivoted on and carried by a hand or operating lever, B4, which is provided with an eye or opening at one end, through which the shaft is passed, so_ that the lever is supported on the shaft and free to move thereon independ-' ently of the same. This ratchet mechanism is designed to be operated by hand to feed the frame and other parts of the mechanism along to any required distance; but I do not intend to restrict myself to the peculiar construction and arrangement of the parts of the same, as they can be varied without departing from the spirit of my invention.</p> <p>“The distance which the main frame can be moved can be easily and readily regulated or varied by the operator by causing the pawl of the hand-lever to slip over two, three, or more teeth of the ratchet-wheel, so that the mesh of the wire fabric or fence can be made of uniform size or varied as may be necessary, according to the design of fabric selected,- as will be very readily understood.</p> <p>“The main frame A carries a series of devices for twisting the wire into open spaces or loops, and, for the sake of clearness and convenience, in describing or referring to these devices hereinafter I will term them as ‘twisters.’ Any preferred or desired number of these twisting devices may be employed that may be deemed desirable or necessary, and in the accompanying drawings I have shown a series of seven, and will confine my description of the operation of the machine to this number of these devices; but I would have ¿t understood that X hold myself at liberty to vary and change the number thereof to adapt the machine to manufacturing wire fabric of any desired width, or to constructing fences of. varying or different heights..</p> <p>“In order to render the operation of my machine more clear and explicit. 1 have lettered these twisters ODEffGHI. The twisters from C to I, inclusive, form the active twisters, and at the top and bottom I provide two inactive twisters, I' I2; and in describing the process of manufacturing the different classes or kinds of fabric I will describe the method or manner of threading the twisters, and also in which the fabric is formed. Each of these active twisters consists, essentially,’ of two oppositely-movable sections, J and K, and a stationary section, L, these terms being used for the purpose of distinguishing the parts of the twisters. In Eig. 7 of the drawings I have shown one of these active twisters with the parts detached from each other, and will now describe the said parts separately from each other. The oppositely-movable sections J K of each of the active twisters are made precisely or substantially alike, and they each consist of a tie or connecting bar, j, and two segmental heads, j', which are formed integral with the tie-bar and at the extremities of the latter. These segmental heads of the movable sections of the twisters are xfiaced on opposite sides of the stationary sections of the twisters, so that the flat sides of the said segmental heads of the movable sections impinge or bear against the stationary section on their flat or straight sides, and their outer curved edges form a complete circle, whereby the stationary and movable sections of the twisters are adapted to impinge upon each other and to resolve together, so as to form the twist in the loop during’ the process of manufacturing the fabric.</p> <p>“As before stated, each of the movable sections of each twister is cast or formed in a single piece of metal, and the segmental heads j' of the twister-sections are each provided with a transverse aperture or opening, p, except one of the movable sections of the upper and lower twisters, O I, respectively, for the free passage of the wire, as more fully described presently, and said heads are further provided with radial or outwardly-projecting arms or ribs k, which impinge or bear against the sliding frames to prevent longitudinal play of the same. These arms are also formed or east with the twister-sections, and they are arranged to prpject beyond the periphery of the segmental heads, and at or near the straight inner side thereof, for the purpose described.</p> <p>“The stationary o-r immovable section L of each twister consists of a tie or connecting bar, 1, and the flat heads or ends T, formed or cast in a single piece therewith at opposite extremities of the tie ’or connecting bar, the heads or ends of the tie-bar being made of the same thickness or width as the bar itself, so that the sides of the tie-bar and heads thereof are in line with each other. The extremities of the heads V of the central stationary section of each twister are extended beyond the upper and lower sides of the tie or connecting bar, as at U, so that when the said central section is rotated with the side sections of the twister to form the twist in the loop the extended ends 14, will impinge upon the inner sides of the main carrying-frame, and thereby prevent the central section from longitudinal movement. The stationary sec-tí on of each twister has a cylindrical shaft or hearing-piece, l2, cast in a single piece therewith, and this shaft is arranged at the rear end of the section and projects outwardly heyond one of the heads thereof, as shown, the shaft and the heads of the tie-har being provided with passages or openings l2, which are in line with each other, so that the warp-wires of tlie fabric or fence can pass through the said openings very freely without hinderance or danger of becoming entangled with other parts of the apparatus.</p> <p>"The inactive twisters I and I' are arranged at the upper and lower ends of the main frame and on the opposite sides of the central sections of the active twisters, and said inactive twisters are merely lilted in and carried by the sliding frames to coincide with the central sections of the active twisters O I; bnt they do not affect the operation of the machine.</p> <p>“M and N designate the sliding frames, which are arranged within the uprights a a of the main frame A and on opposite sides of the twisters. These sliding frames each consist of two vertical pieces, m, winch are connected by suitable transverse pieces to render the frame rigid and strong, and which bear against the inner sides of the uprights a of the main frame. The upright a at the front of tlie main frame and the uprights m of each of the sliding frames are each provided with an opening or aperture, a2 and m', respectively, tlie opening a3 of the main frame being circular, and tlie openings m' of tlie sliding frames are formed on the inner edges of the sliding frames and semi-eirenlar. so that when the sliding frames coincide tlie said openings or recesses m' register to form a complete circle, and these openings a3 in idle front uprights a, of tlie main frame are connected by vertical slots or passages a-1, and a space, m2, is left between the contiguous edges of the sliding frames for tlie stationary sections T, as will be very readily understood. The openings a3 and m' of the main and sliding frames are adapted to register or coincide, and they are equal in diameter to the diameter of the circle formed by tlie semicircular heads or disks at the ends .of the movable sections of the twisters. It will thus be seen that I provide one of tlie uprights of the main frame and bo til uprights of the sliding frames with a series of circular openings, which are connected by intermediate spaces or slots, and that (líese openings and slots or spaces are arranged one above the other in vortical lines. The circular openings in the said main and sliding frames correspond in number with tlie number of twisters employed.</p> <p>"The twisters are arranged in series one above tlie other, and the stationary section of each of the twisters is- fitted between the contiguous edges of the sliding frames and located between the movable sections of the twisters, which are tiras disposed on opposite sides of the stationary section. The central stationary sections of all of the twisters are arranged in a vertical line, and they are fitted or so arranged that the heads at the extremities thereof are fitted in the straight slots or spaces in2 intermediate of tlie semicircular openings in the contiguous edges of the vertically-sliding frames, the shaft of the stationary section of tlie twister being passed through and suitably journaled in tlie rear uprights, a and a', of the main frame, so that the stationary section of the twister is prevented from movement or play in a vertical line. The segmental heads at the extremities of the movable section of each twister are fitted so as to rotate very freely in the opening in' in the sliding .frame, and the straight faces of the heads of the movable sections and the tie or connecting bars thereof are normally in contact with the head and tie-bar, respectively, of the corresponding stationary or central section of tlie twister, whereby all three of the sections of each of the twisters are adapted to be rotated in vertical planes together or simultaneously for the purpose of forming the twist in one of the loops of the fabric, all of the said series of twisters being geared together to adapt them to he rotated at one operation in order to twist the wires in the series of loops simultaneously.</p> <p>“From the foregoing description, taken in connection with the drawings, it will be seen that the heads of each section of each twister are fitted in the opening or recess in one of the sliding frames M or N, and when these frames are moved vertically these movable sections of the twisters are carried or moved with their respective frames, so- that they are caused to coincide or register with a stationary central section of a twister above or beneath the section from which the movable section started before the sliding frame was shifted. . Thus, for instance, when the sliding frame N is moved upwardly, the sections K of the twisters 15 and E are carried with it and caused to register with the stationary sections of the twisters I) E, respectively, as will be very readily understood. The object of thus shifting or moving the sections J. K. of the twisters is to cause the wires that are fed there through to cross or incline, in order to prepare the wires for the subsequent operation of twisting them, -which is accomplished by rotating the twisters one or more times, as may be desired, all as hereinafter more fully described.</p> <p>“The sliding frames M and the movable sections of the twisters carried thereby are operated or shifted vertically in opposite directions by a single movement of a singe hand-lever, 0 — that is, when the frame >1 is moved upwardly, the frame A will be forced downwardly; and vice versa. This hand-lever O is journaled or fitted near one end on a central pin or shaft, o, that is rigidly supported in the upper end of the main frame A, and the said lever is connected with the shifting or sliding frames by intermediate links, o', which are pivotally connected with the lever and the frames, as is obvious.</p> <p>“Each of the shafts of the central section, L, of each twister is provided with a spur-gear wheel, p, which is rigidl3>- secured thereto, so as to rotate therewith, and these gear-wheels are all of the same diameter and have the same number and proportion of teeth, so that all of the twisters are rotated at the same rate of speed and describe a complete circle or revolution in the same space of time. The gear-wheels mesli with each other, so that all of the twisters are rotated simultaneously, and these gear-wheels are operated at one ‘ time by a single crank, O', that is arranged at one side of the machine, and is secured on a shaft p', which is journaled in suitable bearings affixed to the upright a' of the main frame, the said shaft having a small bevel gear wheel or pinion q, which meshes with a larger bevel gear-wheel, q'. on one of the shafts of one of the stationary sections of one twister. It will be seen that by rotating the crank the motion thereof will be communicated to the shaft of one of the twisters through the bevel gear-wheel and pinion, and as all of these shafts are geared together the twisters are rotated simultaneously.</p> <p>“The warp-wires that compose the fabric are passed or threaded through the central section of the twisters through the aligned openings therein, and the woof-wires of the wire fabric or fence are passed through the transverse perforations or openings in the semicircular disk or head of the movable sections of the twisters.</p> <p>“The warp-wires are wound or colled in bundles as they leave the factory, and they are unwound in rear of the machine and stretched for a suitable distance — say fifty rods — upon the posts in rear of the machine, and they serve as stays to aid in keeping the machine vertical, the said -warp-wires being-passed through suitable openings in the upright a', thence through the shaft of the central stationary section of the twister, then through the aligned openings therein, and out of the opposite side of the machine through the circular openings in the upright a at the front of the main frame. The woof-wires are coiled upon spools or bobbins II, that are loosely journaled in brackets r, which are affixed very rigidly to the outside of the movable side sections of the twisters by .means of suitable bolts or screws, which are passed through the brackets, and the tie-bar of the movable section, each of the said movable sections of the twisters, except the inactive sections I I' and one of the movable sections of the twisters G I, being- provided with a spool or bobbin, which is carried thereby and rotates therewith during the operation of twisting the wire b to form the loops. The wire from these spools or bobbins II is passed through the transverse opening in the head of the movable side sections of the twisters, and thence through the circular opening in the front upright, a, of the main frame. One of the movable sections of the twisters C and I at the extreme upper and lower ends of the machine, however, is not provided with the bobbins It for the woof-wires, because, when the shifting frames 31 N are moved vertically one section of one twister G and the section of the twister I on the opposite side of the stationary central sections of all of the twisters will be thrown above and beneath the circular openings in the main frame, and hence it is impossible to pass or feed the woof-wires through the said. movable section of the Iwisiers therein, and when the'frames M X are shifted to one iiosition the inactive sections I I' arc! adjusted to -register with the stationary sections L of the twisters O I, the inactive twisters being- provided merely to properly rotate' the twisters C I. The warp-wires, however, are passed through the central stationary sections of the said twisters. ,</p> <p>“In order to attain a clear understanding of the shifting of the movable side sections, ,T IÍ, of the active twisters by the sliding frames i\I N, 1 shall designate the central stationary sections by the reference-letters which distinguish the twisters from each other — as. for instance, C 1> E, &e. — and the movable side sections of the twisters by the numerals from 1 to 12, inclusive, as clearly shown in the end elevations.</p> <p>“To make the style of fence shown in Fig 1 of the drawings I proceed to thread the twisters as follows: The end twisters, O I are threaded with the large wire, which, is to form the warp, by passing it through the aligned openings in the central stationary part or section thereof, and the smaller-sized wires, that form the woof of the fabric, are then passed through the twister heads 1, 4. 5, 8, 9, and 12, and it will thus be seen that no wires are passed through the twister-heads 2, 3, 6. 7, 10 and LI, and the inactive twisters I I', and the blank sections of twisters O T. When using the machine to construct a fence in the field, one end of the large wires from the central section of twisters O I is attached to the fence-post, just beyond the machine. The large wires 15, which pass through the central sections of the upper and lower twisters C I, form the warp for the woven-viro netting- or fabric, while the smaller wires, 16, which are inserted through the heads of the side movable sections of the twisters, form the weft or woof of the netting. The wires 15 should be stretched taut by means of suitable stretchers located any desired distance from or in rear of the machine; but I have not deemed it necessary that these stretchers shall bo shown, as any device for accomplishing this end can be used. With the warp-wires 15 arranged ns shown and described to form the selvage of the wire netting or fabric, and the weft or woof wires arranged through the twister-heads of the sections .1 K, to make the style of fence in Fig. 1, I proceed as follows: The lever O is pressed down to move the slide \t downward and by the same movement force the sliding frame N upward, inasmuch as the slides move in opposite directions simultaneously. By moving the sliding frame! X upward the side sections of the twisters that are located in the sliding frames are forced upward correspondingly, and tlie side sections J of the twisters in the sliding frame M are forced downward with the frame by the same movement of the lover. Thus the section 1 of the upper twister, C, which has one of the weft-wires 10, will be carried down and brought on a line to coincide with tlie central section of the twister 1). By the same vertical movement of the sliding frames M N the twister-heads 5 and !) are carried down opposite to the central section, E, of the twisters F and H. and the twister-heads 4. 8, and 12 are carried up opposite to the central sections of the twisters 1). If, and H, one twister receiving one of the side sec-lions from the adjoining twister and giving one of its own side sections to the said adjoining section. The blank inactive twisters I V are thus caused to register with the central seel ion, L, of! twisters G I and the blank sections of twisters O I are reversed, as is obvious. In this manner the side sections, J K, which have weft-wires 16 passed through them, coincide wiih the twisters D, F, and H, which originally had the side sections without any weft-wires. While tlie machine is in this condition, with its weft-wires all located at the twisters I) F TI, 1ho crank O' is turned, causing the rotating of all of the twisters simultaneously as they are geared together for instantaneous operation. The number of complete turns given to the twisteys will regulate the number of twists which are made in the wires.</p> <p>“As the twisters are geared together, one twister will turn in one direction and the adjacent twister will turn in the opposite or reverse direction; but at the same time each twister will make the proper twist on the two weft-wires without interfering with each other.</p> <p>“It will be understood that the throw or movement of the sliding frames M X is just sufficient to cause the side sections to align or coincide with the central section of the twisters above and beneath the same, according to the direction in which the side sections are moved hy the sliding frames. In toning the twisters to make a complete twist, it is necessary to completely revolve the -twisters — that is, transfer one side section from the sliding frame M to the sliding frame N, and then return it again to the frame M. This turning of the twisters is kept up to correspond with the number of twists to be made at the crossing of the wires. When the twisting is completed at this point, the sliding frames are shifted back to their original positions by properly, manipulating the hand-lever, thus returning the side sections, J K, to their proper central sections. The weft-wires are now located as follows: The single weft-wires at the twisters 1 and 12 extend alongside of the warp-wires 15. The double weft-wires at the twisters 4 5 and 8 9 are arranged on each side of their respective central sections, O E, and while in this position the crank is again turned to cause the rotation of the twisters and consequent twisting of the wires at the points designated. The single end weft-wires twist around the warp-wires and the double weft-wires twist upon themselves or around each other. Having now reached the point from where the operation started; it is not necessary to continue further, since by repeating the operation over and over again the wires are inclined and twisted to form additional meshes' or loops of the netting, as will be very readily understood. It will be plain that by the alternate shifting of the sliding frames M N up and down the weft-wires are extended down and up in alternate series, and thus woven together to fprm the mésh when the twisters are rotated.”</p> <p>The claims of the Kitselman patent alleged to be infringed are the following:</p> <p>“1. In a wire-fabric machine, a series of sectional twisters, each of which comprises a central section for carrying a warp-wire, and having rotary movement imparted thereto, and the shifting sections for carrying the weft-wire, and receiving rotary motion from the central section to form the twist, substantially as and for the purpose herein described.</p> <p>“2. In a wire-fabric machine, the combination of a series of sectional twisters geared together for simultaneous rotation, and each comprising a central portion movable only on its axis and side portions capable of a compound movement — that of rotation on their axes — and of a shifting longitudinal movement, substantially as described, for the purpose set forth.”</p> <p>“9. In a wire-fabric machine, the series of sectional twisters, comprising the central and side sections, the central section of each twister being geared to the twister adjacent thereto for simultaneous operation, substantially as described, for the purpose set forth.</p> <p>“10. In a wire-fabric machine, the combination of a series of twisters geared directly together for simultaneous operation, and each comprising a central section and the side section, each side section carrying a spool or reel for the wire, substantially as described, for the purpose set forth.</p> <p>“11. In a wire-fabric machine, a series of twisters connected for simultaneous operation, and each consisting of a central section and the side section, in combination with the spools carried by the side sections, the central section of each twister being provided with a longitudinal opening for the passage therethrough of the warp-wire, substantially as described.”</p> <p>“15. In a wire-fabric machine, the combination of a series of rotary twisters geared directly together for simultaneous operation, each twister having a central section capable of rotary movement only, and two side sections which are capable of a shifting movement independently of the central section in opposite directions simultaneously, whereby the said shifting sections of one twister are adjusted to register with the central sections of twisters on opposite sides of the same, substantially as described, for the purpose set forth.”</p> <p>“20. In a wire-fabric machine, a series of sectional twisters, each comprising a central section, the central sections being geared together to be simultaneously rotated on their axes, and the shifting side sections adapted to align with the central sections to be rotated therewith, substantially as described, for the purpose set forth.”</p> <p>The view we have taken of this case makes it unnecessary to set out the drawings and specifications of the Connor and Pope patents.</p> <p>Appellees construct their wire fencing fabric as licensees under and pursuant to Letters Patent No. 552,025 granted W. D. Whitney December 24, 1895, the drawings and specifications of which are as follows:</p> <p> </p> <p> </p> <p> </p> <p>“In the present embodiment of my invention I have shown it applied to a traveling frame adapted for making, in the field, fencing having longitudinal strands or wires, said frame embodying an upright post B having suitable braces B', and at its lower end supporting-wheels B^, resting upon a board or support 0 having a rib C' grooved on opposite sides, into which grooves project the inwardly-extending ends 154 of the braces B'. Passing through the post B, and at even distances apart, are tubes D, preferably extending at the front, as shown, and through these pass the longitudinal wires a b c, &c., of the fence or fabric, and upon them are loosely journaled rotary supports for the spool-carriers, said supports consisting, in the present instance, of intermeshing gears E having, at the front, plates E', between which and the gears are recesses for the accommodation of the bottom plates P of the spool-carriers.</p> <p>“E2 indicate studs or bosses arranged in the recesses and projecting from the face of the gear, and Es are latch-pins passing into the recesses through apertures in the plates E' and pressed inward by springs E¿, small heads on the latch-pins limiting their inward movement. The studs and latch-pins are arranged some distance apart, as shown, the former being arranged to co-operate with the curved grooves F2 in the rear side of the plate F of the spool-carrier, and the latch-pins to co-operate with the incline Fs on the top of said plate and the curved slot F' in one side thereof, the groove and slot crossing, as shown, and the relations of the parts being such that the spool-carrier is held by the latch and stud on the rotary support and may he rotated with it without danger of dropping out.</p> <p>“Upon the outer sides- of the plates P are the spools G containing the weft or filling wire g and mounted on a spindle in a suitable yoke-frame F^ having the perforated eross-har ps through which the weft-wire passes, any suitable brake or tension device being applied to the spool to prevent movement excepting when the wire is positively drawn off. The outer plates E' of the rotary supports are preferably recessed at h for the accommodation of the standard of the spool-carrier, as shown in Pig 2.</p> <p>“The gears E intermesh and are adapted to be rotated in either direction by means of bevel-pinion H mounted on a frame H' and having an attached handle or crank H2, said pinion meshing with a corresponding bevel-wheel E x formed upon or attached to one of the gears E, as shown in Pig. 3.</p> <p>■ “The devices for moving the frame B after the wires are twisted consist of a clamp embodying jaws or levers J J, pivoted to a block or support .T' and adapted to grip one of the longitudinal wires of the fence or fabric, the outer ends of said jaws being connected by links J2 with the end of a lever Js pivoted to the main frame at j. It will be seen that when the lever is moved in the direction indicated -by the arrow in Pig. 1 the jaws J J will grip the wire and the machine will be moved, and upon moving the lever in the opposite direction the jaws will slip on the wire, the distance of movement of the frame depending on the movement of the lever, which is adjusted to the size of the mesh required.</p> <p>“When making wire fabric or fence such as shown in Fig 1, the longitudinal wires are first set up and held taut, being passed through the tubular supports D. Then the filling-wires g from the spools are secured to the end post or the longitudinal wires by twistin'g or in any suitable manner. For the purposes of illustration I will number the supports E from the top, calling the upper one 1, the next 2, and so on, and the upper longitudinal wire a, the next b, and so on. Starting from the position shown in Pig. 2, in which the slots and grooves in the spool-carriers are engaged by the pins and studs on the supports E, the machine may be operated to twist the filling wires together and around the wires a, e e or b d f, as desired; but, assuming that the first twist is to be around the wires b d f, the supports E are rotated by the handle in the direction of the arrows, Pig. 2, and those numbered 2 4 6 will carry the spool-carriers P around, as in dotted lines, their latches Es co-operating with the sides of the slots F' and the studs E2 preventing the carriers dropping out. This operation is accomplished because the slots F' in the spool-carrier plates P extend transversely of the path described by the latch-pins on the supports 2, 4 and 6 that are to move the spool-carriers, and substantially coincident with the path described by the latch-pins on the supports 1, 3 and 5 that are to rotate empty, the grooves P2 being correspondingly arranged relative to the studs E2 on the supports. This rotary movement is continued in the same direction as long as may be necessary to form the required number of twists around the wires b, d and f, (the weft or filling wires passing around the longitudinal wire b and d being of course twisted around each other also, while a single weft wire is passing around wire f.) During the movement in this direction, as the carriers approach the position 'shown in full lines in Pig. 2, the latches E3 on the supports indicated by 1, 3 and 5 ride up the inclines Ps on the plate P of the spool-carriers and drop into the slots F', and as long as the motion is in the direction indicated the carriers will be-rotated as described and maintained in the supports indicated by 2, 4 and 6; but when it is desired to twist the weft-wires around the longitudinal wires a c e it is only necessary to reverse the direction of movement of Uie supports E after said supports have completed a full revolution, after the latches have dropped into the slots F', and when the parts are in the position shown in Fig. 2 in full lines, and the operation of twisting the weft-wires around wires ace may be understood by assuming that the supports E are rotated in the opposite direction from that indicated by the arrows. Now, as before, the latch pins Its of the supports 1, 3 and 5, that are to move the spool-carriers, describe a path transversely of the plane of the slots F' in the carriers, and consequently move the carriers with them, while the latches E3 on the supports 2, 4 and 6 ride up the inclines on the moving carriers, drop into the slots .F' and pass out as the carriers turn away from the supports. It will now be understood that the weaving of the fence can be readily accomplished by making the required number of twists around the longitudinal wires and then reversing the operating means, transferring- the spool-carriers and twisting on the other wires in the opposite 'direction, thus dispensing with the transferring mechanisms heretofore deemed necessary and simplifying and lightening the machine.</p> <p>“While the present embodiment of my invention is designed for building fences in the held, I do not wish to be confined to this arrangement, as wire netting or fabric could be readily made in quantity on large machines built for the purpose, the necessary relative movement of the fabric and machine being accomplished by moving the fence fabric instead of the machine, as herein.</p> <p>“Although the spool-carriers are supported only at the lower end and at some distance from the spools themselves, it will be noted that the wires g draw fi-om the aperture in the cross-piece Fb to the longitudinal strand, in the ’direction of the length of said cross-piece, and that while the carriers are being transferred and. are rotating the end of the cross-piece is against and turns about the tubular extensions D, as seen in Figs. 1 and 2, thereby preventing- the carriers from dropping out.</p> <p>“If it is desired to make ,a fence with square or rectangular meshes, as shown in Fig. 7. it may be accomplished by this machine by removing all «f the spool-carriers excepting one, and causing the supports E to make one (or more) and a half complete turns aroun'd each longitudinal wire before the motion is reversed, causing the carrier to travel down. Then move the frame back, twisting the wire around the lower wire f, as shown, and when the carrier has made one or more complete turns, reverse the motion and it will be transferred to the next support E above, if the motion is reversed wlieu the carrier is in engagement with the support to which it is to be transferred.</p> <p>“The socket or recesses in the rotary carrier-supports E and the plate F, which in the present construction is the base of the spool-carrier is but one form of co-operating parts whereby the carriers are seated upon the rotary supports, and by the terms “co-operating projections” and “recesses,” used in the claims, I wish to be understood as referring broadly to a means for seating the carriers on the supports in such manner that they may be retained by the latches when the rotation is in on'e direction, whether the recesses be in the support E and the ends of the plate F be the projections, as shown, or vico versa.</p> <p>“As far as the operation of my device is concerned, it is immaterial whether the latches are placed on the supports or gears E or upon the carrier-plates F so long as the relative movements of the latches, inclines and grooves are preserved. The slots F2 and inclines Fs on opposite sides of the spool-carrier plate in connection with the spring-latches on the supports E constitute what I term a “reversed” latch connection between the parts — that is, one in which the transfer of the carrier from one support to the other is caused by the direction of the movement of the support relative to the carrier.”</p> <p>The essential drawings and specifications of Letters Patent No. 10,743, granted John Nesmith April 4, 1854, and referred to in the opinion as most adequately representing one branch of the prior art, are as follows:</p> <p> </p> <p> </p> <p>“The principal and main features of novelty of my invention consist in the principle of the revolving of the wires parallel to each other at the same time they are being twisted, and the other parts and movements of my machine to produce the effects hereinafter described.</p> <p>“To carry out my invention and design fully, and first to manufacture my wire-netting and wire-fence machines, it is the best plan, in my opinion, to construct the various parts of said machines of such materials ás are hereinafter named. The frames should be of cast-iron, also the cams, the stands, and gearing of the same rriaterial. The levers and shippers throughout should be of wrought-iron. The jaws G G may be made of cast-iron, to which must be attached pieces of steel where the same come in contact with the wires. The netting beam or cylinder H may be made of har'd wood, with iron centers, and the ratchet-gear on said cylinder may be of cast-iron. The center part of the wire-reels may be made of wood, with a sheet-iron rim on flange on each side.</p> <p>“It will be readily understood by any good practical workman, by inspecting the inclosed drawings and specification, and following out the details described hereinafter, how to make, construct, and use my wire-netting machines. It is necessary to have machines for making every different size of the netting or fence — that is, for every different size of the meshes of the same — and any width of the netting less than the whole scope of the machine can be made by simply drawing in the number of wires desired, as will be understood hereinafter; and in proceeding to operate or use my netting-machines it will be seen by examining the drawings that the same are composed of two parts connected together by two' shafts, as seen at P and Q, Pig. 1, and one of the said parts I call the ‘twister,’ the frame of which is shown at A A, Pig. 2. The other part I call the ‘feeder,’ the frame of which can be seen at B B, Fig. 2.</p> <p>“The border-wire to netting and top and bottom wire in fence is usually larger than the wire to be twisted, although the wires can all be of the same size, if desired. The wire is placed' upon the reels C C, Pig. 1, and then one end of the same is passed through a hole which is drilled in the center of the four outside gears, E E and X X, Pig. 1. The said wires are then passed to the twisting part of the machine, and through holes drilled in the centers of the two outside twisting-gears, J J, Pig. 1. Then the said wire is passed between the jaws G G, Pig. 2, and then to the cylinder H, as seen at Pigs. 1 and 2, and firmly secured to the samé by a clamp, g, and a catch, y, which can be seen at Pigs. 1 and 2, then the wires to be twisted, which are wound upon or around the reels DDDD, Pig. 1. Said reels are then placed upon the stands I I I I, Pigs. 1 and 2, on which they revolve as the wire is being drawn oil from them. One end of the wire on each of the four reels DDDDis then passed through one end of the reel-stands 11 11, Pig. 1, thence to and through the slots in the twisting-gears J J J J, Pig. 1, and then they are passed between the jaws G G, Pig. 2, and thence to the cylinder H, Pigs. 1 and 2, and secured to the said cylinder by the same contrivance as the border-wires, before described. The said wires being all adjusted, as above mentioned, the power is applied to the driving-pulley K, Pig. 1, which is conveyed to the shafts P and Q, Pig. 1, by means of the shafts L and gears L and M, as seen at Pig. 1. The shippers S S S S, Pigs. 1 and 2, being first raised by the cams B R and U TJ, Pig. 2, operating against or raising the levers T T, which are shown in Pig. 2, it being understood that the shippers S S in the twisting part of my machine act in concert with and simultaneously with the shippers S S in the feeding part of my machine. By this movement they are brought into the position as shown in Pig. 2 of the drawings, and then stop moving, and as soon as the movement of the said shippers ceases the twisting-gears J J J' J J, Pig. 1, and the feeding-gears E E E E E and X X X X X, as seen at Pig. 1, make two revolutions, they revolving exactly with each other, so as to keep the wires parallel and from getting entangled with each other, two revolutions of the said gears being all the twisting that is necessary at each end of the meshes in the netting and fence for making good substantial work, although more or less twisting of the wire may be obtained, if desired, by altering the gearing in the following manner — viz., by enlarging the gear N, Pig. 1, if more than two revolutions are required of the said twisting and feeding gears, and by reducing the gear N, Pig. 1, if less than two revolutions are wanted In tlio said feeding and twisting gears at each end of the meshes in the netting.</p> <p>“The before-mentioned gears J J J JJ and E E B E E and X X X X X, after making two revolutions, as before stated, cease moving, which is effected by a part of the teeth of tlio gear X, Eig. 1, being cut off from its periphery, and as the said twisting and feeding, gears stop revolving in such position that the slots in the said gears are on a line with each other, so that the wires can bo shipped from one set of gears to the others, by the shippers SSSS, Figs. 1, 2, and so that the wires can be shipped back from one set of gears to the others by the shippers TVTT, Pigs. 1, 2, it being understood that the said feeding and twisting gears revolve and stop alternately — that is, they revolve ■when the shippers cease moving, and that the shippers perform their duty while the said gears remain motionless, and as the said gears stop revolving the jaws G G ia the twisting part of my machine are moved backward nearly to the twisting-gears J J ,T .T J by the cam Y and arms and connecting-pieces r, Fig. 2, and the spring b, Fig. 1, and by the peculiar construction of the tipper jaw. G, and connecting-pieces r, they (the said jaws G G, Fig. 2) are brought together upon the wire and then moved forward, or toward the cylinder it, one-half the length of the meshes of the netting, as will readily be understood by inspection of the drawings, and when the wire is so drawn forward and the jaws G G stop, then the shippers SSSS, Figs. 1, 2 — that is, one of the two sets of shippers on each side of the feeder-frame and one of the two sets of shippers, Fig. 1, on each side of the twisting-gears- — -are first raised by the cams K and TJ, said shippers then remaining in this position until the wire is sufficiently twisted. Then they are depressed or moved downward to their lowest position, as seen at Y Y V V, Fig. 2. Then the said sets of shippers V V V V, Fig. 2, on each side of the fíame B a.nd each side of the twisting-gears J ,T J ,7 are moved upward by the cams It and U by the same operation as the shippers SSSS, before described, and by the upward movement of the said shippers V V Y Y the wires are shipped from the position in which they were left by the shippers S S S S to the other feeding and twisting gears, as will be readily understood by inspection of the drawings — that is, one set of shippers move the four inside wires one way and the other set of shippers will move the four inside wires the other way at the required time to harmonize with the other correct movements of the machine. The two outside or border wires neyer move transversely, but move longitudinally, like the other wires, except that they pass through holes drilled in the center of the four outside feeding-gears and the two outside twisting-gears. The two outside small wires are wound twice around the border-wires at every other twisting operation, as will be seen by inspection of Fig. 1.</p> <p>“The reel-stands 111 I, Fig. 3, have eac-h a spring on the side next the reel, the object being to produce friction and to prevent the wire from coming off the reels too easily.</p> <p>“The wire for netting, fencing, &c., should be well annealed. The necessity of this will be readily understood by practical workmen. The take-up motion to the cylinder H, Figs. 1 and 2, is composed of a ra tchet gear, h, Fig. 1, and cam i. Fig. 1, and lever j, Fig. 1.</p> <p>“At f, Fig. 2, is shown a shaft which supports a straight-edge, over which the wires travel as they pass through the machine.</p> <p>“d d. Fig. 2, are two movable planes that are moved or brought together by means of the cams 1 and m, Fig. 1, and levers e and n, Fig. 1, the object of the said planes being to guide the wires when they are shipped, and to hold the wires firmly while they are being twisted, so that the wires may not be sprung where they are not twisted, and at the end of each twisting operation they (the said planes d’d) open or move apart, but are together, as seen at d d, Fig. 1. On the top plane, d, there are five srriall vertical projections — one in the front of the center of each gear. These projections are to prevent the wire from being twisted too far into the meshes.</p> <p>“By inspecting the drawings it will be seen that the jaws G G are made in such shape that as they are moved backward by the earn Y and arm r, the jaws are opened, and when they are moving forward they are brought in contact with the wire by shutting together, by which operation the said wire is moved from one twisting operation to another, and so on.</p> <p>'■ ‘‘It "being understood that the take-up motion acts or operates at the right time, so as to keep the wire straight and smooth during the operation of the said machine, as hereinbefore set forth.”</p> <p>"The Middaugh and Wilcox patent of December 28rd, 1884, is the best example of the second branch of the prior art; Figure 2 of its drawings is set out below.</p> <p> </p> <p>The court' below held that none of the appellants’ patents possessed the quality of a pioneer invention; that neither appellants nor their assignors were the first to make a portable' machine for weaving wire fencing fabric in the' field; that both appellánts and appellees were on an equal footing, both being mere improvers, upon the prior art; that in this view of construction to be put upon appellants'1 patents appellees did not infringe; and dismissed the bill for want of equity.</p>

For opinion below, see 100 Fed. 855. The action in the Circuit Court was to restrain the appellants from infringing re-issue Letters Patent No. 11,696, granted September 27, 1898, to Frank Hurlbut for a dental spittoon, and by him assigned to the'appellee. The original patent was No. 563,664, issued July 7, 1896.

The action in the Circuit Court was to restrain the appellee from infringing Letters Patent No. 509,644, granted to Edward E. Bards-ley, November 28, 1893, for a rotary fluid motor, assigned to appellants. The infringing spittoon is manufactured in accordance with reissue Letters Patent, No. 11,696, granted September 27, 1898, to Frank Hurlbut, for a dental spittoon.

<p>In Admiralty. Petition for limitation of liability.</p>

<p>Appeals from the District Court of the United States for the Eastern District of Pennsylvania.</p>

<p>1. COLLISION — ANCHORAGE OUTSIDE OF DESIGNATED GROUNDS — NEGLIGENCE.</p> <p>The regulations of the port wardens of Philadelphia, providing that “vessels will be allowed to anchor” in certain designated parts of the Delaware river, are permissive and directory, and, while the defiant or needless disregard of them by a vessel would be evidence of negligence, there may he circumstances under which a ship is justified in anchoring outside of the designated grounds, without being chargeable with negligence, as where, in the judgment of an experienced pilot, they are so fully occupied that a place outside is safer, and other ships are also anchored outside, and in the vicinity of the place selected.</p> <p>2. Same — Ferryboat and Anchored Steamship.</p> <p>Evidence held insufficient to establish fault on the part of a steamship anchored in the Delaware river at Philadelphia for a collision caused hy a ferryboat striking her in a log.</p> <p>8. Pilots — Negligent Service — Liability of Pilots’ Association</p> <p>The Pilots’ Association of the Bay and River Delaware, which is an unincorporated association of pilots, whose objects are limited to the management of pilot boats and the furtherance of the interests of its members in various ways, but which has no power to make contracts for pilotage, its members acting individually in that matter, does not stand in the relation of principal as to such contracts, and is not liable for the negligence or fault of one of its members in the performance of a contract made by him for such service.</p>

<p>In Admiralty. Suit against a tug for injury to her tow from collision.</p>

The following is the opinion of the circuit court (SWAYNE, District Judge): It appears from the undisputed facts in this case that the relators lately recovered judgments against the city of New Orleans for considerable amounts, based on drainage warrants issued by the city in discharge of the consideration of a contract of purchase and compromise entered into between it and Warner Yan Norden, transferee of the Mississippi & Mexican Gulf Ship-Canal Company, on the 7th day of…

<p>On Motion to Remand to State Court.</p>

<p>1. Dismissal — Right of Plaintiff to Dismiss as to Removing Defendant.</p> <p>A plaintiff lias the right, to dismiss liis action at any time before trial as against one of two or more defendants upon whose application the cause was removed into a federal court on the ground of a separable controversy; and the fact that plaintiff is a receiver of a state court, suing by leave or direction of such court, does not require him to show its aulhoiity for such dismissal before the federal court will entertain Ms motion; nor can the dismissal be prevented by a motion by such defendant for leave to tile an amended answer pleading a set-off, made after the motion for leave to dismiss has been made and taken under advisement.</p> <p>2. Removal of Causes — Remand—Effect of Dismissal as to Removing Defendant.</p> <p>Where, after a cause has been removed into a federal court by one o' two or more defendants, who alone Is a citizen of another state, on ting-round of a separable controversy, the suit is dismissed as to such defein ■ ant, the federal court has no further jurisdiction, and the cause will be remanded to the state court.</p> <p>3. Same — Jurisdiction of Federal Court — Setting Aside Judgment of State Court.</p> <p>A federal court, into which a cause has been removed by one of two or more defendants on the ground of diversity of citizenship, and that there was a separable controversy, lias no jurisdiction to set aside a judgment rendered by the state court therein as against another defendant, who is a citizen of the same state as plaintiff.</p>

<p>1. Railroads — Foreclosure of Mortgages — Preferential Claims.</p> <p>The right of one furnishing supplies to an insolvent railroad company to a preference over the mortgagee is dependent on the fact that there has been a diversion of the net earnings of the mortgaged property over and above the necessary expenditures for operation, and that such diversion lias inured to the benefit of the mortgagee, and the burden rests upon the claimant of such preference to establish such fapts.</p> <p>2. Same — Reference—Report of Master.</p> <p>Where the claim of an intervener in a railroad foreclosure suit to preference of payment over the mortgagee has been referred to a master, his findings should show whether there has been a diversion of net income since the intervener’s claim accrued, and’whether, if so, it inured to the benefit of the mortgagee, and his report should contain a summary statement of the evidence on which his conclusions are based, with references to the evidence in the record, showing the amount diverted, and the particular manner in which it was used, to enable the court to see, from the facts found, whether it went into improvements of the property or its betterment, or the payment of interest.</p> <p>3. Equity — Reference—Evidence Objected to.</p> <p>On a hearing before a master, where evidence is offered, and its competency or admissibility is objected to, the master should receive it, subject to the objection, so that the court may pass upon the matter on review.</p>

<p>Building asm Loan Associations — Rights o¡>' Borrowing Stockholders — Construction of Contract.</p> <p>Podcioner became a stockholder in defendant building and loan company, and by her contract of subscription agreed to pay a fixed sum monthly on each share of stock until the same became matured by reaching its par value, no time for such maturity being fixed by the by-laws. The by-laws authorized the company to loan its funds to members on such terms and conditions as should be therein proscribed, and provided that such loans should be repaid according to the terms agreed on. Petitioner borrowed $1,800, the pax value of her share;;, securing the same by a pledge of her stock, and also by a mortgage conditioned for the payment of $2,356.20, ‘"the same being principal, interest, and premium of a loan from said company. * * * which said loan is evidenced by 77 promissory notes of even date with this mortgage, each for the sum of $30.60.” One of said notes matured each month, and included, besides interest and premium on the loan, the monthly installment due on petitioner’s stock; 'and on the payment of each note she was credited with such installment on the books of the company. Held, that such installments constituted the “principal” of the mortgage debt, and on payment of all the notes such debt was extinguished, and that there was nothing in the contract which entitled the company, or its receiver in insolvency, to hold the mortgage as security for the payment of further installments, although the stock had not matured by reaching its par value.</p>

<p>1. Partnership — Construction oe Articles — Rights of Partners on Dissolution.</p> <p>Plaintiff entered into a partnership with 'defendant, who was an inventor, the pui'pose of the firm being to promote and utilize defendant’s inventions. The articles provided that such future inventions of defendant as should he agreed upon should become the property of the firm, and plaintiff should he joint owner thereof, in consideration of his paying all expense of obtaining patents in this and such foreigi, countries as. should be chosen, and of maintaining such foreign patents for at least five years. Held, that on a dissolution plaintiff was not entitled to repayment of the sums expended by him under sucn provision.</p> <p>2. Same.</p> <p>Such articles also provided that plaintiff should furnish the money necessary to pay the partnership expenses until its earnings should justify the joint payment of the same by the firm; that he should advance the money needed to promote and develop the inventions anc. patents owned by the firm, for which he was to he reimbursed from the receipts of the partnership when it was in condition to warrant such repayment, the amount, however, not to exceed 25 per cent, of the total received for the use or sale of any one invention or patent. Held, that on a dissolution of the partnership plaintiff was entitled to repayment of all sums advanced under either of such provisions, but that the liability therefor was that of the firm, and not of defendant individually.</p> <p>8. Same — Lien of Partner for Advances.</p> <p>On the dissolution of a partnership, which has no outside debts, -or after such debts have been paid, a partner who has made advances to the firm, which he is entitled to have repaid, has an equitable lien therefor on the property of the partnership.</p>

<p>Appeal from the Circuit Court of the United States for the Western District of Virginia,</p>

This is an action of trespass to try title, and was brought in the court below by S. L. Samuels, the plaintiff in error, a citizen of the state of New York, against the defendants in error, W. J. Reviere, Jr., James Reviere, Mack Wilder, and Samp Richardson, citizens of the state of Texas, to recover 200 acres of land. The three last named defendants by answer said that they occupied the premises as tenants of W. J. Reviere, Jr., and they disclaimed all other interest.

<p>Action for Libel. On demurrer to plaintiff’s statement</p>

The Allen-West Commission Company, the defendant in error, sued J. G. Patillo, G. W. Smith, J. A. Patillo, J. P. Smith, and W. N. Smith, the plaintiffs in error, who were partners doing business under the firm name of Smith, Patillo & Co., for the sum of $8,013.28, and accrued interest, basing its right to recover that amount on the following allegations, which were contained in its complaint: “That * * * in the early part of the year 1891 defendants applied to the plaintiff…

<p>In Error to the Circuit Court of the United States for the Western District of Pennsylvania.</p>

<p>Carriers — Injury or Passenger — Failure to Warn Passenger of Danger.</p> <p>Defendant’s railroad, train encountered a washout, and, going too close to the breach in the track, the engine overturned. The cars were pushed back some distance, and a brakeman was sent to get the passengers out, as the water was running alongside the track, and washing away the embankment. I-Te made the announcement, hut plaintiff’s wife and another passenger, who did not understand English, remained in the car, and no further attempt was made to remove them, although the cars stood upon the track for 30 or 40 minutes, when they overturned, and plaintiff’s wife was injured. Held, in an action to recover for the injury, that, on evidence showing- such facts, it was not error to direct a verdict for plaintiff.</p>

<p>Insurance — Right op Agent to Commissions — Refusal op Company to Complete Contract.</p> <p>An agent for a life insurance company, soliciting business on commission, although by tlie terms of his contract he is entitled to commissions only on accepted, business, and not unless the premiums from ■which such commissions are to be paid have been received in cash by tlie company, may nevertheless recover his commission on applications secured by him from persons able and willing to pay tlie premiums, which were accepted by the company, but on which the premiums were not paid, where such nonpayment was due solely to the fact that tlie company changed its rates after the applications were taken, and demanded, as a condition to delivery of the policies, premiums largely in excess of -those at which the agent was expressly authorized to take the applications.</p>

<p>In Error to the Circuit Court of the United States for the Western District of Pennsylvania.</p>

<p>1. Statutes — Title of Act- — Nebraska Constitution.</p> <p>Mere duplicity or surplusage in the title of a legislative act does not affect its validity, under Const. Neb. art. 3, § 11, providing that “no bill shall contain more than one subject and the same shall be clearly expressed in the title,” where the act itself contains but one subject, •which is plainly expressed in the title; and the subject is sufficiently stated, within such requirement, by a reference to a particular section of the Compiled Statutes of the state, which is an official publication, where the purpose of the act is only to add further provisions to such section, and they are germane.</p> <p>2. Same — Amendatory Acts.</p> <p>The provision of Const Neb. art. 3, § 11, that “no law shall be amended unless the new act contains the section or sections so amended and the section or sections so amended shall be repealed,” does not require a new act to re-enact an entire section and repeal the original section, where its.only purpose is to add to such section new and independent provisions.</p> <p>3. Same.</p> <p>A statute is not invalid, although it purports to be amendatory of & prior statute which had been previously amended or has been held invalid, where the provisions of the new statute are independent and complete in themselves.1</p> <p>4 Same — Act Relating to Cities — Validity.</p> <p>The Nebraska act of 1887, entitled “An act to amend sections 27 and 58 and to add subdivisions 58 and 59 to section 22 of article 2 of chapter 14 of the Compiled Statutes, relating to cities of the second class having more than five thousand inhabitants, and to repeal said original sections 27 and 58 of all acts and parts of acts in conflict with this act,” is constitutional and valid.</p>

<p>1. Railway Companies may Use Reasonable Discretion in Construction.</p> <p>Railway companies have the right to exercise reasonable judgment and discretion in the construction of their roadbeds, rails, and safety appliances.</p> <p>2. Negligence-Unusual but Reasonable Size of Blocking No Evidence of.</p> <p>A railway company used a piece of lumber one inch thicker, six inches wider, and one foot longer than the customary blocking to fill the space between a guard rail and a main rail. Held, the use of this blocking of unnsnal size was but the rightful exercise of the judgment of the company, and was no evidence of negligence, or of liability for an injury resulting from a brakeman’s stumbling over it.</p> <p>3. Contributory Negligence — Choosing the More Dangerous of Two Methods of Discharging a Duty is Evidence of.</p> <p>When there is a- comparatively safe and a more dangerous way known to a servant, by means of which he may discharge his duty, it is negligence for him to select the more dangerous method, and he thereby assumes the risk of the injury which its use entails.</p> <p>4. Same. ¿</p> <p>A railway train was equipped with two levers, — one on each side of it,— to enable the brakemen to draw a pin between two cars without entering between them. The machinery attached to the lever on the side of the plaintiff was out of order, while that attached to the lever on the opposite side was in good condition. Held, the fact that the brakoman chose to, and did, step in between the cars while in motion to draw the pin, instead of using the lever on the opposite side of the train, provided for the purpose, was evidence of negligence contributing to an injury resulting from his scumbling while walking between the cars.</p> <p>(Syllabus by the Court.)</p>

This was an action by Mary Erame, the plaintiff in error, against the Portland Cold Mining Company, the defendant in error, for negligence. Judgment was rendered for the defendant upon a demurrer to the complaint, and a writ of error sued out to reverse this judgment.

This is a writ of error to review a judgment of the circuit court, Southern district of Yew York, entered in favor of defendant upon a verdict directed hy the court. The action was brought to recover damages for personal injuries.

The Modern Woodmen of America, an Illinois corporation, and the plaintiff in error, sued the Union National Bank of Omaha, Nob., the defendant in error, for the sum of $27,269.33, the complaint containing two counts or causes of action. The first count alleged, in substance, that on December 31, 1895, the plaintiff had on deposit with the defendant bank the sum of money last stated, which sum it had ever since refused to pay.

<p>In Error to the Circuit Court of tbe United States for the District of New Hampshire.</p>

<p>1. Bankruptcy — Provable Debts — Judgments.</p> <p>Not all judgments or decrees against a bankrupt for tbe payment of money evidence debts provable against his estate, under Bankr. Act 1898, § 63a, cl. 1, and in determining their character the court will look beyond the form of the judgment, and consider the nature of the liability upon the original cause of action.</p> <p>8. Same — Enjoining Enforcement of Judgment — Decree for Alimony.</p> <p>A decree awarding alimony to a wife on granting her a divorce, although creating a fixed liability payable at once, does not evidence a “debt” provable against the husband’s estate in bankruptcy, under Bankr. Act 1898, § 63a, el. 1, and from which he is released by a discharge, and proceedings to enforce its collection will not be enjoined by a court of bankruptcy on his petition. Alimony is a sum awarded for the wife’s support in the enforcement of a marital duty imposed for the benefit of the wife, and also from public policy, and not a debt in a legal sense, and congress cannot be presumed, from the language used in the bankruptcy act, to have intended to permit a bankrupt to avail himself of its provisions to evade such duty, because a court, on granting a divorce to the wife, has definitely fixed the measure of the obligation.</p>

<p>1. Bankruptcy — Right to Homestead.</p> <p>An owner of a homestead In Kentucky sold It, and with the money made payments to the extent of Sl,250 on other property bought, in which, on subsequently becoming a bankrupt, he claimed a homestead. At the time of the purchase he moved to such last-mentioned property, where he and liis family have ever since resided. Hie property was conveyed to the bankrupt and his wife jointly. Ky. St. § 1702, provides that there shall bo exempt to an actual bona fide housekeeper with a family a homestead not to exceed 81,000. Held, that the bankrupt was entitled to have a homestead of 83,000 set apart to him in the property.</p> <p>3. Same — Contract ok Sale.</p> <p>The fact that the bankrupt may have entered into a contract to sell such homestead to his wife and sister-in-law. they not at the time being-in any way indebted to liim, did not in any way affect his right to the exemption.</p>

<p>In Bankruptcy.</p> <p>On motion to set aside an adjudication in bankruptcy. An order of reference was made to ascertain the facts, with the referee’s opinion thereon: The following is the report of the referee, with his opinion:</p> <p>I, Ernest Hall, the referee in said order named, do respectfully report: That I have been attended upon said reference by the officers of said alleged bankrupt corporation and its counsel, and by counsel for the petitioning creditors, and other parties in interest, and that I have taken the proof ^ offered by the respective parties and have heard argument of counsel thereon, and after due deliberation, I do find and report, that at the time of filing the petition herein the alleged bankrupt, the Morton Boarding Stables, was a corporation engaged principally in trading and mercantile pursuits, within the meaning of section 4b of the bankrupt act, and could lawfully be adjudged an involuntary bankrupt thereunder.</p> <p>The facts in the case are practically undisputed, and are substantially as follows: The corporation hired and rented a large building in the city of New York, and had it suitably arranged for the accommodation of horses and trucks or wagons and for the storage of necessary food and bedding for horses, and they also had a blacksmith’s establishment and repair shop for trucks and wagons, which were operated in .connection with the stable. They took horses to board for a certain specified sum per month, which sum included the storage of the trucks or wagons, and the cleaning and greasing of the same. They also shod the horses and, to a small extent, did outside shoeing and also a small business in repairs to trucks, but all of-the matters outside of the board of the horses may be considered as mere adjuncts or accessories of the main business of boarding horses, for hire; and the income from all other sources formed but a small and unimportant part of the entire income from the business. It may also be remarked, in passing, that they occasionally bought, sold, or exchanged horses and also let their own horses to their customers, when those of the latter were out of condition for work.</p> <p>They had many incidental branches to their business and it became necessary for them to buy and sell different articles, and, perhaps, manufacture to a small extent; and it might be possible to find that in these different branches they were traders or were following mercantile pursuits within the meaning of the act, but it can scarcely be said that in-this regard they were engaged principally in trading or mercantile pursuits, and I prefer to rest my decision squarely upon the fact that in boarding horses for hire and carrying on a livery stable, they were principally engaged in trading and mercantile pursuits.</p> <p>I consider the case In re Odell, 17 N. B. It. 73, Eed. Gas. No. 10,426, decided by Judge Blatchford, under the old bankruptcy law, as a direct authority in this case, and that it is well reasoned and ought to control.</p> <p>Subdivision 7, § 5110, Kev. St., provided that no discharge should be granted to á bankrupt, if being a merchant or tradesman he had.not kept proper books of account.</p> <p>The bankrupts in that case kept a livery stable and took horses for board at a certain specified price per month, and they also let their own horses and bought horses for their own use in the business and for hiring out.</p> <p>“They fed the horses with hay, oats, feed and grain, buying such food and receiving pay for that which the horses consumed; this was as much a sale of the food as if it had been sold to be taken away from the premises and consumed by the horses of other persons elsewhere. The only difference is that it was sold to be consumed on the premises by the horses of other persons.”</p> <p>This language is more directly in point in the case at bar than it was in the Odell Case, because in that case the bankrupts kept a regular livery stable and tlieir principal business seems to hare been tbe hiring out of their own horses and carriages for pay, and incidentally boarding the horses of other persons; while in the case at bar the chief business was the boarding of horses belonging to other persons.</p> <p>Much stress has been laid by the counsel for the moving party upon the fact that the rent of the stable and the attendance upon the horses by the employés of the bankrupts furnished a large part of the service for which they received the monthly pay. Tf such an argument were controlling there could be no trading or mercantile business within the meaning of the act; every merchant or trader must have a place of business and own it or pay rent for it, and he must have employés and salesmen to handle and sell his goods, and horses, and trucks, perhaps, to deliver them, and in many mercantile businesses the handling and delivery of the goods constitutes the chief expense, as in buying ice or coal by the cargo and retailing it; the same may be said of almost any business of buying and selling.</p> <p>The bankrupt bought grain and feed of all kinds in large quantities, and sold it again at retail to its customers, and instead of delivering it to .them in bulk to be used at tlieir own stables, they divided it up into the necessary quantities and sold it to their customers to he consumed on the premises. Suppose they had furnished eight quarts of oats to a customer for so much a quart, and the custqjner had put it in the manger and fed it to his horse, and had continued the same performance for a month, and then paid the agreed price, can there be any doubt but that it would constitute a sale? But the moving party claims that because an employe put it in the manger it became something else than a sale, but he fails to disclose what the transaction would then have been, nor does the fact that the wages of the employe formed an indivisible part of the monthly sum charged, alter the case or make it any less a sale; the employé delivers the goods purchased to be consumed upon the premises instead of somewhere else; I fail to discover any distinction.</p> <p>Counsel for 1he moving party cites in support of his argument the case of In re New York & W. Water Co. (recently decided by this court) 98 Fed. 711, in which it was held that a company which owned a source of water supply and a reservoir and pipe lines and allowed householders for a certain sum to connect their houses with its pipes and thus obtain a water supply, was not principally engaged in trading or mercantile pursuits under the act.</p> <p>The reasoning of that case seems perfect, but it has no application here. That company did not buy and sell water in specific quantities, but merely conveyed the water through their own pipes or conduits from a natural supply, and for a certain annual payment licensed householders to connect with their pipes and thus obtain necessary quantities of water.</p> <p>But, suppose that company had been formed for the purpose of purchasing spring water in hulk and then bottling it and selling it at retail; can there be any doubt but that they would have been traders and engaged in mercantile pursuits, even though the original cost of the water might have been but trifling and the labor of transporting and bottling and delivering it have been the chief item of cost?</p> <p>Or, go further and suppose they opened a store (as many of them have) and in order to introduce their goods had agreed that any one might go in and be served with as much of the water as they could drink every day for a certain price per month, would not that also have been trading?</p> <p>The cases referred to by the learned counsel for the moving party, relating to mining companies, have no application to the case at bar; they stand upon the same footing as the Water Co. Case.</p> <p>The case of In re San Gabriel Sanatorium (D. O.) 95 Fed. 271, decided under the present law, goes much further in support of the petitioning creditors’ contention than the Odell Case, and is certainly not an authority in favor of the moving party.</p> <p>My conclusion is that the adjudication in this case was clearly within the provisions of the bankruptcy act.</p> <p>I submit herewith the order of reference and all the testimony taken before me.</p>

In Bankruptcy. On application for discharge, and objections thereto.

<p>Customs Duties — Classification—Flax Turk ad.</p> <p>A manufacture of flax, consisting of hanks of two strands of flax twisted together, is not dutiable under paragraph 347 of the tariff act of 1897, covering manufactures of flax not specially provided for, but is “thread * * * made from yarn * * * composed of flax,” and as such specifically provided for in paragraph 330.</p>

<p>Appeal from Decision of Board of General Appraisers.</p>

Appeal by the importers from a decision of the board of United Stales general appraisers, which sustained the assessment of duty by the collector of customs upon the importations in question.

Appeal by the United States from a decision of the board of United States general appraisers, which sustained the protest of the importers as to the merchandise in question.

<p>Criminal Law — Instructions—New Trial.</p> <p>An instruction on a trial for violating the banking law that, “in his opinion, it was the duty of the jury to convict the defendant,” was ground for new trial, as calculated to mislead the jury, who would, perhaps, construe the language as a direction on the part of the court.</p> <p>Brawley, District Judge, dissenting.</p>

Tho first count in tho first indictment is as follows: “The grand jurors of the United States of America, Eastern District of Louisiana, New Orleans division, duly impaneled, sworn, and charged at the November term, A. D. 1898, of the court aforesaid, on their oath present: That William H. Wright, A. S. Comet, whose Christian name is to the grand jurors unknown, and Robert H. Cox, all and each late of the district and division thereof aforesaid, on the 1st day of May, A. D.…

<p>1. Criminal Law — Removal op Dependants to Another District — Defense to Application.</p> <p>A federal court will not, on an application for an order removing to another district for trial persons there indicted, hold the indictment void for irregularity in drawing 4the grand jury, where the question involved is a new one of statutory construction, which has never been adjudicated, but will leave the accused to raise the question in the trial, where the decision can be reviewed in the regular course of appeal. Tt Is only where there can he no reasonable doubt of the alleged invalidity that removal should be refused on such ground.</p> <p>2. Same — Findings oe Commissiokhe — Review.</p> <p>Where the commissioner on the hearing in proceedings for the removal of persons charged with crime to another district for trial had before him any competent legal evidence upon which to exercise his judgment as to whether there was prohable cause to believe the accused guilty, his finding upon that question cannot be reviewed by the court on an application for an order of removal.</p> <p>8. Same— Evidence-before Commissioskh.</p> <p>The evidence íoeeivable on a hearing before a commissioner in proceedings for the removal to another district of persons charged with the commission of a crime therein is not to be strictly limited by the technical rules applicable on a final trial. Where fraud is charged, or a conspiracy to defraud, a somewhat wide latitude must necessarily be given in the introduction of circumstantial evidence.</p>

This is an appeal from a decree which enjoins the appellants, Isaac H. Shaver, Frederick H. Shaver, James E. Blake, and Ella Bever-Blake, co-partners as Shaver, Blake & Co., from using the brands or names “American Ball Blue” and “American Wash Blue” to palm off bluing made by parties other than the appellee, the Heller & Merz Company, a corporation, as the bluing made and sold by that corporation. 102 Fed. 882.

<p>Tbade-Names — Use or Inventor’s Name on Sign — Right to Injunction.</p> <p>Defendants were formerly agents for the sale of phonographs which are the Invention of the complainant, Edison, and commonly known as the “Edison Phonograph.” While such agents they placed over their place of business a sign reading “The Edison Phonograph Agency,” which sign they allowed to remain after the termination of their agency, although they continued to sell phonographs. Complainant neither manufactured nor sold phonographs, but was a stockholder in the corporations which manufactured and sold the same. Helé, that the sign did not Imply that defendants were agents for complainant, but only that they were agents for the sale of the machine known as the “Edison Phonograph,” and that complainant had no pecuniary interest in the matter, either as an individual or as a stockholder, which entitled him to maintain a bill to enjoin such use of his name.</p>

<p>Patent — Y Ar/im ty.</p> <p>The Strauss patent, No. 628,640, for an Improved harmonica, involves merely a slight change in the covering plate of a well-known toy, without accomplishing any new result, or a patentable change in an old result, and is void.</p>

<p>In Error to the Circuit Court of the United States for the Northern District of Texas.</p>

<p>1. Patents — Validity—Presumption of Utility.</p> <p>Tlie granting of a patent is prima facie evidence of the utility of the invention, which is one 'of the essential elements of patentability: and this is not negatived by the fact that the device is susceptible of improvement, or that like inventions are so far superior to it that they have entirely superseded its use. To sustain the defense of want of utility in a suit for infringement the defendant must show either that it is theoretically impossible for the device of the patent to operate, or demonstrate by clear proof that a person skilled in tlie art has endeavored in good faith to make the invention work, and has been unable to do so.</p> <p>2. Same — Infringement—Superior Utility of Infringing Device.</p> <p>Comparative utility between machines or processes is no criterion of infringement, and the fact that a 'defendant’s device is simpler and produces better results than that of the patent does not tend to avoid infringement unless its superiority is due to a difference in function or mode of operation or some essential change in character.</p> <p>3. Same — Proof of Inutility — Unsuccessful Experiments.</p> <p>The object of the drawings filed in the patent office is attained if they clearly exhibit the principles involved, and a rigid adherence to dimensions therein shown is not required or expected if an intelligent mechanic skilled in the art would so. proportion the dimensions given as to secure practical results. The inutility or inoperativeness of the device is not demonstrated by the fact that experiments made with material identical in form and proportion of parts with the drawings failed to produce successful results, and especially -where it does not appear that the experimenter was desirous of success.</p> <p>4. Same — Effect of Nonusbk.</p> <p>While the fact of nonuser is entitled to some weight upon the question of the utility of a patented device, it is of slight significance where the patent was but recently issued, its validity was questioned, and its use required the construction of expensive machinery.</p> <p>5. Same — Abandonment.</p> <p>Abandonment of an invention to the public which will defeat a subsequent patent therefor is not established by evidence that the inventor temporarily abandoned experiments which had to that tirqe proved unsuccessful, where he subsequently resumed them, successfully perfected the device, and applied for a patent therefor before any adverse rights accrued.</p> <p>6. Same — Delay in Patent Office.</p> <p>Delay in obtaining a patent after the filing of the application, due to adverse rulings of the examiners which necessitate appeals, will not work an abandonment of the inventor’s rights, where he proceeds with his case within the time limited by the statute, and ultimately succeeds in obtaining his patent.</p> <p>7. Same — Validity of Reissue.</p> <p>The decision of the examiners and board of appeals in the patent office sustaining the right of a patentee to a reissue, applied for within seven months after the issuance of the original patent, where the matter was fully contested for two years, and. both parties were represented by able counsel, while not conclusive, is entitled to great weight.</p> <p>8. Same — Bottle Stoppers.</p> <p>The Painter reissued patent, No. 11,685, for a bottle stopper, which contains claim 5 additional to those of the original patent (No. 540,072), is valid. While such claim is broader than any claim of the original patent, it is within the invention therein stated, and the right to incorporate such claim was not lost by the delay of seven months after the issuance of the original patent before applying for the reissue as against another patent granted for a similar device in the meantime, but on an application filed before the issuance of the original patent to Painter.</p> <p>9. Same — Infringement.</p> <p>The Painter reissue, No. 11,685, for a bottle stopper (original No. 540,-072), which consists of a cup-shaped disk of tin, of other metal having permanent flexion, which is inserted in the neck of the bottle, and then expanded into a groove in such neck in which a gasket has been placed, thus making a tight stopper, covers a pioneer invention, and is entitled to a liberal construction. Claims 1, 4, and 5 are infringed by stoppers made in accordance with the Hall patent, No. 541,203, which embody the Painter invention by using merely a modified, but mechanically equivalent, form of disk.</p> <p>10. Same — Equitable Estoppel.</p> <p>Within two weeks after the issuance of a patent to defendants they were notified by complainant of his claim that it was an infringement of a patent to him just previously issued. Within six months thereafter complainant applied for a rejssue, which, after a contest by defendants, was granted. Held, that defendants were presumed to have knowledge of complainant’s right under the law to a reissue, and, as they were also familiar with plaintiff’s invention, they proceeded to manufacture under their patent at their peril, and could not claim that complainant was estopped to assert his rights under his reissued patent!</p> <p>11. Same — Suit for Infringement — Equity—Jurisdiction.</p> <p>The jurisdiction of equity to entertain a suit to, enjoin infringement and for an accounting is not defeated by the fact that claimant has not made use of his patent, where it was but recently granted, and the litigation was necessary to establish its validity, which was denied by defendants, so that no implication arises from such fact Unfavorable to the complainant. .</p>

<p>1. Patent — Assignment of Interest.</p> <p>Where a joint owner of a patent assigned his joint interest therein, and the assignment recited a consideration paid, if it was not paid such fact would not invalidate the assignment as to those dealing with the assignee under it.</p> <p>S. Same — Infringement.</p> <p>The owner of a patent for a toy savings bank manufactured sueh banks for many years, improving the mechanism thereof, and taking out two additional'patents, and from the beginning to the end of his dealings thereunder manufactured and sold'the banks, with the date of the first patent, though in course of time improvements in the new patents were • incorporated in the goods so manufactured and sold. Thereafter he gave to a party to whom he had sold the manufactured goods a license to manufacture the same bank which he had previously sold them. It had always been marked with the, date of the original patent, though it contained the improvements in the succeeding patents. Held that, _ complainant having acquired the right to manufacture under the original patent, the patentee could not claim that the banks he thereafter manufactured and sold with the improvements were not infringements as against complainant.</p>

<p>1. Patents — -Contempt—Violation of Injunction.</p> <p>A defendant, which, after the issuance of an injunction prohibiting it from selling an infringing article, continues to circulate advertising matter having thereon a picture of such article, and to sell to its customers an article which, while not the one adjudged an infringement, is similar, and also an infringement, and subject to the same objections pointed out in the opinion of the court to the one in litigation, is guilty of a violation of the injunction.</p> <p>2. Contempt — Fine—Awakding Part to Complainant.</p> <p>A circuit court has power to direct the payment to a complainant of a part or all of the line imposed on a defendant for contempt in violating an injunction as a compensation for his time and outlay in prosecuting the application.</p>

<p>Appeal from the District Court of the United States for. the Eastern District of Pennsylvania.</p>

<p>1. Salvage — Right to Compensation — Services op Seamen on Behalf op Their Ship and Cargo.</p> <p>A claim for salvage services can only be preferred by persons who were not bound by their legal duty to render them; and since it is the duty of seamen, in the event of distress or shipwreck, to exert themselves to the utmost to save the vessel, cargo, and stores, they cannot become salvors, unless they have been discharged, or the voyage is terminated by the wreck of the vessel or her absolute abandonment by all, or all except the salvors, without hope or expectation of recovery.</p> <p>2. Same — Abandonment op Ship.</p> <p>The abandonment of a stranded vessel and her cargo by the owners to the insurers is not an abandonment, within the meaning of the maritime law, which terminates the voyage, but results merely in a change of owners; and the duty of master and seamen to stand by the vessel and cargo is unaffected by such change, and services thereafter rendered by them in that regard are not salvage services which can be compensated as such by the courts, however meritorious they may have been.</p> <p>3. Same — Authority op Master — Promise op Extra Pay.</p> <p>A master whose vessel has stranded has no authority to promise the seamen additional pay, on behalf of the insurers, for work done for the saving of the ship and cargo, which it was their imperative duty to do without extra compensation; and such a promise cannot operate as a discharge of the men from the service of the ship, or entitle them to recover as for salvage services.</p>

<p>Shipping — Injury to Cargo from Defective Refrigerator — Limitation of Liability by Bill of Lading.</p> <p>Ah agreement in a bill of lading for dressed meats to be transported across the Atlantic, that the carrier shall not be responsible for any loss or damage arising from breakdown or injury to the ship’s refrigerator or its machinery, even though arising from defect existing at or previous to the commencement of the voyage, is one which it is competent for the parties to make, and it relieves the carrier from liability for loss arising from such causes unless negligence is shown, the burden of proving which rests upon the shipper.</p>

<p>Wharves — Liability for Injury to Vessel — Unauthorized Removal.</p> <p>A dock owner is liable to the owner of a steam canal boat for injury caused by its resting at low water on an uneven bottom in a slip into which it 'was moved, by the dock superintendent’s orders, in the absence of the master, who had previously protested against the removal on the ground of the danger from such cause, which be bad ascertained by soundings.</p>

Appeal, from District Court of the United States for the District of Maryland.

<p>1. Shipping — Cargo Damage — Unseawobthiness Due to Improper Loading— Harter Act. '</p> <p>Neither section 1 nor 3 of the Harter act relieves a shipowner from responsibility for the unseaworthy condition of the ship, due to her improper loading, which renders her topheavy and unstable to such an extent as to make her unfit to encounter the ordinary perils of navigation which should reasonably have been anticipated during the voyage.</p> <p>3. Same — Unstable Ship.</p> <p>A steamer was so improperly loaded as to render her topheavy and of slight stability of equilibrium, and to give her a decided list, when she commenced her voyage. During the voyage the list shifted from starboard to port, and back again, although she encountered no weather more severe than should reasonably have been anticipated at that season, and finally became so great that the master put into an intermediate port. While lying at a pier, and while the master was removing cargo from a side port to enable him to load more coal in the lower hold, the ship rolled over, bringing the open port under water, and she filled and sank, damaging her cargo. Held that, even if the manner of shifting cargo was negligent, and the immediate cause of the disaster, and even if it could be considered a fault in the “management of the ship,” within the meaning of the Harter act, yet it was not negligent in itself, but was rendered so only because of the unstable condition of the vessel, which must be considered the essential cause of the damage, and one for which the owner was responsible.</p> <p>3. Same — General Average.</p> <p>See note at end of case.</p>

<p>Appeal from the District Court of the United States for the Eastern District of Yirginia.</p>

<p>In Admiralty. Suit for collision.</p>

<p>1. Removal oe Causes — Federal Question — How Shown.</p> <p>A cause not removable on the ground of diverse citizenship, and not otherwise specially provided for, cannot be removed under the judiciary acts of 1887 and 1888 (25 Stat. 433), as one arising under the constitution or laws of the United States, unless such fact appears by the plaintiff’s own statement, and, if it does not so appear, the want cannot be supplied by any statement in the petition for removal, or in any subsequent pleading.</p> <p>2. Same — Action against Marshal — Procedure von Removal.</p> <p>A United States marshal, sued for trover in a state court by a citizen of the same state for the seizure of property under process issued by a federal district court in a private cause, cannot have such action removed into the circuit court by applying to such court for a writ of certiorari, but it can only be removed on petition filed in the state court, and upon some ground provided for by the general removal act.</p>

<p>1. Removal op Causes — Jurisdiction of Federal Court — Nonresidence oe Dependant.</p> <p>The right given a defendant hy the judiciary act of 1887-88 to he sued only in the district where he resides, or where the plaintiff resides, is a personal privilege, which he may waive, and does not affect the jurisdiction of the court over the cause; and while it cannot entertain original jurisdiction of an action against a nonresident defendant, brought hy two or more plaintiffs, one of whom is also a nonresident of the district, if timely objection is made, that fact does not prevent it from acquiring jurisdiction hy removal where the action is brought in a state court, since the act of removal hy defendant is a conclusive waiver of the privilege of objecting to the jurisdiction, which he has himself invoked, and the plaintiffs cannot raise the objection.</p> <p>3. Same — Remand—Jurisdiction to Rescind Order.</p> <p>After a federal court had entered an order remanding a cause forthwith, but during the same term, it set aside such order on its own motion and refused the motion to remand. Meantime plaintiff had filed a copy of the first order with the state court, which resumed jurisdiction, and subsequently rendered a judgment, which was affirmed on appeal by the supreme court of the state, on the ground that the order of remand became immediately effective, and deprived the federal court of further jurisdiction, and its subsequent order was therefore void, Held, that a motion by plaintiff in the federal court, based on the same ground, to strike the cause from its docket, would not be passed on until defendant had opportunity to remove the judgment of the state court into the supreme court of the United States for review, that the question of jurisdiction might be finally determined by the only court having authority to enforce its decision.</p>

<p>1. Jurisdiction op Federal Court — Corporation—Service op Process.</p> <p>Jurisdiction is not acquired by a federal court over a corporation defendant shown by the bill to have been organized under the laws of another state, and to have its place of business in such state, by service of process in a third state upon an officer of the corporation there found. 1</p> <p>2. Appearance — Waiver op Service — Special Appearance.</p> <p>A special appearance by defendants to object to the court’s jurisdiction over their persons on any ground is not a waiver of legal service.</p>

<p>In Equitv. On motión for temporary injunction and demurrers to bill.</p>

Appeal and Cross Appeal from the Circuit Court of the United States for the Southern Division of the Eastern District of Ohio.

<p>Appeals from the Circuit Court of the United States for the Southern District of New York.</p> <p>On motion to tax cost of printing brief.</p>

<p>1. Limitations — Color op Title to Support Plea — Deed Naming no Grantee.</p> <p>A certified copy of the record of a deed which contains the name of no grantee, although a marginal entry by the clerk on such record gives the name of grantor and grantee, is inadmissible in evidence to show title or color of title from the government in a defendant claiming under subsequent convej anees not otherwise connected with tlie title of the patentee, to entitle such defendant to rely on the three-year limitation in Rev. St. Tex. 1803, arts. 3010, 3311; and in the absence of such connecting link the subsequent deeds are also inadmissible to support such plea of limitation.</p> <p>2. Same — Necessity op Pleading — Proving ibt Rebuttal.</p> <p>Where defendant in an action of trespass to try title, under a plea of not guilty, offered in evidence an outstanding title acquired by him pending the suit, plaintiff was entitled in rebuttal to introduce evidence to make out limitation in bis favor as against such title under the five-year limit ation of Rev. St. Tex. 1895, art. 3342, although he did not plead such statute.</p>

This action was instituted by J. D. Cooper, grantee of M. A. Cooper, to recover 258 acres of land situated in Bosque county, in the state of Texas. The common source of title ivas one C. O. Nelson, who was a merchant doing business in Clifton, Tex., and whose property was seized and sold at the suit of various creditors;.

<p>Action at Law. On demurrer to answer.</p>

<p>Pleading — Amendments—Introducing Additional Cause oií Action.</p> <p>There is nothing in the federal statutes or practice, nor in those of Wisconsin, which precludes a federal court sitting in that state from permitting the amendment of a complaint in an action at law before answer 1o introduce an additional cause of action of the same nature, and growing out of the same transaction, and which might have been joined with that stated in the original complaint; and such amendment will be allowed, where it will be in furtherance of justice, and tend to prevent a multiplicity of suits.</p>

<p>New Trial — Time of Motion.</p> <p>Where a cause was tried in the October term, 1899, and judgment rendered, a motion in the October term, 1900, for leave to file a motion for new trial for fraud in the conduct of the trial, alleged to have been discovered January, 1900, comes too late; a United States court having no power over its proceedings after the term at which such proceedings were had.</p>

<p>On Motion for Writ of Mandamus.</p>

<p>Ejectment. On motion by defendant for judgment non obstante veredicto.</p>

<p>In Error to the Circuit Court of the United States for the Western District of Texas.</p>

<p>1. Master and Servant — Neolioenoe oi<’ Fellow Se:rvant.</p> <p>The general rule is that a master is not liable for an injury sustained by one servant through the negligence of another in the same general service, in the absence of negligence of the master in respect to those duties which he is universally regarded as having assumed toward his servants, such as the obligation to exercise care in the selection of those to be associated with him, or of a place to carry on his work, and proper tools or materials with which he is to do it; and thei’e is no sanction in the controlling authorities for taking a case out of the general rule of nonliability for the negligent acts of another servant by refined distinctions as to who are fellow servants based upon the subordination of one servant to another or upon the circumstance that two servants are engaged in different departments of a common service.</p> <p>3. Same — Injury of Servant.</p> <p>The principle underlying those decisions which hold a master liable to a servant for the negligent acts of another servant in a separate and distinct department of the service is that a servant only assumes the risk from the negligence of those so closely associated with him that he is presumed to have contracted with reference to such risk; and where the duties of an employe are such that he is constantly subjected to risk of injury from the negligence of other employes, although in a different department, sueh principio does not apply, Irat as to Mm such other employes are fellow servants, within the rule which exempts the master from liability l'or their negligence resulting in his injury.</p> <p>8. Same — Railhoad Employes — Trainmen axd Employes Riding in Course or1 Duty.</p> <p>Plaintiff was foreman of water supply on a division of defendant’s railroad, his business being to supervise Die tanks and pumping machinery at the water stations on such division, and to keep the same in repair. In the performance of his duties he was required to ride over the road from station to station, and was furnished with a pass good on all trains. While so riding on a detached engine to a station where his services were required, he was injured in a collision caused by the negligence of the engineer in charge of such engine. Held, that he was not a passenger, but was a fellow servant of the engineer, for whose negligence causing his injury defendant was not liable.1</p>

This is an appeal from a judgment of the district court,of the United States for the Southern district of New York, whereby, upon a proceeding in involuntary bankruptcy at the instance of a sufficient number of creditors, James West was adjudged bankrupt. The Trenton Oil-Cloth & Linoleum Company, an attaching creditor, answered and defended against the petition.

<p>On Petition for Writ of Habeas Corpus.</p>

This is a motion to vacate and set aside the order of the United States district judge, admitting the above-named Lee Yen Tai to bail.

<p>Appeal from the Circuit Court of the United States for the Eastern District of Pennsylvania.</p>

Cross Appeals from the Circuit Court of the United States for the Eastern Division of the Northern District of Ohio. This is a suit in equity in which the Western Electric Company complains of the infringement by the Williams-Abhott Electric Company, its president and treasurer, of rights secured by letters patent No. 309,617, issued December 23,1884, to Elisha Gray, as assignor of the complainant, for improvements in telephone call boxes.

<p>1. Patents — Validity—Design for Lamp.</p> <p>Tlio Hitzelberger design patent, No. 29,939, for a portable lamp body, Iwlti, void on the evidence, from which it appeared that the design was fully shown in the drawings which accompanied an application by another for a mechanical patent, filed prior to the application of Hitzol-berger, and which failed to show that the latter was the originator of such design.</p> <p>2. Same — Intention—Electric Lamps.</p> <p>The Misell patent, No. 617,592, for an electrical hand lamp, claim 8, when considered apart from the design for the lamp body, which is not claimed to have been the invention of the patentee, is void for lack of patentable invention, in view of the prior art.</p>

<p>Appeal from the Circuit Court of the United States for the Southern District of New York.</p> <p>Appeal from a decree of the circuit court (106 Fed. 037), which dismissed a bill in equity brought by the owner of letters patent No. 562,690, applied for December 27, 1887, and issued on June 23, 1896, to Albert D. Dick, assignor to the complainant, for an improved means for producing - duplicating stencils. The bill was founded upon an infringement of the first three claims of the patent, and was dismissed on account of their invalidity.</p>

<p>1. Patents — Construction oe License,— Royalties.</p> <p>A conn-act granting an exclusive license to manufacture and sell separate articles, not necessarily conjointly used, covered by different patents, on wliicli the licensee is to pay royalties, presumptively requires the payment of such royalties on any one article only during the life of the patent thereon; and the contract will be so construed, unless a contrary intention appears therefrom.</p> <p>2. Appisai, — Decision—Question op Costs.</p> <p>A decree will not be reversed on a question of costs, where it is affirmed in respect to the merits.</p>

<p>On motion for rehearing. Denied.</p>

<p>REHEARING — NEWLY-DlSCOVERED EVIDENCE.</p> <p>Wliere an interlocutory decree has been rendered sustaining a patent, and a motion for rehearing made because of the expiration of a British patent covering- the invention, not before in the record, and which expired before suit was brought, which fact was not known to either party until after the hearing, defendant will be allowed to amend his ans-wer setting- up such patent, subject to the replication on file, and both parties allowed to take evidence in relation thereto.</p>

<p>1. Contract of Affreightment — Breach—Lien.</p> <p>Where parties in possession and control of a steamship under a contract'with the owners assigned and transferred such charter and contract to libelant, under which said steamer was to proceed to a certain point, and take on a cargo, but the contract was not performed either on the part of the assignor of the contract or of the vessel, no lien exists against said vessel, as the contract of affreightment had not been entered into.</p> <p>2. Same.</p> <p>Where the breach of a charter party did not take place in the state of Washington, and the offending vessel was never within the jurisdiction of that state, no lien for the breach is created by virtue of its laws.</p> <p>3. Maritime Lien.</p> <p>A state legislature has no authority to create maritime liens.</p>

<p>Salvage — Right to Compensation — Forfeiture by Fraudulent Conduct.</p> <p>The fraudulent conduct of the persons in charge of salvage operations, in attempting to bribe the master of the stranded vessel to agree to an excessive payment, and in delaying- the work with a view to magnifying the value of the services, when such fraudulent acts were not participated in nor known to the owners of the vessels engaged in the ’service, or the men employed, will not work a forfeiture of their right to fair compensation, when the services were successful, and of benefit to the salved vessel.</p>

<p>1. Collision — Fog—Lookouts.</p> <p>Where a tug entering a harbor in a thick fog in the nighttime has no lookouts on the bows of two barges alongside, which run ahead of her some 30 feet, it constitutes negligence.</p> <p>2. Same — Anchorage Ground.</p> <p>A steamship anchoring in New York harbor outside of the anchorage grounds,- where the depth of water was so great as to indicate that such anchorage ground was considerably nearer the shore, is guilty of negligence, so as to be equally liable with a tug colliding with it in a foggy night.</p>

<p>Collision — Mutual Fault.</p> <p>A propeller bound up the East river came in collision with a car float on Uio starboard side of a tug going down the river a little above the Brooklyn Bridge. The evidence showed that the tug was carrying proper lights, bill neither she nor her lights were seen until the propeller</p> <p>liad round fid about directly up river. Tiie propeller gave a signal of one whistle, and then an alarm. She heard no whistles from the tug. The evidence showed that the lights of the propeller were seen from the tug, and a signal of two whistles was given to the propeller before the latter had signaled. Held, that the propeller was in fault for not having observed the lights of the tug earlier, and not having observed her signal of two whistles before its own whistle, and that the tug was to blame for not keeping in the middle of the river, as required by statute, and in having gone to the left under a signal of two whistles without an assenting signal, instead of going to the right, as required by the regulations, and in not repeating her signal at once and reversing.</p>

<p>In Admiralty. Cross libels in a cause of collision.</p>

<p>Collision — Damages—Review on Appeal.</p> <p>The finding óf a commissioner, approved by the court, as to the cost of repairing a vessel injured in collision, based on the testimony of experts, the repairs not having been made, will not be disturbed on appeal unless manifestly incorrect.</p>

<p>In Error to the Circuit Court of llie United States for the Northern District of Iowa.</p>

<p>In Error to the District Court of the United States for the Northern District of California.</p>

<p>Appeal from the District Court of the United States for the Eastern District of Texas.</p>

<p>In Error to the District Court of the United States for the Western District of North Carolina.</p>

<p>Appeal from the District Court of the United States for the Territory of Hawaii.</p>

<p>In Error to the Circuit Court of the United States for tlie Northern District of Ohio.</p>

<p>In Error to the Circuit Court of the United Slates for (ho Soul hern District of New York.</p>

This is an application of the plaintiff in error for leave to move in the circuit court of the United States for the Southern district of New York for a new trial of the cause, so far forth as it relates to the question of the true title and ownership of the process patent dated December 3, 1889, and numbered 41(5,510, upon the ground of newly-discovered evidence.

<p>Appeals from the District Court of the United States for the Southern District of New York.</p>

<p>In Error to the District Court of the United States for the Northern District of California.</p>

<p>Appeal from the Circuit Court of the United States for the Southern District of Alabama.</p>

<p>In Error to the Circuit Court of the United States for the Northern District of Alabama.</p>

<p>Appeal from the Circuit Court of the United States for the Northern District of Georgia.</p>

<p>Petition for Revision from the District Court of the United States for the Middle District of Alabama.</p>

<p>Petition for Mandamus to the Circuit Court of the United States for the Northern District of Alabama.</p>

This eause comes here upon appeal from a decree of the district court, Eastern district of New York, holding both tug and tow responsible for a stranding on the north side of the main channel into the harbor of New York, and dividing the damages.

<p>Appeal from the District Court of the United States for the Northern Division of the District of Washington.</p>

<p>In Error to the Circuit Court of the United States for the Eastern District of Texas.</p>

<p>In Error to the District Court of the United States for the Western District of North Carolina.</p>

<p>In Error to the Circuit Court of the United States for the Eastern District of Louisiana.</p>

<p>Appeal from the Circuit Court of the United States for the Eastern District of Louisiana.</p>

<p>Appeal from the Circuit Court of the United States for the Northern District of Mississippi.</p>

<p>Appeal from the District Court of the United States for the Eastern District of Pennsylvania.</p>