Volume 11 — Federal Reporter

The Burlington & Southwestern Bailway Company mortgaged its present and future-to-be-acquired property, consisting of its railroad then made and to be constructed, and having made default, the trustees to whom it was mortgaged brought suits to foreclose the mortgage, and a receiver was appointed, a decree entered, and the property sold; the receiver being the purchaser as trustee 'for the bondholders.

<p>1. Power of Attorney.</p> <p>A power of attorney “to superintend any real and personal estate,” and generally to do all tilings that concern the interest of the principal, and giving the attorney full power to use the name of the principal to release others, or bind the principal, does not empower the attorney to sell real estate.</p> <p>2. Same — Unauthorized Salt: — Ratification.</p> <p>An instrument under seal given to such attorney in fact by the pi-incipal, acknowledging himself firmly hound by all the acts of such agent or attorney, and ratifying and confirming whatsoever he had done in his name, and acknowledging the receipt in full of all sums of money, dues, obligations, and other things from such agent or attorney, does not ratify or validate conveyances of real estate made by such attorney acting under such power of attorney.</p>

<p>Action for Money.</p>

<p>Insurance Policy — Parties—Right oe Action.</p> <p>Where a person took out a policy oí insurance against fire containing the provision that the loss, if any, should ho paid to a third party, creditor of the insured, “as his interest may appear,” such third party has no right of action upon the maturity of the policy, it not being a stipulation for the payment of all the loss.</p>

Ejectment. Demurrer to answer. This is a suit to recover a strip of land 2J feet in width by 137 feet in depth, alleged by plaintiff to be a part of a lot set apart to him in certain proceedings in partition to which the Life Association of America was a party.

On motion to set aside the verdict, and on motion in arrest of jitdgment. This was an indictment found by the grand jury of this district, at the term of this court held at Exeter, October 8, 1868, charging the respondent with exercising and carrying on the trade and business of a retail dealer in liquors on Hie first day of May, 1867, and from that day to the first day of January, 1868, without paying the special tax in such cases by law required.

This action is brought up for review from the district court of the district of Minnesota on writ of error. The proceedings in the lower court were instituted under the provisions of section 21.40, Bev.

<p>1. Criminal Law — Distinct Offences — Indictment—Joinder.</p> <p>Several offences of the same class or kind, growing out of the same transaction, though committed at different times, may be joined in the same indictment against the same person, in separate counts, and such joinder is no ground for demurrer or arrest of judgment.</p> <p>2. Same — Intent—Consummation—Necessary Averments.</p> <p>In a criminal case, where the intent is made a part of the offence, the intent should be alleged in the indictment, and must be provedbut the particular manner in which the act is to be done need not generally be alleged.</p> <p>3. Fraudulent Attempt to Procure Pensions — Evidence.</p> <p>In an action against defendants for an attempt to defraud the government by procuring pensions on false and fraudulent affidavits, the application for .the pension is properly admitted in evidence to show the use to which the false affidavits were to be applied, and to prove the intent.</p> <p>4. Same — Statute Offence Construes — Rev. St. § 5418.</p> <p>The offence defined in the act of April 5, 1866, Rev. St. § 5418, consists in the false and fraudulent making, altering, forging, or counterfeiting of any bid, proposal, guaranty, or any instrument or document named in the statute, and does not consist in the making of a false or fraudulent instrument or document. In the first case the crime is forgery, while in the latter it would be perjury; and this distinction must regulate the allegations and proof in each case.</p>

The defendant in this case having been tried and found guilty in the district court, under an information charging him with having stolen a letter from the mail, moved in arrest of judgment on the ground that the crime charged was infamous, and could only be prosecuted by indictment. The motion having been overruled, (see 9 Fed. Rep. 886,) the case was brought before this court by a writ of error.

Information charging the defendant with passing a counterfeit half dollar. Plea to the jurisdiction on the ground that the crime of passing counterfeit coin cannot be prosecuted by information.

<p>Matl Matter — Stolen Bonds — Recovery from Postmaster.</p> <p>Where bonds, the property of plaintiff, had been stolen from a bank and afterwards deposited in the post-office at New York for transmission through tho mail, but were returned, the addressee not being found, and were held by the postmaster under instructions from the department to await legal action on the part of the bank, held, that plaintiff could recover such bonds from the postmaster.</p>

On tlio second of December, 1880, a fire occurred at Topeka, Kansas, by which the stock of goods then in the store of the defendants C. IT. Lovejoy & Co. was destroyed. The owners were insured in various amounts by the companies named. At different times in December, 1880, and the following months of January and February, but prior to the commencement of the attachment suits, efforts wore made by the assured to adjust as a total loss, but without result.

<p>Practice — Motion to Reopen Decree — Newly-Discovered Evidence.</p> <p>To justify the opening of a decree on the ground of newly-discovered evidence, such evidence (must of itself be such as to make it probable that its introduction would change the result. It will not be opened merely to afford' an opportunity to explore for further proofs.</p>

<p>Attachment Suit — Joint Liability — Separate Property.</p> <p>Where the state Code provides that judgment may be rendered “for or against one or more of several defendants,” according as the proof may warrant, it is a provision as applicable to suits by attachment as to suits in any other form; and where an attachment is sued out against two persons jointly, it may be sustained as against the separate property of one alone.</p>

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

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

<p>1. Publto Lands — Rights oe Skttdeks.</p> <p>Where a person enters upon public land with the view of pre-empting it, and before the expiration of the year during which he ought to have proven up his claim he homesteaded his pre-emption, the pre-emption as well as the homestead must have been taken in good faith for the purpose of residence, settlement, and improvement.</p> <p>2. Same — Right to Cut Timber.</p> <p>A person entering on the public land lor the purpose of pre-emption, or to ■ secure a homestead, in good faith, may cut the timber standing thereon for the purposes of cultivation, and after applying such portion as can be used for the improvement he may sell or dispose of the balance.</p> <p>3. Same — Restriction as to Right.</p> <p>A settler on the public lands has no authority to go outside of the improvements, cut or sell timber, and thus denude the land and destroy the value of the public domain, even though he intends to acquire the title under his claim.</p>

<p>Patents — Impbovement in lÍNiiuaNG-MAcniNES.</p> <p>Where a portion oí the structure was useless, and not sold to be used, and was not used in any infringing structure, the patent is not infringed in making and selling it. An article is not an infringement, unless it is to be used in the manner pointed out in the patent.</p>

<p>Lettkhs Patent — Validity ok — Skylights.</p> <p>Reissues Nos. 8,597, 8,674, 8,675, and 8,688, granted to George Hayes for improvements in skylights, held, to be good and valid, and not void for want of novelty or failure to show patentable combinations.</p>

<p>1. Admiralty — Practice—Property Arrbstbd — Security.</p> <p>Courts of admiralty, by virtue of their general powers in regulating their practice for “ the due administration of justice,” as well as under the forty-sixth supremo court rule in admiralty, have power to require the security upon any bond or stipulation given as a substitute for property arrested in renn to be kept good, and in case of the insolvency of either surety to require additional security to be filed, and in default thereof that the defence be stricken out. Oases of this kind not provided for by the general rule may be met by order in the cause.</p> <p>2. Same — Application op Pre-Existing Rules.</p> <p>The pre-existing rules in regard to sureties in stipulations should be applied by analogy to similar cases arising upon bonds given under the act of 3817.</p> <p>3. Same — Death of Surety — Additional Surety Required.</p> <p>One of two sureties in such a bond given for the release of a vessel having died insolvent, and the claimant being a foreign corporation, and having made an assignment for the benefit of its creditors, Mid, that an additional surety must be given in place of the surety deceased, according to the rules- applicable to stipulations.</p>

<p>1. Suit by Stockholder — Conditions Precedent to Right to Sue.</p> <p>'Where a stockholder of a corporation brings a bill in equity for an accounting, and for equitable relief in his own behalf and in behalf of the other stockholders, to vindicate their rights, he must not only state the grievances necessary to entitle him to the relief sought, but he must also show to the satisfaction of the court that he himself, and not another person, has made an earnest and not a simulated effort to induce remedial action on the part of the managing body of the corporation, or that he has made an honest effort to obtain action by the stockholders as a body in the matter of which he complains.</p> <p>2. Same — Requisites of Verified Complaint.</p> <p>His efforts in this direction must be si ated particularly, and he must state that he was a stockholder at the time of the transactions of which he complains, or that his shares have devolved on him hy the operation of law, and that the suit is not collusive, in ordér to confer jurisdiction on the United States courts, which statements should be verified by affidavit.</p> <p>3. Same — Action Barred by Statute.</p> <p>Where, hy the law of the state where suit is brought, tho statute of limitations applies to all causes of action, equitable as well as legal, and under such law an action for relief on the ground of fraud is barred in three years, the cause of action not being deemed to have accrued until the discovery of the facts constituting the fraud, it must be averred that tbe facts were not discovered until within three years.</p> <p>4. Same— Multiplicity ob’ Suits.</p> <p>The question whether shareholders of single shares can bring suits on their own behalf and on behalf of all the other shareholders for the same grievances and for an accounting- of the same transactions, suggested but not decided.</p>

<p>Res Adjudicata — Law Judgment — Equitable Rights.</p> <p>Where, iu an action at law, upon issues taken upon all the allegations of the complaint, a trial is had, and all the issues are found in favor of the defendants, and final judgment entered thereon, the matters so in issue found and adjudged are res adjudicata, and conclusive of the rights of the parties in a subsequent bill in equity, even if complainant, commenced and tried the action before he discovered or obtained all the evidence establishing- alleged fraudulent acts of the defendant.</p>

<p>1. Parties — Beneficiary of Trust.</p> <p>The beneficiary oí a trust is a necessary party to any suit concerning the same.</p> <p>2. Redemption — Sale under Decree.</p> <p>A sale in pursuance of a decree to ascertain and determine the amount and priority oi liens and direct the sale oí the premises, and application of the proceeds thereof to the payment of debts secured by the mortgage, extinguishes the lions, and no lienholder has a right to redeem the premises i'rom the purchaser at the sale under section 297 of the Oregon Code, which gives the right of redemption only to a creditor having a lien upon the properly sold.</p> <p>3. Rule of Law — Title to Real Property.</p> <p>The established rule is that in title to real property the national courts will follow the settled construction of the statute, or application of the rule made by the highest court of the state.</p> <p>4. Same — Redemption by Successor in Interest.</p> <p>Under the Oregon Code, §§ 300, 301, a redemption by either of the successors in interest of a judgment debtor at any time while the property was subject to redemption, whether before or after the confirmation of the, sale puts an end to the proceedings, and thereafter the successor in interest holds the property as though no sale had ever been made.</p>

In Equity. Bill in equity filed in December, 1880, by W. W. Hubbell against Drexel & Gov to compel the transfer to the plaintiff of 1,702 shares of Pennsylvania Railroad stock.

<p>1. Contract — Damages fob Breach of.</p> <p>Whenever a contract is for the doing or not doing of a particular act or acts, and there is no certain pecuniary standard by which to measure the damages resulting from a breach thereof, an agreement to pay a stipulated sum as damages for such breach will be enforced literally; but where it is doubtful whether the sum mentioned was intended as stipulated damages or a penalty to cover actual damages, the law declares that the sum was intended as a penalty.</p> <p>2. Same — Construction.</p> <p>Where A. and B. agree to pay C. and D. $1,800 for five years for rent forcertain rooms in a building to be erected by the latter, and also to make, execute, and deliver to them a good and sufficient bond in the sum of $2,000, conditioned for the payment of such rent, it was held that the contract should be construed as requiring a bond executed by other persons than A. and B., and that C. and D. had a right to require a bond sufficient to secure the rent beyond a reasonable doubt, and that if, acting in good faith, they rejected the bond tendered by A. and B. as insufficient, the latter are bound by their action.</p>

<p>1. New Trial — Error without Injury.</p> <p>Where, upon the whole record, the court can clearly see that no injury resulted from an error which has intervened in the course of the trial, a new trial should not be granted.</p> <p>2. Mining Claim — Pbooe oe Citizenship.</p> <p>The affidavit of the party locating a mining claim is admissible in evidence to prove his citizenship.</p> <p>3. Bame — Actual Possession — Action against Trespasser.</p> <p>The person in actual possession and occupation of a mining claim of no greater extent than the laws allow him to hold, and who is actually engaged in working the same, has sufficient title to maintain an action against a trespasser, although he may not have taken up and held the claim in all particulars in the mode required by law.</p>

<p>1. Malicious Abkest.</p> <p>No one has the right to cause the arrest of another as an experiment, fo/ the purpose of finding oat who committed a particular offence, and an arrest under such circumstances is malicious.</p> <p>2. Same — Malice—Liability.</p> <p>The malice necessary to sustain an action for malicious arrest is not express malice, or a specific desire to vex or injure another from malevolence or motives of ill will, but the wilful doing of an unlawful act to the prejudice or injury of another.</p>

<p>New Trial — Verdict, when Set Aside.</p> <p>Where, in an-action for the possession of lands, the plaintiff showed a clear paper title, and the defendant’s patent was shown to establish only color of title; and any question as to the priority of the plaintiff’s patent could be established by further proofs; and the verdict of the jury was general, and was probably influenced by their sympathy, growing out of the fact that the patentee under whom the defendant claimed was in some way connected, as heir or otherwise, with a soldier who fought in the revolution — a new trial was granted.</p>

<p>1. Bankruptcy — Concealment.</p> <p>The concealment contemplated by the statute is a wilful and fraudulent concealment, and not a mere omission through mistake or accident.</p> <p>2. Same — Preference.</p> <p>If a bankrupt devotes materials to an inconsiderable amount, which he had procured for family use, to secure a creditor for a small debt, the act cannot be deemed a fraudulent preference.</p>

In Bankruptcy. Motion to expunge proof of debt. The adjudication was made in this case January 27, 1873, on the bankrupt’s own petition. He was a merchant in New York, and failed on the fifth of December, 1872. Prior to that time he had been accustomed to purchase goods from Maclean, Maris & Co., of London, who, upon their various shipments, were entitled to draw on Brown, Shipley & Co. within certain limits of credit.

<p>1. Patents — Application—Omissions in Claim.</p> <p>Where a person makes an invention, and describes it with other matters of invention in an application for a patent, and a patent issues for such other matters, this fact alone will not preclude him from applying for and obtaining another patent covering the invention described but not claimed in the first application.</p> <p>2. Same — Application and Amended Application Considered as One.</p> <p>Where an application is made for a patent, and is afterwards amended by the withdrawal of parts of the invention, and a second application is filed claiming such parts, and patents afterwards issue on both, the two applications will be considered as parts of one continuous proceeding.</p> <p>3. Doctrine oe Relation — Continuity of Application.</p> <p>In such case the continuity of the proceedings, originating in the first application, will be considered unbroken in determining when the two years begin to run in which the invention claimed on the second application could be sold and publicly used without invalidating such patent.</p> <p>4. Bale or Public Use, when not to Invalidate — Testin» Utility.</p> <p>If necessary, in making tests, an inventor may sell amachine on trial, so as to get it fully and fairly tested, in practical use, by the class of persons for whose use it is intended, and such sale or use, even for more than two years, if made for the purpose of practical test, will not be a sufficient sale or public use to invalidate the patent.</p> <p>5. Pleading — Parties—Want of Title.</p> <p>Tlie objection that a suit cannot proceed because all the parties claimed to have an interest are not joined as complainants, is not favored when the title claimed to be vested in the parties not joined is disputed, and there are serious doubts as to whether they actually own any interest whatever, and especially, so when such objection is made by a party charged with infringement.</p> <p>6. Same — Disclaimer.</p> <p>A party alleged to have an interest in a patent sued on may disclaim all interest in favor of complainant, and thus obviate the objection that ho should be joined as a party.</p> <p>7. Infringement — Formal Differences.</p> <p>Where there are differences merely in the form and not in the substance, and defendant’s machine really shows the various parts described in complainant’s patent, it is an infringement.</p> <p>8. Same — Equivalents.</p> <p>Where the various parts of defendant’s machine exhibit mechanical parts equivalent to those in complainant’s machine, and producing the same result, an infringement is established.</p> <p>9. Same — Graham Harvester, Ho. 74,342.</p> <p>The first and second claims of the Graham harvester patent of February 11, 1868, Ho. 74,342, held to be valid, and infringed by the Burdick & Le Boy patent of Hovember 12, 1872, Ho. 133,013.</p>

Hearing on Pleadings and Proofs, Bill in equity for injunction against infringement of a patent. The facts are fully stated in the opinion.

Hearing on Pleadings and Proofs. Bill in equity to restrain infringement of reissued patent No. 7,682, for an improvement in sheet-metal cans. The answer denied infringement and alleged want of novelty. The facts are sufficiently stated in the opinion.

Hearing on Pleading and Proof. Bill in equity to restrain infringement of reissued letters patent No. 8,195, for improvement in book-binding. Respondents claimed under letters patent No. 239,927, for improvement in book-binding. Respondents, in their answer, admitted that these two patents interfered, hut claimed priority for their own, and set forth a decision of the commissioner of patents in their favor.

<p>1. Collision— Steam-Tug at Rest not to Embarrass Approaching Steamer.</p> <p>A steam-tug lying at rest in a stream, after being signaled by another approaching steamer, indicating on which side the latter proposes to pass her, has no right to embarrass the latter’s course by giving contrary whistles and starting ahead across the other’s bows; and if, in consequence of doing so, a collision ensue, the tug must be held in fault.</p> <p>2. Same — Contrary Signals — Crossing Courses — Fault not Stopping in Time.</p> <p>Where, in such a case, it was perceived from the steamer that the tug was moving forward across the steamer's proposed course, under contrary signals, involving obvious risk of collision if the tug’s course was continued, and the steamer kept on until very near the tug before stopping and backing, and a collision ensued, held, that the steamer was also in fault.</p> <p>3. Maritime Lien — Effect of Delay in Enforcing.</p> <p>A maritime lien will not be enforced as against bona fide purchasers after reasonable opportunity has been afforded and no libel filed.</p> <p>4. Same — Lien Lost by Laches — Rights of Bona Eide Purchaser.</p> <p>The colliding steamer in this case having been sold to bona fide purchasers about two years after the collision, who made careful inquiries to ascertain all outstanding claims, and who also kept on deposit a large sum from the purchase price for four months afterwards, to meet any latent claims, and the purchase price having thereafter been paid in full without knowledge of the present claim, and the libel not being filed until more than two years after-wards, nearly four years and a half after the collision, and the steamer having been at all times, except in the winter months, constantly plying between this port and Fall River, held, that the lieu was lost, and the libel should be dismissed.</p> <p>5. Sale of Vessel — Covenants of Warranty against Liens.</p> <p>Covenants of warranty, in the bill of sale, against liens or encumbrances, are immaterial as respects the discharge from liability of a bona fide purchaser.</p>

<p>Admihautt — Seaman’s Wages — Diskating Cook.</p> <p>Where a oook was put off duty in consequence of negligence, disobedience, and insolence, he has no right to wages for the period during which he performed no duty.</p>

<p>1. Shipping — Damage to Cargo hr Sweating — Negligence.</p> <p>A skipper of skins for a voyage, such as from Calcutta to New York, is chargeable with knowledge that moisture in the air of the hold of the vessel is one of the perils to which his goods may be exposed, and if he omits the precaution to protect them he assumes the risk of the moisture being insufficient to damage his goods.</p> <p>2. Same — Stowage op Skins.</p> <p>Under the stringer of an iron ship, in the between-decks, is a proper place for the stowage of skins when so dunnaged as to be fully protected from the moisture on the sides of the ship.</p>

<p>1. Shipping — 'Mastbb of Vessel — Neglect to Repobt on Abbival — Penalty.</p> <p>The jurisdiction of a court of admiralty to enforce a lien for the penalty, on failure of a vessel arriving from a foreign port to notify of its arrival or enter the manifest required by law, does not depend upon a seizure of the vessel before libel brought.</p> <p>2. Tbtal.</p> <p>In such case a trial by jury is not necessary.</p>

This was a libel by John F. Craig against John Magee and others, owners ol the schooner Elizabeth Magee, to recover as damages for breach of charter-party the difference between the freight therein stipulated for and the ruling freight at the point from which- the vessel was to sail.

This was a suit, brought under section 44-65 of the Revised Statutes, to recover the penalty for violation of law in overcrowding passengers on steamers.*

<p>1. Carriers — Bill of Lading — Usages as to Voyage.</p> <p>If nothing is expressed to tlio contrary in tlie bill of lading, established usages relating to a voyage are impliedly made part of the contract.</p> <p>2. Same — Deviation—Usages of Trade as k Test.</p> <p>After the express provisions of the contract, the usage of the trade is the predominating test as to deviation, and of what belongs to the voyage, and the proper course in prosecuting it.</p> <p>3. Same — Usages of Trade — Gash Stated.</p> <p>Where a tow-boat having a fleet of barges in tow, on a voyage from Pittsburgh to ISTew Orleans, landed at Mt. Vernon, Indiana, and the fleet was there safely moored, and a single barge detached therefrom and towed back up stream to take on cargo at four or five different points on the Indiana and Kentucky shores, all within the distance of three miles, held, that it was not a deviation; it appearing that the course pursued was in conformity with the usage of the trade — a usage which, tends to cheapen the cost of transportation, facilitates business, and conduces to the safety of the whole tow.</p> <p>4. Excki’tioks in Bill of Lading — Danger of Accidents.</p> <p>The exception in a hill of lading of the dangers of navigation and unavoidable accidents relieves the carrier from liability for loss of the cargo of a barge which sunk by striking, without negligence, some unknown and concealed obstruction in the Ohio river.</p>

This case was submitted by counsel to the court for trial without a jury. It is an action in which the plaintiff claims damages resulting from the alleged negligence of the defendant in transmitting a telegram from Davenport, in the state of Iowa, to the plaintiff’s factor in Chicago.

<p>1. Jurisdiction of Circuit Court</p> <p>The circuit court has no authority to control the proceedings of a state court, or to stay the prosecution of a suit therein, by injunction or otherwise; this power can only be allowed to a tribunal of general jurisdiction under the same government.</p> <p>2. Concurrent Jurisdiction.</p> <p>It is not improper for different courts to take jurisdiction of different actions respecting or growing out of the same subject-matter, although the effect of the judgment or decree of one court may be to modify or control the result of the suit in another court, and to limit or guide its decision.</p> <p>3. Same — Action in State Court — Enforcing Payment of Mote — Action to Cancel Motes.</p> <p>Where a bank discounted three notes which afterwards became, as between the maker and payees, accommodation paper, and without consideration, of which fact the bank was notified, and, the notes not being paid at maturity, suit was brought in a state court to enforce their payment by the maker, held, that such suit could not be controlled or restrained by the circuit court, in an action subsequently brought by the maker against the payees and the bank, for cancellation and delivery up of the notes, and to enforce their payment to the bank by the payees, out of securities deposited by them with the bank.</p>

Motion to Remand.' This suit was originally brought in the St. Louis circuit court against Clinton M. Swope and Joseph B. Holland. The latter sues to remove the cause, so far as he is concerned, to this court. The plaintiff asks to have the cause remanded because the federal statutes do not authorize the removal of a part of a cause; and for other reasons. The other material facts are sufficiently stated in the opinions of the court.

<p>1. Removal of Cause — Section 2 of Act of March 3, 1875, Construed.</p> <p>The first clause of this section, providing for the removal of causes into the circuit court, requires all the plaintiffs or all the defendants to have the right to remove the cause, but by the second clause any one, either plaintiff or defendant interested, may petition if the controversy can be fully determined as to him. The first clause refers to an ordinary action at common law, where there is only one party on each side, and the second refers to suits where there may be distinct controversies between different sets of plaintiffs and defendants.</p> <p>2. Same — Matter in Dispute.</p> <p>The matter in dispute must at the time of filing the petition exceed $500, and if, by amendment in the state court, the amount has been reduced to less than that sum, the cause cannot be removed.</p> <p>3. Fractions of a Day — Maxim.</p> <p>The ancient maxim that the law knows no fractions of a day is now known chiefly by its exceptions. When private rights depend upon it, courts will inquire into the hour at which an act was done,' or a decree entered, or an attachment laid, or any title accrued. ,</p>

The defendants were United States deputy marshals, and were arrested under warrants issued by the state authorities for the alleged killing of Jackson Hicks, in Gwinnett county, whom they were attempting to arrest for illicit distilling.

<p>Jurisdiction — Ooumjsivk Parties.</p> <p>Whore parties conveyed land to a stranger, a citizen of another state, without his knowledge and without consideration, for the express purpose of creating a ease of jurisdiction, in the United States courts, and immediately, with the subsequent consent of the grantee, commenced a suit in the United States circuit court for the benefit of the grantors, expecting a reconveyance, although care was taken, that t here should be no promise made to reconvey, held, that the transaction was only colorable and collusive, for the improper purpose of creating a ease of jurisdiction for the courts of the United States, within the provisions of the act of congress of 1875, and the suit must be dismissed for want of jurisdiction.</p>

Indictment. The indictment in this ease contains two counts.

<p>1. Obiminal Law — Indictment—Double Pleading.</p> <p>The expression “writing and affidavit,” standing alone in an indictment, may mean two documents, but when accompanied by a recital of the writing and affidavit it is clearly shown to be but one instrument, and the pleading is not double.</p> <p>2. Sending False Affidavit to Pension-Office — Indictment—Essential Allegations.</p> <p>An indictment for an offence against the statute of March 3, 1823, (3 St. at Large, p. 771, § 1,) for sending a false writing and affidavit to the pension-office, must set out all the ingredients of the offence with certainty and precision, and with sufficient particularity, that the court may know from the indictment whether he is to be tried for sending a writing and affidavit, not genuine in its execution, or one genuine in its execution but false in statement, and the particular statements which are false, and that they are material, or judgment will be arrested on motion.</p>

<p>Criminal Law — Withholding Pension Monet.</p> <p>Where the agent or attorney oí: a pensioner collected the pension money, and by the consent and at the request of the pensioner, in good faith, retained sufficient of the money in his hands to pay certain debts due by the pensioner to certain parties, and also retained $200 for his professional services rendered for the pensioner in other matters not connected with the procurement of the pension money, there is not such a retention of pension money as is contemplated in the offence described in section 5485 of the Revised Statutes.</p>

<p>1. Criminal Procedure — Form: of.</p> <p>Where the statute which creates the offence prescribes the particular mode of proceeding or form of action, that mode of proceeding must be followed; but where no mode of proceeding or form of action is mentioned, the proceeding must be in the name of the United States, in any proper form of action, or by any appropriate form of proceeding.</p> <p>2 Indictment — Exceptions in Statute.</p> <p>Where an exception is contained in the same clause of a statute creating an offence and prescribing its punishment, the indictment must show that the act or person is not within the exception ; but if the exception or proviso be in a subsequent clause, or a subsequent statute, it need not be stated in the indictment ; it is mere matter of defence.</p> <p>3. Same — Variance between Pleading and Proof.</p> <p>Where an indictment brought under the statute of March 3, 1865, (13 St. at Large, 481,) charges the defendant with issuing an unstamped receipt for the payment of money, and the evidence shows that it was a receipt for the payment of a debt, it was held, not a variance.</p> <p>4. Issuing Unstamped Receipt — Indictment Sufficient.</p> <p>An indictment charging the defendant with issuing an unstamped receipt is sufficient, if it sets out the olfence in the language of the statute, it is the giving of a receipt for a sum exceeding §20, and not the payment of the money, which requires a stamp.</p>

In this case, the defendant, in addition to the points heretofore made in the case of the Southern Pac. Held: or owned by the said company, pertaining to said railroad, and all the corporate rights, privileges, and franchises of said company, pertaining to said road, together with all and singular the tenements, hereditaments, and appurtenances thereunto belonging and appertaining, and the reversion and reversions, remainder and remainders,…

<p>1. Donee under SeoTioN 8 of the Donation ■Act.</p> <p>J. R. took an undivided one-fifth of the land occupied by her deceased father, under section 8 of the donation act, (9 St. 497,) and married H. in March, 1859. Held, that she took such interest directly from the United States as her general property, but that after February 14, 1859, under the operation of section 5 of art. 15 of the constitution of the state, it became her separate property and not subject to the marital rights of-her-husband.</p> <p>3. Limitation — Life Estáte and Remainder.</p> <p>When, the husband has a life estate in the lands of the wife and she the remainder, the statute of limitations runs against him in .respect to such life estate, but not against the wife in respect to the remainder, during the continuance of such life estate ; and when such life estate is lost by an adverse possession sufficient to bar an action by the husband for the recovery thereof, a conveyance of the premises by the husband and wife only passes the, wife’s interest, the remainder, and therefore does not enable their grantee to maintain an action for the possession during the life of the husband.</p> <p>3. Statute of Limitations — Repeal by Implication.</p> <p>By the law of Oregon since May 1, 1854, an action to recover possession of real property was barred by an adverse possession of 20 years, and in case of a married woman the limitation did not include the period of coverture; and during the same time a married woman might bring an action to recover her separate property without- joining her husband therein. On October 17,1878, an act was passed (Sess. Laws, 21) reducing this period to 10 years, and providing that this period shall not be extended more than five years by reason of the disability of marriage; and at the same session of the assembly an act was passed, (Sess. Laws, 92,) on October 21st, concerning the rights and liabilities of married women, and tho relation between husband and wife, “which provided (section 7) that a wife might prosecute and defend all actions at law or in equity, for the preservation and protection of her rights and property, as if unmarried.” Held, that the passage of the second act did not affect the first one, and that, notwithstanding it, a married woman was entitled to five years, in addition to the time allowed an unmarried one, within which to bring an action for the recovery of the possession of her real property.</p>

<p>1. Consolidation op Corporations.</p> <p>When two corporations consolidate under a general law permitting it, both the old corporations are dissolved and a new corporation created, and (query) would the life of the new corporation only be that of the shorter-lived amalgamating corporation ?</p> <p>2. Act qp Louisiana op December 12, 1874.</p> <p>The act of Louisiana of December 12, 1874, permitting the consolidation of certain corporations, docs not permit the consolidation of two companies, the life of one of which was to terminate at the commencement of the life of another.</p> <p>3. Bigiit to Attack Corporate Btgiits.</p> <p>Where defendants are sued on rights depending upon the corporate capacity of the complainant, such corporate rights may be attacked as a means of defeating the suit.</p>

This is a suit by the guardian of Eugene and Mary Anne Byrnes, minors, on a policy of insurance upon the life of their mother, for their benefit. The petition states that the mother died on the tenth of January, 1875, and alleges a full compliance with the conditions of the policy by the assured and the plaintiff.

Tha defendant in this case is a corporation organized under the laws of the state of New York.

<p>1. Public Officer — Trust Punds — Liability fob.</p> <p>A public officer, charged -with a trust created by a public-statute in respect to funds in his possession, cannot be made liable in respect to them by an attachment in favor of a person not claiming under the trust</p> <p>2. Same — Case Stated.</p> <p>Under the requirements of a statute of the state of New York, defendant, a Virginia corporation, had deposited certain bonds with the superintendent of insurance, to be held to pay liabilities upon insurance policies made in favor of citizens of New York, which said bonds were to be returned to defendant by said superintendent upon satisfactory evidence that all such liabilities had been satisfied or terminated. Plaintiff, a Rhode Island corporation) brought suit on a policy of insurance issued to it by defendant, and levied an attachment upon the bonds in the hands of the superintendent. Held, upon a motion to vacate such attachment, that the bonds were not subject to such levy, they being held by a public officer by authority of law under a specified trust, in which plaintiff’s claim was not included,</p>

<p>Duties on Imports — Colored Fashion Plates — Exemption.</p> <p>Colored, fashion plates are not liable to duty under the laws of the United States.</p>

<p>1. Bankruptcy — Limitation of Actions ry or Against Assignee — Section 5057, Bev. St.</p> <p>Section 5057, Rev. St., providing that no suit between an assignee in bankruptcy and a person claiming an adverse interest, touching property or rights of property transferable to or vested in such assignee, shall be maintainable unless brought within two years from the time the cause of action accrued for or against such assignee, held to apply to all judicial contests between the assignee and any person whose interest is adverse to his, except that, in cases of fraud, the statute does not begin to run until tho fraud is discovered.</p> <p>2. Action — Dismissal for Want of Jurisdiction does not Remove Bar.</p> <p>After the expiration of the two years limited by section 5057, an action at law was brought by an assignee in bankruptcy to recover a debt owing his assignor. In reply to a plea of the statute, plaintiff alleged that lie brought a suit in equity upon the same cause of action within the two years, which was dismissed on the ground of the existence of an adequate renjedy at law, with leave given by the court to sue at law; but no fraud being charged, held, that these facts did not take the ease out of the bar of the statute.</p>

<p>1. Discharge in Bankruptcy — Rev. St. § 5117.</p> <p>“ No debt created by the fraud or embezzlement of the bankrupt, * * * or while acting in any fiduciary character, shall be discharged by proceedings in bankruptcy.” Rev. St. § 5X17.</p> <p>2. Embezzlement.</p> <p>The defendant having obtained the money belonging to plaintiff, and created tlie debt, to him, while acting as agent for the plaintiff, and having appropriated and converted it to his own private use and purposes, cannot successfully plead Ms discharge in bankruptcy when sued for such a debt.</p> <p>3. Fiduciary Debt.</p> <p>Tlie defendant, in thus receiving the money, received it in trust for the plaintiff, and in neglecting and refusing to pay it over he created a debt while acting in a fiduciary character, and such a debt is not discharged by the discharge in bankruptcy.</p> <p>4. Bankruptcy Acts of 1841 and 1867 — Trusts.</p> <p>The two acts compared. Under the act of 1867 no difference is made between special and implied trusts.</p>

Suit in an Account against Factors. The answer sets up a discharge in bankruptcy, and alleges, among other things, that the plaintiffs proved up their claims in bankruptcy, received dividends, and did not object to defendants receiving their discharge. It also denies fraud. Demurrer to answer. The other material facts are sufficiently stated in the opinion of the court.

<p>1. Assignment in Trust for Benefit of Creditors, when Void.</p> <p>A deed of assignment for the benefit of creditors, which in terms directs or authorizes the assignee to execute the trust and dispose of the property in a mode not authorized by the statute, or contrary to its requirements, is void.</p>

<p>Patents — Joint Interest — Title.</p> <p>Where a party holding the title to patents absolutely conveys them to others jointly as trustees, with full power to dispose of them at their discretion to enable them to take upon themselves the entire and exclusive management of the business, they can exorcise the power only jointly, and a contract by one of the parties conveys no title.</p>

<p>Patents — Former Adjudication as a Bar.'</p> <p>Wliore, in a prior suit between the same parties, founded on an infringement of the same patent, the prayer for relief was the same, and the issues the same, the present suit is harred by a decree of dismissal entered in the prior suit.</p>

<p>1. Patent — Effect of Abandoning Claim.</p> <p>Where, on an original application for a patent for an improvement in rocking-chairs, the elaim for a rigid connection with the rocker was abandoned as faulty, and a pivotal connection substituted, the patentee is not entitled to a reissue embracing what he discarded, even if he was the first to discover the rigid connection.</p> <p>2. Same — Reissue—Claim, when Void.</p> <p>Where a claim on an application for a reissue contains matter not embraced in the original patent, it is void.</p> <p>3. Same. — Claim too Nabbow — Remedy Lost by Delay.</p> <p>if the original claims were too narrowto secure to ihe patentee the full benefit of liis discovery, the mistake was apparent at the time the patent issued, and the granting of the reissued patent with broader claims, on an application made after the lapse of almost live years, was unauthorized.</p>

The respondents are proprietors of a canal running from Lake Pontchartrain into the city of New Orleans. At its entrance is a triangular breakwater, composed of piles, many of which are old and rotted away above the surface of the water.

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

In Admiralty. The Rapid Transit was arrested on the libel of mariners for wages and sold in this court. Certain creditors, who had furnished the vessel at Memphis, Tennessee, intervened for their claims, as did other creditors who had furnished the vessel at Covington, Kentucky, and Cincinnati, Ohio. Prior to September 9, 1879, she was owned by Collins, who resided at Covington, hut did business at Cincinnati, and Holterhoff, who resided in Cincinnati.

<p>Libel for Collision.</p>

<p>1. Collision — Between Vessel in Motion and Vessel Moobed to a Whabe.</p> <p>Where a vessel in motion comes into collision with one at anchor or moored to a wharf, the presumption is that it was the fault of the vessel in motion, unless the anchored or moored vessel was where she should not have been.</p> <p>2. Same — Neltgent Moobing — Fault.</p> <p>Where a steam-vessel was moored at a wharf adjoining a ferry slip, and her stern extended beyond the wharf and into the ferry slip, and the ferry-boat, in entering the slip, struck against the fender piling, causing it to swing back so far that the guard of the ferry-boat came in contact with the stem of the steam-vessel, it was held no fault on the part of the ferry-boat, where it had notified the steam-vessel of its dangerous position, and had taken all due care to avoid the collision.</p>

<p>1. Towage — Negligence of Tug.</p> <p>It is negligence in a tug, after having taken canal-boats in charge, for the purpose of towage, to leave them unattended and helpless, moored at a harbor unsafe in one quarter.</p> <p>2. Same — Liability in Pebsonam.</p> <p>Where one of two canal-boats in tow was sunk from a storm coming from the exposed quarter during the absence of the tug, held, the owners were liable in personam. ' 1 ■</p> <p>3. Same — Contributory Negligence — Improper Loading of Cargo — Damages.</p> <p>But, in the above case, the canal-boat E., being loaded to within 18 to 20 inches of the deck with coal in her “stable ” forward, balanced only by a quantity of coal aft on deck, which was first washed overboard in the storm, in consequence of which she became lower by the head, and finally sank, head first, held, that she was, improperly loaded, and also overloaded, for a voyage upon the sofind to .New Haven; that this contributed directly to her loss, and the libellant was therefore entitled to recover only half his damages.</p> <p>4. Negligence of Tug and Tow — Both in Fault.</p> <p>Where a tug undertakes the towage of a boat known to be unfit and unseaworthy by reason of obvious overloading and improper loading for the voyage contemplated, and a loss occurs in the ordinary contingencies of the voyage, to which the improper loading contributes, public policy requires that both should be held in fault; following the case of The William Murtaugh, 3 Fed. Rep. 404, and The William Cox, 9 Fed. Rep. 672.</p>

<p>Removal cot Cause — The Whole Controversy to be Removed.</p> <p>When a cause is brought within the terms described in the second and third sections oí the act of March 3, 1875, the whole suit is removed, and not a part; and if a person has only such an incidental interest as stated growing out of the litigation he cannot remove the cause.</p>

<p>1. Removal op • Cause — Act op 1866.</p> <p>The second subdivision of section 639 of the Revised Statutes was repealed by the act of 1875, so far as subdividing the cause of action.</p> <p>2. Same — Act op 1875.</p> <p>Where the petition contains all the jurisdictional facts necessary to effect a removal under the second clause of the second section of the act of March 3, 1875, but the prayer of the petition did not ask for the removal of the entire suit, the cause will be remanded.</p> <p>3. Same — Jurisdiction.</p> <p>When a sufficient case for removal is made in the state court the jurisdiction of that court is at an end, and the jurisdiction of the federal court attaches, and the fact that only a part of the record is filed in the federal court will not oust its jurisdiction.</p> <p>4. Joint 'Port-Feasors — Severable Action — Right op Removal.</p> <p>Where an action is brought against a resident and non-resident defendant sounding in tort, and each is liable as a wrong-doer,-and the controversy is severable, the party bringing the suit cannot, by joining the non-resident defendant, debar him from asserting a rigid given hy the act of 1875.</p>

Bill for the specific performance of a contract for the sale of standing timber. ■ The original bill alleged that defendant entered into an agreement in writing with complainant on the seventeenth of July, 1880, to sell him all the pine and hemlock timber upon certain lands in this state for the sum of $3,200; that defendant refused to perform his contract; and specific performance was prayed.

<p>1. Corporations — Dissolution—Creditors—Rev. St. Mo. $ 744.</p> <p>Section 744 of the Revised Statutes of Missouri requires a pro rata distribution of assets of dissolved corporations among their creditors, where such assets will not suffiee to pay all demands in full.</p> <p>2. Same.</p> <p>Where the president and directors of a dissolved corporation divide its assets among the stockholders, or appropriate them to their own use, and leave a debt due from the corporation unpaid, the party to whom this debt is due cannot maintain an action at law against such president and directors, under said section of the Missouri statutes, unless [1) the amount due such creditor has been previously ascertained in proceedings in equity; or (2) this demand is the only one which existed against the corporation at the time of its dissolution, and the assets received by the president and directors equalled or exceeded it in amount.</p> <p>3. Same — Pleading.</p> <p>Unless the petition avers one or the other state of facts it will be demurrable.</p> <p>4. Same.</p> <p>Whether the facts out of which the dissolution of the corporation resulted should not bo averred, quaere.</p>

<p>1. Mortgage — Preference—Operation and Effect.</p> <p>In Pennsylvania a mortgage, upon delivery, becomes eo instanti effective; therefore, an assignee in bankruptcy cannot avoid a mortgage given by way oí preference, if it was delivered more than two months before the proceedings in bankruptcy against the mortgagor were commenced, although not recorded until within the two months.</p> <p>2. Creditor — Privilege as to Counter-Securities.</p> <p>It is the privilege of the creditor to avail himself of counter-securities, given to and held by the surety, but the law does not force them upon him against his consent. If he is satisfied with his original security he may stand on it.</p> <p>3. Same — When may Prove as Unsecured.</p> <p>Wl¡ere the surety takes a counter-security for his own indemnification, and the creditor is not a party to the transaction, and has not adopted the act of the surety, the creditor may prove in bankruptcy as an unsecured creditor, and such proof does not release or affect the individual liability of the surety to the creditor.</p> <p>4. Equity — Remedy at Law — Objection Jurisdictional.</p> <p>If it appears on the face of a bill in equity that the plaintiff has a plain, adequate, and complete remedy at law, the objection, although not raised by the pleadings, being jurisdictional, cannot be overlooked by the court, and the bill will be dismissed.</p>

<p>Conveyance, when does not Vacate a Trust.</p> <p>Plaintiff, the owner of a mine, had conveyed it to a stranger by deed intended as a mortgage. He then authorized A. to dispose of part of the mine to M, and S., who were to do work and open the. mine. Mrs. A., the wife of A., received from her husband one-twelfth of the mine, and M. and S. received three-twelfths. Mrs. A. conveyed to M. her one-twelfth of the mine, and received in payment certain lands. A. became bankrupt, and his assignee, the defendant herein, recovered these lands from Mrs. A. as being the property of her husband. Held, in this suit by plaintiff against the assignee, that plaintiff, having known of the conveyance by Mrs. A. to M., and having approved thereof, that Mrs. A. did not hold the one-twelfth of the mine, nor the proceeds thereof, in trust for the plaintiff.</p>

<p>1. Contracts — Renunciation of — Action.</p> <p>In contracts for services, for marriage, for deliveries of merchandise, if the principal, before the time for performance arrives, renounces the contract, an immediate action will lie.</p> <p>2. Same — Contract to Deliver Ice.</p> <p>Where defendants contracted to deliver a quantity of ice at 50 cents per ton during the season, “ while the river is open,” and in consequence of the price of ice during the season rising to five dollars per ton they unqualifiedly refused to ship the ice that season, it was held that an action may he maintained, though brought before the close of the season.</p> <p>3. Same — Damages.</p> <p>In such action the measure of damages is the value of the ice, to be estimated at what plaintiffs lost.</p>

<p>1. Deed and Consideration in Escrow.</p> <p>Defendant purchased certain lands from plaintiff, for which he was to give him his note for the purchase price, to be delivered to a third party to be held in escrow till paid by defendant and till a warranty deed should be executed by the plaintiff, and bo deposited in escrow with said third party to be delivered to the defendant. The note matured and was not paid, and plaintiff deposited a deed, executed by the proper parties, with said third party, as agreed upon, hut tlie description of the land in the deed did not correspond with that mentioned in the agreement of sale. In an action by plaintiff on the note it was held that there was no consideration and no delivery of the note to the plaintiff, for the reason that the condition of the contract had not been completed by the delivery of a deed for land described in the contract.</p> <p>2. Same.</p> <p>The party holding the note and deed in escrow' was not. the plaintiff’s agent, hut'if plaintiff had deposited a deed with him for the land described in the contract, the defendant could not prevent a recovery by plaintiff notwithstanding the nolo wras in possession of a third party and he had failed or refused to deliver it. Such party would he recognized as the agent of plaintiff.</p>

Suit on a policy of insurance upon the life of 0. S. Alford, deceased, by his executor, Thomas C. Fletcher, for $10,000, and interest.

Trial by the Court without a Jury. Three cases were brought by the plaintiff, an insurance company, against the defendant, a railway company, to recover damages for loss of cotton while in charge of defendant, as carrier, while being transported over its line on open flat cars. The insurance company had been subrogated to the rights of the several consignees by payment of their claims under their policies of insurance,

Suit for a breach of contract. The case was removed to this court from the circuit court of the city of St. Louis at the instance of the defendant. He alleges, in his petition for removal, that said contract is void under the laws of Illinois and according to the decisions of the supreme court of that state, but that in a previous suit between the same parties said contract has been held valid by the supreme court of Missouri.

<p>Summons — Service, on Resident Agents otf Foreign Express Companies — Motion to Set Aside.</p> <p>The act of the general assembly of the state of Indiana of March 29,1879, (relating to foreign express companies, defining their duties, etc.,) providing for the service of process, in actions against such companies, on the officers or agents of such companies within the state, is limited to actions on claims or demands arising out of transactions in the state of Indiana with their agents or employes, and embraces actions in tort as well as in contract, but does not apply to causes of action arising outside the state of Indiana.</p>

<p>1. Swamp-Land Act Construed — Construction op Interstate Grants.</p> <p>The state of Indiana acquired title to the bed of Beaver lake, (which is overflowed land,) by virtue of the act known as the “ Swamp-land grant of 1850.” A more liberal rule of construction is allowable in interpreting a grant from one state or political community to another, than is permitted in interpreting a mere private grant; e. g., a grant by a government to a private individual of land upon a navigable river is limited to the shore, while such a grant to a political community extends to the middle of the stream.</p> <p>2. Hiparían Bights on Non-Navigable Streams, Lakes, and Ponds.</p> <p>if on-navigable streams are usually narrow, and the lines of riparian owners can readily be extended into th em at right angles without confusion or injustice. But practical difficulties arise in applying the rule to lakes and ponds having no current, and being more or less circular. Mere proprietorship of the surround ing lands will not in all cases give ownership to the beds of natural non-navigable lakes and ponds. As to them, the application or non-application of the rule depends largely upon the facts in the given case. The rule is that while a general grant of land on a river or stream mom-navigable extends the line of the grantee to the middle or thread of the current, a grant on a natural pond or lake extends only to the water’s edge.</p> <p>3. Estoppel-Doctrine oe, Applies to States.</p> <p>Resolute good faith should characterize the conduct of states in their dealings with individuals, and there is no reason in morals or law that will exempt them from the doctrine of estoppel.</p>

<p>1. Payment of Pre-Existing Debt by FTote.</p> <p>Tlie note of a third person, given and received in payment of the debt of another, is a valid contract, and operates to extinguish or discharge the original debt, and a note given by a partner for a debt of the firm is, as to such debt, the note of a third person.</p> <p>2. Payment, when Absolute — Burden of Proof.</p> <p>But to constitute an absolute payment of a pre-existing debt by a promissory noto, there must be an agreement to receive it as such, and the burden of proof is upon the party alleging this fact.</p> <p>3. Bankruptcy — Unlawful 'Preference..</p> <p>Where the creditor of a firm, knowing the firm to he insolvent, receives the note of an individual member of the firm in payment of the debt due to him by the firm, which note is secured by a mortgage upon the individual property of the maker of the note, he thereby secures an unlawful preference over both the individual and firm creditors, and such mortgage is invalid; and he could only prove his debt against the firm, and only for a moiety thereof.</p> <p>4. Actual Fraud by Creditor.</p> <p>The actual fraud perpetrated by a creditor of an insolvent firm by receiving a preference contrary to the provisions of the bankruptcy act, which prevents him from proving his debt for more than a moiety thereof, must be by some act on his part inducing or coercing the debtor to make him a payment under circumstances constituting it an unlawful preference.</p>

<p>1. Discharge — Application to Annul.</p> <p>A creditor having a provable debt may make application to have the bankrupt’s discharge annulled. To enable him to contest the validity of the discharge, proof of the debt is not a sine qua non.</p> <p>2. Effect of Delay.</p> <p>In the absence of some special ground of estoppel, mere delay, if it does not exceed two years, will not defeat an application to annul a discharge.</p> <p>3. Same — Ckeditot:, when Estopped.</p> <p>Where specifications of opposition to a discharge were filed by certain creditors, and, after pending in court for a year, were withdrawn and the bankrupt discharged, another creditor, who was represented in the bankruptcy proceedings by the same solicitor who acted for the objecting creditors, will not be heard to assert personal ignorance before the granting of the discharge of the matters contained in said specifications, nor permitted to set them up as grounds for avoiding the discharge.</p> <p>4. Same — Assent Procured by Fraud.</p> <p>If the assent of a creditor to a discharge was corruptly procured, and this is assigned as a ground for annulling the same, it is no answer to say that the assent of that creditor was altogether unnecessary,</p>

<p>Bankruptcy — Partnership with Infant Son — Firm Property.</p> <p>A father formed a mercantile copartnership with an infant son, in his twentieth year, the father contributing his stock of merchandise, and some book accounts, and the son his time and services, each to have a half interest. Thenceforth the business was conducted in the name of and by the firm openly and notoriously, and with the knowledge of the father’s individual creditors,for more than a year, during which time the old stock was disposed of, and a new stock bought by the firm very largely on credit. One of the old individual creditors of the father then levied upon the new stock, whereupon the partners, upon their joint petition, (which did not disclose the son’s infancy,) were adjudged bankrupts. The transaction between father and son was free from actual fraud, but the register in bankruptcy found it was constructively fraudulent as to the father’s then creditors, because, after deducting the value of the partnership interest the son acquired, the remaining property of the father was insufficient to pay liis debts. Held, that however it might have been with respect to the original stock of goods, the new acquisitions of the firm could not be seized by the father’s creditors, but must be treated as firm property, and the proceeds applied to firm debts.</p>

<p>Chattel Mortgage — Bill oe Sale.</p> <p>An unrecorded chattel mortgage or a bill of sale, unaccompanied by an immediate and continued change of possession, is void as against creditors.</p>

<p>In Bankruptcy. Sur petition of Martin Lutz, filed June 11, 1881,. and motion to dismiss the same.</p>

<p>Patents — Prior Use.</p> <p>Where the infringing device was intended to reproduce a device which was made two years before the date of the invention it was not an infringement, and the libel will be dismissed.</p>

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

<p>1. Patents — Inventors—Rtghts op.</p> <p>Persons are not deprived of the right to take out patents for their inventions by being in the service of others, unless they have been hired and paid to exercise their inventive faculties for their employers.</p> <p>2. Same — Rights op Employe.</p> <p>A contract, by which one person agrees to pay a sum of money for the time, labor, and skill of another for a given period, gives the emplyer no right to an assignment of a patent that has been issued to the employe for an invention made during the period of his employment.</p> <p>S. Same — Rights of Rmfloykh — Tbanweb.</p> <p>If, under such contract, the employer had any right to the invention by vir- , tue of the terms of the contract of employment, it was a mere naked license to make and sell the patented improvement as a part of its business. Such a right is a mere personal one, and is not transferable, and is extinguished by the dissolution of the corporation which exercised it.</p>

<p>In Equity. On motion to open decree.</p>

<p>Patent — Spring Catch — Anticipation.</p> <p>Where the evidence shows that the claim was an invention anticipated, the hill alleging the infringement will be dismissed.</p>

Demurrer to the plea of the statute of limitations. This is a suit for an infringement of letters patent of the United States, originally granted in the year 1854, and reissued for an extended term of seven years in 1868. The petition alleges that the defendants “infringed upon the exclusive rights and privileges intended to be secured to plaintiffs by the reissued letters patent, ” but does not state when said rights and privileges were infringed.

<p>Admiralty — Charter-Party—Safe Port.</p> <p>Where a vessel is chartered for a voyage lo a safe Norwegian or Danish port, as ordered on signing hills of lading, or as near thereunto as she can safety get, and always lay and discharge afloat, lighterage, if any, to be at the expense and risk of the cargo, held, that the vessel could not bo ordered to Aalborg, a Danish port, into which a vessel of her towage could never get by reason of her draught of water, and where she would have to discharge the whole of her cargo into lighters two miles out in the open water of the Kattegat, at a distance of over 17 miles from the port, and at an anchorage proved not to be reasonably safe for that purpose.</p> <p>Held, that the fact being that the vessel could not get into the port, and that there was no anchorage near and customarily used in connection with it, where she could safely lay and discharge, it was the duty of the master to refuse to sign bills of lading purporting that he was going to deliver the cargo there, even with,the clause inserted, “ as near thereunto as the vessel can safely get, and always lay and discharge afloat.”</p>

<p>Collision — Steamer and Sail-Vessel — Intersecting Coleses — Duty op Steamer.</p> <p>Where a steamer and a schooner were approaching each other in nearly opposite courses, and the schooner kept her course and a collision ensued, the steamer is in fault for not keeping out of the way.</p>

<p>1. Negligence — Explosion of Boiler — Presumption.</p> <p>Negligence may be inferred, from the fact of the explosion of a boiler, whether there he any relation between the owner of the boiler and the party injured or not. The presumption originates from the nature of the act, and not from the nature of the relations between the parties.</p> <p>2. Same — Burden of Proof.</p> <p>Where an accident happens, as in the bursting of a boiler, in the absence of' explanatory circumstances, negligence will be presumed, and the burden is cast, upon the owner to disprove it.</p> <p>3. Instructions.</p> <p>Instructions to the jury must be considered in their integrity, and not in isolated parts.</p> <p>4. New Trial — Excessive Damages.</p> <p>Where the verdict of the jury, in a case of damages for personal injuries from negligence, is not so obviously extravagant as to indicate prejudice or partiality, it will not be disturbed.</p>

In Admiralty. On appeal. This is an appeal from the decision rendered in this case in the district court in January, 1881. The decision appealed from will be found in 9-Fed. Eep. 773.

<p>Salvage Service — Absence of Necessity — Liability of Cargo.</p> <p>The absence of any immediate necessity for the service rendered, even though of a salvage character, qualifies tlie power of the carrier; and where, in addition, the owner of the cargo, though accessible, was not communicated with, and there was an evident attempt, by concert between libellant and the master, to throw the whole expense on the cargo, the right to enforce the demand is forfeited as respects the cargo.</p>

<p>Collision in East River — Ferry-Boats—Apportionment and Damages.</p> <p>A boat, the 0., on her regular trip np the East river from Fulton street to Hunter’s Point, and a ferry-boat, the W.,plying between Grand street, Brooklyn, and Grand street, New York, came in collision a short distance above the ferry-slip, near the New York shore, and the O. was sunk. The O. had como up along the New York piers, to be in the eddy of the tide, which was running down, had gone out in the river a little to avoid a steam-boat then making a landing at Grand-street pier, straightened up, and exchanging signals with the W. sheered again out into the river. The W. had stopped when half way across, and, heading nearly down the river to allow the steam-boat above mentioned to go inside and land, then signaled the O. to go to port, and started ahead at the same time to reach her slip. Held, that both were in fault, and the damages should be apportioned.</p>

<p>Collision — Approaching Head on — Duty to Port Helm.</p> <p>Where a sail-vessel and a tug were approaching each other head on, or nearly so, and a collision ensued, held, that the tug was in fault in not porting her helm.</p>

<p>1. Patent for Land — Vacating—Indispensable Parties.</p> <p>Tilo owners of the land, in a suit to vacate a patent, are indispensable parties to the hill, and when the patentee has convoyed the land a bill against him will be dismissed for want of necessary parties.</p> <p>2. Mexican Grant — Within Exterior Boundaries.</p> <p>Where a claim was filed for confirmation! of a Mexican grant of 11 leagues, within exterior boundaries containing three times that quantity of land, and the surveyor general, in extending the public surveys, found the grant within the sphere of his operations, and surveyed it in advance of confirmation, in pursuance of the statute of 1852, (10 St. at Large 90,) reserving nearly double the quantity necessary to satisfy the grant, and the survey was acquiesced in hy the claimant, the land surveyed into sections, platted, and returned to the land-office the surplus as public lands, which surplus was thereafter treated as public lands by the government, opened to pre-emption, offered for public salo by proclamation of the president, and afterwards opened to private entry and homesteads, patents being issued therefor for all such purposes, and to satisfy a congressional grant to the Central Pacific Railroad Company, it seems that sucli surplus will be regarded as emancipated from the claim of (he Mexican grant, and that the patents issued therefor in the usual course of business of the land-office will be regarded as valid.</p> <p>3. Ex Parte Survey.</p> <p>An eospm'te survey of the exterior boundaries of a rejected Mexican grant, made by direction of the commissioner of the iand-oflicc, after the lands embraced in the supposed grant have been officially surveyed and disposed of as public lands, is not admissible as evidence on the part of the government in a suit to vacate a patent.</p>

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

In Equity. Petition to amend decree. This case was upon a petition to amend the final decree entered in the suit October 18, 1877.

<p>Contempt — Corporation—Punishment.</p> <p>Where, ponding proceedings in bankruptcy, a corporation entered an action against the bankrupt in a state court, and caused judgment to be entered against him and execution to be issued thereon, and injunctions were issued from this court sitting in bankruptcy to tbe said company and to tlio president thereof, which were duly served, restraining them from proceeding any further in the matter, and restraining the sheriff from selling the property of the bankrupt taken in execution under the said judgment, and thereafter the said company made a pretended assignment of the judgment to a third party, who procured the property to be sold under execution issued upon the assigned judgment, held, that the said company and the president thereof were in contempt of this court, and that they be punished therefor; and that all loss and damage to the bankrupt by reason of tbe misconduct of the company in causing the sale of the properly taken on execution, with the additional sum of §1,000 for expenses and trouble caused to said bankrupt be sustained by said company, and afine in addition thereto be imposed on the said company J'or iis misconduct, and that the president of said company be adjudged guilty of contempt and punished therefor.</p>

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

An Information was filed in the district court for the district of Kansas, charging the defendant with the offence of carrying on the business of a retail dealer in liquors without having paid tho special taxes required by law. A trial was had, in the course of which the court directed the jury to return a verdict of guilty. Exceptions were taken by defendant, who thereupon moved for a new trial, which motion was overruled.

<p>Penalties — False Invoices — -3 ubisdiction.</p> <p>Tlie district courts have exclusive jurisdiction of all actions of penalties and forfeitures under the customs laws; and the act of March 3, 1875, § 1, does not confer jurisdiction in such cases on the circuit courts.</p>

<p>1. Insurance — Conveyance by Married Woman — Contract, when Void.</p> <p>A parol contract to convey land made by a married woman without her husbahd joining in its execution, even if made with her husband’s consent, is void ab initio under a statute which provides that a married woman may convey real estate by deed in which her husband joins. No insurable interest can exist under such a contract.</p> <p>2. Insurable Interests — Severalty on ,-'oint Insurance.</p> <p>Where a building was located on the division line of the lands of two different persons, each being a half owner of the building, and they jointly take out a policy of insurance on the building, and it afterwards transpires that one of them had no insurabie interest in the building, this fact alone will not prevent the other party from recovering the insurance, in case of loss of the building by fire, to the full extent of the interest she has in the policy. Insurance without insurable interest, if included in the same policy with interests which are insurable, does not vitiate the policy except as to the non-existent interest.</p> <p>8 Assignment of Policy — Effect on Insurable Interests.</p> <p>Where property insured is- alienated, and all rights under the contract of insurance are properly assigned, the contract becomes an insurance on the property of the assignee, and ceases to be an insurance on the property of the assignor ; but where, in case of loss, payment merely is to he made to a third party, the insurable interest in the property mu»t belong to the assignor at the time of the loss.</p> <p>4. Same — Sufficient Proof of Loss — Waiver—Estoitel.</p> <p>Where the insurance agent, clothed with full powers, specifically agreed to a waiver of proof of loss, such waiver is conclusive, and the company is es-topped to deny such waiver on the ground that a written stipulation for arbitration, afterwards signed hut never carried out, says that the agreement to arbitrate shall he subject to the terms and conditions of the policy.</p> <p>5. Practice — Oonfoemitv with State Rules.</p> <p>United States courts conform as near as may he to the practice, pleadings, and modes of procedure in civil cases, other than equity and admiralty, with the rules of practice of the states in which they are held.</p> <p>6. Same — Misjoinder of Pabties.</p> <p>Where the state statute provides that no action shall he defeated on account of the misjoinder of parties, if the matter in controversy can be properly dealt with and settled between the parties before the court, and that the court may order any party improperly joined to be stricken out, the same practice will bo adopted by the United States courts held in that state.</p>

<p>1. Insurance — Terms in Policy Construed.</p> <p>Where a policy of insurance contained the following- clause: “If the interest of the iúsured in the policy be any other than the entire, unconditional, and sole ownership of the property for the use and benefit of the insured, or if the building insured stand on leased ground, it must be so represented to the company, and so expressed in the written portion of the policy, otherwise the policy shall be void,” — a policy taken out by husband and wife on the wife’s separate property, without disclosing how the husband and wife were respectively interested in the property, is not void. All that is requisite under such a condition in the policy is to satisfy the insurers that the estate is absolute and unencumbered in the insured; or, if not, to what extent encumbered, or what estate less than a fee-simple is owned by the insured.</p> <p>2. Same — Wife’s Estate — Joinder of Husband.</p> <p>Where the property insured was the property of the wife, held as her sole and separate estate, according to chapter 152 of the General Statutes of Rhode Island, which gives the husband only a revocable right to receive rents, and a vested remainder for his life after the death of the wife, there can be no objection to his joining in the application for insurance.</p> <p>3. Same — Proof of Loss — Waiver.</p> <p>The condition in a policy requiring proofs to be furnished in some detail, with the certificate of a magistrate, and undertaking to pay the loss 60 days after these proofs have been received, may be waived; and where the company sent an agent as adjuster with .authority to find out the amount of loss, and such agent told the insured to forward a memorandum of items of the things burnt to the company, and he would return in a day or two and settle, it constitutes a waiver of formal proofs of loss.</p>

<p>1. iNSURANCe — Wife’s Separate Estate.</p> <p>Where the property insured was the sole and separate estate of the wife, the refusal of the court to admit evidence tending to show that her husband in her absence, and without her complicity, wilfully set lire to the buildings, is not erroneous.</p> <p>2. Same — Husband’s Act not to Defeat Rights of Wife.</p> <p>A husband has no power to affect his wife’s title by any act or neglect, nor can she be held responsible for his criminal acts; and his joinder with his wife in an action for the recovery of the insurance will not constitute a defence.</p> <p>3. Same.</p> <p>If a statute makes the husband a stranger to his wife’s property during her life, excepting as to a veto upon her conveyance thereof, it does not give him power to destroy her house and thereby vitiate her insurance.</p> <p>4. S\me — Valuation, Conclusiveness of.</p> <p>If the insurance agent takes upon himself the whole responsibilily of the valuation of the property insured, and was not induced to fix the amount of insurance by the representations or acquiescence of the insured, or if the valuation is agreed between the parties fairly and without deception, it is conclusive on both.</p> <p>5. Same — Measure of Recovery.</p> <p>The recovery on a policy of fire insurance is to be for the value of the property at the time of the loss; and where there was no offer to prove a depreciation since the policy was issued, the valuation is conclusive of the amount to be recovered in case of a total loss, as well as conclusive that there was no overvaluation.</p>

<p>Action to Recover Damages.</p>

<p>1. Tkadb-Makk — Right.</p> <p>Tlio right to use a trade-mark is one which depends on use.</p> <p>2. Same — Use oe Name.</p> <p>Any one has a right to tlio use of his own name in business, but ho may be restrained from its use if he uses it in such a way as to appropriate the goodwill of a business already established by others of that name; nór can he, by the use of Ms own name, appropriate the reputation of another by fraud, either actual or constructive.</p> <p>3. Same — Enjoining Use oe Name.</p> <p>Any one who rightfully uses a name of established reputation as part of a trade-mark in a particular business may enjoin its mtonermg use by others.</p>

This was a hill in equity, to establish the validity of reissued letters patent No. 5,400, dated May 6, 1873, to Erastus W. Scott, for an improvement in whip sockets, and to recover damages for the infringement of the same by the defendants. Complainant was the assignee of the inventors.

In Equity. This was a suit brought to recover for the infringement of letters patent No. 8,581, reissued to Henry M. Curtis and Alva Worden for an improvement in whip holders.

<p>Reissue — Patents for Inventions — Anticipation.</p> <p>Where the invention as secured by the original patent was a narrow one, and a broader claim was made upon its reissue, the patent is not nfringedif the broader claim embodied matters which had been anticipated by a prior machine.</p>

<p>Marine Insurance — Damage from Moisture in Hold.</p> <p>The memorandum clause of a policy of marine insurance, which was issued 28 days before the certificates were issued, contained an agreement that grain of all kinds was warranted by the assured free from average, unless general. It also contained the following: “ Warranted by the insured free from damage or injury from dampness, c.hange of flavor, or being spotted, discolored, musty, or mouldy, except caused by actual contact of the seawater with the articles damaged, occasioned by sea perils. In case of partial loss by sea water damage to dry goods, cutlery, or other hardware, the loss shall be ascertained by a separation and sale of the portion only of the contents so damaged, and not otherwise; and the same practice shall obtain as to all other merchandise as far as practicable.” Under this policy barley was shipped in sacks and stowed away in tiers, and during the first part of the voyage the ship encountered perils of the seas which caused her to leak, and thereby sea water came in actual contact with sacks of barley on the lower tier. The ship put into Rio de Janeiro for repairs, and unloaded all the barley except such as composed the-lower tier and some at the ends. After repairs the sacks of barley and other cargo were restored. On arriving at the port of destination the lower tier was found damaged by actual contact with sea water, and in the rest of the barley the malting qualities of the barley had been destroyed by dampness in the ship’s hold. Held, that, under the agreement in the policy, the damage from the vapor and moisture in the hold was not damage from actual contact with sea water.</p>

<p>Bottomry Bond — Proceedings in Hem.</p> <p>A suit on a bottomry bond, except in certain cases, must bo by proceedings in rem, against tlie property hypothecated or the proceeds, as prescribed by admiralty rule 18, and a libel in rem may be a proceeding against the property by arrest or attachment; but it does not follow that an attachment can only be made by actually taking possession of the property; service may be made either by notice or by actual levy on the goods. Service by notice and monHion is analogous to the process of garnishment, and a good attachment of the proceeds in whatever form they may exist.</p>

<p>1. Collision — Damages.</p> <p>In a collision case where the vessel was totally lost, where the proofs fairly show that the vessel was worth to the libellant, at the time of the loss, the sum of $2,800, a decree was ordered to be entered for that amount, although the offending vessel was not. worth that amount.</p> <p>2. Limited Liability oe Owners.</p> <p>All owners of vessels are not entitled to the privileges of the limitation of liability, but only such as fall within the description named in the act, (section 4283, Rev. St.,) to-wit, those who had no privity or knowledge of the damage incurred; and where the owners may invoke the provisions of this section, the court cannot know, without appropriate proceedings, the value of the offending vessel and the pending freight</p> <p>3. Same — Stay of Proceedings.</p> <p>In this case a stay of proceedings was ordered until the owners of the offending vessel have the opportunity of filing a petition on libel according to the rules.</p>

<p>Collision — Sail-Vessels—Bulb of the Boad.</p> <p>A schooner close-hauled on the starboard tack, and steering by the wind, approaching a bark coming from an opposite course, with the wind on her quarter, has the right of way, and in case of a collision by the port bow of the schooner with the port quarter of the bark the latter is in fault in not putting her helm, to starboard.</p>

<p>Motion to transfer the ease from this to a state court.</p>

<p>1. Insolvent Corporations— Continuance op Existence — Receiver.</p> <p>The receiver of an insolvent corporation, appointed by the state court, becomes the custodian of the property, but the corporate entity still exists, and, under the Revised Statutes of New Jersey, until the injunction continues four months, the corporation may use and exercise its franchises and transact ordinary business in its own name, subject to the right of the receiver to the possession and control of the property.</p> <p>2. Same.</p> <p>There is nothing in insolvency proceedings to prevent the corporation from continuing to accomplish the end and purpose of its existence; at least, until its franchise or right to act as a corporation is sold under the provisions of the statute, if, indeed, such sale would have that effect.</p> <p>8. Same — Removal op Cause — Attachments.</p> <p>So there is nothing to prevent an insolvent corporation, whose property is in the hands of a receiver, from appearing to attachments against its property and removing the controversy to the federal court.</p>

The Louisville & Nashville Bailroad Company was originally chartered by the legislature of Kentucky, and thereafter was granted certain rights by the legislature of Tennessee; its line of road extending from Louisville, Kentucky, to Nashville, Tennessee. Subsequently it leased from the Nashville & Decatur Bailroad Company, a corporation chartered by the legislature of Tennessee, its road connéeting the city of Nashville with the town of Decatur, in the state of Alabama.

<p>1. Contract — Sfecifio Perfobaiance — Unseasonable Delay.</p> <p>Defendants entered into a verbal agreement to soil certain land and buildings to a husband and wife, the deed to be made to a third party. The terms were $1,000 cash, and $500 a year for five years, to be secured by note and mortgage. The $1,000 was paid. The note was given by the husband and wife, but the mortgage was never executed by the plaintiff, and the papers, therefore, were not passed. When the first instalment became duo, one year after the purchasers entered into possession, demand was made upon them for the $500 and interest, and in default of payment they were ejected from the premises. After Iho expiration of five years, and after the maturity of the last instalment on the note, plaintiff brings a bill in equity to enforce a specific performance of defendants’ agreement. Held, that where plaintiff does not aver that he has from time to time tendered the instalments, or that he has tendered performance at all, or that he even offers to pay the money and interest, but only that he is and always lias been ready to perform his part of the contract, a delay of five years, unexplained, is unreasonable and will defeat the bill.</p> <p>2. Same — Reooymky of Purchase Money.</p> <p>Under such circumstances, and where the seller had elected to rescind the contract, the purchaser may recover back so much of the purchase money as he lias paid, and for this purpose the verbal contract may be proved; but if he refuses to perform his part he can recover back nothing. And where neither party demanded, and of course neither refused, to have the bargain completed, held, that the whole of the purchase money paid, loss a reasonable rent for the time the premises were occupied, should be awarded to the purchaser.</p>

<p>1. Contract — "Want o» Privity.</p> <p>Tlie defendant W. contracted with defendant K. to have the latter conduct a litigation for him, and receive one-fourth of the avails for his services. K., with assent of W., engaged M. and L. to assist him, they to share equally with him in his one-fourth. After W. received the avails, L. was settled with, but M.’s share not being paid, the plaintiff, as M.’s assignee, brought this action in the state courts in his own name to recover it. Thereafter the suit was removed to the equity side of this court, and defendant W. demurred upon the grounds of want of privity of contract, and that plaintiff’s remedy, if any, is at law. Held,, that M.’s share, if payable to K., was so payable for M.; and, not having been paid to K., M. would have the right to sue both W. and K"., the latter as his trustee, and tlie former as a debtor to his trustee for him; and plaintiff, as M.’s assignee, had the same right to enforce tlie claim.</p> <p>2. Removal oe Cause — Procedure.</p> <p>The plaintiff having properly brought the action in his own name, in the state courts, he could proceed with it after its removal only on the equity side of this court; his right, as the assignee of a chose in action, being a purely equitable one, and strictly cognizable in his own name in a court of equity only.</p>

<p>1. Contract — Specific Performance — Equity.</p> <p>A contract, which provides that one party shall use his skill and machinery in the manufacture of a certain article, while the other party agrees to purchase from him such manufactured article, to the extent of the market demand on condition that the manufacturer shall sell exclusively to him, as a general rule will not ho ordered to he specifically performed hy a court of equity, and especially whore a specific performance lias been rendered impossible by a salo to a third party of a half interest in the machinery employed.</p> <p>2. Same — Injunction Denied.</p> <p>On execution, when specific performance cannot be decreed, the negative injunction against dealing with other persons, which is in its nature auxiliary to this relief, will not be issued; nor, where a contract is unequal, will it be enforced hy injunction.</p>

<p>1 Practice — Rehearing.</p> <p>Where the court has passed upon all the issues necessary to determine the rights of the parties a motion for rehearing will be denied.</p> <p>2. Same — Rules oe Practice.</p> <p>A state law requiring a judge to give his decision in writing upon every issue made hy the pleadings is not binding on the federal courts.</p> <p>3. Same — Rules oe Practice in Federal Courts.</p> <p>The equity practice and procedure of the federal courts is regulated hy the rules promulgated by the supreme court of the United States.</p>

<p>1. Criminal Law — FTeolect oe Duty — Unauthorized Acts.</p> <p>For an officer, under Rev. St. § 5515, to neglect to perform a duty or violate a duty imposed by law is one thing, and to do unauthorized acts with intent to affect the election, or the result thereof, is another thing, and is made a distinct and separate offence by the statute.</p> <p>2. Same — Intent.</p> <p>In dase of neglect or refusal to perform a duty, or the violation of a duty, it is an offence under the statute without being coupled with the intent specified in this section ; but unauthorized acts, which may in themselves be innocent if coupled with the intent,to affect the election, are made by this section criminal acts.</p> <p>3. Same — Intent Essential to Crime.</p> <p>When the proof-shows that an unlawful act was done, the law presumes the intent, and proof of the act being a violation of law is proof of the intent.</p> <p>4. False Certifcate oe Election — What Must be Shown.</p> <p>In an indictment against officers of election for fraudulently making a false _ certificate of the result of the election, it must be shown that the ballot-box had been opened and tampered with, and false ballots substituted for true ballots.</p> <p>5. Officers — Obligations.</p> <p>An officer is bound to use that care and diligence in the discharge of his duties that a conscientious and prudent man, acting under a just sense of his obligations, would exercise under the circumstances of a particular case; and if he fails and neglects to do so he is culpable.</p> <p>6. Statute .Construed.</p> <p>Where the statute prescribes that the inspectors of election, imme&iatdy upon the closing of the polls, shall count out the votes so polled, its object manifestly is that there should be no unnecessary delay; that upon the closing of the polls the next thing to be done is the counting out of the votes ; and that no other business shall intervene to occupy and distract the attention of the officers in charge until the matter in hand shall be consummated.</p>

At Law. The plaintiffs sued out an attachment against Jacobs, which was levied on a general stock of merchandise found in the possession of Thompson, who filed his interplea claiming to be the owner of the same.

<p>1. Negligence — Personal Injuries — Province of Jury.</p> <p>In an action for damages for personal injuries sustained by reason of the' negligence of the defendant, a railroad company, where there was great discrepancy in the evidence, the question of whether injury was inflicted by the negligent acts charged is for the jury to determine.</p> <p>2. Same — Accident—Liability for Injuries.</p> <p>Where it is shown that plaintiff was injured by the accident, the question whether defendant is legally responsible is a mixed question of law and fact.</p> <p>3. Same — Employer and Employe — Liability.</p> <p>The master is not liable to his servant for injuries produced by his fellow-servant engaged in the same business and common employment, provided there be no negligence in the appointment of such negligent servant, or in tíis retention after notice of his incompetency. <></p> <p>4. Same — Contract of Employe.</p> <p>When an employe enters into an engagement with his employer he assumes all the risks of the service arising from the negligence of his fellow-servants engaged, in the same business or common employment.</p> <p>5. Same — Duty of Employer.</p> <p>When the business is tarried on by machinery, it is the master’s duty to keep the machinery in such condition as, from the nature of the business and employment, the servant has the right to expect that it would be'kept, and where he fails to do so he is liable for injuries arising from his negligence.</p> <p>6. Same — Damages.</p> <p>In estimating the damages for personal injuries caused by negligence, the rule is that it should be such an amount as will compensate for pain and suffering, expense of physician and medicines, loss of wages if a laboring man, loss of business if engaged in business, also injury to him physically and mentally, affecting his capacity to labor or carry on business; and in considering these the jury may include not only past losses but continuing losses, where the evidence satisfies them that the injuries will continue.</p>

This case was tried at the last term before a jury, and resulted in a verdict in favor of the plaintiff for $3,500. Counsel for defendant moves for a new trial because of alleged errors in the charge,

<p>1. Insurance — Life Policy — Assignment.</p> <p>A general assignment oí all insurance policies, where tlio assignor lias some which are assignable and some not, will not carry those not assignable, nor such as would be made void by assignment.</p> <p>2. Same — What Passes by Assignment — Insurance Policy.</p> <p>The general words of an assignment are restrained by the particular words creating the subject of the assignment. The rights acquired under an assignment of a life insurance policy cannot extend beyond the interest in the life of the assured, and if that interest is that of a creditor, it is limited by the amount of his probable debt; and where no debt is shown, nothing is shown to have passed to the assignee.</p>

<p>1. Fraudulent Vendor — Protection of Bona Fide Purchaser.</p> <p>Where a person purchases a stock of goods in good faith, and without notice of fraud on the part of the vendor, and pays a part only of the consideration, and for the balance of the consideration assumes the debts of the vendor held by a bank, and agrees to pay the same, such agreement is equivalent to payment, and he is entitled to protection as a dona fide purchaser against the attaching creditors of the fraudulent vendor to the full amount of the consideration.</p> <p>2. Liability — Rule of Decision of State Court.</p> <p>In such a case the purchaser, under the rulings of the supreme court of the state, is held liable for such debts, and this court will apply the rule established by such supreme court if it appears that by reason of the situation of the parties and of the subject-matter that to hold otherwise would subject the party to double payment.</p>

<p>Privilege of Witness.</p> <p>Where a non-resident of the state is in attendance on a trial in the circuit court as a witness in a case therein pending, he is privileged from service of summons in a civil action issued from a state court of such state, and the privilege extends to a reasonable time after the disposition of the cause to enable him to return to his own state; and if in such case he is served with a summons from the state court, the fact that he files in that court a petition and bond for removal under the act of congress does not prevent him from objecting to the service when the case is removed to the circuit court of the United States.</p>

<p>1. Bankruptcy — Sale by Assignee.</p> <p>Where assignees in bankruptcy made a lumping sale of the bankrupt’s real estate, which should have been sold in separate parcels in accordance with a town plan, and by reason of such mistake in the manner of sale the property was greatly sacrificed, the court will set aside such sale even after confirmation, no deed having been executed.</p> <p>2. Same — Indemnification.</p> <p>But the purchaser having acted in entire good faith should be fully and liberally indemnified for all damages, costs, and expenses to which he has been subjected, and the order setting aside the sale will be conditioned upon his indemnification.</p>

<p>1. Patent — Rights of Assignee.</p> <p>Tlie mere assignment oí a patent would give tire assignee no right to damages or profits already accrued; but where the deeds of assignment contain the words “also, any and all claims which I now have or may have against any person or persons by reason of any infringement of the said patent, or any part thereof,” the case will be considered as if the assignors were plaintiffs.</p> <p>2. Both Pakties Innocent — Rule of Diligence.</p> <p>Where there was no acquiescence on the part of the patentee, nor conscious infringement on the part of the defendants, there was no moral delinquency on either side, or an actual estoppel; and where both parties are innocent, diligence should be required of him whose property is to be protected.</p> <p>3. Infringement — Relief—Damages.</p> <p>In case of an infringement under such circumstances, an injunction should be granted, and damages which a court of law would give.</p>

<p>1. Patents for Inventions — Issues Presented — Practice.</p> <p>Where issues have been often presented, discussed, and decided in coordinate courts, agreeing in the construction of a particular patent, unless new features in the case distinguishing it from cases elsewhere adjudicated, the decisions of such co-ordinate courts should be accepted as final until the supreme court has had an opportunity to review and reverse their judgments.</p> <p>2. Same — Anticipation—Burden of Proof.</p> <p>The patent being prima fade good, the burden of proof on a question of anticipation is upon the defendant.</p> <p>3. The Driven Well.</p> <p>Patent No. 73,425, known as “ The Driven-Well Patent,” issued for an improved method of sinking artesian wells, held, upon a conflict of testimony, not anticipated.</p> <p>4. Same — Reissue—Validity of.</p> <p>Where the validity of a reissue has been fully considered and adjudicated in other cases, and where, in the unsettled condition of the law, arising from recent decisions, a case involving the law is actually pending on appeal before the supreme court, this court will refrain from expressing an opinion.</p>

<p>1. Patents — Public Use.</p> <p>Public use, in the sense of the patent law, is proved by a singlo use by any person not the inventor, or by the inventor in an open way, provided the use is not experimental.</p> <p>2. Suits on Reissues — 'Exiniiatton of Patents.</p> <p>A suit begun on one patent cannot be maintained on a reissue of that patent; but, if a bill is filed on an existing patent which expires during the progress of the suit, an account may he ordered without an. injunction.</p> <p>3. Reissue — Enlarging Claims.</p> <p>A claim may be enlarged in a reissued patent, but this can only be done when an actual mistake has occurred, not from mere error of judgment, but a bona fide mistake inadvertently committed, such as a court of chancery, in cases within its ordinary jurisdiction, would correct, and such reissue must be applied for without delay.</p>

<p>Patents fob Invention — Fountain Pens — Validity on.</p> <p>Letters patent No. 199,621, granted Alonzo T. Cross for an'“improvement in fountain pens,” the principal distinctive feature of which is a spring working between the vibrating pin and the air-tube, are not void for want of novelty, and are infringed by a pen having the spring inside instead of outside the air tube.</p>

<p>In Admiralty. Upon the petition of the Coast Wrecking Company of New York to release certain property of petitioners from attachment.</p>

<p>1. Jurisdiction — Consular, and Ministerial Courts — Appeal eeom.</p> <p>The whole statute upon the subject of the consular and ministerial courts of Oliina and Japan must he construed together, and, if possible, so that there shall be no conflict between its various provisions. A complete and harmonious system for the exercise of appellate jurisdiction from those courts has been provided, and sections 4092 and 4093 prescribe the jurisdiction. By the- former, appeals to the minister are limited to cases involving amounts not less than $500 and not exceeding $2,500. By the latter, appellate jurisdiction is given to the United States circuit court for the district of California in “ any final judgment in the consular court wherein the amount of the judgment, exclusive of costs, exceeds $2,500,” etc. The special office and purpose of those two sections is to prescribo the jurisdiction. Section 4107 only prescribes, to a certain extent, the conditions and limitations under which the jurisdiction pro vided for by the previous sections shall be exercised. Its provisions must bo construed in subordination to the system and provisions of the sections specially defining the jurisdiction. So construing section 4107, appeals to the minister are allowed by its provisions under the circumstances therein indicated, only in the class of eases over which appellate jurisdiction is given to that officer by section 4092, and that in any case wherein the judgment exceeds $2,500, etc., an appeal lies to the circuit court for the district of California.</p> <p>2. Appeal — Secukity.</p> <p>A sum of money deposited in the registry of' the consular court, in lieu of a bond is sufficient security on an appeal to the circuit court, where the deposit was taken without objection.</p> <p>B. Admibalty — Ckoss-Libel.</p> <p>It is not the office of a cross-libel to enforce a new subject-matter introduced into the litigation by strangers to the original suit, and thus create a new liability. The fifty-third admiralty rule of the supreme court clearly indicates that parties other than the original parties cannot be joined either as libellants or respondents in a cross-libel.</p> <p>4. Pbactice — Objections to Misjoindeb oe Pasties.</p> <p>It is too late after a cause has been fully heard, and after appellants have taken their chances of obtaining a favorable decree, for them to object that they were sued in the cross-libel, when they were not parties in the original suit, where the cause was tried on its merits; all parties, so far as appears, submitting to the jurisdiction.</p> <p>5. Collision — Lookout.</p> <p>Where there were three experienced mariners on the poop deck, with an unobstructed view all round, the absence of a lookout will not he held to contribute to the collision.</p> <p>B. Same — Convekging Course — Error in Porting Helm.</p> <p>If a vessel’s green light has been sighted by the steamer on her starboard bow, and the red light not sighted, she is clearly wrong in porting helm ; the vessels not being end on or nearly end on to each other, within the rule requring the porting of the holm.</p> <p>7. Same — Obscured Lights — Duty of Steamer — Signal Whistle.</p> <p>Where by reason of smoke the side lights of the vessel could not be discerned, it is the duty of the steamer to blow her whistle and slacken her speed, or stop until the course of the vessel could be ascertained.</p>

<p>Seamen’s "Wages — Fishing Voyage — Attachment.</p> <p>The wages of a seaman cannot be attached by trustee process before the voyage on which they are earned is terminated.</p>

<p>1. Injunction — Specific Performancia.</p> <p>No decree should be entered or order allowed for the specific performance of a contract, where there is not a mutuality of remedy between the parties obtainable from the court.</p> <p>2. Same — When not Granted — Lapse of Time.</p> <p>The court will not allow an injunction to compel the specific performance of continuous covenants with intricate detail, running through a period of nine years, over a vast system of railways, unreasonably taxing the time, attention, and resources of the court and its officers, and interfering in the general administration of justice.</p> <p>8. Contract in Nature of a Monopoly.</p> <p>Courts ought not to favor a monopoly in the accommodations which are necessaries to the traveling public, or foster it by the invention or application of extraordinary or unusual orders or remedies.</p>

<p>1. Pleading — Demurrer.</p> <p>A demurrer admits all facts well pleaded, but not conclusions drawn therefrom by the pleader.</p> <p>2. Corporations — Contracts.</p> <p>Where a railroad company made a contract concerning all roads which it then did or might thereafter control, by ownership, lease, or otherwise, and thereafter acquired more than a majority of the stock of B., another railway company, and by voting such stock elected B.’s board of directors ; and where certain persons were members of the board of directors of both A. and B., and the same persons were respectively presidents and vice-presidents of both companies: held, that A. had not acquired “ control” of B. within the meaning of the terms of the contract, and that tho word “ control,” as used in said contract, meant an immediate or executive control exercised by the officers and agents chosen by and acting under the direction of A. ’s hoard of directors.</p>

<p>1. Jurisdiction — Injunction — State Officers — Constitution, Eleventh Amendment — Id. § 10, art. 1.</p> <p>The circuit court has jurisdiction to prevent, by injunction, the officers of a state from diverting a fund collected by taxation and set apart under a statute of that state to pay certain bonded indebtedness of said state, to the end that said fund may be preserved intact until the rights of the parties and the interests of the state, if any she has, may be determined contradictorily. Í3uch action is not forbidden by the eleventh amendment of the constitution of the United States, and is necessary for the proper enforcement of section 10 of article 1 of the same instrument. Pardee, O. J.</p> <p>2. Jurisdiction — When it cannot be Exercised — When Obligor a Necessary Party — Treasury of a Sovereign Exempt from Judicial Interference Except so Long as Sovereign Consents to Interference.</p> <p>Jurisdiction is ousted only where the state is eo nomine a party; but, though the court has jurisdiction, it cannot be exercised where the defendants are merely nominal parties and have no real interest in the controversy.</p> <p>3. Same — Necessary Party.</p> <p>When the bill asserts the obligation of a bond or an interest covenant against the obligor or his property, which is controverted by the obligor, he is a neces-. sary party.</p> <p>The treasury of a sovereign can be interfered with by judicial process no longer than the sovereign continues to assent to the interference. Billings, D. J.</p>

Bill in equity, filed by and on behalf of judgment creditors of defendant W. J. Johnson, for the purpose of subjecting to the payment of their judgments an alleged balance in the hands of defendant Bow-land, the proceeds of the sale of a stock of goods and merchandise formerly belonging to said Johnson. The material facts are as follows : In the year 1880, Johnson, who had prior to that lime been engaged in bussiness as a merchant at Hot Springs, Arkansas, became insolvent.

<p>In Equity.</p> <p>On a motion for a preliminary injunction restraining the collection of wharfage dues.</p>

<p>Criminal Information.</p>

This was an action in the nature of an action of trespass upon a lode mining claim in the Bodie mining district, California, in which the defendant pleaded title to the locus in quo. The case was removed from the state court to the circuit court of the United States, where it was tried hy a jury.

At Law. Action for damages for refusing plaintiff admission into the cars of the défendant at Cincinnati, Ohio. The allegations of the pleadings are Btated in the judge’s charge. Upon the trial evidence was introduced showing that the plaintiff (who is a colored lady) had purchased at Lexington, Kentucky, a first-class round-trip ticket from that place to Cincinnati.

<p>Malicious Prosecution — Married Women.</p> <p>A suit for damages for the malicious prosecution of a married woman must be brought by her husband. Louisiana Code of Practice, art. 107; Louisiana Civil Code, art. 2404.</p>

<p>1. Practice — Dilatory Pleas — Waiver oe Right.</p> <p>Where tlie rule of practice of the state court, rigidly observed, is that “all pleas in abatement in the superior court must be filed on or before the opening of the court on the day following the return-day of the writ,” a failure to file such plea -within the time specified is a waiver of Ms right to take advantage in that court of defective or insufficient service.</p> <p>2. Same — On Removal oe Cause.</p> <p>Where a defendant in a state court has lost by his inaction the right to object to the defective service of the complaint, and thereafter removes tlie cause to the circuit court of the United States, he cannot be permitted in such circuit court to plead in abatement such defective service.</p> <p>3. Same — Condition of Cause Removed.</p> <p>Tlie case comes into the circuit court on a removal, in the same condition in which it was in the state court.</p> <p>4. Same — Estoppel.</p> <p>Tiie failure to file a plea in abatement in the state court is a voluntary admis- " sion that the action was properly before that court, and defendant should not now be permitted to assert that the writ had never been served, and that the cause had never been legally before any court.</p>

<p>Motion to Open Default. Also to remand to state court.</p>

<p>Customs Duties — Smuggling Prohibited.</p> <p>The exception specified in the Revised Statutes, § 3095, prohibiting the introduction of foreign products into the United States in vessels of less than 30 tons burden, does not apply to Brazos de Santiago nor the district in which it is situated, and which runs up the Rio Grande on the boundary line between the United States and Mexico, and adjacent to Mexico; and the prohibition of the statute applies to all such vessels arriving by sea at the port of Brazos de Santiago from any foreign port, including the port of Tampico, Mexico. This section must be read in connection with section 3097 of the Revised Statutes.</p>

This was an action at law brought to recover the value of a trunk. On the trial, before McKennan, 0. J., the following facts appeared: Plaintiff purchased at Berlin, Prussia, from William Strecker, who advertised himself as agent of the American Steam-ship Company, a ticket from Hamburg to Philadelphia.

Exceptions to report of register upon a proof of debt for $59,379.09, presented against the separate estate of Jesse M. Line, one of the partners of the firm of W. H. Blumer & Co., bankrupts, by his wife, Mary L. Line.

<p>Specification against Discharge.</p>

This was a suit for the price of goods sold and delivered. The defendant alleged in Ms answer that plaintiff had signed a composition deed whereby it agreed to accept 50 cents on the dollar in full satisfaction of its claim, and that pursuant to the terms of said deed 50 per cent, of its demand had been paid.

In Equity. Application for injunction. The bill and amended bill allege that the plaintiff manufactures and sells “Singer Sewing-Machines;” has done so for many years, in all the countries of the world; and that by their excellence the machines have acquired a valuable reputation. It claims a trade name for the use of the word “Singer,’’and alleges that the defendants are fraudulently using it for purposes of injury to the plaintiff and to deceive the public.

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

<p>1. Patents eor Inventions — Reissue—Injunction.</p> <p>Whore claims in the original patent were limited to the particular form of the device described, and by the reissue, patentee properly covered broader territory, the additional claims on the reissue being of a limited character, in the absence of adjudication an injunction pendente lite ought not to issue.</p> <p>2. Reissue — New Territory, when Yoid.</p> <p>If the new claims on a reissue take in new territory, they are void in case of delay in applying for such reissue; but if they merely mark more definitely the old boundaries, they are not void ; and where the true meaning of the old claims has not yet been clearly settled, a preliminary injunction ought not to be granted.</p>

<p>Patents fon Inventions — Pumps fon Vessels.</p> <p>Considering the state of the art, the patentee of a pump should not he limited to a diaphragm chamber placed at the side of the uptake. A pump otherwise similar, hut varying only in having the diaphragm over the uptake, is an infringement.</p>

<p>Patents for Inventions — Prior Conception — Not to Invalidate Patent.</p> <p>Where a person, conceives an invention and presents specimens of his device made by hand, but he does not teach the world how to make it in his specifications, and another person invents a machine for the purpose of manufacturing the article, and obtains a patent therefor, such patent is valid for the new article, and subject to infringement.</p>

<p>1. Patents for Inventions — Known Process — Production Patentable.</p> <p>An article produced by a process wliicli was previously known, but used for a somewhat different purpose and with different results, is patentable.</p> <p>2. Same — Anticipation—Pend in o Suits — Practice.</p> <p>Where the question of anticipation is raised, and three different and variant decisions were shown and an interference declared, and the decision of the district court was pending on appeal to the circuit court, this court will retain the bill until the trial of the former suit, and decision upon the question is rendered.</p>

<p>1. Patents foe Inventions — Different Poem — Not an Infbinsement.</p> <p>Where the plaintiff’s patent was for an earthenware saucepan having a bottom dome-shaped, and of uniform thickness, and defendant’s manufacture was an ■ earthenware saucepan with corrugated ridges at the bottom, and not of the same specific form as that of the plaintiff, there is no infringement.</p> <p>2. Same — State of the Art — Restriction of Claim.</p> <p>Where the prior state of the art is such that the field of invention is circumscribed, the invention of the patentee must be confined strictly to the description of article as set forth in his claim.</p>

Hearing on Pleadings and Proofs. Bill in equity to restrain infringement of patent No. 126,938, for improvement in method of ballasting vessels in port. The answer denied the patentability of the .invention and alleged prior use. It appeared that complainants liad brought suit upon their patent in other circuits, and that the patentability of the invention covered by their patent had been there sustained.

<p>1. Patents eob Inventions — Pbiom Use — Anticipation.</p> <p>It is not sufficient to raise a doubt as to the novelty of the plaintiff’s patent. It must be affirmatively proved to be old by preponderating and satisfactory proof; but where the evidence is fully up to the standard, especially in view of the long and unexplained acquiescence of the patentee and his assignee in the general and notorious uso of the patented device, and that for a period of 12 years it had been habitually infringed, without objection on their part, in the absence of any rational explanation, and where a number of witnesses unimpeached testified to its prior use, the defence of anticipation is established.</p> <p>2. Same — Connection between Parts of Device.</p> <p>"Where an element in the combination is not mentioned in the patent, and only incidentally referred to in the body of the specification, it is insufficient to show a connection between the various parts of the device.</p>

<p>1. Patents eob Inventions — What not Patentable.</p> <p>Tlio mere bringing together of old devices, without any now and useful result being produced by their oo-operation, is not patentable.</p> <p>2. Same — Combination—Tubing hoe Oil Wells.</p> <p>The combination in a patent for an improvement in tubular apparatus for deep wells, No. 80,919, being a mere aggregation of old devices, is not patentable.</p>

<p>Admiralty — Marshal’s Costs.</p> <p>Under section 829 of tlie Revised Statutes the marshal is entitled to his commissions, when, after a seizure in admiralty, the suit is settled, though without an order of sale. The commissions will he computed upon the amount paid in settlement.</p>

<p>1. Admiralty Practice.</p> <p>After joining issue upou a libel in admiralty in rem, and filing a cross-bill asking for affirmative relief against the libellants in persorum, an exception or plea of the want of an admiralty lien comes too late.</p> <p>2. Admiralty Jurisdiction — Charter-Party.</p> <p>A charter-party is a maritime contract, and, as between the parties to it in a personal action, a court of admiralty has jurisdiction to determine the obligations arising therefrom, and whether they have been violated.</p>

<p>Admiralty — Negligence—Damages.</p> <p>Where a canal-boat moored at a dock was sunk by the swell caused by a passing steamer going at a high rate oí speed, Mid, that the steamer is liable in damages for the loss.</p>

In Admiralty. Libel by Peter Hagan, owner of the barge William, against William Brockie and the American Steam-ship Company, to recover damages for the sinking of the barge. The testimony disclosed the following facts: The barge was chartered by William Brockie, who was shipping grain to Europe. It was to he used for the purpose of receiving grain from small vessels and unloading it into ocean steamers of the American Steam-ship Company.

<p>Charter-Party — Obligations or Parties to.</p> <p>The law places upon the owner of a vessel the obligation of a warrantor that the vessel is seaworthy. The charter-party declaring that the vessel was in good order and condition, the presumption is in favor of seaworthiness. The charterer, therefore, assumes the obligation that the vessel will continue to be capable to proceed on her voyage, so far as relates to all defects which could be ascertained by inspection, and the owner assumed the obligation that the vessel would continue to be able to proceed, so far as related to latent delects; that if the jury found that the accident which interrupted the boat, namely, the breaking of the shaft, was the result o£ a defect which was ascertainable by inspection, then the owner could recover; but if of a defect which was latent, then the verdict must be for the defendants.</p>

<p>1. Salvage — Derelict.</p> <p>Where a vessel was injured by a collision, and was thereby rendered so unsafe that the master, mate, and crew sought safety on the colliding vessel, leaving the injured vessel to drift helplessly on tlio sea, but intending to proceed to a port for the purpose of procuring a tug to rescue the wrecked vessel, and did actually procure a tug and returned to the wrecked vessel, it is not a case technically of legal derelict.</p> <p>2. Towage Services — As Salvage — Right of Possession.</p> <p>Where a steam-barge sights a vessel at sea drifting helplessly and in great peril, with a hole stove in her port quarter, her wheel unshipped, all her head gear carried away, her sails torn, her boom and bowsprit hanging over her bow, and otherwise injured, and goes to her assistance and tows her to a port of safely, the finders of the wrecked vessel, having originally taken lawful possession of her, have the right as salvors to retain possession tintil their just demands shall be paid, or until the vessel shall be taken into the custody of the law preparatory to the amount of salvage being legally ascertained.</p> <p>3. Possession of Salved Yessel.</p> <p>It is not permissible under such circumstances for the salvors to unreasonably exclude the master and crew of the wrecked vessel from all relation to and interest in the property should they return to her with means of her rescue.</p> <p>4. Salvase Compensation.</p> <p>Where the risk incurred by the salving vessel, and the danger to which the property employed by the salvors in rescuing the wrecked vessel was exposed, were not extraordinary; the skill and labor employed in the rescue, though adequate, were not of singular character; the time occupied, the value of the property saved, and the value of the salving vessel were not great, — it is not a case of the highest order of perilous salvage service, so as to merit as compensation the moiety of the property saved.</p>

In Admiralty. This was a libel for services performed as fishermen on hoard the Minna. The testimony showed that the Minna was employed solely in fishing, running out from Alpena every morning, from 15 to 25 miles, to the fishing grounds, throwing her nets and making a lift or catch' of fish, and returning the same evening to port, where the fish were discharged and prepared for market. Her crew consisted simply of a master and engineer.

<p>Collision — Damages—Interest—Demurrage—Costs.</p> <p>Where an action, which was brought lor damages resulting from collision between a ship and a schooner lying at the end of a pier, was not moved to trial by the libellant for 12 years, and the ship was then found guilty of negligence in regard to the position of her fenders when the vessels came together, and upon report of a commissioner as to the damages exceptions were filed, held, that it was proper to allow as damages the whole cost of repairing 1he schooner, instead of only the cost of repairing the sail broken by the ship’s fender; that interest on the disbursements was properly allowed, it having been within the power of the claimant at any time to obtain a hearing and decision of the cause; that the demurrage claimed was not properly proved and should be disallowed; that the delay of the libellant to bring his action to hearing for 12 years justified the refusal of costs.</p>

<p>Appeal in Admiralty.</p>

In Equity. On demurrer. The bill alleges that Daniel Cherry, by his will of May 9, 1843, made provisions for his daughters, of Whom the plaintiff Mosella D. Cherry, afterwards married to Hiram'A. Partee,'who died in 1877, was one. It is under the ninth and eighteenth items of the will that the plaintiff claims title to the lands described in the bill. They read as follows: “Item 9.

<p>1. Insurance Companies — Kbanciiics in Other States — Contingent Funds.</p> <p>Where, under the constitution of a life assurance corporation, organized under 1 he laws of Missouri, the board of directors were authorized to organize branches of Hie association in different states, under the provisions of tlio laws of such states, and to enter into and make such agreements and contracts with the trustees or directors of such branches, and that all business should be conducted on the purely mutual plan, and conferring upon each section the benefit of a local organization, and providing that a full reserve oi reinsurance fund shall at all times be kept up, and no dividends be declared, or divisions of surplus be made, which shall impair this reserve, a contract entered into with such a branch corporation to the effect, “ that the net assets of the business of said department shall be invested and kept invested within the state of Alabama, provided proper securities, as designated in the constitution, can be obtained; said net assets being the whole of the premiums, less the amount necessary to be held at the present office, St. Louis, Missouri, as a contigent fund, to pay the expenses and losses from year to year, as the same become due aud payable; it being anticipated that such expenses and losses will not comsume more than 25 or 30 per cent, of said premium receipts,” — does not provide that this fund so created and so to be invested, and kept invested, shall be for the benefit and security of the policy-holders of the department of Alabama, or for the particular benefit or security of any policy-holders or persons whatever.</p> <p>2 Same — Creation of Trust.</p> <p>Although no particular form of words is necessary to create a trust, yet if a trust or special security is contemplated, it must be clearly stated or be fairly implied from the language employed.</p> <p>3. Same — Membership.</p> <p>In a corporation organized under the mutual plan, every applicant for assurance being required to subscribe, to the constitution before a policy could be issued admitting him to membership, such members cannot be heard to say that they are not bound by the law of the corporation of which they became and are members.</p> <p>4. Jurisdiction — Concurrent—Where First Attaches.</p> <p>Between courts of concurrent jurisdiction the court first acquiring jurisdiction will retain it, and another court will not interfere with such jurisdiction.</p>

<p>Estopped nr Pais — Representations.</p> <p>A party is not estopped from asserting a right belonging to him against another party unless he has made a representation or concealment in a matter of fact important to the interest of the other party upon which the other party was authorized to rely, and in fact did actually rely, to his prejudice. A mere expression of opinion, upon facts equally known or open to both, is not a representation upon which a party has a right to rely within the meaning of the doctrine of estoppel.</p>

<p>Foreclosure — Suit bt Married Woman — Husband as Dependant.</p> <p>Where a suit to foreclose a mortgage is brought by a married woman, who is named therein as payee, and the mortgage is in possession of her lnisband, who is a non-resident and outside the jurisdiction of the court, he should be á party to the suit, and should be allowed to come in and defend; but, owing to his laches and delay, only on terms, on payment of the costs already accrued in the suit.</p>

<p>Assignment — Void—Undue Influence — Rkeblb Mind.</p> <p>“Where a person feeble in mind and body, and incapable of exercising control over Ms property, or of managing it in a prudent, careful manner, or of making any contract with reference thereto, was unduly influenced to purchase an interest in a patent-right of doubtful utility, and in consideration therefor to assign notes and a mortgage on real property to the defendant, held, that eecil assignment is void, and transfers no title to the assignee.</p>

<p>In Equity. On rehearing.</p>

<p>Practice — Exceptions to Referee’s Report.</p> <p>Where amended exceptions to the report of the referee are not filed within, the time prescribed by the statute they will be overruled on motion.</p>

<p>Injunction — When not Dissolved.</p> <p>If, upon the state of facts appearing on a consideration of all -the affidavits it is shown on a final hearing that the plaintiff’s patent would not be defeated, the motion to amend the answer and to dissolve the injunction will be denied.</p>

<p>Injunction — When not Dissolved.</p> <p>Where defendant is using- the infringing machine for purposes in respect 1 o which the plaintiff has an exclusive right under his patent, an injunction will not be dissolved on motion founded on the non-joinder of a party.</p>

<p>1. Penal Statutes — Construction—Penalties.</p> <p>A penalty is not to be- imposed for acts not within the fair meaning and construction of the language of the penal statute as it stands, its scope is not to be enlarged by the addition of other words which would he essential in order to warrant the extended construction claimed for it.</p> <p>2. Same — Penalty for False Patent Marking — Rev. St. § 4901.</p> <p>Subdivision 2 of section 4901 of the Revised Statutes, which imposes a penalty of $100 for affixing the word “ patent,” etc., to any patented article, with intent to imitate or counterfeit the mark ordevice oí “the-patentee,” means the mark or device of the patentee of the patented article on which the words are so stamped. The language and fair construction of this subdivision do not include the case of a patented article stamped with the mark of a person who has no patent embracing or affecting the article stamped, but only a patent for a different article, and no penalty can be recovered therefor; the remedy of the person whose mark is improperly used must be sought indepéndent of this section. The statute cannot be extended by inserting, in effect, after the words “the patentee,” the additional words “of the same or any other similar article.”</p> <p>3. Same — Action for the Penalty — Province of Jury.</p> <p>In an action for a penalty for affixing, without authority, the patentee’s mark upon a stylographic pen, it appearing that the pen was stamped with the mark of two different patents, obtained by different patentees, and there being evidence tending to show that the defendant had authority for affixing the the mark of one of them, but not of the other, held, that it was necessarily a question for the jury to determine whether the pen so marked involved in its construction any part of the claim set out in the patent of the non-consenting patentee; and, if not, that the defendant was not liable to a penalty under subdivision 2 of this section. Held, further, that as the pen upon which the mark was affixed was embraced in one of the patents, no penalty could be recovered under subdivision 3, as that is limited to the stamping of unpatented articles.</p> <p>The verdict of a jury, involving questions of “ intent,” upon circumstantial and conflicting evidence, should not be disturbed.</p>

<p>1. Arrest in Civil Actions — Right to Discharge.</p> <p>In tlie absence of any statute direclly authorizing the discharge of a defendant in arrest who is not charged in execution within a certain time after judgment, the court may assume that his discharge was contemplated by law, and should be granted, unless the plaintiff, within a reasonable time, should charge him in execution.</p> <p>2. Same — Rule os Common Law.</p> <p>Where it appears that the rule of the common law is that if plaintiff obtained judgment against “a defendant prisoner,” and did “not charge such defendant so remaining in prison in execution of the judgment within two terms next after obtaining such judgment,” reckoning the term wherein judgment was obtained as one, the defendant may obtain his discharge, it will be assumed that this rule applies to the case, and supplies tho omission in the statute of the slate.</p>

<p>Contempt of Witness — Commission to Take Testimony.</p> <p>An order to show cause why a witness should not bo held in contempt, asked for to lay a foundation for a motion to issue a commission to take the testimony, refused on the ground that the order to attach would bo useless, and on subsequent. motion an order was made to issue the commission.</p>

This was a motion for new trial at law in the case reported in 10 Fed. Rep. 451, decided by Hon. John Erskine, district judge.

Suit in Ejectment. The material facts are as follows: In the year 1830 Francis Fournier and wife conveyed certain real estate in feo to Francis Denoyer. By the same instrument they also conveyed to him all their personal property.

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

<p>Town Bonds in Aid of Railroads.</p> <p>Under a stale law authorizing towns, cities, and villages to issue bonds in aid of railroads or branch railroads passing through the county in which such towns, cities, or villages are situated, where the resolution of the railroad company merely fixed the eastern point, but fixed no location, no counties through which the branch should pass, and no western terminus, it was no location of the branch through a county not designated, and is wholly insufficient to authorize the issuing of any bonds by a town in such county. There is no authority to issue the bonds until the whole extension or branch is located.</p>

<p>1. Contract — Obligations—Guaranty.</p> <p>In an action for the price of a steam-engine and threshing-machine, represented to be equal to any of its class, to be taken on trial and worked, and if it worked according to its guaranty defendant was to pay for the same by three promissory notes executed for its price, defendant is not bound to accept the machine if either the engine or separator fails to do what is promised, as the contract is an entirety.</p> <p>2. Same — Acceptance.</p> <p>Where defendant notified the plaintiff that the separator was not working well, and plaintiff continued his efforts to put it in repair until about the middle of August, it was the duty of defendant to make up his mind whether he would take the machine or not, and to notify the plaintiff of his refusal to accept it, failing in which he would be liable for its value ; but if he kept the machine at the solicitation of the plaintiff, for the reason that plaintiff’s trade would be injured by the return of the machine, his retention thereof would not he such an acceptance as would render him liable for the price.</p> <p>8. Same — What not an Acceptance.</p> <p>Where defendant delivered' the machine to a third party as his machine, intending such third party to use it as his engine, he is bound .to pay for the whole thing; but if he merely allowed such third party to take it, with notice from plaintiff that it was plaintiff’s engine, and that such disposition was made on plaintiff’s solicitation, it would not constitute an acceptance by defendant.</p>

<p>Contract — Eights under.</p> <p>Where a contract was made between two telegraph companies, whereby it was agreed that certain unassigned messages should be sent on the wires of one of the companies, and the other company, pending the life of the contract, should sell out all its property to a third company, its members taking stock in and becoming members of the company created by such consolidation, it is no ground for an injunction at the suit of one of the original parties to the contract against such consolidated company to prevent carrying out the consolidation agreement.</p>

<p>Attorney at Law — Lien of.</p> <p>Where the attorneys for a party withdraw from the case of their own motion, the new attorneys were substituted without prejudice to the existing lien of the original attorneys; but the former attorneys are not entitled to any lien on ultimate recoveries.</p>

<p>At Law. On motion for new trial.</p>

<p>On Motion to Set Aside Verdict.</p> <p>This action was brought in a court in the state of New York to recover damages for personal injuries caused by the fall of the plaintiff on a snowy day in December, 1879, upon the steps of the Trinity building in New York city, No.-, Broadway. The defendant is one of the heirs of the estate, and the action was removed from the state court to the United States circuit court under the act of 1875. The cause came on to be heard at the November term, 1881, before Hon. H. H. Wheeler, district judge, holding the circuit ^court, and jury; and a verdict was rendered for the defendant.</p>

<p>1. Damages — Province of Jury.</p> <p>It. is tlie province of the jury to find the amount due, as well as plaintiil’s right to recover, and after the jury are discharged the court cannot increase the sum found.</p> <p>2. New Teiae— Discretion of Court.</p> <p>Motions for new trial are addressed to the sound discretion of the court.</p>

<p>Pleading — Claim for Penalty and Damages cannot be Joined.</p> <p>Where plaiatiif sets up a claim agaiast a railroad corporation for penalty incurred for excessive fare taken on one trip, and damages for personal injuries for unlawful ejection from defendant’s cars on a subsequent trip, and defendant demurs to the complaint on the ground that two causes of action have been improperly united, held, that under section 488 of the New York Code of Civil Procedure, a cause of action for penalty cannot be joined with a cause of action for personal injuries, even where they are claims arising out of the same transaction. But section 448 should be construed to refer to cases of two or more “ good causes of action ” well pleaded; and the claim for a penalty in this case being insufficient in form and substance, the complaint contains but one cause of action', and that for personal injuries; and the demurrer should, therefore, be overruled, and the irrelevant matter in reference to the penalty should be stricken out.</p>

<p>PractioEt-Amendsievt — Answer.</p> <p>Where no sufficient reason is shown for amending an answerwhicha general replication treats as a denial of the existence of the agreement set up in the complaint, the motion to amend will be denied.</p>

<p>Removal of Cause — Gbounds fob Remand.</p> <p>Wliere there is no allegation as to the citizenship of the orators other than the description contained in their original bill, the cause will be remanded, as there is nothing to sustain the jurisdiction of the circuit court.</p>

<p>City Indebtedness — Board of Finance — Authority to Borrow Money.</p> <p>Whore, under the board ol finance, the treasurer of a city borrowed of a bank a certain sum of money, and the city ratified the loan made by its agent by renewing the note from time to time, and by paying thereon at different times certain amounts of money, and when the loan was originally made the treasurer pledged with the bank as collateral security, for tlie payment of the nolo given, certain bonds of the city, subsequently substituted by other bonds, payable in 10 years, and there remained due and unpaid on the loan a certain sum oí money, held, that, under the laws of the state, the treasurer was authorized under the board of finance to make the loan, and that plaintiff is entitled to recover upon said note against the city without first disposing of said col-laterals.</p>

<p>In Bankruptcy.</p>

<p>Mortgage — Covenant in.</p> <p>The terms of a covenant in a mortgage — the agreement to pay the joint debt of two named parties, and any individual debt of either of them — will not cover a copartnership obligation of a firm composed of such parties and a third party. s</p>

In Equity. This case was argued before the circuit judge and Judge Dyer, of the eastern district of Wisconsin, the parties having requested the latter to sit with the circuit judge in this case, inasmuch as a case involving the. same questions under the patent had been heard by him at Milwaukee. and was yet undecided.

<p>Patents for Inventions — Different Means.</p> <p>In a patent for a buckle, where a particular method of pivoting the buckle to the tongue is made a peculiar feature of the original patent, and this is effected by a spring pressing against the lever, the structure cannot be altered on the reissue, and a device which effects the same purpose by different means is not an infringement of the reissued patent.</p>

<p>1. Patents for Inventions — Buckle Fasteners.</p> <p>The reissue of a patent for an improvement in buckle fastenings is not open to objection as to its validity, so far as the question affecting defendant’s structures is concerned.</p> <p>2. Same — Release—Agreement Construed.</p> <p>An absolute release in prcesenti to an infringer from liability for the making and selling of patented articles, in conjunction with his contract to pay a royalty for certain infringing articles theretofore made, as a consideration for such release, relieves from all accountability for subsequent infringement until such release be set aside.</p> <p>3. Same — Colorable Changes — Infringement.</p> <p>A mere mechanical change within the scope of the invention, as attaching the buckle to a separate plate, which must itself be attached to the bottom plate, promotes no useful result, and does not change the nature of the invention.</p> <p>4. Same — Prior and Subsequent Patents — Equivalents.</p> <p>When the question of novelty and patentability of features which are equivalents in construction and mode of operation arises, the prior existence of such patented features does not make them equivalents for further features subsequently patented, so as to anticipate the latter, but the subsequent patentee will be held liable for an infringement to the extent of the prior invention.</p>

<p>1. Patents for Invention — Formal Changes.</p> <p>A change in structure, merety formal, does not avoid an infringement.</p> <p>2. Same — Reissue—New Invention-Grinding Mills.</p> <p>Where the statement in the reissue is true, and i? found in substance in the original, and no statement is made in the reissue of what the invention consists, but such statement in the original is omitted in the reissue, and no new matter is introduced, yet, in view of the state of the art, if the inventor has produced a new and useful mill, differing substantially from any which preceded it, and evincing the exercise of inventive faculty, it is a new invention,</p> <p>Strobridc/e v. Lindsay, 2 Fed. Rep. 695, followed.</p> <p>8. Same — Combination oe Parts.</p> <p>In the construction of a grinding mill, where the hopper and grinding shell formed in a single piece, and suspended in the box by the upper part of the hopper or a flange thereon, did not exist before, combined in a mill, such combination produces a new invention.</p>

<p>1. Patents eor Inventions — Hats—Twisted Wire Hoops.</p> <p>A patent, for an improvement in hats, where the claim is lor a combination of the hrim with a drooping spring hoop in the front and rear and elevated sides, and the means of producing such droop and elevation — the hoop being-bent by twisting wire, until the required head is obtained — in connection with the hrim of the hat made of flexible material, is infringed by a similar device.</p> <p>2. Same — Not Anticipated by Prior Inventions.</p> <p>The existence before of straight, untwisted wires in hat brims, made of a flexible fabric, does not anticipate the patent; it requiring experiment and invention to pass from them to the arrangement of the patent, although previously known that giving a permanent twist to a resilient wire would permanently alter its longitudinal set.</p>

<p>1. Reissues — New Mattes.</p> <p>Where a part of the invention of the patentees which was not embraced in the original specification, included in the reissue, was shown in the model, the reissue is not invalid on the ground that it contains “n.cw matter.”</p> <p>2. Same — Puiob Decision — Patentability.</p> <p>Where, by a prior decision of a ease involving the validity of a patent, it was decided that the present reissue was not patentable by reason of an earlier patent, argument against the propriety of such decision will not be entertained.</p>

<p>1. Patents for Inventions — 'Wearing- Apparel — Pockets.</p> <p>Patent Ho. 178,287, for an improvement in pantaloons and garments of a similar character, its application to the garment adding to its durability by preventing the stretch of the cloth or stitching, sustained'; and patent Ho. 178,428, for an improvement in pockets of wearing apparel, held to be a patent for a combination.</p> <p>2. Same — Stitched Parallel Lines — Elements of Combination.</p> <p>Where stitched parallel lines are an element in the combination patented, and a pocket opening is made without this element, there is no infringement, although there might have been something patentable in the combination by omitting that one element.</p>

<p>Patents — Pbeeiminart Injunction.</p> <p>Where the question of infringement is so doubtful as to make it improper to grant an injunction except as the result of a final hearing, a preliminary injunction will be refused.</p>

<p>Patents — Deckt* foe Accounting — Injunction.</p> <p>Where the plaintiff’s reissue was not open to objections, and defendant’s exhibit was an infringement, and none of the claims of the reissue are impeached for want of novelty, and the defendant did not acquire any right to the use of plaintiff’s invention, the plaintiff is entitled to an interlocutory decree for an accounting, and an injunction.</p>

<p>Keisstje — Improvement in Children's Carriages.</p> <p>Where the claims in controversy had been adjudicated upon in a former suit and were held in such suit to have been anticipated, the bill for an infringement will be dismissed.</p>

<p>Patents — Attachment Denied,</p> <p>Where there is so much doubt on the question of infringement as to require that the new apparatus be embraced in a new suit, the motion for an attachment will be denied.</p>

<p>Patents — Inpbingement—Deceee.</p> <p>Where one claim of a patent was infri nged and the others were not, the usual decree will be entered.</p>

<p>Motion for reargument.</p>

<p>1. Salvage — From Fibe at Pier.</p> <p>Whore a lug-boat and the river salving boat both came to the relief of a steamer on lire at a pier, arriving at about the same time, the tug endeavoring to pull out into the stream a vessel lying beside the burning vessel, held, that the river salving boat, by throwing water on the vessel in danger, rendered meritorious service, and of value to the salved vessel.</p> <p>2. Same — Bival Salvoes.</p> <p>Though two salving boats did not work in harmony nor to the best advantage, and the efforts of one embarrassed the other, but not intentionally, and there was excitement and misdirected effort, yet the service was meritorious and of value to the salved vessel.</p> <p>3. Same — Distribution of Awaed.</p> <p>Each case of salvage must stand on its own merits, with regard to the rate of distribution of the sum awarded, between owners and crew, but regard should be paid to the value and time of service of each.</p>

<p>Collision — Fault—Changing Course.</p> <p>Where two steamers were approaching each other on courses not involving a risk of collision, and one of them changes her course to ono involving a risk of collision, when in close proximity, without giving sufficient previous notice in time, and without obtaining the assent of the other steamer to such change, held, that she was in fault, and that a libel brought by her for damages for the collision should be dismissed.</p>

<p>1. Collision — Neglect to Exhibit Touch.</p> <p>Where a schooner and a steam-vessel are approaching each other in the night-time, and in danger of collision, it is the duty of the schooner to show a lighted torch upon that point or quarter to which such steam-vessel is approaching, (Rev. St. § 4234,) whether from in front or from abaft, and a negleet to do so will defeat a recovery in case of collision.</p> <p>2. Same — Side Lights Must be Brightly Burning.</p> <p>Where a schooner suffered her red and green lights to become so obscured by oil and smoke as not to be distinguishable as other than a colorless light, instead of being brightly burning and visible, on a dark night with a clear atmosphere, at a distance of at least two miles, (Rev. St. § 4233, rule 3,) it is contributory negligence in the schooner, which will defeat a recovery in case of collision.</p> <p>3. Same — Neglect to Keep Lights in Order.</p> <p>In such case, where an approaching steamer mistakes such colorless light for a binnacle light on a vessel going the same way as the steamer, it is not negligence on the part of the steamer.</p>

<p>1. Collision — Steameb Crossing Course oe Sail-Vessel.</p> <p>■Where a sloop and a steamer were approaching each other from opposite directions,where there was plenty of sea-room, and the steamer, in attempting to cross the sloop’s course, came into collision with and sunk the sloop, held, that the steamer was in fault, and that being liable to sheer in certain conditions of wind and tide is no excuse.</p> <p>2. Same — Acts in Extremis.</p> <p>The sudden lufE made by the sloop when the steam-boat was upon her was a movement in extremis, and the natural result of the fault committed by the steamer, and therefore no fault that can render the sloop liable.</p>

<p>Collision— Unavoidable Accident.</p> <p>Where a steam-boat and a tug and tow were approaching each other on nearly opposite courses, and they came together with their starboard bows, caused, by the change in the direction of the tug, which could not be kept steady with her tow in the ebb tide, the libel against the steam-boat was dismissed.</p>