Volume 12 — Federal Reporter

<p>1. Removal op Cause — Nominad Paeties.</p> <p>A tenant in possession sued in trespass to try the title to land, and who disclaims title, may have her landlord, the real party in interest, substituted as defendant. In such case she is but a nominal party on the record, whose presence could not defeat the right of the real parties in interest to have the cause determined in the federal court.</p> <p>Greene v. Klinger, 10 Fed. Rep. 689, followed.</p> <p>2. Same — Actions Bhoxtght by State — Alien Dependants — Right to Remove.</p> <p>Where, by act of congress, the power of the United States judiciary was extended to controversies between a state and the citizens thereof and subjects of a foreign state, the act is broad enough to cover a suit brought by the state against the subjects of friendly foreign powers, and such alien defendants, being the real parties in interest, have the right to have their cause removed for trial to the circuit court, and a motion to remand should be refused.</p>

<p>1. Removal of Causes — Assignees as Pakties.</p> <p>A plaintiff wlio has been introduced into a controversy by assignment or transfer merely that he may acquire a standing and relation to the controversy to enable him to prosecute it for the beneficial interests of the original party, is improperly and collusively made a party to the suit.</p> <p>2. Same — Collusive Assignment.</p> <p>Where the plaintiff has no substantial interest in the coupons sued on, hut obtained the legal title to enable him to maintain the action, and whore he bought them without any inquiry as to their validity or value, and pretended to pay for them by a check which he never paid, it is the duty of the court to dismiss the suit.</p>

In Equity. The bill whieh was originally filed in the state court alleges: That the plaintiff is a citizen of Mississippi and the defendants are Citizens of Tennessee, and that the plaintiff is a creditor, by judgment of the supreme court of Tennessee, of the firm of W. B. Greenlaw & Co. for the sum of 83,857.34, and costs; that the firm was composed of W. B. Greenlaw and J. 0. Greenlaw, both now deceased; that, pending plaintiff’s suit against them, J. 0.

<p>1. Equity — Jurisdiction—Remedy at Law.</p> <p>In a suit in equity, tlie objection that there is an adequate remedy at law raises a jurisdictional question, and which will-be enforced by the court sua aponte, although not raised by the pleadings nor suggested by counsel; and even where the bill is framed so as to avoid the point, where it is apparent on the face of 1he bill that the remedy is at law, it is the duty of the court to decline jurisdiction and dismiss the bill.</p> <p>2. Samis — Relief, when not Obtainable.</p> <p>Where the case made by the bill resolves itself into a controversy between complainants and defendant, as to defendant’s right to withhold from < omplain-ants certain city bonds, to which complainants have the legal title, and defendant no title whatever, it is not a controversy of equitable cognizance, but for an action at law for conversion, or in replevin, which affords a plain and appropriate remedy.</p> <p>3. Same — Parties—Representative Capacity.</p> <p>That a party is sued in his representative capacity as trustee of a third party will not confer jurisdiction in equity where lie does not bear such relation to the parties bringing the suit.</p>

In Equity. On motion for rehearing. This was a bill by a judgment creditor, who was also purchaser upon the execution sale, to set aside a fraudulent conveyance made by the judgment debtor.

<p>1. Tax Title — Validity—Burnt Records Act — PROCEEDINGS.</p> <p>Tlie circuit court lias jurisdiction to consider and pass upon tlie validity of a claim of title under a tax deed accrued subsequent to tlie destruction of the records, in an action by bill to restore title under the burnt records act. The practice in such cases stated.</p> <p>2. Actual Possession — Notice oe Time to Redeem.</p> <p>Where a party was in actual possession of the premises, it is the duty of the person seeking to obtain title through a tax sale to serve personal notice on the occupant of the premises of the expiration of the time tp redeem from the tax sale to render the tax deed valid.</p> <p>3. Same — Duty to Pay Taxes and Assessments.</p> <p>A party in the possession of land, to whose benefit has enured the payment of subsequent taxes and assessments upon such land by a party who holds a tax deed therefor, should not have the tax title set aside except upon such terms as will reimburse the holder of the tax title for the money he has paid for the purpose of protecting the property.</p> <p>4. Cloud on Title — Remedies.</p> <p>Where complainant seeks in a court of equity relief from a tax deed which is a cloud on the title to her land, she should pay the amount requiied to redeem the land, with interest from the time of redemption, as a condition precedent to her right to relief. At law her remedy is by action of ejectment.</p>

<p>1. CONTRACT OF SALE — FUTURE DlSLIVERY — OrTION DUALS.</p> <p>Whore a firm of brokers and commission merchants, dealing in grain and provisions on the board of trade in Chicago, transacted business for its customers, some of whom were buyers and some sellers, under the rulos and regulations of the board, intending to deal in time contracts and to settle the differences, so as to avoid paying for and carrying the commodites bought, held, not a dealing in “ options to buy or sell at a future time,” and is not within the prohibition of the statute of Illinois. St. Ill. e. 38, § 130.</p> <p>2. Same— Contracts Valid and Binding.</p> <p>Where the indebtedness which accrued from the defendant to the firm of brokers was for commissions earned by the firm in making trades for the defendant, duly authorized by him, and l'or moneys actually paid by the firm in the settlement of differences in such trades, and that none of these differences were paid upon “ options to buy or sell grain or other commodities at a further day,” but upon sales or purchases of grain or other commodities, where the seller had only an option as to the time of delivery, such contracts are not within the Illinois statute, and are valid and binding upon the parties.</p> <p>3. Same — Guaranty on Notes — Bona Fide Holder.</p> <p>Where, under such a contract, defendant became indebted to the firm for balances, and on final settlement gave to tbe firm the notes sued on, the payment of which he guarantied, and the notes wore given to the bank, with defendant’s guaranty written thereon, in payment of a debt due the bank by the firm, even though the demand of the firm was tainted as a gambling claim at common law, defendant cannot be heard to sot up the illegality of the dealings between himself and the firm as a defence to these guaranties in the hands of a dona fide holder.</p> <p>4. Guaranty — Bona Fide Holder.</p> <p>A guaranty in the hands of a bona, fide holder is valid, and not affected by any of the equities between the original parties.</p>

<p>1. Mortgagee m Possession — Entitled to Possession and Rents.</p> <p>A mortgagee in possession of the mortgaged premises with the consent of the mortgagor is entitled to keep such possession and collect the rents on the property until the mortgage debt is paid, even though the mortgage he held to he a mere lien.</p> <p>2. Same — Parol Agreement for Possession.</p> <p>If a mortgage does not provide that the mortgagee shall he entitled to the possession of the premises, a subsequent parol agreement to that effect can he. made, and if the mortgagee goes into possession under it the contract between the parties then stands as though this provision were contained in the mortgage.</p> <p>3. Same — Prior Right to Rents over Purchaser in Execution.</p> <p>Possession so taken cannot he disturbed by a purchaser of the property on execution sale on a judgment, the lien of which attached after such possession was taken, and such mortgagee is entitled to hold any rents collected by him as against such purchaser, notwithstanding a statutory provision which makes the occupant of property sold at judicial sale the tenant of the purchaser of the same.</p>

Indictment. The indictment in this case, containing two counts, charged the defendant, as the agent and attorney of one Mary Jane Simmons in the prosecution of her pension claim, with wrongfully withholding from her a certain portion of the pension granted her by the United States.

At the last term of the court W. EL Winstead failed to appear and answer to a criminal prosecution, and judgment was entered against him and his surety on a forfeited recognizance of bail. Upon this judgment a scire facias was issued to the parties, to show cause why execution should not be issued.

<p>1. Penalty — Offences against Patent Law.</p> <p>In an action lor the penalty for affixing the word “ patent, ” unlawfully on an article, an intention on the part of tlio defendant to affix a stamp or plate indicating that there was at the time a present subsisting patent upon the machine is necessary, and unless that appears the offence is not committed.</p> <p>2. Patents Expihed.</p> <p>Where the patents marked on the machine issued have all expired, there is no subsisting patent upon the machine or any part of it; and the offence under the statute (Rev. St. § 4901) is not complete.</p>

<p>This was a rule on the marshal for the causes and purposes set forth in the opinion of the court.</p>

Action at Law, upon the following note: “$419.30. BYRON, GEORGIA, April 23, 1875. “ On the twentieth of October, after date, I promise to pay to the order of Asher Ayres, agt., $419.30, to T. B. Goff, or at his office in Macon, Georgia; value received. If not paid at maturity, to bear interest at the rate of 12 per cent, discount per annum. D. II.

This suit is brought upon three promissory notes, aggregating the sum of §2,300. The defendant is the maker, and they were made payable to the order of A. G. B. Bannatyno, and by him indorsed and delivered to the plaintiff. Before the commencement of this suit the State National Bank of Minneapolis brought an action upon these promissory notes, claiming to be holder and owner thereof, which was tried in this court, and a verdict rendered for defendant and judgment entered.

<p>1. Executory Process under Articles 732 to 753 op the Louisiana Code op Practice.</p> <p>An order of seizure and sale, unless there is opposition, is a final order; if there is opposition, it is a mere process introductory to a litigation.</p> <p>Peters v. Fitzgerald, 15 Pet. 167, followed.</p> <p>2. Same—Order op Seizure and Sale.</p> <p>When the issue is made up by the opposition, the order of seizure and sale, though first in the point of time, becomes merely an incident in the cause, and when the cause is transferred to the circuit court the order comes as a part of it, under section 4 of the act of March 3, 1875, (18 St. 471,) and there the practice in equity governs.</p> <p>Marin v. Lalley, 17 Wall. 14, followed.</p>

On January 21, 1871, Broekway was adjudicated a bankrupt on his own petition. On April 22, 1872, he filed a petition for a discharge from his.debts, to which specifications of objections were filed, stating, among other things, that he had not kept proper books of account, with the requisite specification of particulars.

<p>1. BANKRUPTCY — PROOFS OF DEBTS — AMENDED PROOFS.</p> <p>, Proofs of debt, made under a mistake of fact or law, may be amended or withdrawn, if no action has been based upon such proofs which cannot be recalled or compensated.</p> <p>2. Same — Mistakes—Withdrawal of Proofs — Indemnity.</p> <p>Where proofs of debt were made by B. B. & Oo. upon two hills of exchange, drawn upon London, against consignments of merchandise, unaccompanied by a transfer of the bill of lading, and the branch house of B. B. & Co., in London, at the time of such proof, claimed a lien upon the proceeds of the merchandise there as security for the bills, which was disputed and in litigation between various claimants upon the fund, including the trustee of the bankrupt’s estate, and the facts were known to the creditor here, who verified the proofs of debt, and supposed that the facts were also known to his attorney here, to whom the preparation of the proofs was entrusted, but who was ignorant thereof and accordingly prepared the proofs as unsecured claims, held, that the case was one of mistake of mixed fact and law, and the creditors had leave to withdraw their proofs upon terms of indemnity to the estate. Hdd, also, that the mere receipt of dividends upon such proofs is no obstacle to the withdrawal or amendment of the proofs, as the dividends may be returned, with interest.</p> <p>3. Same — Withdrawal of Proofs, when Allowed — Return of Dividend.</p> <p>But where the trustee of a bankrupt was defending in England against a claim made by creditors upon a certain fund as security for their demands, upon the ground that they were estopped by having proved their claims here as unsecured, and also defended upon the merits, denying the creditors’ alleged lien upon the fund, hdd, that the creditors’ withdrawal of proofs should be allowed only upon the return of dividends, with interest, the payment of the coste of this application, and of all the costs and counsel fees in the litigation in England, if the trustee elected to abandon the further defence of the case there, or, if not, then upon payment of the trustee’s costs up to this time.</p>

<p>Shipping — Oral Agreement — Recovery Back op Freight Money.</p> <p>Libellant and respondent entered into an agreement for the shipment by libellant, on various vessels of the respondent, of 250 horses, to be transported from New York to Liverpool, and that libellant, in consideration of a reduction in the rate of freight, should pay the freight at the time of shipment and assume all the risks of the voyage, including the risk of a failure to perform the voyage by reason of perils of the sea. Subsequently a shipment of 54 horses was made, which wore lost at sea. JIdcl, that the horses were taken on board in pursuance of the oral agreement, notwithstanding a bill of lading was delivered to the shipper, and that the respondent is not liable for the return of the freight money paid for their transportation.</p>

The district court held that the vessel was, under the Pennsylvania statute of March 29, 1803, bound to accept such pilot, and that this provision of the statute was not repealed by the subsequent statute of March 24, 1851. A full report of the case and the opinion of the district court will be found in 10 Feu. Kep. 135. Bespondents appealed from'the decree.

Appellant filed a bill in chancery in the circuit court for the northern district of Illinois to enjoin defendant as collector, and Samuel H. McCrea as treasurer, from enforcing payment of the taxes assessed against its shareholders on their shares of the bank stock, on the general ground that the assessment violates the provision of the act of congress concerning national banks, which forbids the states from taxing these shares at any higher rate than other moneyed capital…

Cross-appeals from a decree of the circuit court for the district of Indiana, decided in the supreme court of the United States,

<p>2.CopyRigiit — Chromo.</p> <p>A chromo, if a meritorious work or art, may be copyrighted, though designed and used for gratuitous distribution as an adYertisement for the purpose of attracting business.</p> <p>2. Same — Who Entitled to Copyright.</p> <p>It is only “ authors and inventors ” who, under the constitution, art. 1, § 8, are directly entitled to copyright. The title of all other persons is secondary, and derivative from them only; and, in claiming an injunction, third persons must show a legal title and an exclusive right to the copyright, lawfully derived from the author or inven tor; to allege that the plaintiff is ‘! proprietor, ’ ’ without more, is not enough.</p> <p>3. Same — Injunction—Infringement—Protection Limited to Native Art.</p> <p>In a suit for an injunction to restrain an alleged infringement, where it appeared that the plaintiff had imported copies of a chromo designed and printed in Europe by a foreign artist, and that the plaintiff had copyrighted the chromo by depositing two of bis imported copies with the librarian of congress, and it further appeared that the defendant had never known of such chromo being copyrighted, had never seen any copyrighted impression, and had availed himself, in making a new chromo, of some material portions of the same design as plaintiff’s chromo, which defendant had taken from a copy independently imported from Europe, and it did not appear whether the design of the plaintiff’s chromo was new or old, or whether plaintiff had ever acquired any exclusive right from the artist, held, that the motion for a preliminary injunction should be denied. Held, also, that congress, in the revision of the-copyright act of 1870, and in adding in that act to the previous subjects of copyright “ a painting, drawing, chromo, statue, statuary, and models or designs intended to be perfected as works of the line arts,” did not intend any reversal or change of its inflexible policy, ever since the act of 1790, of protecting only native or resident authors and artists, and that the word “proprietor,” in section 86 of the act of 1870, and in section 4952 of the Revised Statutes, must bo construed in the limited and restricted sense in which it has been used in every act from that of 1790 downwards, viz., as the legal representative of a right derived from a native or resident author or artist.</p> <p>4. Statutes — Amendments, how Construed — Cromos Embraced in “Prints.”</p> <p>Amendments of statutes are to be construed in harmony with a long-established policy rather than upon a mere literal reading which would introduce two diverse and contradictory policies in the same statute. Held, also, that “chromos,” being in fact chromo-lithographic prints, were embraced in sections 1 and 8 of the act of May 21,1831, under the term “ prints,” as well as in sections 86 and 103 (16 St. at Large, 212, 215) of the act of 1870, and are within the restrictions of section 4971 of the Revised Statutes; and that no copyright upon a chromo designed by a foreign artist abroad can be acquired by his representative resident here as “proprietor.”</p>

<p>• Practice — Rehearing—Newly-Discovered Evidence.</p> <p>To entitle parties to a rehearing, after an interlocutory decree, on the ground of newly-discovered evidence, they must show to the satisfaction of the court that they exercised due and reasonable diligence before the hearing to procure the evidence now sought to be introduced, and the facts and circumstances constituting such diligence must be specifically stated; a general, averment is not sufficient. They must show, also, that the new evidence is material. The proper practice suggested.</p>

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

<p>1. Beissue — Void fob Variance from Original.</p> <p>Beissue 8,597 held void, being for a different invention than that of the original.</p> <p>2. Same — Void for Claims too Broad.</p> <p>Beissue 8,774 held void, the claims sued on being broader than the claims of the original, and for matter not claimed in the original reissue, 8,675. Claim 1 held to be either limited by the specification,- or broader than the original, and being so limited is the same as claim 2, which is not infringed by defendant’s-structures. Claim 6 held not infringed by defendant’s structures.</p> <p>8. Same.</p> <p>Beissue 8,688. Claim 1 void, being broader than the original. Claim 2 not infringed by defendant’s structure, which is more like anticipating device of Duisch English patent. Claim 3 is void because it omits one element claimed in this combination in the original. Claim 5 broader than original, and void.</p> <p>4. Same — ISTot an Infringement.</p> <p>Beissue 8,689 not infringed by a sash having only a single flange. Case of Miller v. Bridgeport Brass Co. commented on and followed.</p>

<p>1. Reissue — Disci,aimer.</p> <p>Where an application íor a patent was rejected because of want of novelty, on reference to a prior invention, and on a reapplication it was granled because of a disclaimer by the patentee of certain claims made on the prior application, Wá, that a reissue to the assignee of the inventor, on claims including' those disclaimed by the prior patentee, is invalid as to such claims.</p> <p>2. SAME — -ENLARGING C/LAT3T.</p> <p>Where, on application for a patent, the examiner denied the application on the ground that lie deemed certain claims nulicipal ed by a prior device, it is not a “ mistake or inadvertence ” such as will entitle the assignee of the patentee to a reissue; the remedy in such cases is by appeal.</p> <p>3. Improvement in Bottle-Btorpers.</p> <p>The first three claims in reissued patent lío. 9,002, of original patent lío. 150,302, for an improvement in bottle-stoppers, arc invalid because too broad, including claims which had been disclaimed by the inventor on the original application.</p>

<p>1. Substitutes OR Equivalents — IkertNGeiient.</p> <p>Whore defendant's device is but tlie subsl ilute or equivalent for all practical purposes of the device shown in complainant’s drawings, it is a more colorable evasion of complainant’s device, as complainant may change the form of construction from that shown in his patent, and substitute a well-known equivalent.</p> <p>2. Intkbi'ermNCB — Void Patent.</p> <p>Patent No. 225,476, being for an improvement in bottle-stoppers is void, by-reason of its interference with reissued patent No. 9,002.</p>

<p>1. Patents for Invention — Reissue—Enlargement of Claims.</p> <p>Where the claim made in the original patent for a siphon pump was for a specific device described in the specifications and drawings, hut in the reissue disappears from the patents, and substituted therefor is a sweeping claim covering every form of water ejectors, although the claim made in the reissue was originally allowable when the original patent was granted, after the lapse of nine years a reissue embodying so comprehensive a claim is invalid.</p> <p>2. Same — Unreasonable Delay.</p> <p>A delay of nine years is unreasonable on an application for a reissue wherein the original claim is enlarged.</p>

<p>1. Letters Patent—Improvement in Whip-Sockets—Validity of.</p> <p>Reissue No. 9,297, granted to Anson Searls for a centrally-perforated rubber dish flitting loosely into an inner groove near the top of a whip-socket, and retained in place by the expansive force of the rubber, and letters patent No. 150,195, granted John M. Underwood for an improvement thereon, by which such rubber disk could be made thick enough to well retain its place in the socket, and at the same time yielding enough to permit ready insertion of the whip, by cutting away portions of it at' intervals between the outer edge and the perforation, are good and valid, and not void for want of novelty.</p> <p>2. Same—Defences—Prior Use.</p> <p>Proof of prior knowledge and use of an invention cannot prevail where the answer merely alleges prior knowledge, and does not set forth where and by whom the invention had been used, as required by the statute.</p> <p>3. Same—License to Manufacture.</p> <p>Where defendants attempt to justify under a personal license to manufacture, the burden of proof is upon them to make it clear that the articles sold by them, which whuld otherwise be an infringement, were made under and pursuant to the license; otherwise they must be adjudged to have infringed.</p>

<p>1. PATENTS you Inventions — New Designs.</p> <p>A claim is not defeated merely because scrolls and ornamentation similar in effect to the scrolls and ornamentation described have before been employed, if a new idea is embodied in the method of their arrangement.</p> <p>2. Same — Obiginax, Shape ob Coneigubation.</p> <p>The statute permits, a patent for any new, useful, and original shape or configuration of any manufacture; and where the arrangement of ornament and shape is new, useful, and original the invention is patentable.</p>

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

<p>Patents fob Inventions — Invention—Yv hat is not.</p> <p>Where the relation between the parts is the same in the arrangements between the patented article and another article in prior use, and the only difference is one of degree as to quantity, or one of convenience as to the character of the device to be used, it does not involve an invention.</p>

<p>On Demurrer to Bill, etc.</p>

<p>1. ADMIRALTY PRACTICE — CLAIMANT—IÍULE 26.</p> <p>A “ claimant” in the admiralty practice, under rule 26, is a person who assumes the position of a defendant and demands the redelivery to himself of the vessel arrested. An “ intervenor,” under rule 34, is one who, without demanding the redelivery of the vessel, seeks only the protection of his interest in her, or the payment of his claim in the ultimate disposition of the case.</p> <p>2. Shipwright — Common-Law Lien.</p> <p>A shipwright in possession under a common-law lien, from whom the vessel is taken upon arrest by the marshal, has an election to appear as a technical “ claimant” for the redelivery of the vessel, or as an “ intervenor” only for the recognition and payment of his claim; but, having appeared as “ claimant” and given a bond for the libellant’s demand, he has not a right, as a matter of course, afterwards to change his position to that of an intervenor merely</p> <p>3. Same — Appearance as Claimant.</p> <p>Where, however, during the pendency of proceedings upon exceptions to the shipwright’s right to appear as “ claimant,” the master, beiiigpart owner, also appeared as an adverse “claimant” for the possession of the vessel, and, on application to the court, had received possession upon executing a bond for her value, conditioned for her return to the shipwright or for the payment of his claim, and the determination of the amount due to him, became therefore, involved in the action, held that, on the shipwright’s application, his right to appear as “claimant” having been determined in his favor, he should be allowed to file his petition setting forth the amount and grounds of his claim, and that the libellant, the adverse claimant, or other part owners, should make answer thereto as advised.</p>

<p>Admxramt Practice—Residuum: in Registry.</p> <p>Courts of admiralty recognize legal titles and legal and equitable liens, and after a judgment has been rendered in favor of a party having a claim upon the residuum, in the registry, it is brought to the notice of the court that an equitable action of nullity has been instituted in a state c ourt to annul the transfer by which said party held title to the claim, on the ground of fraud and simulation, the court of admiralty will order the proceedings in execution of its judgment to pause until the termination of the suit in equity in the state court.</p>

<p>Raising Sunken Vessel — Lien.</p> <p>Wlierc a party contracted to raise a sunken scow for a certain amount of money, hold her up for a certain amount per day, and pull her out for a certain stipulated price, and the contracts were severally performed in the time stipulated, no part of the service thus performed was salvage service, but should rank for lien with repairs and supplies.</p>

<p>Decree — Omissions in — Reversal.</p> <p>Where there was a stipulation that the intervenors should pay all costs and expenses which should he awarded against them, and the final decree awarded no costs or expenses against the intervenors, notwithstanding there was a deficiency in the proceeds to pay all the costs and expenses, the decree must be reversed.</p>

<p>Negligence — Injuries to the Person — Accident.</p> <p>Where it is shown that an injury to the person was caused by an accident, and was in no way attributable to a neglect on the part oí those in charge of the ship, the libel will be dismissed.</p>

<p>1. General Average — Jettison—Contribution by Insurer.</p> <p>Where the libellants show that tho cargo put on deck was properly stowed, and the respondent, who was the insurer of the hull, offered no proof to show that it could have been stowed in any better or safer manner there, he is liable to contribution on general average for a necessary jettison of such deck load.</p> <p>2. Underwriter on Hull — Liable to Contribution — Custom and Usage.</p> <p>Tho underwriter upon the hull is liable to contribute to general average for jettison of the deck load when the custom or usage of the trade in which the vessel is employed is to carry part of her cargo on deck.</p> <p>3. INSURANCE — Contract Construed — Usages oe Trade.</p> <p>Where the insurance was for the season, the policy running as a marine risk, and the vessel was to he employed in the freight and passenger business, it is a necessarily-implied part of the contract of insurance that in the conduct of her business she would conform to the usages of the trade in which she was engaged ; and it being clear that it was an established usage to carry part of a cargo like that in question upon deck, and that it was deemed not only convenient but'prudent to do so, the court must assume that the underwriter intended or contemplated that part of a cargo like that in question would be stowed on deck, and that he assumed all the dangers and advantages of such usage.</p> <p>4. Same — Provision for Adjustment.</p> <p>Where the policy provides that it is “ subject to the usages and regulations of the ports of New York on all matters of adjustment and settlement of losses not herein otherwise clearly specified and provided for, to be stated by a competent adjuster of marine losses designated by the insurers,” it is to be construed only to refer to the manner of making adjustment when liability exists, and does not control the question of the extent of the liability of the underwriter upon his contract; and where the underwriter had ample notice of the loss, and neglected or refused to designate an adjuster, he cannot object that the adjuster who made the general average was not designated by the company.</p>

<p>1. Admirai/ty-—Towage.</p> <p>Payment for towage from and to sea, under a contract in wliicli the time for payment for the same is not specified, is due in the port of New Orleans, under the custom thereof, prior to the ship’s being towed hack to sea.</p> <p>2. Same—Usage asd Custom.</p> <p>It is well settled that, in all maritime contracts, usage or customs is always applicable and binding on the parties to explain doubtful and supplement incomplete agreements and stipulations.</p> <p>3. Same—Lies for Towage.</p> <p>As there was performance of the contract for towage, the libellants had a lien upon the vessel for the full amount due them.</p> <p>The Prince Leopold, 9 Ted. Kef. 333, distinguished.</p>

Libel by George W. Harding and others against the International Navigation Company, to recover for injury to goods of plaintiffs carried by defendants. The facts were as follows: The International navigation Company was a Pennsylvania corporation, operating, between Antwerp and Philadelphia, a line of vessels owned by the Societe Anonyme de navigation Belge-Americaine.

Libel by the master of the tug Juno against the bark Sebastian Bach, to recover compensation for towage services, and damages for detention.

<p>This libel was filed to recover the amount of damages to 959 packages of tea on board the bark T. A. Goddard, alleged to have been injured by camphor on a voyage from Hong Kong to New York. The tea was shipped at Foochow, December 18, 1877, by Purdon & Go., on board the steamer Orestes, under a bill of lading which recited that the “teas were shipped at Foochow on board the steamer Orestes for transhipment at Hong Kong on the good Vessel called the ‘T. A. Goddard,’ whereof Smith is master for this present voyage, now lying at Hong Kong and bound for New York; * * * tobe delivered at New York to the order of Brown Bros. & Co. on payment of freight * * * at the rate of ,T1 15s. per ton of 40 cubic feet.” This bill of lading was signed by the master of the Orestes, and also by Bussell & Oo., who thereby contracted for the delivery of the goods at New York.</p> <p>Russell & Co. had, prior to this shipment, on November 20, 1877, obtained a charter-party from the owners of the T. A. Goddard, then lying at Hong Kong, whereby they had chartered her for a voyage from Hong Kong to New York, for the carriage of merchandise, upon the conditions and exceptions in. the usual bills of lading, whereby the owners agreed to keep her well manned and found, and to receive from the charterers at Hong Kong lawful merchandise not exceeding 1,000 tons of 40 cubic feet; cargo to be well stowed and dunnaged at the ship’s expense, being brought along-side and taken from the ship’s tackles at the charterer’s risk and expense; all pilot-age, port dues, and charges to be borne by the vessel; the captain to employ the charterer’s stevedore, paying him at the rate of 12 cents per ton; and the vessel not to receive on board any merchandise unless by the order of the charterers, who had the option of reletting the vessel in whole or in part; the ship to sail whenever the charterers should so instruct the captain — the charterers agreeing to pay for the hire of the vessel at the rate of £1 7s. 6d. per ton of 40 cubic feet measurement, on delivery of cargo according to the bills of lading, which were to be signed by the captain, as presented, at any rate of freight without prejudice to the charter-party; the captain to have absolute lien on the cargo for freight, dead freight, or demurrage.</p> <p>The evidence showed that Hong Kong is seven days distant by steamer from Foochow; that the teas were transhipped “direct” at Hong Kong upon the T. A. Goddard, for which another bill of lading was given on December 28, 1877, by the master of the latter, reciting. that the goods were “ shipped in good order and well conditioned by Russell & Co. on board the T. A. Goddard, lying at Hong Kong, and bound for New York, deliverable there to the order of A. A. Low & Bros., or their assigns, on payment of freight at the rate of ¿1 15s. per ton of 40 feet.” On this bill of lading were stated in the margin the same marks and numbers as in the previous bill, and the measurement was extended, showing “¿117 Os. 7d., through rate from, Foochow.”</p> <p>The bark sailed from Hong Kong on January 3, 1878, and arrived at New York in April, when the teas, on unloading, were found to be impregnated with the odor of camphor. They were stowed in the after-part of the bark, between-decks, beneath the poop, which was built upon the upper deck, in which a quantity of camphor tfas stowed.</p> <p>The claimants contended that it was customary and lawful for a general ship -to carry camphor in the poop, although teas were aboard the ship, and that all diligence was used in tightly caulking the hatch from the poop below, and all other air openings, so as to prevent the possibility of any fumes from the camphor reaching and injuring the teas. They also gave evidence to show that Russell & Co. had requested the master to take the camphor aboard after the teas had been laden, and claimed that the injury to the teas could not have occurred on board the bark, and that if it did the vessel was not liable.</p>

Libel for Demurrage. F. P. Shepherd, the libellant, master of the barquentine John Baizley, chartered that vessel June 27, 1881, to D. W. Job & Co., of Boston, to bring a cargo of culm or coal from Sydney, Cape Breton, to Portland, Maine.

<p>This was an action for damages to the tug-boat Skeer through a collision in Newtown creek in the afternoon of February o, 1880, with the lighter Acme, then in tow of the tug James M. Thompson. The place of collision was at least 200 feet below the bend in the creek, and about 900 feet above its mouth. The creek at this point is shown by the chart and by the testimony to be at least 300 feet wide from bulk-head to bulk-head. It was lined by vessels lying abreast of each other on both sides, which diminished the space available for navigation from 35 to 60 feet on each side. The Skeer, 100 feet long, had entered the creek from the East river with a strong flood tide, and with the canal-barge Donnan lashed to her starboard side, and was about 300 feet in advance of the steam-tug James M. Thompson, which had the Acme in her tow upon a hawser 120 feet long. The Skeer, designing to land her tow upon the north side of the stream, had entered the creek close to the southerly shore, and shortly after she turned to cross the creek, designing to round to against the flood tide. In doing so she pássed in front of the Thompson, but without interfering with the latter’s course. The tow projected about 10 feet forward of the Skeer and when she had reached the northerly side of the creek she came to a stop, lying then about square across the river, and her tow being about eight or ten feet off from the boats moored at the bulk-head, and the stern of the tug being from 140 to 145 feet out in the stream from the northerly shore. The James M. Thompson was intending to pass with her tow through the southerly draw of the bridge, about 700 feet above the place of collision. She came up the center of the stream and blew one whistle as the Skeer crossed in front of her, continued on her course unchanged, and passed the Skeer at a distance variously estimated from eight to twenty feet. She was 17 feet wide. The Acme, her tow, was a scow 38 feet wide, light loaded, with square bows; and in attempting to pass the Skeer the port corner of her bows struck the port side of the Skeer upon the round of her stern from three to five feet only from her stern post. The tide at the time was running up at the rate of from two to three knots, setting towards the northerly shore till beyond the bend, where it is deflected towards the southerly shore. The Thompson was under a slow bell, going at the rate of four or live miles per hour, or about two to throe knots faster than the tide. On the part of the respondents it was claimed that the collision arose through the backing of the Skeer after the Thomoson had passed her. The libellant denies that she backed at all.</p>

<p>1. Collision — Insufficient Lookout.</p> <p>A scliooner sailing in tlie Hudson river at niglit with a freo wind, with no other lookout than the captain remaining abaft of the wheel, held, no proper and sufficient lookout.</p> <p>2. Same — Steameb with Tow-Head on — Failure to Exhibit Torch-Light1.</p> <p>A scliooner approaching a steam-tug with a tow nearly head on, must be held in fault in not exhibiting a torch-light, according to section 4234 of the Revised Statutes, unless it be clear that exhibiting a torch-light would convey no additional information as to her course and position, which cannot be assumed whore, as in this case, there is reason to believe that the schooner’s red light was obscured by her jibs.</p> <p>3. Same — Conflicting Testimony — Improbabilities.</p> <p>Where there is irreconcilable conflict of testimony as to the positions and courses of two colliding vessels, the account given from the vessel having no lookout properly stationed, being in part improbable in itself, is discredited.</p> <p>4. Same — Fault by Change of Oouese.</p> <p>Where orders are given for a change of course by a schooner just prior to a collision, in the excitement occasioned by the sudden discovery of a steamer near at hand, from the want of a previous proper lookout, and the change of course contributes to the collision, the schooner must be held in fault.</p> <p>5. Saids — Notice of Exceptional Movements.</p> <p>Where the steam-tug A.., with the barge E. in tow upon a hawser, was proceeding up the Hudson river, and saw the schooner’s green light about a point on her starboard bow, which, instead of broadening further to starboard as they approached, constantly made up more towards the stem of the steam-tug, that is, to windward, but no red light was seen, held, sufficient notice to the steam-tug of something exceptional about the schooner’s course or lights, with the probability that she was constantly yawing to windward and was nearly head on, with her red light either extinguished or obscured, and that the steam-tug was bound to give her, therefore, a wide berth. The steam-tug, instead of doing so, having kept on her course unchanged, nearly head on, until, when the green light was a little off the starboard bow, the schooner ported and ran across the steamer’s course, resulting in a collision with the barge, from which the schooner was sunk, held, that the steam-tug was liable for not keeping further out of the way, and that the damages should be apportioned.</p> <p>6. Obscuration of Lights.</p> <p>The captain of the barge, though having some steerage way, is not primarily answerable for her navigation, and not held with the same strictness to keeping watch of lights ahead; and not knowing on which side of the steam-tug the schooner, whose lights he had seen ahead, would pass, held, that he was not answerable for negligence in not noticing the schooner’s lights for two or three seconds as she passed to port, and before they were enveloped and obscured by a cloud of steam, and not liable for not at that time immediately porting his helm.</p>

<p>Collision — 1Tug and Tow — Fictitious Damages.</p> <p>Where a boat was towed out of a crowded slip stern foremost by a tug, and was drawn against the how of a canal-boat lying in the slip, the owner of which libelled the tug and claimed 81,000 damages for the collision, and on the trial the damage proved was a crack in the bow-stem of the canal-boat so struck,— to repair which perfectly at the present time it might be necessary to take out the stem and rebuild the bow, — while the claimant of tjie tug brought many witnesses to show that the crack was a “ season check,” the effect of weather and not the result of collision, and could have been drawn together with bolts at the time at a trifling expense, held, that the libel must be dismissed, on the evidence, with costs against the libellant. '</p>

<p>In Admiralty. Libel in rem for use of dry-dock.</p>

<p>OoRRisroN — Damages—Limited Ltatu htv — Ixteirest.</p> <p>Where, in an action foi- damages arising from a collision, tlio owners of the colliding’ steamer applied under the admiralty rules for a limitation of their liability as such owners, and by stipulation with approved sureties agreed to make payment of the assessed value of the steamer, and thereby procured her release from arrest, held, that the owners were liable, in addition to such assessed value of their steamer, for the interest thereon from, the date of the stipuiation, with costs of the litigation.</p> <p>Horn That an action for damages for the death of a person lies in admiralty, see Holmes v. O. ⅛ C. By. Oo. 5 Fed. Eep. 75, 523; The Garland, Id. 924; In re Passenger & Freight T. Oo. 5 Fed. Eep. 599; The Sylvan Glen, 9 Fed. Eep. 835. As to limited liability of ship-owners, see The Maria and Elizabeth, ante, 520; National Steam, Nav. Oo. v. Dyer, Notes of Decisions, Id-527, and cases cited. — [Ed.</p>

<p>1. Collision — Rule op the Road — Vessel Close-Hauled.</p> <p>Where two vessels are meeting, end on or nearly end on, the one close-hauled on the starboard tack and the other having the wind on her port side, the vessel close-hauled has the right of way by the well-settled rule o£ the road.</p> <p>2. Fault — .Neglect oe Lookout.</p> <p>Where the lookout failed to see the lights of the approaching vessel until too late to avoid the collision, liability attaches from such fault.</p>

Libel by the master of the schooner Theresa Wood against the steam-ship Roman, to recover damages for injury to the schooner by collision. The following facts appeared from the testimony: Tho collision occurred in the Atlantic ocean off Great Egg harbor. The night was dark, but not stormy. The schooner was loaded with pine wood, and carried a deck load of the same material. She had only her jib-sail set, the other being lowered.

<p>Appeal from the circuit court of tho United States for the eastern district of Missouri. The case was determined in the supreme court of the United States on</p>

<p>Patent — Reissues—Enlarging Scope of Original,</p>

<p>Appeal from tho circuit court of the United States for tho district of Kentucky. This case was determined in the supreme court of the United States on</p>

This was an action at law brought to recover damages for an alleged infringement of reissued letters patent granted for improvements in steam-boilers. The invention consisted, among other things, of a combination of a straw-feeding attachment with the furnace door of a return-flue steam-boiler for the use of straw alone as fuel in generating steam ample for practically operating steam-engines.

Appeals — the former from the United States circuit court of the northern, and the latter (two cases) for the southern district of Illinois. By stipulation of the parties these cases were argued together as one case. They were decided in the supreme court of the United States on

The invention in this case covered by the reissue was for chamfered edges of tho broadsides of parallelopiped blocks of stone used in street pavements. The specification in the claim on the reissue is that if blocks are selected with their sides rough enough, joints can be made that will furnish a suitable foothold without the use of strips and without chamfering. The case was determined in the supremo court of the United States on

Tins was an application by the owner of the British steamer Levcrsons for a writ of prohibition to restrain tho district court of the United States for the district of Maryland, sitting in admiralty, from proceeding further in a cause begun against his vessel to recover damages for the drowning of certain persons in consequence of a collision on Chesapeake bay, caused by the fault of the steamer. The case was decided in the supreme court on

<p>Admiralty — Jurisdiction—Prohibition.</p>

This was a hearing on petition for a writ of prohibition brought to restrain proceeding in the district court of the district of Delaware,' sitting in admiralty, from further action in a suiti pending for the recovery of half pilotage claimed to be due under the statutory regulations of Delaware.

<p>1. JURISDICTION.</p> <p>When there is a federal question involved in the suit, the circuit court has jurisdiction without regard to the citizenship of the parties.</p> <p>2. Lis Pendens.</p> <p>The pendency of a similar suit between the same parties in the state court is not sufficient ground in law to sustain a plea of Us pendens.</p> <p>Stanton v. Emery, 93 U. S. 554.</p> <p>Ins. Co. v. Brume, 96 U. S. 588.</p> <p>3. Equity Pleading— Rules 32 and 37.</p> <p>Under the thirty-second rule in equity a defendant may demur to part oí a hill, plead to a part, and answer to the residue; and under the thirty-seventh rule no demurrer or plea shall be held bad and overruled upon argument onlj because the answer of the defendant may extend to some part of the same matter as may be covered by the demurrer or plea ; but 1 here is no rule which allows a defendant to demur to the whole bill, plead to the whole bill, and answer to the whole bill at the same time.</p>

<p>1. Equity Practice AND Jurisdiction—Bill nor a Not Trial.</p> <p>A bill for a new trial in an action at law, on account of frauds practiced and perjuries committed by plaintiff and Ms witnesses at the trial at law, which, liave been discovered since the term at which tho judgment at law was rendered, cannot be filed in any court other than the one before which such trial was had and which rendered such judgment.</p> <p>2. Substituted Service.</p> <p>In such a case service of process upon the attorney who represented the defendant in the action at law in which he was plaintiff, in tho absence of the said defendant from tho district, adjudged to be good.</p>

<p>1. ASSIGNMENT IN TRUST NOR CREDITORS — WHEN FRAUDULENT.</p> <p>A conveyance in trust for the benefit of creditors, which provides for crops to be thereafter planted, and for a sale of supplies to the laborers, with no provision that the trustees shall have any power to control the laborers, or over the completion or gathering of the crops, is fraudulent in law and void as to creditors.</p> <p>2. Same — Provision fob Attorney’s Fees.</p> <p>It is no objection to a conveyance in trust for the benefit of creditors that a provision is made for the payment of a reasonable attorney’s fee for the examination of the facts, advice, and drawing up the assignment and securing its proper proof or acknowledgment and placing it on record; but the debtor has no power to contract with attorneys for any further services, which is a matter entirely within the control of the trustees, and for which the assignees will be allowed a reasonable sum.</p> <p>3. Same — Vice must be Apparent.</p> <p>To declare a conveyance fraudulent per se, the vice must be apparent on the face of the instrument, without reference to extrinsic proof. ⅝</p> <p>4. Same — Illegal Preference.</p> <p>Where such an assignment, after providing for different classes of creditors to be preferred, and then for a distribution of the surplus among those not preferred, and the surplus to the grantor, contained the following provision, “ provided, however, that the said party of the second part, or his successors, shall pay no claims unless the correctness of the same shall be established to his satisfaction,” the directions extending to all claims, and not restricted to the creditors not named, is fraudulent and void as to the creditors named.</p> <p>5. Same — Unfair Advantages.</p> <p>Where the assignment gives the first class of creditors the right to determine whether or not the assignee shall give a bond, and if so, to fix the amount, it gives an unfair advantage over other creditors, and is a circumstance to show fraud, but not sufficient to show it fraudulent per se</p>

<p>Hearing on report of the register upon petition of J. H. Goodwin for payment of an attorney’s lien.</p> <p>The assignee of the bankrupts was appointed in June, 1879. Prior thereto the petitioner had been employed by the bankrupts as their attorney in the prosecution of several suits which were pending at the time of the appointment of the assignee. The petitioner, as attorney, bad also recovered for the bankrupts, in January, 1879, two judgments against one James Wilson by default upon promissory notes for about $877, upon wbicb judgments executions were then in the hands of the sheriff uneolleeted. The assignee desiring to employ other attorneys in the prosecution of the suits pending, and the petitioner claiming a general lien upon all the papers in his hands for his costs and services, an agreement was made between him and the assignee, on June 7, 1879, reciting that the petitioner had “commenced a number of suits against persons, debtors of said Wilson & Greig, and which said suits have not been finally concluded; that the assignee recognized the petitioner’s lien thereon, and desired all papers therein to be surrendered to other attorneys to be substituted;” and providing that the papers in said suits should all be transferred, and substitutions given, and that the petitioner’s lien should not be waived thereby; but that the “lien should be first paid and satisfied by the first moneys coming into the hands of said assignee out of said suits, a list of which is annexed.” Among the papers transferred were those in the two judgments against James Wilson, which, in the receipt given by the substituted attorneys, are recited as given under the terms and conditions of the agreement above referred to. The executions then outstanding upon these two judgments were after-wards returned wholly unsatisfied. Blumenstiel & Hirseh, the substituted attorneys, subsequently, upon proceedings supplementary to execution, in the nature of a creditor’s bill, recovered the whole amount of those two judgments, being about $1,900.</p> <p>A third judgment had also been recovered by the petitioner, as attorney for the- bankrupt, against Hine, Phillips, and others, upon charges of embezzlement, in which the petitioner’s taxed costs were $326.69, and in which his services were reasonably worth, as reported by the register, $500 more, making $826.69 for his bill in that suit; and the papers in that ease were also among those transferred and receipted for. In the various other pending suits transferred the sum of $144.57 only was collected by the assignee. All of the pe-titibner’s claims have been paid except his bill for-the recovery of the last-mentioned judgment, upon which he has received only $43.86, leaving $782.83 justly owing to him for his services in that suit.</p> <p>. The petitioner claimed a genéral lien upon each and all of the suits and judgments transferred for his entire bill, and that he was entitled to be paid what was due to him upon the third judgment out of the proceeds collected by Blumenstiel & Hirseh upon the two prior judgments against James "Wilson. The assignee refusing to recognize this claim, the matter, upon petition, was referred to the register, by whose report the above facts appear.</p>

<p>1. Taking Passengers on Board.</p> <p>Passengers who go on board a vessel openly and in the usual way are presumed to have been taken on board by the master, within the purview oí sections 4252-3 of the Revised Statutes.</p> <p>2. Intent to Commit Crime.</p> <p>Neglect in the discharge of a duty or indifference to consequences is in many cases equivalent to a specific criminal intent</p> <p>3. Case in Judgment.</p> <p>The defendant, being the master of a vessel under charter at the port of Hong Kong to carry passengers to Portland, Oregon, permitted the charterers to load her, under the inspection of the port officers, without himself knowing or taking any steps to knowhow many passengers wore on board ; and upon arrival in Oregon it was found that there were 160 passengers in excess of the number allowed to be carried by sections 4252-3 of the Revised Statutes. Held, that it was the duty of the defendant to have taken steps before leaving the port to ascertain how many passengers he had on board; and that the omission of this duty was such negligence on his part as made him guilty of a violation of the statute.</p>

<p>Demurrer to Amended Complaint.</p>

<p>1. Unlawful Attachment—Malice—Damages.</p> <p>In an action for damages for an unlawful seizure under attachment, if the seizure is proved wrongful, hut made in good faith, the jury should find for the plaintiff for actual damages only; but if they should find that the seizure was made in bad faith and pialiciously, they might assess proper punitory damages in addition to actual damages proved.</p> <p>2. Punitory Damages.</p> <p>Punitory damages are not allowed for the purpose of rewarding beyond compensation the injured party, but as a punishment to deter others from like conduct.</p> <p>3. Evidence and Pbbsumftion of Malice.</p> <p>A seizure is wrongful if made without proper legal grounds to sustain it, and while malice is to be proved, yet the jury may infer it from evidence satisfying them of the wantonness of the seizure and oppressive conduct on the part of the defendant, taking into consideration all the evidence in the case.</p> <p>4.' Grounds for Attachment—Kefresentations.</p> <p>If the affidavit for the attachment was based upon representations made by the plaintiff (defendant in attachment) to the defendant, (plaintiff therein,) or to other persons and communicated to him, the jury should find for the defendant ; but on this question they cannot consider representations made to other persons and- not communicated to the attaching creditor, for such representations could not have influenced his action.</p>

Stewart, Gwynne <& Co. sued out an attachment in the state court against one Hall, against whom they had a judgment, and levied it on a stock of goods belonging to C. E. Jerman, alleging that the goods belonged to Hall, and were fraudulently concealed in Jerman’s name from the creditors. Jerman answered the attachment bill, denying the fraud and claiming the goods as his own, and on the trial the suit was decided in his favor and the bill dismissed.

Motion to Retax Costs. ■ In the taxed bill of costs the following items are excepted to by the defendant as improperly allowed by the clerk, viz.: Fees of W. W. Thompson, justice of the peace, for taking depositions, $9; and of J. W; Wilson, justice of the peace, for like services, $6.04; and of James Fentress, Jr., clerk of the state court, for certified transcript, $9.25; and the attorney’s docket fees for 25 depositions, at $2.50 each, $62.50.

<p>1. Torts — Ltarility foe Injuries — Representative Character.</p> <p>An action cannot be maintained against an executor or trustee in his representative character for a wrongful act which was not committed by linn in his official capacity.</p> <p>2. Same — Wrongful Use of One’s Owe Property.</p> <p>Whoever, for his own advantage, authorizes his property to be used by another in such manner as to endanger and injure, unnecessarily, the property or rights of others is answerable for the consequences whether the injury be caused by negligence or by the erection of a nuisance.</p> <p>3. Same — Interposition of Third Party — Not to Excuse.</p> <p>The more fact that a third person is interposed between the owner or principal and the parly injured will not affect the responsibility of him who originates and sanctions the injury.</p> <p>4. Same — Lease of Unfit and Unsafe Building.</p> <p>Where a parly leased a building as a storehouse which was unfit and unsafe for use as a storage warehouse, and it fell without any fault contributing to the fall on the part of the lessees or of the plaintiff, thereby injuring- the house of the plaintiff, which was adjoining thereto, such lessor is liable for the injury.</p>

<p>1. INSURANCE Agent — Employment oe.</p> <p>Defendant, a foreign, insurance company, appointed plaintiffs as its agents to place risks and transact its business, and issued a commission or appointment to plaintiffs as sucli agents, and subsequently, in its reports to the auditor of the state, and in taking out its annual licenses and certificates for the transaction of business in the state, and by letters to the auditor from its secretary, named the plaintiffs among its authorized agents for the ensuing year. Held, that defendant, by complying with the state statute from year to year, designating plaintiffs as its agents, does not necessarily imply an agreement or intention to continue plaintiffs as such agents for any especial time.</p> <p>2. Same — Teiím oe Appointment.</p> <p>Promises held out by the secretary of the company, in the absence of proof of his authority to bind the company, cannot, be construed into an agreement to change the terms of plaintiffs’ appointment from an agency at will to an agency for a fixed term.</p>

<p>Demurrer to Answer.</p>

The plaintiff recovered in this court on June 14, 1879, a judgment against the city of Memphis for $1,778.75.

<p>On Opposition and Motions to Quash Seizures.</p>

<p>1. Attachment of "Vessel — State Law — Conflict with Judiciary Act.</p> <p>A state law which, for a cause of action clearly maritime, either of contract or tort, arising on or committed by a ship engaged in commerce on any public navigable water of the United States, gives a remedy at common law in a state court by attachment m rem, against the vessel specifically as debtor or offender, is in conflict with section 9 of the judiciary act of 1789, giving exclusive jurisdiction in admiralty and maritime causes to the admiralty courts; and this is so, even though the state law provide that the attachment of the ship be “ in a pending suit. ”</p> <p>2. Admiralty Jurisdiction — Exclusive in the United States Courts — State cannot Confer on State Courts.</p> <p>A vessel lien law of a state giving a lien upon any steam-boat or other vessel, raft, or river craft, for materials or supplies furnished to, or for service performed on, or for injury done by, such steam-boat or other vessel; or for wharfage, salvage, pilotage, or claim on contract of transportation due by such steam-boat or other vessel; and authorizing any claimant for such supplies, services, damages or injury, or dues, “in a pending suit,” in a court of the state, to sue out an attachment specifically and particularly against “ the vessel, her tackle, apparel, and furniture,” as the debtor, offender, or tort-feasor, “ whether the cause of action arose without or within the state, and whether the owner be resident or not,” and before process “ in the pending suit ” is served, either actually or constructively, — such a law, and any proceeding under it, before service, either actual or constructive, upon the real owner of the vessel, violates the third division of section 711 of the Revised Statutes of the United States, giving cognizance to the United States district courts, exclusive of the state courts, of all civil causes of admiralty and maritime jurisdiction ; and this is so, notliwithstanding that part of the same provision which “saves to suitors in all cases the right of a common-law remedy, where the common law is competent to give it.”</p> <p>3. Common-Law Remedies — Not Enforceable — Vessels Engaged in Commerce.</p> <p>Inasmuch as the rules of decision at common law enforce lions upon property in an order radically different from,the order in which admiralty rules of decision enforce them, the common law is not competent to afford a remedy against a vessel engaged in.commerce upon the public navigable waters, as between suitors having maritime claims against such vessel.</p>

<p>1. New Okleans — Streets—Exclusive Rights to Street Railways.</p> <p>The city of New Orleans has no power under its charter and the laws of Louisiana to grant to a street railroad company the sole and exclusive right to the. use of the public streets of the city for a street railroad.</p> <p>2. Same — Estoppel by Former, Contract.</p> <p>When the city of New Orleans has made a contract granting to a street railroad company certain franchises to run and maintain a railroad, and binds herself not to grant similar franchises over the same streets to any other company or person during the period of said contract, she is not thereby estopped from granting to others the privilege of running lines across any of the streets mentioned in the contract, nor for such short distances along such streets necessary'to make connections and turn-outs for other lines running mainly along other streets and between entirely different termini.</p>

<p>Limitations in Bankruptcy.</p> <p>The pendency of a suit in chancery between the same parties on the same cause of action, which suit is afterwards dismissed for want of equity, does not interrupt or suspend the prescription or limitation provided by section 5057 of the Revised Statntes, and a subsequent action at law cannot be maintained by the assignee, instituted within two years after the dismissal of such chancery suit without prejudice, if it be instituted more than two years after the cause of action accrued to the assignee.</p>

<p>Limitation nr Bankruptcy.</p> <p>The pendency of a previous suit, either at law or in equity, will not interrupt the running of the limitation fixed by section 5057 of the Kevised Statutes, when the same is pleaded in a subsequent suit between the same parties for the same cause of action, although said subsequent suit be instituted within two years of the rendition of the final judgment in the previous suit.</p> <p>MeCan v. Concry, ante, 315, followed.</p>

<p>1. BANKRUPTCY — CREDITORS’ PETITION-DORMANT PARTNER — COMMENCEMENT ON Proceeding. ‘</p> <p>Where an involuntary petition was filed against two persons as partners, and subsequently an amended petition was filed against a third person as a dormant partner, held that, as to the proof of individual debts against the dormant partner, the date of the amended petition must be taken as the commencement of the proceedings in bankruptcy against him, and not the date of the original petition by relation.</p> <p>2. Same — Proof op Debts — When Provable.</p> <p>Section 19 of the original act of 1867 (14 St. at Barge, 525) made the time of the adjudication the decisive time when the debt must be then existing to be provable, but section 5067 of the Revised Statutes has changed it to the time of the commencement of the proceedings in bankruptcy, and therefore no debt created subsequently to the date of the petition can bo now proved against the estate of the bankrupt.</p> <p>3. Same — Attorney’s Pees.</p> <p>The foes of an attorney for resisting an involuntary adjudication and preparing the schedules cannot he proven as a debt against the bankrupt unless the retainer was prior to the dato of the filing of the bankruptcy petition; nor can they he now allowed as costs against the estate.</p> <p>ISTote. Consult Bump, Bky. (10th Ed.) 82, 572, and notes; Re Patterson, 1 N. B. B. 125; Re Williams, 2 2ST. B. B. 229; Re Williams, Id. 83; Re Bigelow, Id. 371; Re Waite, Id. 452; Re Schwab, Id. 488; Re Montgomerg, 3 N. B. B-. 137; Re Brown, Id. 584; Re New York Mail Steam-ship Co. Id. 627; Re Sawyer, 5 1ST. B. B. 54; Re Comstock, Id. 191; Re Jaycpx,7 ÜST. B. B. 140,142; Re Riggs, 8 N. B. B. 90, 92; Re Andrews, 113ST. B. B. 59; Re Portsmouth Savings Society, Id. 303; Re Riker, 18 1ST. B. B„ 393; Re Orne, 11ST. B. B. 57; S. C. 1 Ben. 361; Re Bigelow, 3 Ben. 146; Re Bruce, 6 Ben. 515; Re May, 7 Ben. 231; Re Hamburgher, 8 Ben. 189; Re Hatje, 6 Biss. 436; Triplett v. Hanley, 1 Bill. 217; Re Commercial Bulletin Co„ 2 Woods, 220; Bailey v. Loéb, Id. 578; Wylie v. Smith, Id. 673.</p>

<p>1. Copyright and Invention — Transfer — Employment of Author and Inventor — Bights under Contract.</p> <p>Plaintiff engaged his services to defendant for a period of ten years as an author and inventor, and stipulated that the property in his productions should belong exclusively to defendant, including his time and services, in consideration of $5,000, to he paid to him annually, and certain other contingent provisions as to compensation. Held, that such a contract, and the transfer to defendant made in pursuance thereof, invested defendant with the exclusive property in the play copyrighted, and in the patented invention of the plaintiff contemplated in the terms of the engagement or contract.</p> <p>2. Same — Title—Bight to Use of.</p> <p>In such a contract there is no condition precedent or subsequent which can be invoked to defeat defendant’s title or reinvest plaintiff with any interest in the property, nor can he interfere with defendant’s use of the property by injunction, or against defendant’s wishes to use them himself.</p>

<p>1. Admiralty Jurisdiction — Maritime Contracts — Affreightment.</p> <p>Charter-parties and contracts of affreightment are maritime contracts, and, hy their subject-matter, within the admiralty jurisdiction.</p> <p>2. Same — Breach of — Actions on.</p> <p>Bor the broach oí such contracts, if wholly executory, and no part of the performance oí the contract has been entered upon, no maritime lien exists upon the vessel, and an action in rem will not lie, but only an action in per-sonam, against the master or owners.</p> <p>3. Actions — Joinder of — Bum; 46 — Practice.</p> <p>Under rule 46. of the supreme court rules in admiralty an action in rem may he joined with an action in personam against the master or owners for breaches of contracts oí affreightment or charter-parties. The same is true in other cases not expressly provided for under the supreme court rules in accordance with the prior and subsequent practice of the district courts.</p> <p>4. Practice — Amendment of Libel.</p> <p>In cases where such actions may be conjoined in the same libel, if the action be improperly brought in rem, held, that the court has jurisdiction oí the subject-matter of the controversy and of the proceeding, and that it is competent for the court to permit an amendment oí the libel praying process and judgment in personam against the owner after he has appeared and contested the suit in rem upon the merits, there being no change in the subject-matter of the controversy; and the court should permit such an amendment, if desired, where much testimony has been taken upon the merits in,the proceeding in rem, when the latter will not lie for want of a lien.</p> <p>5. Same — Judgments—In Personam.</p> <p>A judgment in personam cannot ordinarily he entered in a suit in rem, except upon amendment and the issue of new process in personam, or the general appearance of the owner in personam,</p> <p>6 Same — Amendments.</p> <p>A general appearance in an action in rem is limited by the nature of the action and the property seized.</p> <p>7. Charter-Party — Action—Practice—Costs.</p> <p>Where the Monte A. had been chartered to the libellant to proceed to Baltimore to take a cargo, but subsequently refused to go there, and the libellant thereupon sued in rem for damages, and the libel showed such refusal on Us face, and the owner appeared and answered upon the merits, denying the alleged charter-party, but not objecting to the form of the action, and testimony was taken upon the merits, and after two years, upon the calling of the case on the calendar for hearing, the objection to the form of the action was first taken, the vessel having- been bonded at the commencement of the action, held, that the objection that there was no lien on the vessel, and that the action in rem would not lie,-was not waived; that no decree in rem, could be pronounced, and that the sureties on the bond must be held discharged. Held, also, that the libellant should have leave to amend the libel by inserting a prayer for further process and judgment in personam, and thereupon the cause might he further heard on tho proofs already taken, and such additional proofs as might be desired; costs not allowed, the objection being unreasonably delayed.</p>

Two libels by the owner of the sloop Nanticoke — one against the bark Milligan and the other against the tug Brazil — to recover damages for injury by collision. The testimony disclosed the following facts: On March 8,1881, the sloop was bound up the Delaware river, and when near Chester, the tide being ebb and the wind having died out, she came to anchor in a narrow channel and close to the range of the range lights.

<p>1. ADMIRALTY JURISDICTION.</p> <p>Admiralty courts have jurisdiction in all cases of maritime obligations. Ins. Co. v. Dunham, 11 Wall. 1.</p> <p>2. General Average.</p> <p>General average comes under the head of maritime obligations, and in such a case, where the .consignee has received his goods and given a general average bond, the United States admiralty court has jurisdiction of an action upon such bond, notwithstanding the opinion of the supreme court of the United States in Cutler v. liae, 7 How. 729, under the authority of the lato decision of that tribunal.</p>

<p>Appeal from the decree of the district court.</p>

Libel in personam by the owners of the bark Accame against Gill & Fisher, Limited, to recover damages for breach of charter-party. The testimony disclosed the following facts: On April 1,1880, Pietro Accame, the agent of the vessel, gave to the respondents an option, known as a cable refusal, to charter the bark for a voyage to the continent of Europe, with full range of ports. This option expired April 3d, without having been taken advantage of by respondents.

pilot against a steam-ship for piloting the latter .to Philadelphia, the defence being that the libellant held only a Delaware license, and that there was a Pennsylvania statute prohibiting any One from acting as such pilot'without a Pennsylvania license. The facts and the opinion of the district court are fully reported in 9 Fed. Rep. 164.

This was a suit by the United States against the master of a vessel to recover the proceeds of a seaman’s effects. On the trial it appeared that Peter Bouel, a seaman on the ship Santa Clara, died during a voyage from San Francisco to Queenstown. He had at the time of his shipment at San Francisco received $75 advance wages. After his death his effects were sold by the master according to law, at the mast, under section 4538, Bev.

<p>Mortgage — Fraudulent Preference.</p>

The question in this ease is one of costs, expenses, and allowances awarded to the complainant below out of a trust fund under control of the court. The ease was decided in the United States supreme court in

l'n error to the circuit court of the United States for the district of Hebraska, This was an action brought for the recovery of a lot of land in the city of Lincoln.

An action of replevin was brought in the circuit court by defendant in error to recover possession of certain tanned skins and bark transferred by the bankrupt to the plaintiff in error in fraud of the bankrupt law. The case was decided in the supreme court on

This case arises upon a bill in equity founded on letters patent granted for an improvement in cooking-stoves. The case was decided on appeal in the supreme court of the United States on

Appeal and cross-appeal from the circuit court of the United States for the northern district of Ohio. The question presented by the appeal in this case is whether the circuit court erred in taking jurisdiction of the appeal from the district court. The decision of the supreme court of the United States was rendered on

<p>Appeal from the circuit court of the United States for the district of Maryland. This case was decided in the supreme court of the United States on</p>

<p>1. Removal of Cause — Action foe Causis® Death— Jurisdiction.</p> <p>a A suit for damages for death caused by negligence, brought against a receiver of a corporation in a state court of New York, was, on motion, removed into the circuit court for that district, on the ground that such receiver was a citizen of New Jersey. The suit had been brought under a statute of the stale of New York permitting such suits to be brought for §5,000 damages. At the trial plaintiff amended Ms complaint by inserting a claim for damages under the, statute of New Jersey, which gave permission to bring such suit, with no limit to the amount of damages specified. ' Held, on motion to remand the cause to the New York state court, that this court had jurisdiction notwithstanding defendant had been appointed ancillary receiver in the state of New York.</p> <p>2. RECEIVER — CITIZENSHIP.</p> <p>A receiver is a representative as much as an executor, and his personal citizenship will be regarded on a motion to remand the cause to the state court.</p>

<p>1. JURISDICTION — APPEARANCE—WAIVER OF IRREGULARITIES.</p> <p>Where defendant appeared and demurred to the hill, the parties are before the court, and jurisdiction has attached, it is too late for defendant to object to the jurisdiction for want of sufficient service of summons.</p> <p>2. Same — Extent oe — Equity.</p> <p>The jurisdiction of the circuit court in equity is to be measured by that of the state court of chancery.</p> <p>3. Contract — Misrepresentations—Endowment Policy.</p> <p>A contract is not vitiated by misrepresentations which were wholly as to what would be done thereafter, and not as to any past or then present fact. This doctrine applied to a case where complainant was induced to take an endowment policy upon his life in the defendant company through various representations made by defendant’s agent, to the effect that the profits would amount to enough to pay and cancel notes given by him in payment for the policy, and otherwise as to what the insurance would amount to.</p> <p>4. Same — Equitable Belief.</p> <p>Where there is no way to pro1 ect and preserve the rights of both parties in a suit in equity but to carry out the contract according to its legal effect, as affected by such representations, estoppels, and additional contracts as may be shown, a bill which prays that the transaction bo declared void, that the notes delivered bo given up, and the amount of premiums paid bo decreed to bo refunded, with interest, while the complainant had some insurance on his life during the running of the policy, essentially lacks equity; but he is entitled to a share in the profits belonging to him, to bo applied on the notes, and on that ground the bill should be retained.</p>

<p>1. Jurisdiction — Foreign Corporation — Si-iimen ov Process on.</p> <p>Aforeign corporation may exercise its i'rancMses and transact business within the state upon such conditions as the laws of the state may impose, and may consent to be “found” within the state, within the meaning of the liovised Statutes, § 739.</p> <p>2. Same.</p> <p>The question whether a party has been properly served with process or not, or whether he has waived his personal privilege, is not a question of pleading,, hut one of practice, and it cannot be raised by demurrfer.</p>

<p>CONVEYANCE — MORTGAGE BACK — ABSOLUTE DEED.</p> <p>A conveyance oí land by a deed absolute on its face for the expressed consideration of §20,000, in notes of the grantee, which were received by the grantor, — the grantee giving back a mortgage of the same date as the deed to secure the payment of the notes given for the purchase price paid, and accepted by the grantor, — is an absolute deed and not a mortgage.</p>

<p>1. CONFISCATION OF PROPERTY — RECOVERY OF AVAILS — CLAIM OF PROPORTION.</p> <p>About the close ol tho late civil war a quantity ol cotton was seized by the United States treasury agents and confiscated as property used in aid ol the rebellion. Subsequently the owner of the cotton brought proceedings in the court ol claims and recovered the value of the property so seized and sold, and afterwards died. After his death a claim was made by a third party as owner of a-portion of the-cotton seized, and.tliis action .instituted against the executor of decedent to recover the value thereof.. Held, that the will of decedent de- ’ scribing tlie lots claimed by him, and corresponding in amount with the claim made by such third party, and advertisements of the same through the newspapers requesting the owner to come forward, pay advances and expenses, ■prove ownership, and receive balance due; and the entries in the books of-decedent of the same, as cotton owned by a party unknown, — are satisfactory , proof of ownership in the party claiming his portion of the avails received by decedent.</p> <p>2.- Same — Claim op Third Partt — Right to Recover.</p> <p>■ Where it was shown by proof that the company, claiming a proportion of the avails of cotton seized by the government and sold, as property used in aid of the rebellion, but the avails of which had been afterwards reimbursed to the owner, was chartered for the purpose of owning, navigating, and freighting vessels engaged in foreign and domestic commerce, and also that it was engaged in running the blockade, but it did not show that the decedent, owner of the property confiscated and sold, or the defendant in this action, were in collusion with such company in any unlawful act, coupled with the fact of the recovery of the avails by defendant, no good reason is shown why the company or its assignee might not recover his proportion of the avails from the estate of the decedent.</p> <p>3. Same — Assignment oe Right op Action.</p> <p>Where an assignment was made by a company having a valid claim against the testator, who held the avails of the property in trust for the assignor, the company having .a right to charge him as such trustee, and the disposition of the cotton seized having been directly within their corporate power, and the disposition of the avails impliedly within the same scope, and the president and all the directors joined in the execution of the assignment, held, sufficient to transfer, the title to the claim to the plain tiff.</p> <p>4. Same — Action—Material Allegations — Matters op Inducement.</p> <p>Where the material allegations of the bill are proved, an allegation that the executor received the cotton as executor of the testator, and held it as such when it was seized, when in fact he received it as surviving partner of testator, is mere matter of inducement, and the bill ought not, therefore, to fail when the material allegations are proved.</p> <p>5. Same — Decree—Interest on Avails.</p> <p>The avails are the amount received for the plaintiff’s cotton after deducting the charges and expenses of their recovery, the amount of expense to 'be ascertained by an accounting, but without interest, unless such avails were so invested as to bear interest, in which case the plaintiff would be entitled to the interest they bore.</p>

<p>1. PARTNERSHIP — DISSOLUTION—DEBTS A IiTEN ON ASSETS.</p> <p>Copartnership debts constitute a lien and an equitable charge upon whatever copartnership property existed at the time of the di'ssolution of the firm.</p> <p>2. Same — Creditors—Rights may be Asserted.</p> <p>A creditor of a dissolved partnership, being a non-resident of the state, is not compelled to go into the state tribunal for. the purpose of asserting his rights, but may proceed directly against the individual representatives of the deceased copartners, or any person having possession of the copartnership assets, no matter under what right he claims them. He may proceed at once, in equity, to have the assets marshalled and distributed to the creditors.</p>

<p>1. ACTION — ANCILLARY SUITS — ENFORCING JUDGMENT.</p> <p>Actions in aid of an execution at law are ancillary to the original suit, and are, in effect, a continuance of the suit at law to obtain the fruit of the judgment, or to remove obstacles to its enforcement.</p> <p>2. Foreign Judgments — Force and Effect.</p> <p>A judgment of ono state has no force in another state save what, it derives from the laws of such state, and the provision of the constitution of the United States which relates to its effect applies only to its effect as evidence.</p> <p>3. Equity — Bemedy—When Creditor may Invoke.</p> <p>A creditor at large cannot invoke the jurisdiction of equity to enforce his claim unless upon some of the recognized grounds of trust or administration of equitable assets. Unless such'grounds exist his remedy is at law, and equity will not assist him until that remedy is exhausted.</p> <p>4. Creditor’s Bill — Foreign Judgment.</p> <p>A judgment obtained in another state cannot be the foundation for a creditor’s bill in this state, it must bo sued over before it becomes a judgment for the purposes of any remedy here, at law or in equity.</p> <p>5. Jurisdiction — When not Assumed.</p> <p>This court will not assume jurisdiction to examine into a fraudulent perversion of the proceedings of a court of a distant state, and sot aside transfers based upon these proceedings, when the actions, the transactions, and the properly are all within that slate.</p>

<p>1. Contract Executory — Performance—Repudiation.</p> <p>In an action on a contract, to deliver goods, when the plaintiff performs, tlie defendant having continuously called for execution of the contract, it is not competent, for the latter to refuse to accept performance ; hut if, upon notice by the promisor of an executory contract that he will not perform, the prom-isee accepts the situation and treats the contract as at an end, tlie promisor cannot afterwards, by changing his mind, compel the promisee to accept performance.</p> <p>2. Same — 'Rights of Promisee undior.</p> <p>The promisee may treat the notice of intention as inoperative and await the time when tlie contract is to he executed, and then hold tlio other party responsible for tlie consequences of non-performance, remaining subject to all his own obligations under it, or he may treat the repudiation of the other party as a wrongful putting an end to the contract, and may at once bring his action on a breach of it for such damages as would have arisen from the non-performance of the contract at the appointed time, subject, however, to abatement in respect of any circumstances which may have afforded him the means of mitigating his loss.</p>

<p>1. CONVERSION — 'TIMBER SEVERED PROM REALTY — RlGHT OP ACTION.</p> <p>A party may maintain an action for a chattel which lias become such by a wrongful severance from the realty; and the fact that the owner of the realty has contracted to sell it, and that the severance of the trees was by the vendee, and that vendee held possession as licensee, licensed to cut and remove standing timber on certain conditions, does not defeat the right of action bv the vendor.</p> <p>2. Same — Value Enhanced — Rights op Owner.</p> <p>The fact that the trees, after being severed, have been manufactured into shingles, and the value considerably enhanced, does not prevent the owner from having the chattel returned to him in its altered form.</p> <p>3. Same — Vendee in Possession — As Licensee.</p> <p>A vendee in possession of land under a contract of purchase is a tenant at will after default in payment. Bo, whore a party obtained possession of land under a contract of purchase with the license to cut timber on each 40 acres as often as he paid a stipulated proportion of the purchase price, and he made default in the payment of an instalment, the cutting of timber would be a wrongful conversion, and he could not give a purchaser thereof lawful possession of the timber.</p>

<p>1. Estates or Deceased — Ancillary Letters.</p> <p>Under the general averment that letters testamentary were issued to the plaintiff, plaintiff's right tQ maintain the action in her representative capacity may rest upon the grant oí ancillary letters, the statute authorizing the letters to issue to the person named in the foreign letters, and the validity of her appointment cannot be assailed on the ground that she is an alien.</p> <p>2. Same — Jurisdiction oe Surrogate.</p> <p>The decision of the surrogate as to the competency of a person to serve, to whom letters testamentary were issued, cannot be collaterally attacked.</p>

<p>Demurrer to Plea.</p>

<p>1. Taxes — Eneobcement of Payment — Objections to Validity.</p> <p>The proceeding to enforce the payment of taxes by a sale of the lots is, in a certain sense, a proceeding in ran against the property, but the owner has a right to be heard at the time the judgment is asked for; but if he fails to appear and make known his objections, he is concluded by the judgment.</p> <p>2. Same — Judgment—Collateral Attack.</p> <p>When a tax-payer has been cited, and has had his day in court to say why judgment should not be rendered against his land, he cannot afterwards attack the judgment collaterally.</p>

<p>Customs Duties — Smuggling—Condemnation of Property Seized.</p> <p>Where a quantity of opium was seized by officers, the burden of proof is on the claimant to show that the property seized was of domestic manufacture and not liable for customs duties; and if he fails to explain the difficulties of the case by the production of proofs within his power to produce, “ condemnation follows from the defects of testimony on the part of such claimant.” And where the claimant has it in his power to produce the best and most satisfactory evidence to repel the presumption which the law has raised against him, and he omits to do so and contents himself with the weaker evidence, the presumption is “turned against him that the highest and best evidence going to the reality and truth of the transaction would not be favorable to the defence.”</p>

<p>1. Revenue—Penalties and Forfeitures—Imports—Rev. St. § 2809.</p> <p>To incur a forfeiture under section 2809 of the-Revised Statutes, which relates to the importation of merchandise into the United States from abroad, there must he an intentional omission from the manifest.</p> <p>2. Costs—Reasonable Ground for Seizure—Rev. St. § 970.</p> <p>Under section 970 of the Revised Statutes, the fact that the goods seized were not on the manifest shows that there was reasonable ground foy seizure -and claimant cannot recover costs.</p>

<p>The Act oe the Legislature oe Alabama oe February 23,1872, repeals the Act oe February 8,1866.</p> <p>Tlie tax authorized to he levied to pay the principal and interest o£ the bonded debt of the city of Selma, and to create a sinking fund therefor, is to be in lieu of all taxes now assessed; and the act further excepts the act of 1859-60 from its operation. Hence the act of 1866, authorizing the levy of a 1 per cent, tax, is repealed.</p> <p>“Including one excludes all others.”</p>

<p>1. Reservation ov Publto Lands in Oregon.</p> <p>By the passage of the donation act of September 27, 1850, (9 St. 497,) and the amendment thereto of February 14, 1853, (10 St. 158,) congress disposed of all the public lands in Oregon to persons who were or should become settlers thereon and otherwise comply with the provisions of such act, except, among others, such portions thereof as might be designated by the authority of the president for certain military purposes and “other needful public uses,” not exceeding 640 acres at any one point or place for ■& fort, nor more than 20 acres for any other purpose. Meld, '(1) that while an order issued by the secretary of war designating a reservation under this act for a military post or station may be presumed to have been made by ’the authority of the president until the contrary appears, no such presumption arises in case such order is made by any one else, and therefore an order issued by the military officer in command of the department directing the establishment of “ a military reservation” at Port Orford, Oregon, is void and of no effect; (2) that a valid desig- ’ nation of a reservation for military or light-house purposes must indicate or describe with reasonable certainty, in some public document or record, the quantity, limits, and location of such reservation, and the same ought to be noted, as soon as practicable, on the plat of the survey of the township; and (3) that such a reservation, if designated so as to substantially exceed the quantity allowed by law, is illegal and void.</p> <p>2. Patent Issued Contrary to Law.</p> <p>When it appears on the face of a patent that it was issued contrary to law, it is void, and a court of law will so pronounce ; but nevertheless the United States is entitled to maintain a suit in equity to have such void patent cancelled.</p> <p>3. Possessory Right of Married Settler.</p> <p>A married settler, under the donation act, prior to completion of his residence and cultivation, may abandon or dispose of his possessory right or location without the consent of his wife.</p> <p>4. Lands — Purchase of, for the United States.</p> <p>A conveyance of lands to the United States is void and inoperative unless the purchase is authorized by congress. Section 3736 of the Revised Statutes.</p> <p>5. Port — Meaning, of the Term.</p> <p>The term “ fort,” as used in the donation act implies a place of more permanence and strength than a rdere frontier camp, post, or station.</p> <p>6. Port Orford.</p> <p>Congress never authorized nor provided for the erection or maintenance of a “ fort ” at Port Orford.</p> <p>7. Promise Made under Illegal Arrest.</p> <p>The arrest and eviction of the defendant William Tichenor, in 1864, from his donation claim at Port Orford, or that portion of it said to have been a . “ military reservation,” and his subsequent imprisonment by military force and without process of law, were illegal acts, and any promise extorted from him as a condition of his liberation, concerning his future claim to the premises, was and is void and of no effect; neither would a verbal promise of non-claim, however induced or made, be sufficient to affect his right to or interest in the premises.</p> <p>8. Allegation of Praud.</p> <p>It is not sufficient to allege in a bill to set aside the patent to a “ settler ” that it was “ fraudulently ” obtained by means of “ false proof,” but the acts • constituting the fraud should be substantially stated.</p> <p>9. Residence and Cultivation of a “Settler.”</p> <p>A settler under the donation act is not required to reside “all over” his claim, nor to cultivate the whole of it, and therefore his proof of residence and cultivation is not false if he actually resided anywhere within the exterior lines of the claim and cultivated any portion of it.'</p> <p>XO. Lapse of Time.</p> <p>Mere lapse of time is a defence in equity in cases not within the operation of the statute of limitations.</p> <p>11. Sale oe Public Lauds.</p> <p>A sale of public lands unauthorized bylaw is void, and the purchaser thereat acquires no right thereby, whether he knew or did not know of such want of authority.</p> <p>TERRITORIAL Prouerty. In article 4, § 8, subd. 2 of tlio constitution of the United States, defining the power of congress as to the disposition of tlio territory or property belonging to the United States, “ to dispose ” means to make a sale of the lands, or otherwise to raise money from them,(a) and includes the the power to lease ;(b) but all disposition must be by authority of congress.(c) “Territory” is equivalent to the word “lands,” and the words “respecting the territory” refer only to the “territory” owned by the United States at the time of the adoption of the constitution, (d) Subsequently-acquired territory is subject to the legislation of congress as an incident to its ownership.(e) The right to govern is the inevitable consequence of the right to acquire. (f) In legislating for the territories, congress exorcises the combined powers of the general and of the state governments.(g) It has the absolute power of governing and legislating for the territories, and may give jurisdiction to the territorial courts ;(h) but such courts are not courts of the United States.(i) The general jurisdiction over the place, subject to this grant of power, adheres to the territory as a portion of the states not yet given away.(j) “Needful rules ” means appropriate legislation, (k) including the passage of all laws necessary to secure the rights of tlio United States to the public lands, and to provide for their sale, and to protect them from taxation.(l) It can make all needful rules and regulations, but only for the disposition and protection of lands within the limits of a state, (m) So, it may provide that all contracts and transfers relating to such land, made before the patent issues, shall be void.(n) It has the absolute right to proscribe the times, conditions, and modes of transfer of the public domain, and to whom transfer shall be made,(o) and it has the sole power to declare the dignity and effect of United States titles;(p) and, when the acts of congress make a patent necessary to complete the title, no state can make anything else evidence of title ;(q) nor can a state pass a law depriving a patentee of the possession of property by reason of delay in the transfer of title after initiation of proceedings for its acquisition.(r) — [Ed.</p>

In Equity. This was a suit to quiet the title to an undivided interest in certain real estate bought by complainant on the twentieth of September, 18'78, for the benefit of the estate of the Central Savings Bank, bankrupt, at a sale under a deed of trust executed by defendant, Elizabeth A. O’Brien.

<p>Appeal from decree of the district court granting a discharge. See report of case, 10 Fed. Bep. 377.</p>

<p>1. KudemptioN — Hot,deb. oe Equity — Rtghts oe.</p> <p>The owner of the equity of redemption of a mortgage has the right to pay it off to save his estate and protect it against subsequent purchasers and encum-brancers, but he lias not tlie right to take the debt from the mortgagee, as a purchaser, without the consent of the mortgagee, so as to hold it as a debt against the mortgagor.</p> <p>2. Same — Pukchasek—What Estate Takes.</p> <p>So -where a bankrupt, after proceedings in bankruptcy, under the laws qf the state convoyed his homestead interest to further secure a mortgage debt, and another debt since adjudged fraudulent and void as to his assignees, and the farm was afterwards, under order of the court, sold free of the homestead but subject to tlie mortgage, the avails of the sale being paid into court to stand in lieu of the homestead interest, the purchaser takes only the equity of redemption, which includes the homestead interest, and ho is not entitled to the fund in the registry to apply it to the payment of the debt; his whole estate being the farm, subject to tlie mortgage debt.</p>

<p>1. PATENTS FOR INVENTIONS — COMBINATION.</p> <p>In a reissued patent for an “ improvement in coal stoves,” adjoining flues at the rear, with walls built on the casing of the same, in combination with illuminating doors or windows in the draft chamber, base section, is not a patentable combination.</p> <p>2. Same — Grate or Fire-Bed.</p> <p>A grate or fire-bed, made in sections and placed oeiow the base of the combustion chamber, as a substitute for an old grate made in one part, and a combination of transparent windows in an ash-pit, is not an invention.</p> <p>3. Same — Substitution.</p> <p>The substitution, in a combination for a fire chamber with its clinker-discharge end non-grated, of a fire chamber with a grated clinker-discharge end, makes the claim invalid.</p> <p>4. Same — Enlarging Space.</p> <p>There is no patentable invention in the idea of contracting the lower end of the fire-pot, for the purpose of lessening the area of the grate, to enlarge the outside space.</p> <p>5. Same— Combining- Old Features.</p> <p>The aggregation, of prior reversible flues with features which before existed in unison in the same stove, operating together in the same way, m a stove without reversible flues, is not a patentable combination.</p>

Demurrer to Bill. This is a suit for an infringement of reissued letters patent for a new and useful improvement in lanterns.

Libel in personam by the master of a vessel against a charterer to recover a balance of freight alleged to be due. Respondents claimed a set-off. The testimony disclosed the following facts: Respondents chartered the vessel to transport iron ore from Carthagena to New York, consigned to respondents.

<p>Admiralty Appeal.</p>

<p>1. Tug — Duty of — Control of Navigation.</p> <p>In the towing of vessels without motive power the tug is to he regarded as the dominant mind or will of the adventure, and the details of immediate navigation, with reference to approaching vessels, must be left to a great extent to those on board of her.</p> <p>2. Same — Measure of Accountability.</p> <p>They are not regarded as common carriers, as to accountability, but are only required to use reasonable and ordinary care in their business — the skill and ability ordinarily possessed and exercised by those engaged in that business— towards the tows in their charge.</p> <p>3. Collision — With Yessel at Dock.</p> <p>Where a vessel was lying at a dock on the east side of the river, and a barge, in charge of a tug coming up the river, sheered to starboard, when the tug pulled her towards port to avoid another tug and tow coming down the river, and directed the tow to steady her wheel, but the tow, by mistake, in porting her wheel sheered towards the barge fastened at the dock, when the tug tried to pull her towards the west side of the river, but failed, and the tow came into collision with the barge at the dock, held, that the master of the tug, in supposing he could pull the tow far enough to the west to avoid collision, was mistaken, and that he tried the expedient too long, and until Ihe barge was so near that the accident of slipping of the tow lino out of the chock of the tow, occasioned by hard pulling, precipitated the collision, which could have been avoided by allowing the tow to sheer and strike the dock below the vessel moored thereat.</p>

<p>In Equity. Suits to annul a patent.</p>

<p>1. Action — Against Stockholders — Receiver—Capacity to Sue.</p> <p>Whore the right of action sought to be enforced does not exist in favor of the complainant, on demurrer the bill will be held bad. So held in an action brought by the receiver of an insolvent corporation seeking to charge stockholders with a liability imposed by a section of the incorporating act.</p> <p>2. Stockholders — Statutory Liability — Debts oe Corporation.</p> <p>The liability of the stockholders of a corporation is a collateral statutory obligation for the benefit of the creditors, of which the former become sureties to the latter for the debts of the corporation.</p> <p>3. Same — Collateral Obligation — Kkhitm of Creditors.</p> <p>Neither a receiver, an assignee in bankruptcy, nor an assignee under a voluntary general assignment ior the benefit of creditors, each of whom represents creditors as well .as tho insolvent, acquires any right to enforce a collateral obligation given to a creditor or to a body of creditors by a third person for the payment of the debts of the insolvent.</p> <p>Note. See, generally, Shaw v. Boylan, 16 Ind. 384; Todhunter v. Randall, 29 Ind. 275; Carne v. Brigham, 39 Mo. 35; Ochiltree v. Railroad Co. 21 Wall. 249; Carey v. Galli, 94 U. S. 672, As to the rights of creditors, see Winter v. Baker, 34 How. Pr. 183.</p>

<p>1. CONTRACT FOR EXCHANGE OF LANDS.</p> <p>Where plaintiff, one parly to a contract, acts with full knowledge as to his own property, as well as the other property for which he is bargaining, while defendant, the other party, on account of non-residonce, can scarcely be said to know his own property, and knows nothing whatever of the property he is trading for, the plaintiff is held to the strictest and fullest disclosures.</p> <p>2. Acceptance by Letter — Withdrawal—Equities.</p> <p>Where defendant signifies by letter addressed to the plaintiff Ms willingness to exchange property with plaintiff, and defendant, soon after mailing his letter, discovered his mistake as to the location of plaintiff’s land, and wrote another letter withdrawing his proposition, but which letter did not reach plaintiff until after the latter had conditionally accepted the proposition also by letter, and wh,o hastily and in a somewhat extraordinary manner took possession of the property of defendant, held, that the equity is with defendant, and judgment will he for restitution of possession of the premises, and an accounting in favor of defendant.</p>

<p>1. InjottctioN Bond — What not Covehed by.</p> <p>An injunction bond conditioned :;o “ abide the decision wliich shall be made thereon, [the original suit,] and pay all sums of money, damages, and costs that shall be adjudged against them if said injunction shall he dissolved,” does not cover the amount of the original judgment and its costs, nor the attorney’s fees.</p> <p>2. Dissolution on Injunction — Remedy on the Bond.</p> <p>Whether a court of chancery in dissolving an injunction will itself proceed to assess damages resulting therefrom, or drive the defendant to an action at law on the bond, not decided.</p>

<p>Habeas Corpus. Petition for release.</p>

This was a suit by the executor of J. EL Lueders upon five certificates of insurance, in the sum of $1,000 each, issued by the Hartford Life & Annuity Insurance Company upon the life of said Lueders. The petition declared the certificates as simple contracts of insurance, and asked judgment upon each certificate for the maximum amount named therein.

<p>1. Actions upon Insurance Policies Transitory, not Local.</p> <p>An action upon a policy oí insurance is transitory, not local, and may, therefore, be brought wherever the company issuing the policy can be found, without regard to where the contract of insurance was made, or the subject thereof was located. .</p> <p>2. Actions against Foreign Corporations in United States Courts—Service oe Process upon Agents.</p> <p>Where foreign corporations establish agencies in a state whose laws provide that they may be summoned by process served upon such agents, they are “found ” within the district in which such agent is doing business, in the meaning of the act of congress of March 3, 1875, (18 St. at Large, 470,) and may be served in the same manner in suits brought in the courts of the United States.</p> <p>3. Foreign Insurance Companies in Ohio—Consent to be Sued.</p> <p>Semble, that the consent to be sued through certain agencies, required before foreign insurance companies are allowed to transact business in Ohio, is not limited simply to causes of action arising within the state, but extends to all •transitory actions.</p> <p>NOTE.</p> <p>Tlie act of March 3,1875, (1 Rev. St. Supp. p. 470, c. 137, ¡g 1,) adopts the phraseology of the constitution, and enlarges the jurisdiction of the circuit court to the full extent of the powers of congress over the subject, and repeals the previous limitation requiring one of the parties to be a citizen of the state where the suit is brought. Eureka Mining Co. v. Richmond Mining Co. 2 Fed. Ref. 829; Dillon, Removals, (3d Ed.) pp. 26, 27: Peterson v. Chapman, 13 Blatchf. 395; Brooks v. Bailey, 9 Fed. Rep. 438; Cooke v. Ford, 16 Ain. L. Reg. 417; Taylor v. Rockefeller, 18 Am. L. Reg. 306, and note, p. 310; Sheldon v. Keokuk Packet Co. 1 Fed. Rep. 792; Osgood v. Chicago, etc., R. Co. 7 Chi. Leg. N. 241; Mayo v. Taylor, 8 Chi. Leg. N. 11; Cli-ppinger v. Missouri Valley L. Ins. Co. Id. 156; Seckler v. Backhaus, 9 Chi. Leg. N. 161.</p> <p>Section 739, Rev. St., provides that defendant can be sued only in the district where he resides or may be found. But corporations may be found for service of process wherever they are doing business. Wilson Packing Co. v. Hunter, 8 Cent. Law J. 333; Railroad Co. v. Harris, 12 Wall. 65; Eos parte Schollenberger, 96 U. S. 369; Moulin v. Ins. Co. 1 Dutch. 57; Moch v. Ins. Co. 10 Fed. Rep. 690; Wheeling, etc.,Transp. Co. v. B. & O.R. Co. 1 Cin. Sup. Ct. Rep. 311; Hannibal, etc.. R. Co. v. Crane, 102 Ill. 249; Handy v. 2Etna Ins. Co. 37 Ohio St. — , (2 Ohio Law J. 289;) Mclfichol v. U. S. Mercantile Ass’n, 14 Cent. Law J. 51; Williams v. Empire Transp. Co. 14 O. G. 523.</p> <p>The questions are believed to be of sufficient importance to warrant inserting here the able opinion of Judge Manning F. Force rendered in Mohr & Mohr Bistilling Co. v. Lamar Ins. Co., pending in the superior court of Cincinnati, being one of the same series of cases as that decided by Mr. Justice Matthews. It arose upon a motion to set aside service of summons, and is as follows:</p> <p>“ Force, J. The ease presents a question of jurisdiction. Both parties are foreign corporations. This court has, by statute, jurisdiction over an action against a foreign corporation when such corporation can be found within the city. A corporation can' be found where it can be served with a summons according to law. A foreign corporation can be served with summons according to law by service upon a managing agent. The service in this case was upon ‘John 1?. Whiteman, agent of said Lamar Insurance Company, and the chief officer of its agency in the city of Cincinnati. Ho chief officer of said company found.’ Such service is service upon a managing agent. Am. Ex. Co. v. Johnston, 17 Ohio St. 641. This court, therefore, has jurisdiction of the action, and the service of summons is according to law.</p> <p>“ It is true that there are special modes of service upon insurance companies provided by statute, but it has been expressly decided that such special modes are not exclusive, but cumulative. Handy v. JEtna Ins. Co. 87 Ohio St. — , (Ohio Law J. January 5, 1882.)</p> <p>“It is urged that the courts of the state cannot, or at least should not, hear causes between non-residents; that there is enough litigation to which citizens of the state aro parties to fill all the sessions of court. But the courts cannot refuse to hear causes that have a right to be heard, and it is impossible to contend that non-residents have not a right to sue non-residents in the courts of the state. The law makes no distinction between natural and artificial persons as to their tight to sue or their liability to be sued. By the comity of all the states, foreign corporations can sue in their courts. Bank of Augusta v. Earle, 18 Pet. 519.</p> <p>“It has not been questioned that a corporation can do business in states other than that in which it is chartered. By repeated decisions of the supreme court of the United States it is settled that a corporation can do business in such other state only by permission of such other state, and upon the conditions as such state may prescribe. Where a state by genéral law provides for a mode of service upon foreign corporations doing .business within the state, such law is a condition upon which a foreign corporation can do business within the state; Paulv. Virginia, 8 Wall. 168; and, by doing business in this state, a foreign corporation assents to such condition. Lafayette Ins. Co. v. French, 18 How. 401.</p> <p>“The courts of Ohio are open for any non-resident, whether a natural oran artificial person, to sue any other non-resident, whether a natural or an artificial person, upon complying with the requirements of the statute. ‘.Non-residents of the state and foreign corporations are as much subject to its jurisdiction as are residents and domestic corporations. Except in actions of a local nature our courts are open to all who may seek relief therein against any one who may be reached by its process.’ Handy v. Mtna Ins. Co. supra.</p> <p>“If it is suggested that the national courts are the proper forum in actions between non-resident corporations, it is held otherwise. In the reports of the supreme court of the United States, corporations are always termed citizens of the state'by which they are chartered. As such they are held included in the word ‘ citizens ’ in the constitution of the United States and in the removal acts. The act of 1875 for removal of causes from state to national courts expressly recognizes the jurisdiction of state courts over actions between non-resident citizens. The same express recognition is made by the supreme court of the United States. Barney v. Latham, 103 U. S. 205.</p> <p>“Motion overruled.”</p> <p>Provisions of Ohio statutes as to consent of foreign insurance companies to be sued and service made upon certain agents, (section 3657, Rev. St. 1880,) and where actions against foreign corporations generally to be blought, and how service of process made, (sections 5030, 5045,5046, Rev. St. 1880.) — [Rep.</p>

<p>Action upon Note.</p>

<p>Insurance—TCuevatoiis—Insurabiye Interest—Grain Therein.</p> <p>A commission merchant engaged in the business of buying and selling grain, and in connection with such business owning and operating an elevator in the usual way, lias such an interest in the grain deposited in his elevator by others as to authorize him to insure it for its full value; and this is so, although the contract between liim and the depositors of the grain stipulates that the grain in store is subject to bis charges, and that lire is at the owner’s risk.</p>

<p>SMUGGTJN6 — OlRCUMSTANTIAU EVIDENCE — CONDEMNATION*.</p> <p>Whore, in an action against a vessel tor an attempt to smuggle foreign goods liable to customs duties, there is an irreconcilable conflict in the evidence given on the one side by the government officers, and on the other by the officers and part of the crow oí the suspected vessel, and the case made out by the government witness shows — First, concealment on the part of the captain and mate of the fact, that the suspected vessel had come in through the pass, where, on an island in said pass, the smuggled goods were found, instead of coming in by the main channel; second, prevarications and misrepresentations excusing the fact that she had no boarding officer aboard ; third, absence of the yawl and all of the crew on the night of the seizure of the goods, together with finding-on the yawl mud and grass similar to that where the goods were found; fourth, a spliced oar produced in court, and found at the place of the goods which a witness identifies as the same as that he saw the day previous on board and belonging to the vessel’s yawl; fifth, finding on board the vessel, after seizure, goods of the same brand in small quantity in the possession of the captain, with other circumstances, are sufficient to warrant the judgment of condemnation rendered by the district court, and such judgment will be affirmed.</p>

On Demurrer. Action for damages. This was an action for damages brought against an administrator, in his representative capacity, for a violation of plaintiff’s rights, by selling and conveying to divers parties, a certain article which plaintiff claims the exclusive right to make and vend.

<p>1. Tax Sage — Ootj/usivb Bidding — Certifícate Void.</p> <p>Where there was a tacit agreement among the bidders present at a tax sale that they were to take turns in bidding, and that they were not to bid against each other, the sale and certificate are void.</p> <p>2. Same — Assignee Takes, Subject to Infirmities.</p> <p>The assignee of such a certificate holds it subject to all the infirmities by which it would have been affected in the hands of the purchaser at tlie sale.</p> <p>3. Same — Equitable Rfvmef from Fraud.</p> <p>Where fraud has been committed, and by it the complainant has been injured, tlie general principles of equity jurisprudence afford a remedy. So, in the case of a fraudulent combination to deprive a mortgagee of his security by procuring a sale of the mortgaged promises for taxes without notice and without competition among bidders.</p>

This case came before the court upon the report of the register as to the assets belonging to and the costs chargeable against the joint and separate estates of the bankrupts respectively. His report showed the following facts: William II. Blumer, Jesse M. Lino, and William Kern, individually an l trading as William H. Blumer So Oo., were adjudicated bankrupts.

<p>Patents eou Inventions — Reissue—Want of Novelty.</p> <p>Where the form of a chair seat was old, the material used old, and the method of imparting the form to the material was old, the reissue was devoid of any patentable novelty.</p>

<p>Patents for Inventions — Devices Performing!- Different Punctions,</p> <p>Where the devices in the hod elevator patented by defendant, are not the equivalents of the complainant’s, but perform a different function, there is no infringement of plaintiff’s patent.</p>

<p>1. Patent bob Invention — Deuay in ArpucATioN eoh Reissue.</p> <p>The numerous patents obtained by the patentee between the lime of his alleged invention and the time of his application tends strongly to refute his theory for delaying to make such application.</p> <p>2. Reissue — Reebbence to Fobmeb Appiication.</p> <p>The fact that a patentee failed to refer in a former application to a feature subsequently patented by him pertaining to and used for the same purpose a,s the former, alleged to have been made by him prior to the one first patented, is very improbable, as the mention of such would have been a most important contribution to the value of the former.</p> <p>3. Same — Preliminary Injunction Denied.</p> <p>Motion for preliminary injunction denied where patents have not been established, and complainants show only a limited acquiescence on the part of manufacturers, and defendant for years openly asserting their invalidity.</p>

<p>1. Shipping — Bill oe Lading — Damages eor Mon-Delivery.</p> <p>Where but a portion of the cargo stated on a false bill of lading was actually shipped, and the owner of the vessel is not shown to have been a party to the fraud, the only damages to be found in an action in ram, against the vessel are for the non-delivery of the cargo sliowm to have been put on board.</p> <p>2. Same — Fraud—Liability oe Vessel — Quaere.</p> <p>Where the testimony of the libellant shows fraud on the part of the owner of the vessel in using false bills of lading, and also conclusively that but a small part of the cargo stated was ever shipped, can the vessel in an action in ram be held for the non-delivery of cargo more than is shown to have been received on board i Qucera.</p> <p>3. Same— Pkesttmptioüt oe Cqkdttioíí oe Goods.</p> <p>Cargo is presumed t.o be shipped in good condition; and where the delay and dampness oí the hold of tho vessel are shown to have been sufficient to cause the damage found, if such delay has been unjustifiable, it is presumed to be the cause of loss and tho vessel held liable.</p> <p>4. Non-Delivery — MeasuRe on’ Damages.</p> <p>Where the voyage has not been completed and but scarcely commenced, and the cargo ruined by delay, tho measure of damages for its non-delivery is its value at place of shipment and not at place of destination.</p>

<p>Admiralty Appeal.</p>

<p>Admiralty Appeal. On petition for rehearing.</p>

<p>In Admiralty. Salvage.</p>

<p>1. COLUSION — CROSSING COURSES — MANEUVER IN EXTREME.</p> <p>Wliere it was not possible for a pilot-boat, by holding her course and beating out her tack, to cross the bows of a tug without collision, she is justified in attempting at the last moment to avoid the collision by keeping away, and her failure to accomplish this is no fault.</p> <p>2. Same — Choice of Maneuvers.</p> <p>Where it was doubtful whether she could have accomplished such a maneuver in safety, it is no fault to decline crossing the hawser between the tug and her tow.</p> <p>3. Same — Error in Extremis — Not a Fault.</p> <p>A. mere error in the selection of means to avoid a danger cast upon a vessel by the fault of the other vessel would not render the erring vessel responsible for the result.</p>

<p>Iíaiitroap — Lease of — Statute Constbued.</p> <p>Whore tlio language of the statute is that no lease of one railroad by another shall be perfected “ until a meeting of the stockholders of each of said companies shall have been called by the directors thereof, at such time and place and in such manner as they shall designate, and the holders of at least two-thirds of the stock of such company represented at such meeting’, either in person or by proxy, voting thereat, shall have assented thereto,” the stockholders’ meeting, and the vote in such meeting upon the question of assenting to the proposed lease, are matters of essence, of substance, and not of mere form; and their assent individually obtained outside of such meeting, and in the absence of deliberation, would bind no one.</p>

<p>1. Uktlaterai, Contkaot — Evidence.</p> <p>Parol evidence is admissible to prove the consideration of a unilateral contract made in writing against the person seeking to enforce the same.</p> <p>2. Same — Presumptions.</p> <p>When a written contract is confined to one undertaking by one party, although a presumption arises, in tlie absence of proof to the contrary, that the parties expressed the whole of their intentions in respect to the subject-matter, yet, that presumption may be rebutted by express evidence that wliat was so written was intended as a mere memorandum of one part or branch only of a mere general agreement; or it may be shown that a parol contract was made independently, wholly collateral to and distinct from a written one made at the same time. Where a written contract expresses no consideration, a consideration may be proved, even when it consists of a distinct contemporaneous verbal undertaking.</p>

<p>Space Appropriated to Passengers.</p> <p>A space upon a vpssel bringing passengers into the United States, under the act of March 3,1855, (10 St. 715 ; section425*2, Rev. St.,) is not “ appropriated ” to their use within the meaning of the term, or the object and policy of the statute, unless it is given up to their exclusive use; and therefore the dining saloon of a steamship carrying Chinese passengers-from Hong Kong to Portland, Oregon, in which such passengers were allowed to go and come during the day, but to which* no number of them were allotted or assigned, and in which they neither ate nor slept, was not a space appropriated to their use. •</p> <p>Note. A mate acting as master is liable to the fine imposed on the master, although the agreement with the passengers was made with the former master, if he had knowledge of the facts, and had an opportunity to annul the contract before leaving the foreign port. U. 8. v. Morton, 1 Low. 179. Where the passengers go on board openly, they are presumed to have been taken on board by the master within the purview of this section, (U. 8. v. Thomson, 12 Fed. Kef. 265;) and where the libel states the offence in the words of the statute, it is sufficient. ¡7. 8. v. The Neurea, 19 How. 94. -[Ed.</p>

<p>1. Libel — Privileged Communications.</p> <p>A communication is privileged when made in good faith in answer to one having an interest in the information sought, and it will he privileged if volunteered, when the party to whom it is made has an interest in it, and such party stands in such relation to him as to make it a reasonable duty, or at least proper, that he should give the information.</p> <p>2. Mercantile Agency — Verbal Statements.</p> <p>The verbal statements of a mercantile agency, made in relation to the plaintiffs’ business credit and standing as merchants, to their subscribers, who had an interest in knowing the facts, and in answer to inquiries made by them, if made in good faith and upon information on which defendant relied, are privileged, and cannot be made the foundation of an action. ,</p> <p>3. Communications- — When Cease to be Privileged.</p> <p>A communication which would otherwise be privileged, if made with malice in fact, or through hatred, ill-will, and a malicious design to injure, is not a privileged communication, but the burden of proof is on plaintiffs to show malice in fact.</p> <p>4. Libel — Os Merchants or Business Men.</p> <p>Every publication, in writing or in print, which charges upon or imputes to a merchant or business man insolvency or bankruptcy, or conduct which would prejudice him in his business or trade, or be injurious to his standing and credit as a merchant or business man, is a libel.</p> <p>5. Same — “Daily Notification Sheets” — Responsibility.</p> <p>Where defendants, in the course of their business, issued “ daily notification sheets,” and sent them to all their subscribers, irrespective of their interest in the question of the plaintiffs’ credit and standing, and this sheet was distributed to persons having no interest in being informed of the condition of plaintiff's’ firm, this fact robs it of the protection of a privileged communication, and if it contains a libel on the plaintiff's, defendants cannot escape responsibility for such libel on the plea that it was a privileged communication to their subscribers.</p> <p>C. Same — Province of Jury.</p> <p>Where such “ daily notification sheet ” contained filenames of the plaintiffs, and opposite thereto the words “ Call at office,” it rests with the jury, in view of the definition of a libel, and considering all the evidence adduced and relating to these words, to determine whether they constitute a libel on the plaintiffs in their business as merchants.</p> <p>7 Same — Measure of Damages — Province of Jury.</p> <p>Where a publication is libellous, the law’presumes that it was made with malice — technical, legal malice, but not malice in fact — and the amount of damages depends in a large degree upon the motives which actuated defendants in its publication, and in such cases the law leaves it to the jury to find and return such damages as they think right and just, by a sound, temperate, deliberate, and reasonable exercise of their functions as jurymen.</p>

<p>1. Licenses and Taxes — Right to Sell Goods under.</p> <p>The payment of taxes due in iiie home state of a merchant does not of itself entitle him to sell his goods in all other states free of taxation, nor is such exemption secured by the equal-privileges clause of the national constitution.</p> <p>2. Sajje — State Laws — When Null and Yoid.</p> <p>If the provisions of a state license and tax act are designed by the legislature to discriminate against non-resident merchants, and against goods sold from other states, in favor of resident merchants' and goods held in the state for salo, and if such discrimination be the practical effect of the law, and those two facts are legally established and brought home to the conviction of the court, the law must be declared null and void.</p> <p>3. Same — Commercial Travelers — Discrimination against Non-Residents.</p> <p>If the legislature of a state frames a law relating to merchants and sample merchants with the intention to discriminate against non-residents in favor of residents, and against goods in other states sold by sample in favor of goods held within the state for sale, and if the legislation has this practical effect, then such provisions are null and void, and all arrests and prosecutions under them are illegal.</p> <p>4. Same — Extent op Authority of Legislature.</p> <p>The legislature has a right to discriminate against sample merchants in favor of merchants, the state being sovereign mistress of her own policy in determining what classes she shall lay a license tax upon, and what classes she shall exempt from such taxation, and in deciding how lightly or how heavily she shall make such a tax.</p> <p>5. Same — Resident Merchants — Non-Resident Agents.</p> <p>The assumption that a merchant is necessarily a resident, and that a sample merchant is necessarily a non-resident, is an arbitrary one, and one which a court of justice has no right, by mere inference, to accept as true.</p> <p>6. Same — Equality of Licenses and Taxation.</p> <p>Where an act of the legislature taxes each additional sample agent $50 for all goods sold to the amount of $50,000, and taxes the merchant for each additional $50,000 of goods sold by him or his agents, tho same amount of $50, the law practically equalizes the tax upon the two classes, and no discrimination results.</p> <p>7. Same — State Laws — Constitutionality of.</p> <p>It is only when a law discriminates against a foreign resident of a certain class, or against the goods held in another state for sale, in favor of a resident of the same class, and goods held within the state for sale, that it is obnoxious to the provisions of the national constitution in relation to the privileges and immunities of citizens of the several states, or the regulation of commerce with foreign nations and among the several states, or the prohibition of laying imposts or duties on exports or imports.</p> <p>NOTE.</p> <p>State License Tax. TJnder the provisions of the constitution of the United States, article 1, creating the legislative power of the general government and restricting the legislative power of the several states, it has been judicially decided that a tax on sales is a tax on the proceeds, and not on the imports.(a) Inquiring a license for non-resident traders to vend foreign merchandise is not a tax on imports or exports,(b) nor is a provision requiring hawkers and peddlers to take out a license.(c) A license for the sale of goods, if imposed on all persons engaged in the same business, is not inconsistent with this provision;(d) hut a license tax discriminating against products of other states is in conflict ;(e) so a state cannot impose a license tax on a traveling agent from other states.(f) A state cannot impose on products of another state brought in for sale or use a more onerous burden or tax than upon like products of its own territory ;(g) but an annual tax on all peddlers of a certain class selling by sample is a tax on all, irrespective of the place of the production of the material or the manufacture, and is not a violation of the constitution. (h) A state may levy a tax on business and persons within its limits ;(i) so it may tax professions, occupations, and trades ;(j) and such license acts are not unconstitutional.(k) Congress may regulate licenses to carry on trade within a state for internal revenue purposes, yet the power of the state to tax, control, or regulate the business is not incompatible ;(l) so although letters patent grant exclusive rights to make and vend, yet the state may regulate the use of that right as to merely internal commerce or police.(m) The United States licenses will not warrant carrying on a business in violation of a state law.(n) State prohibitory laws are operative against such licenses ;(o) so a license under the internal revenue act is no bar to an indictment under a state law.(p) The state may regulate the sale of intoxicating liquors,(q) and require a license for the same,(r) or prohibit the sale altogether.(s) A tax law taxing the selling of intoxicating liquors is inoperative only so far as it discriminates against imported wines and beer.(t) Cities may exercise all powers constitutionally conferred on them.(u) A city ordinance regulating the sale of intoxicating liquors is not unconstitutional;(v) and giving á license by a municipal corporation is not a regulation of commei*ce,(w) nor a violation of the constitution,(x) even though the business extends beyond the limits of the state.(y)</p> <p>Privilegios am> Iaim UNITIES. These expressions, as used in article 4, § 2, of the constitution of the United States, are confined to those privileges and immunities which are in their nature fundamental,(a) such as protection by the government; the enjoyment of life and liberty; the right to acquire and possess property, and to pursue and obtain happiness and safety, subject to such restraints as the government may justly proscribe for the general good;(b) such privileges and immunities as belong to general citizenship, (c) including the right to pass freely into and through any state for the purposes of commerce, trade, residence, etc., (d) the right to pursue a lawful employment in a lawful manner, and to be exempt from any higher taxes or excises than those imposed on its own cilizons.(e) Congress cannot grant privileges to citizens of one state over those of another, and cannot give a state the power to do so. (f) Where the laws differ, a citizen of one state claiming rights in another must claim according to the laws of that state and not of his own.(g) Citizens do not by this clause acquire any peculiar privileges in another state except upon the condition on which they may bo held or enjoyed by the citizens of such other state.(h) The main object of. this clause was to prevent each state from discriminating in favor of its own people, or against those of any other state ;(i) but it is not intended to secure the citizens of any state against discriminations made by their own state in favor of citizens of other states, nor of one class against another class of citizens of the same state.(j) A state law imposing a discriminating tax on non-resident traders is void,(k) but the property of a non-resident may be taxed equally with that of a resident. (l) A tax on those who sell goods brought into the state and not owned by residents is valid.(m) A license on the sale of goods by nonresident traders is valid if there is no discrimination;(n) so a license required to vend foreign merchandise is valid,(o) or for all articles except those manufactured by themselves within the limits of the state.(p) — [Ed.</p>

<p>Insurance against Fire—Contract—Conditions Construed.</p> <p>Conditions and warranties in policies, especially wliere numerous and in fine print, should be strictly construed against the insurer; and if, in reading the written part of the policy in connection with the condition or warranty, there be doubts as to whether it was intended to include a certain hazardous article in the risk, the assured are entitled to the benefit of the doubt.</p>

For report of case and charge of court see 11.Fed. Bep. 377. This was a suit upon a policy of insurance upon the life of C. S. Alford, deceased.

<p>1. Ejectment — Adverse Possession.</p> <p>To defeat the title of the plaintiff the possession of the defendant must be adverse — that is, in hostility to the title of the owner; for if the possession is held by mere indulgence and by consent of the owner, and the defendant understood this, and acquiesced, the possession is not adverse.</p> <p>2. Same — Statute oe Limitations — Possession must be Exclusive.</p> <p>The possession, in order to avail the defendant under the plea of the statute of limitations, must be an exclusive possession, and not held within 10 years prior to the commencement of the suit, in conjunction with one who was the real owner.</p> <p>3. Same — Possession follows Title.</p> <p>■ The possession follows the title and, if the owner and others are in possession, the law considers the owner as in possession.</p> <p>4. Damages — Measure of.</p> <p>The damages consist of the value of the property by way of rents during the time the possession has been withheld.</p>

<p>In Bankruptcy. Appeal from the judgment of the district court.</p>

<p>1. PATENTS FOR INVENTIONS — ESSENTIAL ELEMENT .LEFT OUT.</p> <p>In a claim for a combination, one essential element whereof is an intermediate lever, a machine which omits the essential element of an intermediate lever, and substitutes another, whereby the same result is accomplished in a different manner, does not infringe the patent.</p> <p>2. Same — Not a Colorable Modification.</p> <p>Where the difference in the action of ihe two machines is substantial, the defendant’s arrangement is not a colorable modification of plaintiff’s arrangement, and is not an infringement.</p>

<p>1. Patent von Inventions — Reissue—Enlarging Claims.</p> <p>Where plaintiff in obtaining a reissue introduced an inexact claim, which if construed according to its natural meaning would include an invention broader than the one which was made, the patent is improperly enlarged.</p> <p>2. Reissue — -'Void Claim — Disclaimer.</p> <p>One claim in a reissue may be void without necessarily invalidating the other claims. In such case it is proper to disclaim the void claim.</p>

<p>Patents foe Improvements — Want of Novelty.</p> <p>Tlie merely advantageous bringing together of parts which do not co-operate to produce a new result, and which by their aggregation contains the advantages which resulted before separately in several structures, is not a patentable novelty.</p>

<p>1. Collision — Duty of Tug as to Safety of Tow.</p> <p>Though a vessel be anchored at an improper place, a steam-tug, with a long tow upon a hawser astern, is not justified in passing her and entering a strong current, which is obviously likely to swung the tow against the vessel at anchor, if there be any other less dangerous alternative. It is the paramount duty of a tug to consult the safety of her tow, and to run no avoidable risk.</p> <p>2. ANCHORING IN WRONG PLACE — NOT TO BxOUSE NEGLIGENCE IN STEAMER Passing.</p> <p>Where the steamer 0. came to anchor from 1,000 to 1,500 feet to the westward of Governor’s Island, at the mouth of the East river, when, as contended by the claimant, she was G00 to 700 feet off the port quart or of the steam-tug D., having in tow, upon a hawser 890 feet long, six tiers of canal-boats, and the tide from the East river was at the strength of the ebb, and the danger of the tow’s swinging against the steamer was perceived in case the steam-tug should proceed to cross the strong ebb tide, and there being no other reason for not dropping astern than the fear that the hawsers might foul, and the steam-tug D. having three smaller tugs as helpers at her command, but the steam-tug nevertheless proceeded to cross the strong current of the ebb tide under a hard a-port wheel, but was unable in so doing to prevent the libellant’s boat in llio fourth tier from swinging against the steamer, whereby it was sunk, held, that the excuse given was insufficient; that the tow might and should have been taken astern ; and that the steam-tug was answerable for the loss. Held, also, that it was the duty of the steam-tug, if it was believed that the steamer C. had come to anchor at an improper and dangerous place, her steam being still up, to give danger signals before going on, in order that the steamer might be notified to change her position, there being sufficient time to do so.</p>

<p>Inevitable Accident — Adopting Dangehous Course.</p> <p>■Where the pilot of a vessel, without necessity, adopts a dangerous course, and fails in his purpose, he must hear the responsibility.</p>

<p>1. Shipping — Obtaining Employment for Seamen.</p> <p>A person who is not a shipping commissioner is not authorized to charge any fee for shipping seamen.</p> <p>2. Same — Penalty.</p> <p>In an action for the penalty for shipping seamen without authority, and demanding a remuneration therefor, it is for the defendant to show himself within the exception stated in the act of congress.</p>

On October 11, 1881, the United States attorney for the eastern district of Texas filed an information against Israel Le Grand, the plaintiff in error, William Eidloy, and William Laney, in which it was charged that on May 31, 1881, in the county of Camp, and within the eastern district of Texas, the plaintiff in error and the said Bidley and Laney did conspire together and go in disguise upon the premises of one Dennis Bolton, a free male citizen of the United States, and…

<p>Information for Cutting Timber on Public Lands.</p>

<p>Privilege oe Suitors and Witnesses.</p> <p>Parties and witnesses attending in good faitli any legal tribunal, with or,, without a writ of protection, are privileged from arrest on civil process during their attendance, and for a reasonable time in going and returning; and this ■ immunity extends to all kinds of civil process, and affords absolute protection.</p>

<p>Common Caekiek — Altbkmd Bill of Lading — Liability.</p> <p>The fact that the shipper was allowed, to fill the hill of lading In his own hand-writing, and leave a blank which afforded opportunity for increasing the statement of the number of bales shipped, wil] not render the common carrier liable for loss occasioned by the forgery of the shipper in raising the bill of lading.</p>

<p>Life Insurance — Tender of Premium — Forfeiture for Non-Payment.</p> <p>In an action on a policy of life insurance to recover the amount oí the policy on the death of the insured, the company cannot set up in defence a forfeiture of the policy by failure to pay or tender the premium on a particular day named in 1he policy, where the policy-holder was misled as to the day of payment and tender by information derived from the duly-authorized agents of the company, whereby tender was not made till after such date.</p>

<p>1. Exectotoiis as Co-Representatives — Remedy retwbhn.</p> <p>Owing to the community of interest no action 'lies at law by one executor or administrator against his co-representative, but the remedy is in equity. So, where complainants, as executors, seek to recover a deficiency arising upon the sale of mortgaged premises sold for satisfaction of a mortgage made by defendant, a co-executor and one of the obligees in the bond, and mort. gagec in the mortgage executed by himself; they are properly in a court of equity, and having in their hands the funds out of which defendant’s commissions are payable for his services as executor, they can retain the sum due as his share, and apply it to reduce his indebtedness to the estate.</p> <p>2. Bankruptcy — Composition—Rights of Creditors.</p> <p>A composition proceeding not carried out, nor performance of the resolution tendered by the insolvent, is an accord without a satisfaction; it is not a discharge of the debt, and will not prevent a creditor from pursuing his action to recover his debt.</p>

<p>Patents for Inventions.</p> <p>A mere process for making an article is not of itself a patentable invention.</p>

<p>1. Patents for Inventions — Reissue.</p> <p>Where a process patent was claimed in the reissue, and everything essential to the process was pointed out in the original patent nine years before the reissue, and in the mean time other inventors have occupied the ground covered by the general subject-matter of the invention, what was therein pointed out and not claimed is to bo deemed abandoned to the public.</p> <p>,2. Claims in Reissue — Construction—Bule of.</p> <p>Where claims in the reissue relating to the apparatus, considered literally, are broader than the claims in the original, describing the functions rather than the mechanism, they are to he construed with reference to the specification, and so, if consistent with the language used, as to secure to the patentee the invention which is described, brft not so as to embrace any invention broader in its scope than that in the original invention.</p> <p>3. Inb’ringuns Patent.</p> <p>The patent of defendant may he valid, and possibly his mechanism is an improvement on complainant’s; hut this will not xirotect him from t-he charge of infringement.</p>

<p>PATENTS FOR INVENTIONS — IMPROVEMENT IN WllIP-SOCKETS.</p> <p>Letters patent No. 231,510, ior an improvement in whip-sockets, adjudged valid and infringed, and that reissued letters patent No. 9,297 are null and void, having been granted by the commissioner without authority.</p> <p>Note. This case was improperly reported. Ante, 140. The case was opened before entry of decree, and the original letters patent, No. 150,195, introduced in evidence, and the case reargued and resubmitted, when the above decree was entered declaring reissued letters patent No. 9,297 void.</p> <p>N. D.</p>

<p>Patent foe, Inventions — Process foe Cueing Pish.</p> <p>A patent construed as limited to a process for curing fish is not infringed by a similar process employed after the lisli are cured.</p>

<p>1. Vessels — Limited Liability of Owners — Damages—Res Adjudicata.</p> <p>In proceedings by petition brought by the owners of the vessel under the limited liability act, (Rev. St. } 4283,) where the vessel has been decreed liable for damages sustained by a collision, the question of liability is res adjudicata, and in no way involved, and the losing party cannot revive and retry the case upon its merits.</p> <p>2. Same — Distribution of Fund in Registry.</p> <p>Tho pro rata distribution of the fund, when the amounts arc not sufficient to pay all claimants in full, provided for by Rev. St. § 4284, relates to a distribution among those whose losses arise from the collision, and has no reference to other liens of an inferior grade and quality upon the wrong-doer.</p> <p>3. Same — Priority of Lien for Damages.</p> <p>A decree for damages in a case of collision overrules all prior liens, including that for seamen’s wages.</p>

In Admiralty. Libel for collision. The facts were as follows': Ón June 9,1881, at about 5:10 A. m„ the steam-ship Pottsville collided with the schooner Joseph and Franklin in the Atlantic ocean, between Hereford inlet and Five Fathom bank light-ship. At the time of collision the course of the steam-ship was about S. W. by W.; that of the schooner U. H. E. The wind was light and from the eastward; the sea was rough, and there was a dense fog.

In Admiralty. This was a libel filed by the master and owner of the steam-boat City of Richmond, to recover $5,000 as salvage compensation for assistance rendered to the steam-boat Plymouth Rock, under the circumstances described in the opinion of the same court, reported in The Plymouth Rock, 9 Fed. Rep. 413, 415, et seq.

’ Plaintiff, in the court below, recovered judgment on certain bonds which were issued to a railroad company by the plaintiff in error to aid in the construction of a railroad, and by the railroad company transferred to defendant in error. The bonds had been issued to the railroad company under authority of an act of the legislature of the state.

for the northern district of Hew York. This was an action for alleged fraud in obtaining a loan upon insufficient security. The decision was rendered in the supreme court May 8, 1882.

<p>Error to-the circuit court of the United States for the eastern district of Wisconsin. The decision of the supreme court was rendered on April 24,1882.</p>

Appellant recovered judgment in an action of ejectment on a patent from the United States. Defendant in that action brought suit in chancery to compel a conveyance of the legal title to himself, on the ground of a superior equity, and prevailed in his suit, from which this appeal is taken. The case was decided in the supreme court of the United States on April 10, 1882.

This was an appeal from the circuit court of the United States for the northern district of Illinois. A bill of review had been filed in the circuit court seeking to reverse so much of the former decrees of the court in a foreclosure suit as denied the statutory right of redemption given by the laws of the state in regard to land sold under such decrees.

<p>Error to the circuit court of the United States for the district of Louisiana.</p>

5 FT. J. Law J. 169. Error to the circuit court of the United States for the eastern district of Virginia. This is an action brought by the executor of deceased to recover of a railroad company damages for the death of a party alleged to have resulted from the negligence of the company while carrying deceased on their road.

<p>Error to the circuit court of the United States for the eastern district of Yew York. The case was decided in the supreme court on May 8, 1882.</p>

<p>Error to the circuit court of the United States for the eastern district of Virginia.</p>

<p>Appeal from the circuit court of the United States for the eastern district of Yew York. The decision was rendered on May 8,1882.</p>

<p>Patent for Inventions — License.</p>

<p>Bill in Equity to set aside a decree of this court for fraud,</p>

<p>1. INTEREST ON NOTE.</p> <p>Where a note is made payable at a future day, “ with ” interest at a prescribed rate per annum, such interest does not become due or payable until the principal sum does, unless there is a special provision in the note or contract to that effect.</p> <p>2. Specific Performance.</p> <p>A contract to convey real property will be specifically enforced as prayed for by the plaintiff, where its terms are admitted by the defendant, and the only objection made to such performance is based upon a construction of the contract as to the part to be performed by the plaintiff, which in the judgment of the court is unsupported by the language of the contract or the circumstances of the case.</p>

<p>1. PARTNERSHIP— Minuto Company.</p> <p>A contract between three persons to operate a “mining property as a com.pany” creates a partnership of such persons from the date thereof, and makes each of them liable for the debts contracted in the prosecution of said enterprise ; and this, notwithstanding the fact that such contract also provides that there shall be no division of profits between the parties until two of them are reimbursed therefrom the money expended in the purchase of two-thirds of the property from the other one, and the cost of improving the same.</p> <p>2. MORTGAGE. ■ ...</p> <p>The mortgagee of a mortgage to secure an antecedent debt is not regarded as a purchaser, and therefore the lien of his mortgage will be postponed to that of a prior but unrecorded one.</p> <p>3. Suit to Enforce the Lies' of a Mortgage.</p> <p>In a suit to enforce the lien of a mortgage, a subsequent mortgagee, who is made defendant on that account, cannot set up a claim or have a decree against the plaintiff for the amount of his debt upon the. ground that the plaintiff is personally liable to him therefor as partner of his mortgagor.</p> <p>4. PARTNERSHIP WITH A MEMBER OP ANOTHER PARTNERSHIP.</p> <p>Although A. may be interested with B. in his interest in a partnership, consisting of B. and two others, that does not make him a member of said last-mentioned partnership.</p>

<p>1. PARTNERSHIP — PRESUMPTION OE CONTINUANCE.</p> <p>' Personsbr corporations dealing with a partnership once existing have a right to presume that the persons once composing the firm continue doing business in the firm name, and that the firm continues to exist; and nothing short of public or personal notice that the firm has been dissolved, will relieve the parties of their liability as partners.</p> <p>2. Same — Mortgage to Secure Individual Debt.</p> <p>Where a- partnership is still in existence one partner cannot mortgage the stock under his control to secure his individual debt.</p> <p>3. Same — When Fraudulent. .</p> <p>Where the object of the mortgage was to prevent, hinder, or delay creditors in the collection of their claims, such mortgage is fraudulent.</p>

<p>ATTORNEY’S LlEN.</p> <p>X.iuler the statutes of Nebraska an attorney has no lien on the judgment obtained by him, in favor of his client, which he can enforce against a third party; and to secure the lien given on Iho papers of his client in his possession, or upon the money in his hands belonging to his client, or upon money in the hands o! a third party, in an action or proceeding in which he was employed, as given by the statute, he must give personal notice in writing.</p>

<p>Sur exceptions to auditor’s report distributing the proceeds of execution.</p>

<p>1. Estates op Deceased — Descent and Distribution.</p> <p>Where a second wife recovered judgment against a railroad company for the death of her husband by its negligence, and invested the proceeds thereof for the benefit of her children and subsequently died, her heirs hold the estate in trust for themselves and the heirs of their father by a prior marriage, and the property or the proceeds thereof should be divided equally among the two sets of heirs.</p> <p>2. Same — Rights op Heirs by First Marriage.</p> <p>Where heirs of a first marriage were in some way induced to believe that they were not entitled to any part of their money coming from their deceased father’s estate until the youngest came of age, their delay until that time to assert their claims is not such laches as will deprive them of their rights.</p>

<p>1. EXECUTORS AND ADMINISTRATORS — SUITS BY.</p> <p>In the absence of a statutory provision an administrator cannot sue outside of the state in which he is commissioned.</p> <p>2. Same — Foreion Administrator may Collect Assets.</p> <p>Notes owned by deceased at the time of his death, secured by mortgages on lands in another state, are assets in the hands of his administrator appointed in the state where he resided at the time of his death, and his administrator may sue on them in the state where the land lies by which their payment is secured.</p>

<p>Equity — Practice.</p> <p>Where a cause was set down, for hearing upon the pleadings on defendant’s motion, expressly to preclude complainant from introducing evidence which it was its duty, under the rules, to introduce in time to permit defendants to reply, complainants cannot he permitted to introduce exhibits and documents not made by proper reference a portion of the hill.</p>

<p>1. CRIMES — POSTING if ON- MAILABLE MATTER — WRITING DEFINED.</p> <p>A sealed letter deposited in the mail, addressed t.o some one, is not a writing or publication within the purview of the first clause of section 3893 of the Revised Statutes, declaring obscene, etc., books, writings, etc., or “ other publication of an indecent character,” non-mailable.</p> <p>2. Same — Letter Sealed — Mot within Prohibition.</p> <p>A sealed letter is not within the prohibition of said section 3893, however indecent or obscene in its contents; but if there is any such delineation or language put upon the envelope containing it, it thereby becomes non-mailable, and the person depositing it in the mail thereby, commits a crime.</p>

<p>POSTMASTER — ReEITSAL TO DELIVER. MAIL MATTER — REMEDY.</p> <p>Whore the postmaster refuses to deliver registered letters and letters containing- money orders, and other matter addressed through the mail, on which postage has been prepaid, the remedy of the aggrieved party is by mandamus or replevin, and not by injunction.</p>

<p>Towns — Aid to Bailroads — Attaohin» Territory.</p> <p>Under the provision of the constitution, that the legislature can not'authorize a municipal corporation to tax for its own local purposes lands lying beyond the corporate limits, the legislature has power to attach outside territory to the territory of a town and erect the territory so attached, together with the territory of the town, into a district, and authorize the district so formed to vote a subscription to the stock of a street railroad, and issue bonds in payment thereof, and an act to this effect is constitutional.</p>

<p>Public School Board — Authority or — Not to Issue Bonds.</p> <p>The boundary to the discretion of the board of public schools of St. Joseph as to the building of school-houses is fixed by the charter of the corporation, and their authority is limited and defined in the fourteenth section of the act of incorporation, which docs not authorize the board to create a debt for that purpose and issue bonds for the payment thereof.</p>

<p>1. Bankkuptot—Illegal Preference.</p> <p>Cubbedge & Lockett were members of tbe firm of C., H. & Co., and also president and cashier of a “ Bank & Trust Co.,” in which C., H. & Co. were stockholders. The firm was indebted to the B. & T. Co., and agreed verbally with C. and L., as officers thereof, to secure the indebtedness by the stock which the firm owned in the B. & T. Co. This agreement was reported to and accepted by the directors of the B. & T. Co. Various stock certificates standing on the books of the B. & T. Co. in the name of C., H. & Co. were, under their agreement, (probably,) deposited with and held by Lockett as cashier of the B. & T. Co.; but no written transfer, or power of attorney authorizing transfer, was executed. The firm had been insolvent for some time, and a few days before its suspension, also within less than four months before adjudication in bankruptcy, the firm for the first time made a formal note evidencing said indebtedness, and formally transferred said shares upon the books to the B. & T. Co. Held, that the assignee in bankruptcy of said firm is entitled to recover said stock, or the value thereof, from said B. & T. Co.</p> <p>2. Same—Notice.</p> <p>Where two members of an insolvent firm are president and cashier of a bank, their knowledgé of the insolvencv of their firm is the knowledge of the bank.</p> <p>3. Pledge of Stock.</p> <p>A transfer on the books of the company, or the execution of a power of attorney authorizing a transfer, is essential to pledge of corporate stock, (except when by statute it is otherwise provided, as in Louisiana.)</p> <p>4. Same—Requisites of Possession.</p> <p>When the pledgeors of stock retain the title and control of the stock pledged, the power of withdrawal and substitution, so that they can transfer or negotiate the same without consulting the pledgee, while the pledgee could not control the stock without consulting the pledgeors, the mere deposit of the stock certificates (standing in the name of the pledgeors) with the pledgee does not create a valid pledge thereof.</p>

<p>BANKRUPTCY — SALE ON MORTGAGED PREMISES — PARAMOUNT LIEN.</p> <p>Although a mortgage may he within the equity oí the rule that where several pieces of real estate, subject to a common encumbrance, are successively aliened, the properties so disposed of are liable for the amount of the encumbrance in the inverse order of alienation; yet, where the mortgaged property is sold in bankruptcy discharged of encumbrances, the said rule cannot be invoked where the effect, would be to deprive the paramount lien creditor of the proceeds of sale. The latter is entitled to the fund, and such mortgagee must seek subrogation and indemnity in another proceeding.</p>

<p>1. Copyright — Practice—Discovery.</p> <p>A demurrer will lie to an allegation in a bill, the answer to which may subject the defendant to anything in the nature of a penalty or forfeiture; as an allegation concerning the number of copies sold and on hand of a pirated map.</p> <p>2. Same — Infringement—Penalti ms and Forfeitures.</p> <p>The penalties and forfeitures given by section 4965 of the Rev. St. (16 St. 214) for an infringement of a copyright, cannot be enforced in a suit in equity; and a prayer in a bill that the plate and unsold copies of a pirated map be delivered up to an officer of the court for cancellation and destruction is demur-rable, as asking for the enforcement of such forfeiture.</p> <p>8. Same — Damages.</p> <p>Damages as well as profits may now be recovered in equity for an infringement of a patent, but not a copyright.</p> <p>Note. A defendant cannot be compelled to make discoveries in answer to-a bill which seeks to enforce penalties and forfeitures against him by means of such discoveries. Atioill v. Ferrett, 2 Blatchf. 39. The defendant cannot be compelled, under a subpoena duces tecum, to produce his books and papers and plates to be used in evidence for plaintiff. Johnson v. Donaldson, 18-Blatchf. 287; S. C. 3 Fed. Hep. 22. A motion to compel such testimony will not he granted in aid of an action for trespass for the violation of a copyright. Atioill v. Ferrett, 2 Blatchf. 39. The relief’will only be to the extent of the part infringed. Story v. Holcomle, 4 McLean, 306. The various provisions of the law should be liberally construed to give effect to what may be considered the inherent right of the author to his work. Myers v. Callaghan, 5 Fed. Rep. 726. But equity will not, at the instance of the author, where he has made an assignment forever, restrain the assignee from selling after a renewal taken out by the author. Paige v. Banks, 7 Blatchf. 152. The right to a chart is violated only when another copies from the chart of him who has secured the copyright. Blunt v. Patten, 2 Paine, 397. Compare Gray v. Bussell, 1 Story, 11; Fmerson v. Davies, 3 Story, 768. The publication of a map made from materials collected while in the service of the government as draughtsman belongs to the government. Commonwealth v. Desilvan, 3 Phila. 31. See Heine v. Appleton, 4 Blatchf. 125. Compiling maps of a city of a particular design from public records into an atlas, and without taking' out a copyright making several copies and selling them, and placing one copy in the hands of the city for public use, is a dedication to public use, (Rees v. Peltzer, 75 HI. 475;) but depositing one chart in the navy department does-not make it public property. Blunt v„ Patten, 2 Paine, 307. A single sheet containing diagrams is a subject of copyright; the form of the publication is immaterial, (Drury v. Fwing, 1 Bond, 540;) but an advertising card is not. See Ehret v. Pierce, 10 Fed. Rep. 558. — [Ed.</p>

In Equity. This was a bill in equity to enjoin the use of a trade-mark.

<p>X. Trade-Mark Defined — Object and Purposes of.</p> <p>A trade-mark is a mark by which the wares of the owner are known in trade; its object being — First, to protect the party using it from competition with inferior manufactures; and, second, to protect the public from imposition.</p> <p>2. Same — Of what may Consist.</p> <p>The trade-mark may consist of a token, letter, sign, or seal. Names, ciphers, monograms, pictures, and figures may bo used, and numerals united.</p> <p>5. Same — Numerals—Infringement.</p> <p>Where numerals constituted one of the most prominent features in plaintiff’s design, and the same numerals were used in a similar design by defendants, such use, when adopted to designate the same kind of articles, is calculated to aid in deceiving the public, and is an infringement of plaintiff’s trade-mark.</p> <p>4. Same — Similitude.</p> <p>It is enough that such similitude exists as would lead an ordinary purchaser to suppose that he was buying the genuine article and not. the imitation; and it is not necessary that the resemblance should be sucb as would mislead an expert, or such as would not be easily detected if the original and spurious were seen together.</p> <p>6. Same — Right to Use of Trade-Mark.</p> <p>The right to a trade-mark is a right depending on use; and where complainant had used certain numerals long enough to convey to any one versed in the nomenclature of the trade a precise understanding of what goods were intended, when such numerals were used alone, disconnected from any extrinsic information, its right to their exclusive use as a trade-mark must be upheld.</p> <p>6. Same — Protection by Injunction.</p> <p>An injunction will be granted to restrain the defendants from using the numerals appropriated by plaintiff, to designate the same kind of goods sold by the defendants and not made by the plaintiff, and from using on their labels a word printed in script, with a flourish underneath, in imitation of a word used by the plaintiff on its labels.</p> <p> 'NOTE. </p> <p>Tbadb-MaeK. A trade-mark may consist of anything — marks, forms, words, signs, symbols, or devices — designating origin or ownership, but not anything merely denoting name or quality ;(a) and a manufacturer may by priority of appropriation acquire a property therein as a trade-mark. (b) All the essential requisites to the right of protection of law arises from prior use of the device which has created a celebrity or value for the article ;(c) and the mark or device should be annexed to or stamped, printed, carved; or engraved upon the article ;(d) and when stamped upon the articles manufactured by Mm he is entitled to its exclusive use.(e) It must be such a mark as will identify the article to which it is affixed.(f) So the omission to put the advertising name “Moline plow ” on their plows divests the company of its exclusive right to the use of “ Moline. ”(g)</p> <p>One may appropriate an arbitrary number as a valid trade-mark, although not using it in connection with any word signifying ownership, (h) Letters or figures affixed to merchandise for the purpose of denoting its quality only cannot be appropriated;(i) but the words on labels “established 1780," which had been long used, were held entitled to protection.(j) So injunction was granted to restrain the use of the trade-mark “ The * Shirt,”(k) or the symbol -J printed in a special or unusual manner,(l) or numerals associated with words, as “ 808 ” with words “Joseph Gillott, extra fine.”(m) A street number may be appropriated by one who has exclusive use of the building, (n)</p> <p>Similitude. Putting up goods with an infringing mark will render the party so doing liable,(aa) as the u.e of similar packages with the same words and figures embossed thereon. (bb) The peculiar style of the package in which the article is put up, and the combination constituting the label, is protected ;(cc) as the use of a barrel with a red rim and glazed head, with the letters AAA and a Maltese cross.(dd) Any labels, devices, or hand-bills calculated to deceive the public into the belief that the article is the same as that made and sold by the plaintiff is an infringement, (ee) In all eases the essence of the wrong consists in the sale of the goods of one person as those of another,(ff) and tlie true inquiry is whether the marks or symbols actually deceive the public.(gg) Simulated labels, marks, indicia, or advertisements such as would ordinarily deceive customers, will be enjoined ;(h) or where the imitation would have the effect to pass the goods as those of another with any one but the most cautious ;(i) or where the resemblance would raise the probability of mistake on the part of the public, (j) The words, letters, figures, lines, and devices on a label must be so similar that any person, with such reasonable observation as the public generally are capable of, would mistake the goods for those of the other.(k) The imitation need not be exact and complete ;(l) it is sufficient if it is likely to deceive or mislead(m) an ordinary purchaser, (n) The resemblance must amount to a false representation liable to deceive, (o) or if it is so close that a crafty vendor may palm off on the buyer the article manufactured as that of the other.(p) If the general effect is to mislead an ordinary person it is sufficient,(q) or if calculated to mislead the public, though the distinction between the imitation, and the original would at once be seen on a slight or casual examination.(r) If it is a color-able representation of plaintiff’s label, calculated to produce in the mind of the purchaser the impression that the goods were manufactured or sold by the person whose trade-mark was imitated, it is sufficient, (s) A colorable imitation will be enjoined where it requires careful inspection to distinguish it from the original,(t) and a substantial similarity is sufficient(u) or where the difference would not be noticed when seen at different times and places.(v) An imitation with partial differences, such as the public would not observe,(w) or which would not be perceived without strict examination, will not protect it from injunction(x) and should be disregarded(y) but if the alleged imitar tion has not deceived an ordinary purchaser an injunction will not be granted.(z) Where the name of the imitator was substituted in a label, and the imitation' in other respects not exact, yet so great that a purchaser, who did not not read the name, might be deceived, it is a violation of the trade-mark, (a) So the use of the word “Apollinis ” on a label, in connection with a representation of a bow and arrow or anchor, was restrained on account of similarity to the word “Apollinaris ” with the representation of an anchor.(b) An article of the same kind, called “ Saphia,” put up in similar wrappers as the article called “Sapolio,” the imitation being intended to deceive, should be restrained.(c) A trade-mark, “The Rising Sun,” with a vignette of the Sun, is not infringed by the words “Rising Moon,” with a vignette of the moon.(d)</p> <p>ProtectioN or Right. The doctrine oí protection of tracTe-marks is based upon the broad principle of protecting the public from deceit ;(a) and injunction will be granted to restrain its practical use;(b) but to authorize an injunction plaintiff’s title to its exclusive use should be clear and unquestionable,(c) and be clearly established.(d) The legal right of plaintiff and violation by defendant must be clear.(e) A person having appropriated to himself a particular label, sign, or trade-mark is entitled to the protection thereof, and the courts will enjoin their use without authority,(f) unless he has acquiesced in its use by a third party.(g) If the representation of the trade-mark does not mislead the public, and is substantially true, it will be entitled to protection. (h) A party may be restrained from the use of his own name in business, if he uses jt for the purpose of deception ;(i) or so as to appropriate the good-will of a business established by others of that name.(j) — [Ed</p>

<p>BaNkroptoy — Discharge oe Assignee — Notice to Creditors.</p> <p>A step which in effect, ends the bankruptcy proceedings should not be taken without notice to creditors. So, where an assignee sought to renounce his trust by making application for his discharge, based on his own affidavit, alleging that no tangible assets have come into his hands, and that he has no information of any property belonging to the bankrupt, oilier than a chose in action in favor of the estate, held, that notice to creditors of such application, and the approval of the register in charge of the case, was necessary.</p>

<p>Patents fob Inventions — Time within which to Aphly.</p> <p>A patentee cannot be permitted to use for profit a machine which embodies a perfected invention for a period of two years or more, and then obtain a patent for the old machine by means of the addition of new improvements; but he may safely use for profit such a machine in its imperfect state to perfect his machine, and apply for a patent when perfected.</p>

In Equity. On final hearing. The following is a representation of the patent upon cotton-gins claimed by Peter C. Sawyer: //. Pront. f Cotton board. d. Upper portion of ribs.

In Admiralty. Libel to enforce tbe payment of an adjustment of general average. The testimony disclosed the following facts: On July 29, 1880, about noon, the bark Margarethe Blanca, on a voyage from Pillau to Philadelphia, laden with old rails and rags, encountered a squall, which carried away her head-gear, foretop-mast, and all above, with spars, rigging, and sails, and also her maintop-gallant-mast, and all above, with spars and rigging.

On the eleventh of September, 1879, the libellant wa's employed in loading the steam-ship Helios. He was working under a foreman who in turn was under the head stevedore. The loading of the lower hold being completed, the foreman asked the first officer of the steamship if they could proceed to stow the between-decks. He replied that everything was ready.

Libel by the owner of a lighter against the bark Atlee for damages on account of injuries alleged to have teen inflicted on the lighter by the bark. It appeared that on February 18,1881, the lighter, loaded with coal, sunk in a dock at Philadelphia. On February 24, 1881, the Atlee entered the dock.

<p>1. ADMIRALTY — BeUYICFS—EAISIN6 SUNKEN VESSEL.</p> <p>The general maritime law gives no lien for services m raising a sunken vessel, rendered in her home port.</p> <p>2. Same — -Local Statute.</p> <p>ÍTor is a contract for raising a sunken vessel within the purview of a local statute which gives a lien for work done or malcriáis furnished “ in the building, repairing', fitting, furnishing, or equipping” vessels, although the execution of the contract involves the bulk-heading, planking up, and closing tha breaks in her hull to keep her afloat while being towed to the docks.</p>

<p>Removal oe Cause — Necessary Parties — Controversy to be Fully Determined.</p> <p>Where one of two necessary party defendants is a citizen of the same state with the complainant, and there is no separable controversy between the complainant and the other defendant, citizen of another state, which can be fully determined as between them without the presence of the defendant who is a Citizen of the same state with the complainant, the federal court has no jurisdiction.</p>

<p>INSOLVENT DEBTOR — PrEEERENCE TO CREDITORS.</p> <p>Tlie creditors of a contractor in failing circumstances agreed together to buy his land, and to "be interested therein in proportion to their several claims, and a deed therefor was made by the debtor and his wife to two of the creditors for the parties interested in the purchase; the purchase money to be made up of various items of indebtedness of the debtor to the parties interested in the purchase, who had, on their part, to remove the liens of two judgments, which judgments were not paid off, but were assigned to the parties to be held for contingencies. Subsequently an attachment was sued out against the land. Held, that the deed from the debtor and wife bo set aside, and the deed of sale of the land to one of the defendants, under an assignment of the trust deed of the wife made to her for a debt due her by the husband, bo set asido; and that the land attached be sold, and the fund applied, first, to the payment of taxes; next, to the amounts of the judgments, with interest; next, the amount for which the deed of trust was assigned, with interest; and next, the complainants, the amount of their judgment, with interest — the difference between the amounts of the wife’s trust deed and the amount for which she assigned it to be reserved for further consideration.</p>

<p>Municipal Bonds — Authority to be Strictly Construed.</p> <p>Where municipal bonds do not contain recitals asserting them to be issued conformably to law, a purchaser for value cannot recover.</p>

<p>Moktsase — Foreclosure—Bruits ov ÁTFAcnma- Creditor.</p> <p>An attaching creditor, on an attachment made before proceedings to foreclose, is a proper party to the proceedings, and is not hound by tho decree unless made a party to the suit, and lie acquires a right to redeem the mortgage or submit to be foreclosed; but where neither he nor tho debtor redeems, he loses his right- and it is foreclosed as to him, and he is not entitled to the benefits of any agreement made by the debtor affecting tho decree.</p>

<p>.REDEMPTION FROM FORECLOSURE SALE — CLERK’S COMMISSIONS.</p> <p>The rule of the federal court requiring a party redeeming real estate, which has been sold under a foreclosure decree, to pay 1 per cent, commissions to the clerk, on the amount paid into court for 'the redemption of the property, in addition to the amount, with the prescribed interest thereon, going to the purchaser, ⅛ in accordance with section 828 of Revised Statutes, and is not in derogation of the right of redemption given by the state law. The right of redemption given by the state law must be permitted in the federal court, subject to the act of congress fixing the amount to be paid to the clerk on all moneys received, kept, and paid out by him in pursuance of any statute or under any order of court.</p>

<p>1. Stockholders— Right to Sue their Corí-oration.</p> <p>A county, as stockholder in a railroad company, brought suit against the bompany. Held, on demurrer, that where'the bill shows a condition of things touching the control of the corporate affairs of those entrusted with their active management, as would have rendered a formal application to the board of directors to bring the suit an idle ceremony, a case is presented requiring the defendant to answer.</p> <p>2. Foreclosure — Fraud—Suit to Set Aside Decree.</p> <p>A ruling in a foreclosure suit, denying the petition of stockholders to be made parties, in a foreclosure suit brought against their corporation, is not a bar to an independent suit to set aside the decree for fraud.</p>

<p>1. JurisdictioN—Federad Question.</p> <p>"When there is a federal question involved in the suit, the circuit court has jurisdiction, under act of March 3, 1875, without regard to the citizenship of the parties.</p> <p>2. Municipal Corporation—Contract—Remedy.</p> <p>When a municipal corporation has made a contract during the existence of a state law which provides an adequate remedy by compulsory taxation through the courts, that remedy is a vital element of the contract.</p> <p>3. Contract—Statute Impairing Obligation oe.</p> <p>The subsequent repeal of that law, and the adoption of a new constitution prohibiting the levy of any judgment tax and limiting all taxation to the current support of the Ioc^I government, would, if valid, impair the obligation of such a contract.</p> <p>⅜. Same—Statutes Unconstitutional.</p> <p>The invalidity of such enactments must he decreed by any court trying such a case before a judgment enforcing the contract by the original remedy of a judgment tax can be rendered.</p> <p>5. Same.</p> <p>Such invalidity is the result of a violation of section 10, art. 1, Const. U. S., alone, and a suit to enforce the contract through that article is a suit “arising under the constitution of the United States.”</p> <p>6. Jurisdiction—Concurrent.</p> <p>Though the plaintiff could sue in the state court, and could obtain full relief there, yet he can resort to the concurrent jurisdiction of the circuit court.</p> <p>7. Same—Federal Courts.</p> <p>The jurisprudence of the state courts, construing the effect of said section upon state laws andi constitutional articles, whether holding the latter valid or invalid as impairing the obligations of anterior contracts, cannot determine the jurisdiction of the federal courts.</p> <p>8. Same—Jurisdiction, on what Depends.</p> <p>The jurisdiction of the latter cannot be vested or divested by the character of the defence made, but depends upon the issues raised by plaintiff’s petition, and necessary to be determined to afford him adequate remedy.</p> <p>9. Same—Act oe 1875—Query.</p> <p>Does not the original jurisdiction of the circuit courts, as enlarged by act of March 3, 1875, extend to all cases involving over $500, which could have been carried, under former acts, to the supreme court on writs of error from state courts ?</p> <p>10. Pleading—Exception to Jurisdiction.</p> <p>An exception to the jurisdiction admits, for the purposes of the trial of that plea, all the facts alleged in the plaintiff’s petition.</p> <p>NOTE.</p> <p>FEDERAL QuestioNS. Where there is a federal question involved, the circuit court has jurisdiction without regard to the citizenship of the parties. Wilder v. Union Nat. Bank, 12 Chi. Leg. News, 75. See Wiggins' Ferry Co. v. Chicago á A. R. Co. 11 Fed. Rep. 884; Green v. Klinger, 10 Fed. Rep. 692, and note. The United States court is the final arbiter of constitutional construction, and congress may iirvest it with the power to construe any constitutional law, (Van Horne v. Dorranee, 2 Dali. 304; Martin v. Hunter, 1 Wheat. 804; Cohens v. Virginia, 6 Wheat. 264; Ableman v. Booth, 21 IIow. 506; S. C. 3 Wis. 1; The Mayor v. Cooper, 6 Wall. 247;) but for its power to extend to a constitutional question it must be in a case at law or in equity, (Cohens v. Virginia, 6 Wheat. 264.) The power of the United States court extends over statutes, whether passsed by a state legislature or by congress, which are claimed to be in contravention of the constitution of the United States; but not to statutes claimed to be void under a state constitution, (Calder v. Ball, 3 Dali. 390; Marbury v. Madison, 1 Cranch, 137; Bartmouth College v. Woodward, 4 Wheat. 518; Wiggins’ Ferry Co. v. Chicago & A. R. Co. 11 Fed. Rep. 382;) an'd the objection must not be doubtful, (¡7.8. v. Jackson, 3 Sawy. 59; People v. Brinkerhoff, 68 2sT. Y. 259;) but the act must be clearly subversive of the constitution, (Turner v. Alihaus, 6 ISteb. 54; Central 0. R. Co. v. Twenty-Third Street R. Co. 54 ITow. Pr. 168; Remington v. Park, 50 Yt. 178.)</p> <p>Obligations ou Contract. Tlie obligation of a contract is that which requires the performance of tlie legal duties imposed by it, (Blaun v. State, 89 Ala. 353;) and consists of that right or power over his will or action which a party by his contract confers on another, (Ogden v. Saunders, 12 "Wheat. 213; Lapsley v. Brashears, 4 Litt. 47;) and includes everything within its object and scope, (Sturges v. Crowninshield, 3 Wheat. 122; Bronson v. Kinzie, 1 How. 311; MeGrauken v. Hayward, 2 How. 608; Blair v. Williams, 4 Litt. 34; Blanehard v. Russell, 13 Mass. 1.) It does not inhere and consist in the contract itself, but in the law applicable to the contract, [Edwards v. Kearzey, 96 U. S. 595; Bronson v. Kinzie, 1 How. 311; McCracken v. Hayward, 2 How. 608;) and laws relating to the validity, construction, discharge, and enforcement are a part of the contract, (Edwards v. Kearzey, 96 IT. S. 595; Von Hoffman v. Quincy, 4 Wall. 535; McCracken v. Hayward, 2 How. 608;) the validity, construction, and remedy being part of tlie obligation, [Oreen v. Biddle, 8 Wheat. I; People v. Bond, 10 Cal. 570; Story v. Furman, 25 X Y. 223; Walker v. Whitehead, 16 Wall. 314.) The obligation of a contract commences at its date, [Blair v. Williams, 4 Litt. 34;) and depends on the laws in existence when it is made, [Robinson v. Magee, 9 Cal. 84; Johnson Y.Buncan, 3 Mart. 531; West. San.Fund v. Philadelphia, 31 Pa. St. 175; WoodY. Wood, 14 Bich. 148; Smith v. Cleveland, 17 Wis. 556;) and continues until the debt is paid, or the act performed, [Baily v. Gentry, 1 Mo. 164; Forsyth Y.Mar-bury, K. M. Chari. 324;) and extends to future possessions, [Edwards v. Kearzey, 96 U. S. 595.) The obligation of other tilings than contracts is not within theprotecting clause of the constitution, (Ogden v. Saunders, 12 Wheat. 213; Robinson v. Magee, 9 Cal. 84; Blair v. Williams, 4 Litt. 34.)</p> <p>IMPAIRMENT of OBLIGATION. To impair means to alter so as to make the contract more beneficial to one party and less to the other than by its terms it purports to he. Bailey v. Gentry, 1 Mo. 164. The impairment is not a question of degree, manner, or cause, [Green v. Biddle, 8 Wheat. 1; Planters’ Bank v. Sharp, 6 How. 301; S. C. 12 Miss. 17; Walker v. Whitehead, 16 Wall. 314; S. C. 43 Ga. 538; Von Hoffman v. Quincy, 4 Wall. 535; Gault’s Appeal, 33 Pa. St. 194; Farnsworth v. Reeves, 2 Cold. Ill; Winter y. Jones, 10 Ga. 190;) it cannot he impaired in the remotest degree, [Green v. Biddle, 8 Wheat. 1; Von Hoffman v. Quincy, 4 Wall. 535.) Where a contract is discharged, [Farmers’ & Mec.h. Bank v. Smith, 6 Wheat. 131,) or where it is destroyed, [Robinson v. Magee, 9 Cal. 84,) or an essential part is annulled, [Hew Jersey v. Wilson, 7 Branch, 164,) or partially rescinded, [Grinnball y.Ross, T. II. P. Chari. 175,) the obligation is impaired. The obligation is impaired by a statute which authorizes its discharge by a smaller sum, or at a different time, or in a different manner than stipulated, [Golden v. Prince, 5 Hall, L. J. 502; Edmonds v. Ferguson, 11 Mo. 344.) A state can no more pass a law violating the obligation of a contract by means of a convention than by its legislature, [Marsh v. Burroughs, 1 Woods, 463; see Pacific R. Co. v. Maguire, 20 Wall. 36;) so a provision in a state constitution which prohibits the enforcement of a contract is void, [White y. Hart, 13 Wall. 646; S. C. 39 da. 306; French y. Tomlin, 19 Amer. L. Reg. 641; Jacoway v. Benton, 25 Ark. 625; McNealy v. Gregory, 13 Fla. 417; but see Shorter v. doll, 39 Ga. 285; Armstrong v. Lecompte, 21 La. Ann. 528; Branquet v. Rost, Id. 538.) A mere license given by charter to an incorporated company is not a contract, {Beer Co. v. Massachusetts, 97 U. S. 25; 'Fertilizing Co. v. Hyde Park, Id. 659;) so a provision in a constitution prohibiting lotteries is not an impairment of the obligations of a contract, {Stone v. Mississippi, 101 U. S. 814.)</p> <p>The remedy enters into and forms a material part of the obligation of the contract. Von Hoffman v. Quincy, 4 Wall. 535; Walker v. Whitehead, 16 Wall. 314; S. 0.43 Ga. 558; Gunn v. Barry, 15 Wall. 610; S. 0. 8 Bank Beg. 1; Johnson v. Higgins, 3 Mete. (Ky.) 566. The validity and remedy are inseparable, and both are parts of the obligation, {Walker v. Whitehead,'1% Wall. 314; S. 0. 43 Ga. 537; Scaine v. Bellville, 39 H. J. Law,.526;) and a statute which enfeebles {Edwards v. Kearzey, 96 U. S. 595) or impairs the remedy, {Bronson v. Kinzie, 1 How. 311; Green v. Biddle, 8 Wheat. 1; Smith v. Morse, 2 Cal. 524; Johnson v. Buncan, 3 Mart. 531; Coffman v. Bank, 40 Miss. 29,) or lessens the efficiency of the remedy, {TMuisiana v. New Orleans, 102 U. S. 203,) where the remedy is essential, (Thompson v. Com. 81 Pa. St. 314,) is prohibited.</p> <p>The character of the parties to a contract does not prevent the application of the inhibitory provision of the constitution as to the impairment of the obligation of contracts. Trustees v. Rider, 13 Conn. 87; Regents v.' Williams, 9 Gill & J. 365. So a contract wherein the state is a party is within the protecting clause of the constitution. Hall v. Wisconsin, 103 U. S. 5. This provision of the constitution is a limitation on tt;e taxing power of the state, as the taxing power enters into and becomes a part of the obligation of the contract, {U. S. v. Jefferson County, 7 Cent. Law J. 130,) and a law changing the stipulation of a contract, or relieving a debtor from a strict and literal compliance with its requirements, is unconstitutional. Murray v. Charleston, 96 U. S. 432. So corporations are within the provisions of this section of the constitution as a part of the general law. Fletcher v. Peck, 6 Cranch, 87; State v. Wilson, 7 Cranch, 164; Ferret v. Taylor, 9 Cranch, 43; Town of Paw-lett v. Clark, Id, 292; Green v. Biddle, 8 WTreat. 1; Astrom v. Hammond, 3 McLean, 107; Woodruff v. Trapnall, 10 How. 190; Berhy T. Co. v. Parks, 10 Conn. 522; 13 Iréd. 75; Stanmire v. Taylor, 3 Jones, (H. C.) 207. As long as a city exists laws are. void which withdraw or restrict its taxing power so as to impair the obligation of her contracts made on a pledge impliedly or expressly given. Von Hoffman v. Quincy, 4 Wall. 535; Wolf v. New Orleans, 103 U. S. 358. — [Ed.</p>

<p>On Motion to Dismiss tbs Appeal.</p>

<p>1. Municipal Corporation—Subsequent Legislation.</p> <p>A judgment having been rendered against a municipal corporation, subsequent legislation by the state, restricting the powers of the administrative officers of such corporation, must be disregarded so far as it impairs the remedy of the judgment creditors.</p> <p>2. Same—Same.</p> <p>Where, at the time of the contract, a creditor of a municipal corporation had a right, after obtaining a judgment against the corporation, to compel by mandamus the officials of the corpora tion to levy a tax to pay this judgment, if the legislature of the state abolishes that corporation and creates another in its place before the creditor obtains judgment, he may proceed to judgment against the new corporation, and compel (by mandamus) the taxing power thereof to levy a tax to pay the judgment. As long as his remedy is unaffected he cannot complain of the legislation.</p> <p>Note. The charter of a public corporation, created for the purposes of government, cannot be considered a contract, (Bradford v. Cary, 5 Me. 339; Marietta v. Fearing, 4 Ohio, 429; Governor v. Gridley, 1 Miss. 328; People v. Morris, 13 Wend. 525; Dartmouth College v. Woodward, 4 Wheat. 694 Blast Hartford v. Hartford Bridge, 10 How. 511,) and the grant of the franchise may at any time be resuined, (People v. Pinckney, 32 N. Y. 377.) A power to alter and change public corporations, and to adapt them to the purposes intended, is implied. State v. Railroad, 3 How. 534; Amey v. Allegheny City, 24 How. 364; Trustees v. Taiman, 13 Ill. 27; Bridgeport v. Hubbell, 5 Conn. 237; Bush v. Shipmaoi, 5 Ill. 186; Mills v. Williams, 11 Ired. 558; Gutzweller v. People, 14 Ill. 142; North Yarmouth v. Skillings, 45 Me. 133; Mayor v. State, 15 Md. 376. But see Trustees v. Aberdeen, 21 Miss. 645; Bristol v. New Chester, 3 N. H. 524; Paterson v. Society, 24 N. J. Law, 385; St. Louis v. Russell, 9^Mo. 507; People v. Morris, 13 Wend. 325. Transactions between the legislature and municipal corporations are in the nature of legislation rather than of compact. Hartford v. Hartford Bridge Co. 10 How. 511; Trustees v. Taiman, 13 Ill. 27; Reynolds v. Baldwin, 1 La. Ann. 162; Police Jury v. Shreveport, 5 La; Ann. 661; Layton v. New Orleans, 12 La. Ann. 515. A statute ipay prescribe a remedy, if there be none; and if a remedy given be as good as that taken away, the obligation is not impaired. Mason v. Haile, 12 Wheat. 370; Milne v. Huber, 3 McLean, 212; Simmons v. Hanover, 23 Pick 188; Commercial Bank v. State, 12 Miss. 439; Wheat v. State, Minor, 199; Anon. 2 Stewt. 228; Bronson v. Kinzie, 1 How. 311; Davis v. Ballard, 1 J. J. Marsh. 563; McMillan v. Sprague, 4 How. (Miss.) 647; Lapsley v. Brasheafs, 5 Litt. 47; Townsend v. Townsend, Peck, (Tenn.) 1; Sav. Inst. v. Makin, 23 Mo. 360; Longfellow v. Patrick, 25 Me. 18; Van Rensselaer v. Snyder, 13 N. Y. 299; In re Trust. Pub. Sch. 31 N. Y. 574; Morse v. Goold, 11 N. Y. 281; Pratt v. Jones, 25 Yt. 303.</p> <p>States may pass remedial laws, but not such as impair vested rights, or create personal liabilities, or impose new obligations or duties. Braddow v. Green, 7 Humph. 130; Rich v. Flanders, 39 N. H. 304; Be Cordova v. Galveston, 4 Tex. 470; Hope v. Johnson, 2 Yerg. 125; Vanzandt v. Waddell, Id. 260; Coffin v. Rich, 45 Me. 507; Kennebec Purch. v. Laboree, 2 Me. 275. So long as contracts are submitted to the ordinary and regular course of justice, and existing remedies are preserved in substance, the obligation of the contract is not impaired, (Holmes v. Lansing, 3 Johns. Cas. 73;) but if the change materially affects rights and interests it is so far a violation of the compact, (Green v. Biddle, 8 Wheat. 1; Von Hoffman v. Quincy, 4 Wall. 535; Billings v. Riggs, 56 Ill. 483.) A state legislature may regulate the remedy and mode of proceeding of past as well as future contracts, but not so as to take away all remedy. Fix parte Pollard, 40 Ala. 77. — [Ed.</p>

<p>ISTegligence — Damages from Injury to Lands.</p> <p>Corporations acquiring title to lands along tho line of a railroad may recover damages for injuries to such lands arising from the negligence of the receiver of such road and his agents engaged in operating the line, notwithstanding they acquired such title for purposes foreign to the object of their creation. Such fact is no defence to an action for damages for injury to their lands.</p>

<p>COMMERCE — DRAw-BRIDGES NOT A NUISANCE— ClTY REGULATIONS CONSTITUTIONAL.</p> <p>A city ordinance regulating the opening and closing of bridges over rivers within the limits of Chicago, so as to permit the alternate passage through of vessels, and the passage over the bridges of teams and persons, and which also provides for the closing' of the bridges altogether, against passing vessels, between the hours of 6 and 7 A. m. and 5:30 and 6:30 p. m. , is not in conflict with the commerce clause of the constitution of the United States.</p> <p>Note.—A state may authorize the construction of a draw-bridge across a navigable stream. Gibbons v. Ogden, 9 Wheat. 203; Pennsylvania v. Wheeling, eta., Bridge Co. 13 How. 607; Silliman v. Hudson Biv. Bridge Co. 1 Black, «82; 4 Blatchf. 74, 395; Albany Bridge Co. 2 Wall. 403; Silliman v. T. W. T. B. Co. 11 Blatchf. 288; Palmer v. Corrirs of Cuyahoga County, 3 McLean, 226: Pennsylvania y. Rensselaer & 8. It. Co. 15 Wend. 118.—[Ed.</p>

The facts on which the claim was founded, as reported by the register, Sussex D. Davis, were as follows: Tlie bankrupts by a written lease rented the store 626 Chestnut street, Phil-adel, hi >, from the trustees of Joshua Francis Fislier, deceased, for two years from January 1, 1876, at a yearly rental of $8,500.

<p>1. Trade Maek — “ Straight Out.’</p> <p>Tlieterm “straight cut,” as applied to cigarettes, isa term descriptive of the ingredients and character of the article used, and cannot be appropriated as a trade-mark, so as to preclude another from advertising cigarettes made of straight-cut tobacco.</p> <p>2. Same — Use oe Teem: Tending to Deceive.</p> <p>The use of a term by complainant in a manner calculated to mislead the public in reference to the components or nature of the article to which it is applied, will not be tolerated.</p>

<p>1. PATENTS POE INVENTIONS — ABANDONMENT OP INVENTION.</p> <p>Where an application for a patent was made and refused, and not till five years thereafter was an amendment of his application tiled and an effort to obtain its allowance renewed, the delay is sufficient to raise the inference of an abandonment; but if this inaction is explicable consistently with legal requirement it will not operate to the prejudice of the rights of the inventor.</p> <p>2. Same — Wedge-Shaped Blocks eoe Pavement.</p> <p>The laying down of a pavement in the defendant’s streets, with wedge-shaped transverse channels, made of wedge-shaped blocks, described in patent No. 94,062, and according to the method described in patent No. 94,063, is an infringement of the patent owned by complainants, assignees of the inventor.</p> <p>3. Same — Injunction Withheld.</p> <p>Where the interference with the use of wooden pavements constructed in a city, in infringement of complainants’ rights, would only operate injuriously on the public, without benefiting complainants, an injunction will not be granted.</p>

<p>Patents nor Inventions — Remedy at Law.</p> <p>Where the assignee of damages for an infringement of a patent for an invention has an adequate remedy at law for an infringement of the patent, which expired before the assignment w as made, a demurrer to the bill will be sustained without prejudice to a suit at law for damages.</p>

<p>Patents— Injunction.</p> <p>Where the validity of a patent has been affirmed by a decree of a federal court it will be taken as conceded, and, upon an application for an injunction, the only question will be as to the infringement.</p>

<p>1. Patents for Inventions — Ineeingement—Damages.</p> <p>Where the infringement was neither wilful nor malicious, only the net profits realized from the manufacture and sale of the patented articles will be allowed.</p> <p>2. Costs.</p> <p>Whore the defendants wore willing, at the outset, and offered to pay the amount of net profits realized by them, and costs have been unnecessarily accumulated, the parties should pay their own costs, and each party pay half the master’s fee.</p>

<p>Bill for an Injunction to Restrain the Infringement of a Patent.</p>

Cross-libels—one by the owners of the steam-barge Pierrepont against the steam-boat Mary Morgan, and the other by the owners of the Morgan against the Pierrepont—to recover damages caused by a collision. The evidence was as follows: On August 8, 1879, at about 10 o’clock p. m., the Pierrepont, bound up the Delaware river, collided with the Morgan, which was coming down. The night was cloudy, but not stormy.

Libel by the owners of the schooner Joseph H. Huddell, Jr., against the barkentine Ralph M. Hayward, to recover damages for a collision. The collision occurred in the Alantic ocean, opposite Absecom light, oh the New Jersey coast, about midnight, on November 19, 1881. The night was dark and stormy, the wind blowing a gale. The exact direction of the wind was in dispute, libellants alleging that it was north-west, and respondents that it was west-north-west.

Libel by tbe • owner of the bark Lena against the tug Atlas to recover damages caused by the grounding of the bark while in tow of the tug. It appeared that on November 1, 1881, the tug took the bark in toi^ on the Schuylkill river and proceeded down the river. In making a turn near the mouth of the river the bark grounded. Libellant alleged that this was caused by the negligence of the tug in running too near the shore.

A contract was entered into between a book publisher and a book agent, wherein the agent agreed to canvass for the sale of a certain reprinted work, and the publishers agreed to furnish the work to the agent Cor the subscribers on certain terms — the remittances to be made, one-half on the seventh and one-half on the twenty-sixth day of the month, In settlement for the previous month’s sales.

<p>Wharfage — City Ordinance.</p>

<p>Removal of Suit from State Court.</p> <p>Federal courts are without jurisdiction where a necessary party defendant, is a citizen of the same state with complainant, between whom and the other defendant, a citizen of another state, there is no separable controversy.</p>

<p>1. Removal oe Cause — Teem at which Cause Could be First Teied.</p> <p>Where issue had been joined by the service of an answer, which answer did not require a replication, and the cause was noticed for trial and placed on the calendar, but within the time allowed by the Code of Practice defendant served an amended answer, the exercise of that right did not enlarge his time for removal, and a motion to remove after that term is too late.</p> <p>2. Practice — Amended Pleadings.</p> <p>An amended pleading, unless stricken out by the court, supersedes the original, and nullifies a notice of trial which may have been served by the adverse party before the amendment.</p>

<p>Bill in Equity.</p>

<p>1. Equity — Specific Performance of Contract.</p> <p>Equity has jurisdiction to enforce the performance of a contract to deliver a policy of insurance, and having- taken jurisdiction for that purpose, will, in case there has been a loss or death, retain it for the purpose of decreeing payment of the policy.</p> <p>2. Certainty.</p> <p>A. contract to issue a plain life insurance policy upon the life of tlie applicant for §15,000, payable to his wife, according to the form in use by the company, is sufficiently certain to be enforced; and if there is any extrinsic reason why it should not bo enforced, as that it was procured by fraud or falsehood, it must be set up as a defence.</p>

<p>1. Bill of Review — Fbaud—Right to Btlb.</p> <p>An original bill, in tho nature of a bill of review, for fraud, may be filed as matter of riglit without leave of court.</p> <p>2. Same — Bt OoRroiiATioN.</p> <p>Such a bill, assailing a decree in a foreclosure suit against a corporation, may be filed by the corporation in its own name, after the functions of the receiver have ceased, and without first obtaining his assent.</p>

<p>1. TmAT. — PRACTICE—PRODUCTION OR BOOKS AND WRITINGS.</p> <p>The party requiring tlie production of books or writings should move for & rule requiring their production, describing the books or papers with sufficient, certainty, and should state to the best of his knowledge, information, and belief that the books or papers called for will tend to prove the issue in his favor. The motion should further state the facts which the books will prove pertinent to the issue. The truth of the allegations stated in the motion should be verified by the affidavit of the mover or his agent, and the materiality of the testimony sought he certified to by counsel of the mover.</p> <p>2. Same — Notice Required.</p> <p>Notice must be given the party required to produce the books or writings, or his attorney, in sufficient time for the party to appear and show cause why the rule should not he made, and if issue is made on the motion the court may grant or refuse the rule according to the proof.</p> <p>i Same — Penalty.</p> <p>Where the inconvenience and expense attending the production of books and papers is very great, and where the sworn copy of the entries from the hooks is given, or proposed to be given, a very strong case of the necessity for their production should he made, to compel their production or be subjected to the penalty.</p> <p>NOTE.</p> <p>ProduotioN oír Books on WAitestgs. Section 724, Rev. St, limits the remedy to cases where issue is joined, (a) It does not take away the right to relief by bill of discovery except where the remedy is given. (b) Its provisions extend to proceedings in rem to enforce a forfeiture, (c) and to cases in bankruptcy.(d) The order can be made only in cases where relief might have been had by bill of discovery ;(e) and that a bill of discovery lias been filed is no bar to the motion;(f) nor that a copy of the paper has been filed in answer to the bill of discovfery,(g) unless the discovery lias been completely effectual;(h) but it does not apply in a case where a subpoena duces tecum issues to compel a witness to produce papers, (i) In requiring the production of books or writings in evidence, federal courts are governed by this section, and not by the provisions of state statutes.(j) The formalities of a bill of discovery are not requisite; a mere motion with notice to the opposite party, and a description of the books or papers with sufficient certainty, is sufficient;(k) and where letters are described by their subject-matter it is sufficiently explicit.(l) The applicant must show that the paper exists; that it is in possession of the party, and that it is pertinent to the issne.(m) An ex parte affidavit is sufficient ;(n) a motion is requisite;(o) and it may be made before the day of trial;(p) and notice to the party required to produce the books oi- writings must be given ;(q) and it must contain information that a motion will be made for a nonsuit, or for judgment by defaulte(r) It may be given to the party or to his attorney,(s) and must be reasonable ;(t) for an order will not be made at the trial on motion without notice.(u) If not reasonable the trial may be postponed to give the party an opportunity to procure the evidenee.(v)</p> <p>The power to grant the motion is discretionary, but should be firmly exercised in a proper case.(w) The court may at once either refuse the motion or make the rule absolute,(x) and where an intent to conceal or destroy the books or papers is shown, the order should be made without delay, and absolute; but if there is no suggestion of fraudulent intent, and the evidence as to their pertinency is not satisfactory, the order nisi should be made.(y) The order need not be absolute, but may leave the party to show cause at the trial, (a) Where the motion is m.ade before trial, the order must' require the production of the books at the trial, (b) and it may require him to produce them and leave them with the clerk, or furnish copies to the adverse party ;(c) but the word “require” does not include the power to compel compliance;(d) as the penalty for a failure to produce a paper is nonsuit or default,(e) and a motion for non pros, for failing to produce may be made even after the jury is sworn. (f) A party cannot be compelled to produce a paper which would subject him to a penalty or a forfeiture, (g)</p> <p>The order must be served a reasonable time before the production of the paper is required.(h) It is premature before the jury are sworn and the trial commenced for either party to call upon the other to produce a paper which he has received notice to produce on the trial ;(i) he has no right to examine them before trial to discover if there is in them anything pertinent to the issue ;(j) but the books must be produced at the trial or an excuse given under oath for not producing them ;(k) so, he may make oath that they are not in his possession ;(l) and such oath may be met by contrary proof, (m) If the omission to produce the books arose from oversight, the ease may be postponed to allow time to procure the affidavit of the party.(n) . If by affidavit .he explains how the paper came into his possession, the court may order the affidavit put in evidence with the paper, (o) If a party inspects a book after its production,dt may be used as evidence by the adverse party, (p) After removal of a cause from a state court the circuit court should enforce an order made in the state court for the production of books or papers.(q) — [Ed.</p>

<p>On Motion to Dismiss.</p>

<p>Practice — Discontinuance—Dismissal.</p> <p>Consent and order for discontinuance are, in effect, a dismissal of tlie bill.</p>

<p>1. Embezzlement — National Banking Association.</p> <p>The first clause of section 5209 of the Revised Statutes provides for three distinct offences: First, embezzlement; second, abstraction; and, third, wilful misapplication of the moneys, funds, or credits of the bank by any president, director, cashier, teller, clerk, or agent of any association organized as a national banking association.</p> <p>2. Same — Misapplication—Conversion.</p> <p>It was the intention of congress to make criminal the misapplication and conversion of the funds of national banking associations without regard to whether or not the party so misapplying received any of the funds or other advantage, directly or Indirectly.</p> <p>3. Same — Intent.</p> <p>If it appears that the funds of the banking association have been abstracted or wilfully misapplied by defendant, he is precluded from denying that it was done with unlawful intent.</p>

The indictment against the defendant contained 11 counts. Upon the first and eighth he was convicted, and acquitted upon the others. Held: used,,and transferred within her borders, whether by deed, will, gift, or otherwise. 2 Kent, Comm. 437. There is as little right in the general government to regulate gifts within this state as there is to declare a general law as to making other contracts.

<p>COUNTERFEITING — Mutilating Coins.</p> <p>Where a coin which had been regularly coined at the mint was afterwards punched and mutilated, and an appreciable amount of silver removed from it, and the hole plugged up with base mental, or with any substance other than silver, it is an act of counterfeiting; but it is otherwise where the hole was punched with a sharp instrument, leaving all the silver in the coin, though crowding it into a different shape.</p>

<p>CONSPIRACY — ACTION FOR DAMAGES — YERDICT.</p> <p>The verdict of the jury, on a trial in a civil action for damages, will he regarded, on motion to set it aside, as an affirmative finding upon the issues which were presented for their determination. So, where the verdict was for a large amount against two of the defendants, and for but nominal damages against the third defendant, such defendant' is not injured by the finding of nominal damages against him, and cannot have the verdict set aside even though it was inconsistent with the charge of the court.</p>

<p>1. NEGLIGENCE — CONTRIBUTORY NEGLIGENCE — QUESTIONS OF FACT.</p> <p>In an action for damages for personal injuries inflicted by being thrown from a buggy attached to a runaway horse, alleged to have been frightened by new and unusual machinery being exhibited on the public street, on the question of negligence of defendants — whether the machinery wa)s kept in the proper place, and in the proper manner, and with due care or otherwise; and whether the machinery, or the smoke or stearq issuing therefrom, and nothing else, caused the fright of the horse or not; and on the question of contributory negligence on the part of the plaintiffs — whether the horse was managed with care and prudence, or otherwise; and whether the horse was vicious, and contributed to the accident, or was dangerous in the sense of being disposed to run away, — are questions of fact for the jury to determine from the evidence.</p> <p>2. Same — Livery-Stable Keepers — Obligations.</p> <p>A livery man is bound to keep safe horses, or fully disclose the character of the horse to the driver at the time of letting him, and may be responsible for wrongful acts in this particular.</p> <p>3. Same — Damages.</p> <p>Where a husband sues for damages for injuries to his wife by being thrown from a buggy in which he was driver, if the injury resulted from the wrongful act of defendants and from no other cause, and the plaintiffs have not contributed by their own acts or neglect, and the accident was not caused by the chatacter of the horse, the defendants are liable in damages.</p>

<p>Municipal Bonds — Rights op Bona Fide Holdeb.</p> <p>Where tbe charter of a railroad company grant ed to it the privilege to obtain county subscription to its stock, and the defendant county subscribed for stock in the company, and issued bonds under the authority conferred by the charter Ct£ the company, such bonds arc valid in the hands of innocent holders, notwithstanding there was, at the time of the subscription and issuance of the bonds, a special statute prohibiting the county court from taking stock unless the subscription was voted for by a majority of all the resident tax-payers. The issuing of the bonds raises the presumption that all preliminaries, including the election required, have been complied with, and the bona fide holder is not bound to look behind the question of power.</p>

<p>1. Contract by Letter — Acceptance or Proposition — Oral Statements Merged.</p> <p>Where libellants made an offer by letter to the respondents to alter and repair one of its steam-boats and “to build out the frames as we have talked of,” which offer was accepted by letter on the part of the respondents, such letters constituted a written contract, and all prior conversations and statements were merged in it.</p> <p>2. Same — Statements not Guaranties.</p> <p>Statements made in advance of the acceptance of a proposition by letter, of what it was thought would be the result of a given plan, are not guai anties of of such result.</p> <p>3. Same — Payment—Taking Note, ISfpect op.</p> <p>Where, by the written contract, payment was to be made in “cash or its equivalent ” the taking of a note i’or the balance due on the performance of the contract, is not a waiver of the right to sue for the balance due; such taking of the note operates merely as a giving of credit.</p>

<p>1. Practice and Procedure — ¡Section 914, Rev. St.</p> <p>Section 914 of tlie Revised Statutes, providing that the practice and procedure in the United States courts shall conform as near as may he to the practice and procedure existing at the time in like causes in the courts of record of the state within which such courts are held, does not extend to the means of enforcing or revising a decision once made.</p> <p>2. Same — Proceedings after Trial.</p> <p>The object of this section was to assimilate the form and manner of presenting claims and defences in the preparation for and trial of suits to those prevailing in the state courts, and does not include statutes requiring instructions to he in writing, or permitting instructions and certain papers to he taken hy the jury when they retire, or requiring the jury to he directed to find specially upon particular questions of fact, nor to the manner or time of taking a case from one federal court to another hy writ of error, hill of exceptions, or appeal.</p>

<p>Bill of Exceptions.</p> <p>Eequisite for review of points brought up.</p>

<p>1. PREFERENCE—Eight of Insolvent Debtor to Make, and How it may be Made.</p> <p>An insolvent debtor,' in the absence of the bankrupt law, has the absolute-control of his unencumbered property, and he may prefer one creditor to the exclusion of all others. The favored creditor’s debt may or may not be due, and the preference may be by a judgment, a mortgage, a deed, a transfer of' securities, or choses in action, the sale of personal property, or the payment of money.</p> <p>2. Same—Conditions and Limitations as to the Eight.</p> <p>While the motive which prompts the debtor to make the preference is not materia], the transfer, to be valid, must be in good faith, and in payment of an honest debt; the debtor cannot make a preference on such terms as he pleases. The preference must be absolute and unconditional, and without designs to secure to the debtor any personal benefit as against his non-preferred creditors, or to hinder or delay them in the collection of their debts. Equity favors an equal distribution of a debtor’s property among all his creditors, and conditional preferences will not be sustained; e. g., where the preference is the transfer of an entire stock of goods to a single creditor, conditioned on the-employment of the debtor, by the preferred creditor, at a fixed monthly salary, as the creditor’s agent and superintendent in continuing and carrying' on the business formerly conducted by the debtor for himself, it is invalid because of such condition.</p>

<p>Bill of Review.</p>

<p>Patents eor Inventions.</p> <p>Wliere plaintiff, when suit was commenced, owned tlie patent, and owned tlio entire interest in tlie claim for profits and for damages for past infringements, lie may recover for infringements committed before lie owned tlie patent.</p>

<p>PATENTS ROE INVENTIONS.</p> <p>The “ driven-well ” reissue, No. 4,372, for the invention of driving a tube into the eartli to form a well, is not infringed by boring into the earth with an auger and inserting a tube without driving or forcing.</p>

<p>In Equity. On Rehearing,,</p>

<p>Patents eoh Inventions — Pbiob Use.</p> <p>Wliere the defences of prior use and anticipation are not established, injunction for the infringement of the patent will bo granted.</p>

In this case I find the following facts: The steamer Powhattan is an ocean steamer built of iron. Her length is 267 feet, and her breadth of beam 82J- feet. Her registered tonnage is 998 tons. She was built in 1878, and was owned by t(ie Mediterranean & New York Steam-ship Company, Limited, and was running between New York and European ports. The firm of Phelps Brothers & Co. were the general agents in New York of the Powhattan and of her owners.

Libel by Seville Schofield against the steam-ship Kate to recover damages for injuries to wool shipped on the steam-ship. The facts were as follows: The wool was shipped at Odessa, consigned to Brown Bros. & Go., at Philadelphia, who afterwards assigned the bill of lading to libellant.

<p>1. Wharves and Sums — Obligations op Owners — Warning op Obstructions.</p> <p>The owner of a slip where canal-boats are in the habit of coining in to discharge their cargoes at the owner’s elevator, is bound to keep it free from injurious obstructions at the head of the slip, or to warn vessels thereof.</p> <p>2. Same — Effect op Notice.</p> <p>Where the libellant was notified that the water at the head of the slip was shoal, and in order to bring his after hatch beneath the elevator brought the hows of his boat up near to the bulk-head at about high tide, and when the tide fell, a few feet of her bow grounded upon sorhe stones in the bank, of which stones the libellant was not notified, and the bows being high out of the water the boat was strained by the weight of cargo in the center, as the tide fell, causing leakage and damage to the cargo, and no diligence being proved in observing when she first grounded, or any attempt to haul her off immediately thereafter, and it not appearing that when efforts were made to haul her off they would have been successful but for the stones, held, that the sloping bank and the boat’s grounding thereon at the libellant’s risk, after notice, were the primary cause of the damage, aggravated by the stones, which increased the difficulty of removal, for which the defendant was responsible; and both causes concurring, and not being distinguishable, the libellant should recover but half his damages.</p>

<p>In this ease I find the following facts:</p> <p>The bark Daphne, of Arondal, STorway, where she was built, left Baltimore, Maryland, in good condition, on the eighteenth of March, 1876, with a cargo ■of crude petroleum in barrels, bound to Marseilles, Franco, and passed out to sea on the twentieth of March. On the twenty-iiftli of March, from 20 to 30 minutes after midnight, the Daphne was run into by th() British steam-sliip Great Western, bound from Gibraltar to hTew York with a cargo of merchandise. The place of collision was on the high seas, 175 to 180 miles from Sandy Hook; about 150 miles from the beach near Fire Island light-house, on Long Island. The weather at and before the collision was line. The night was dark, but there was no difficulty in seeing lights at a great distance on the water. The wind was about E. S. E. The course of the Daphne was between 3ST. E. and FT. E. -J ÍT. She was sailing by the wind, on her starboard tack, and had the usual regulation lights — green on her starboard side and red on her port side — properly placed and burning brightly, and was keeping a good lookout. The white mast-head light of the steam-sliip was seen from the bark at about 11 o’clock p. m. at a distance off, as estimated, of about 12 miles, and about four points on the bark’s starboard and weather bow, and afterwards the steam-ship’s red light was seen from the bark. From the time of the first observation by the bark of the white light of the steamer the bark, with all her sails set, except the main-royal and gaff top-sail, was kept on her course hT. E. to 27. E. J hf., sailing by the wind, making about six miles an hour, and without any change of her course by the action of her helm until the steamer was coming into her, and was within a distance off of about two of her lengths, and angling a little from aft of the bark towards the bark’s bow, as on a port helm, when an order was given to the wheelsman of the hark to keep off, and the bark had fallen off a little when she was struck by the stem of the steamship aft of her fore rigging on her starboard, side, the steam-ship cutting into the starboard side of the bark, down from the rail, and into the beam, breaking the water-ways and plank, aijd doing other damage, which made it necessary for the bark to put back for repairs.</p> <p>The steam-ship was on a course, before the collision, if. W. by W., crossing that of the bark, and, without sails set, was making between seven and eight knots an hour. The green light of the bark was seen from the' steam-ship at a distance off of six or seven miles, bearing W. by S., seven points on her port bow. The steam-ship kept on her course without changing it until she was too close to allow her to go under the bark’s stern, and then her- helm was ported hard a-port, to bring her around to the starboard and leave the bark on her port hand, in which maneuver she struck the bark aft of her fore rigging, as aforesaid, stem on, after an order was given to stop her engines and reverse full speed, as the bark was falling off.</p> <p>The libellants sustained damages from the injuries to. the bark by the collision, as allowed by the district court, in the sum of $17,023.44.' The value-of the steam-sliip at the time of the collision, whether ascertained by reference to her condition before the collision, or to her condition after the collision and before her stranding, was from $140,000 to $150,000. The libellants are, and were at the time of the filing of the libel herein and of said collision, residents of Arendal, in Norway, and subjects of the kingdom of Norway and Sweden, and there domiciled, and owners of said bark.</p> <p>The respondent Mark 'Whitwill was at the same times a resident of Bristol,, in England, and a subject of the united kingdom of Great Britain and Ireland, and there domiciled, and one of the owners of the said steam-ship.</p> <p>After the said collision and on the same twenty-fifth of March, while still on said voyage, and before reaching New York, the said steam-sliip was stranded and wrecked on the southern coast of Long Island, from a cause in no way growing out of or connected with said collision, and not directly from any peril at sea, or without the act of man mingling with it, but by the careless navigation and fault o'f those in charge of her. No freight is shown to have been received on said voyage. The owners of the said steam-ship, on the twenty-eighth and twenty-ninth of March, 1876, duly made an abandonment of the said steam-ship to the various underwriters who had insured her. Before and at the time of said stranding the said steam-ship was under insurance effected by the owners thereof to the amount of £34,000, which they realized from the insurance companies by the payment to them of that sum as for a total loss, after tender of an abandonment. After said abandonment, and on various dates down to the twelfth of May, 1876, the wreck of the said steamship and the materials saved therefrom were duly sold at public auction for account of whom it might concern. Such sale was duly and publicly advertised in the city of New York, but no notice of it was otherwise given to the libellants. It was made for the account of the said underwriters, and was pursuant to the directions from the owners, and after paying the expenses of saving and selling the property it realized the sum of $1,796.14.</p> <p>On the twenty-seventh of March, 1876, the master of the said bark, acting as agent for the libellants, who were not then in this country, commenced this action in their names. The respondent Whitwill was not in this country. A process of foreign attachment against the property of the respondents was issued, under which the steamer Cornwall, in which the respondent Whitwill had any interest, was attached, and he appeared generally and answered in the cause. On the trial in the district court, and also on the trial in this court, his answer was ordered to be amended, by adding at the close of the seventh article thereof the words “and he hereby surrenders the same to the libellants. ” On the trial in the district court, and also on the trial in this court, the counsel for the respondent Whitwill tendered to the other side, in open court, a paper of which the following is a copy, and asked the court to note the fact, and also put in evidence the said paper, subject to objection then made by tho libellants, counsel:</p> <p>“Know all men by these presents, that I, Mark Whitwill, of Bristol, England, heretofore part owner of the steam-ship Great Western, do hereby surrender to Jens Thommasen and Julius Smith, of Arendal, .Norway, owners of tho bark Daphne, all my interest in the said steam-ship Great Western and her freight, as of the date of March 25, Í876.</p> <p>“ In witness whereof I have hereto set my hand this nineteenth day of April, 1877. . MARK Whitwill,</p> <p>“ by W. D. MORGAN, Agent.</p> <p>‘In presence of Chas. F. Wells.</p> <p>“City and County of New York — ss.:</p> <p>“ On this nineteenth day of April, 1877, before me personally came William D. Morgan, to mo known, and known to be the same person described in and who executed the foregoing instrument as the agent of Mark Whitwill, therein named, and to mo known to be such agent, and ho to me acknowledged that he executed such instrument as and for the act and deed of the said Mark Whitwill. Charles F. Wells, Notary Public, New York.”</p> <p>Such paper was exoeuted by the duly-authorized agent of the said Whitwill, and its execution was thereafter ratified by said Whitwill.</p> <p>On the trial in this court the counsel for the respondent Whitwill offered to produce a paper, to be signed by said Whitwill, by said Morgan, as his attorney, in all respects like the one above set forth, dated April 19,1877, except containing a transfer to a trustee for the benefit of the libellants, under the provisions of section 42851 of the Devised Statutes of the United States, if the court should be of opinion that such transfer to a trustee, and not a surrender to the libellants, is necessary, and asked that in such event the answer be amended accordingly.</p> <p>On tbe foregoing facts I find the following conclusions of law:</p> <p>(1) The steamer was wholly in fault for the collision, and the bark was not in fault.</p> <p>(2) The liability of the respondent in this suit is limited to the value of his interest in the steamer in the condition in which she and the remnants of her were after her stranding and wreck, and ho is liable in this suit to __-for such value, which on the present proof is the sum of $1,796.14, and for nothing moro.</p> <p>Samuel Blatcheord, Circuit Justice.</p>

<p>1. Collision — Obligation to Hold Course — Bulb 23 — Lights.</p> <p>In navigation in the night-time, and in plenty of sea-room, the obligation upon a vessel to keep her course, under rule 23, (Kev. St. § 4233,) arises from the time when the lights of the other vessel are seen, or ought to he seen, by a proper lookout, within the limits of two miles, prescribed by rule 3, at which distance lights should be visible.</p> <p>2. Same.</p> <p>Where the schooner S., in the westerly part of Long Island sound, sailing in the channel course W. S. W., changed two points to the southward, to S. W., thereby heading nearly directly for a steam-tug, about a mile distant, whose lights were visible, but were not noticed, — the captain being diverted by a discussion with the pilot, who had just boarded her, — and there being plenty of sea-room to have kept his course, held, that the S. was within a distance subjecting her to the twenty-third rule, and that she must he held in fault and responsible for the collision which followed.</p> <p>3. Same — Neglect of Use of Means to Avoid Collision.</p> <p>The steam-tug Y. having previously shaped her course to pass to the right, and having observed the schooner’s change of course when about a mile distant, and having still abundant sea-room and time to pass on either side, held, also, responsible for the collision, for not having used promptly the means within her power to avoid it.</p> <p>4. Same — When Must Stop and Back.</p> <p>It being claimed by the tug that the sehooner’s change of course showed her green light, so that she appeared to be crossing the Y. ’s course to the starboard side, (the schooner’s red light being possibly obscured by her jib,) held, that the Y. was not justified, under this appearance of the green light only, in continuing her'course to starboard, but was bound to go to port, or to stop and back if necessary.</p> <p>5. Same — Steamer to Keep Out of the Wav.</p> <p>A steamer bound to keep out of the way of a sailing-vessel is not relieved from this duty by a previous fault of the latter, but remains bound to use with promptness and diligence all remaining means reasonably within her power to avoid collision, and to make such practicable changes in her own navigation as may be rendered necessary by the faulty changes of the other.</p>

Libel by tbe owners of the schooner S. B. Hume against the steamship Pennsylvania to recover damages for a loss of the schooner by collision. The facts were as follows: The collision occurred in mid-ocean, at about half past 11 o’clock on the night of July 23, 1878. The weather was thick and foggy.

<p>Libel in rem for Supplies.</p> <p>On the sixteenth day of May, 1877, the owners of the steam-boat William Cook, of this eity, chartered her to Josiah Pollock from June 2 to October 1, 1877, to be used in the excursion business on the Hudson river, the East river, and Long Island sound; the charterers to have possession, and to pay all expenses of manning and supplying her. Pollock took possesion of the boat on the first day of June, and ttsed her only in excursions to Eockaway, obtaining coal from the libellant’s yard at Hoboken, New Jersey. The agent of the owners seeing her go to this yard, presumably for coal, went there, and also to the office of the libellant in "Hoboken, and gave notice of the terms of the charter, and forbade supplies being furnished upon the credit of the vessel. This notice was conveyed to the president of the company, who afterwards went with his collector to the office of Pollock, in New York, and arranged with him to pay for the coal in weekly payments. Pollock paid for the coal up to the twenty-fifth day of June only. On July 7th possession of the vessel was retaken by the owners, for default in the payment of the hire according to the terms of the charter-party, and this libel was afterwards filed in rem to recover for the coal furnished her by the libellant from June 25th to July 7th.</p>

<p>1. Tug akd Tow — Rigiit or Way — River Navigation.</p> <p>A tug with a heavy tow upon a long hawser, coming down the river with the tide, having to pass a sharp bend where the tide swoops rapidly towards the opposite shore, has the right of way as against a similar tug and low coming up the stream below the bend. Where the M., with such a tow, came round West Point, on the Hudson river, after signaling the tug 0., with a similar tow, below the Point, and receiving similar blasts in return, and kept within 25 or 50 feet of the flats below the Point, and drew as near the Point as was sale, but the end of her tow swung with the tide so as to collide with the tow of the 0., held, that the M. was not in fault, as she ought neither to have stopped sooner nor to have attempted to cross the O.’s bows to the easterly side of the stream.</p> <p>2. Injury to Tow — Negligence—Action against All Vessels Implicated.</p> <p>Whore a barge in tow is injured without her own fault, through the negligence of some one of other vessels, the suit ought to be against all, unless some are clearly not liable, in order that the respective rights of the parties may be determined in a single suit.</p>

<p>1. EVIDENCE.</p> <p>That a party had but one bill of lading and did not deem it prudent t,o incut the risk of the sea voyage from Antwerp, when it might be needed in more important suit, not deemed sufficient to admit in evidence a paper certified by United States consular certiflcato to be a true copy.</p> <p>2. CONSULAR Certificate.</p> <p>A consular certificate is not evidence.</p>

Libel by the owners of the tugs Argonauta and. Markee against the steamer D. J. Foley, to recover compensation for services rendered. It appeared that the steamer, while on a voyage from Philadelphia to Honduras, found, after leaving the Delaware breakwater, that her stem had been cut by the ice. She put back to the breakwater, leaking; and was there frozen in and unable to proceed.

<p>Collision — At Pier.</p> <p>Vessel in fault for allowing lierself to be placed at a pier, lapping the starboard quarter of another vessel, so as to prevent her from changing her direction as she moved towards the pier, as vessels were being towed out from the pier, and a collision ensued.</p>

<p>In Admiralty.</p> <p>This was a libel filed by the master and owner of the steam-boat City of Eiehmond, to recover $5,000 as salvage compensation for assistance rendered to the steam-boat Plymouth Bock, under the circumstances described in the opinion of the same court, reported in The Plymouth Rock, 9 Fed. Rep 413, ,415, et seq.</p>

<p>Patents for Inventions — Automatic Devices.</p>