Volume 14 — Federal Reporter

<p>1. MORTGAGE LlENS—ASSIGNMENT OE.</p> <p>In regard to the assignment oí mortgage liens the law of Georgia does not differ from the general rules of law and equity, and therefore, in that state, a transfer by delivery of a promissory note payable to bearer and secured by mortgage, carries with it the mortgage lien, so that the holder of the note may foreclose the mortgage by suit in equity in his own name, and without making the mortgagee a party.</p> <p>2. Artioms 1996, Code oe Georgia.</p> <p>The article 1996 of the Code of Georgia does not in any way provide for mortgage liens.</p>

<p>Trust Deed—Equity Rules 47, 48—Absent Parties.</p> <p>The Atlanta Cotton Factory Company made a deed of certain property, real and personal, m trust, to certain trustees, to secure to its bondholders the payment of their bonds and interest, with power to take and sell the property in case the company should make default in payment of the interest coupons, and such default should continue for one month, and said trustees should have notice thereof. Subsequently, but at a time when no coupon was due, one of the bondholders brought this suit fbr himself, and for all parties in interest who might join him, alleging the insolvency of the company, its inability to meet its debts and expenses, and its being about to default in the payment of interest, and had a receiver appointed. Afterwards, several, but not all, of the bondholders, among them one of the trustees, joined the complainant, and, before any default in the payment of interest, a decree was entered ordering a sale, which was had, and the property was purchased by one of the bondholders. The remaining trustees then appeared, and asked to have the sale set aside on the ground of the inadequacy of the price, and that the decree be vacated to enable them, as representing all the first-mortgage bondholders, to be made parties. Held— (1) That the relief prayed for must be granted. (2) That the equity rules that allow suits to be brought by some complainants for the benefit of all, expressly reserve the rights of absent parties. Equity Rules 47 and 48. (3) The absent bondholders are not quasi parties, as they would have been had the trustees been parties to the suit, and are not bound by the decree. Campbell v. Railroad Co. 1 Woods, 377. (4) The purchaser at the sale made, who is also a bondholder and party, takes no full title to what the decree purports to sell. (5) The remedy then given by the decree is not- full and complete, even as to the parties before the court, and the litigation is not ended.</p>

<p>RAILROAD MORTGAGE — I'OIOCCLOSURE— PEEKERUED ÜL ADíá.</p> <p>On a bill filed by- the trustees to foreclose a consolidated mortgage, where there had been prior mortgages on different parts of the consolidated road, the net earnings of the road are to be applied primarily to the payment of the employes of the company, and of the amounts due for supplies and materials furnished; and if, instead of making those payments, the earnings are directed either to the payment of what is due to the mortgagees, or for improvements or betterments placed upon the road, that constitutes a valid claim against the corpus, the property in the hands of the court., which it is the duty of the court to see enforced.</p>

Hearing on Bill, Answer, and Proofs. This was a bill filed by a judgment creditor of a corporation against the corporation and its stockholders for a decree for the payment by the stockholders of his debt. The material facts were as follows: In January, 1874, a number of persons who had been carrying on mining •operations under the name of “ The North Carolina Gold Amalgamating Company,” applied for and obtained a charter of incorporation under the same name.

<p>1. Equity — Fsaiid—Evidence.</p> <p>Allegations of fraud should always be clearly proved, either directly or necessarily, by circumstances which clearly lead the mind of the court, to the conclusion that a fraud has been perpetrated; and as the allegations of fraud in this case are not clearly made out, the bill must bo dismissed.</p> <p>2. Same — Dismissal of Bill.</p> <p>Whore a bill in equity is founded on alleged fraudulent business transactions, and the evidence fails to sustain the charge, the bill must be dismissed, though it appears that defendant owes debts growing out of the business as to which the fraud is alleged.</p>

This was a suit to recover money alleged to be due by the terms of a policy of insurance upon the life of William Wackerle, deceased, issued by defendant for the benefit of plaintiff, his wife; and also to recover a premium paid by plaintiff to defendant by mistake, after the assured’s death. The defendant in its answer denied that the terms of the policy had been complied with by the plaintiff, and denied also that the assured was dead. The case was tried before a jury.

<p>Bankruptcy — Liability ok Stockholders — Assets.</p> <p>On January 12,1871, a corporation, by adoption of a by-law, reduced to $500,-000 its original stock of $10,000,000, on which 24 per cent, had been paid in by stockholders, canceled the outstanding certificates of slock, and issued full-paid certificates for 20 per cent, of the canceled certificates; Afterwards the company became insolvent, and the stockholders were resorted to in order to pay its creditors. Held, that the stockholders, on the twelfth of January, 1871, in case the assets of the company were not sufficient to pay its debts, were liable for all claims on contracts at that date in force, but were not liable on subsequent contracts, and as to subsequent contracts the creditors could only look to other assets of the company; but that if the subsequent creditors of the company could not be paid in full out of the general assets, the stockholders-must pay in full all claims on contracts existing January 12, 1871, and refund to the assignee any amount realized from the assets and by him applied in payment of such contracts; and as the assignee had paid 40 per cent, on these contracts out of the assets of the company, the stockholders must restore this amount to the general fund.</p>

<p>Action of contract, brought in the superior court for the county of Middlesex and commonwealth of Massachusetts, under Gen. St. c. 12, § 20, by the collector of taxes of the city of Cambridge, against the executor of the will of Francis Sumner, to recover taxes assessed upon the defendant by the assessors of that city. The declaration alleged that Sumner, who last dwelt in Cambridge, died in February, 1878, leaving a large taxable estate in personal property, and a will, which was duly admitted to probate in the county of. Middlesex, and the defendant there appointed executor, in February, 1879; that the defendant proceeded to act as such executor, and had never given notice to the assessors of Cambridge that the estate had been distributed and paid to the parties interested therein; that the taxes sought to be recovered were assessed upon the defendant, as such executor, on the first days of May in 1879, 1880, and 1881, respectively ; that in August of each year a warrant for their collection was duly committed by the assessors to the plaintiff, and he demanded payment of the defendant, but the défendant wholly refused to pay the taxes or any part thereof; whereby the defendant owed the plaintiff the amount of the taxes. The defendant, having removed the case into this court, demurred to the declaration, because it set forth no legal cause of action substantially in accordance with the rules contained, in the practice act of Massachusetts, and because it did not allege that the defendant, at the times of the assessments of the taxes upon him, was an inhabitant of Massachusetts, or of any city or town therein.</p>

<p>Patents non Inventions — Rocking-Chairs—Mere Mechanical Change.</p> <p>A rocking-chair constructed to move upon a stationary platform, having a base or rails upon which the rockers move, the base being tongued and the rockers grooved so that one fits into the other, the ends of the base being elevated, to prevent the rockers from working off, with flexible rubber bands connecting the rockers'to the rails of the stand to prevent the seat from moving back and forth on the rails, or rocking too far either way, is a mere mechanical change from chairs in previous use, and in such a device there is nothing that can be the subject of a patent.</p>

Hearing on Bill, Answer, and Proofs. This was a suit between parties who had respectively made application for a patent for the “manufacture of sulphate of alumina.” The commissioner decided in favor of the present respondent, whereupon the complainant filed this bill. After the filing of the bill, letters patent No. 239,089 were duly issued by the commissioner to the respondent. The facts are sufficiently set forth in the opinion.

<p>Patents eor Inventions — Deviation.</p> <p>In reducing his patent to practical application a patentee is not hold to strictly and entirely follow the mere mechanical device shown in his drawings, hut he may deviate so long as he does not violate the principle involved in his patent.</p>

<p>1. ToucniNU at a Port or the United States.</p> <p>A vessel touches at a port of the United States, within the meaning of section 8 of the act of May 6, 1882, to exclude Chinese laborerá from the United States, when she calls there for orders, or a cargo for a foreign port, and Chinese laborers who are on board of her as passengers or crew, are not unlawfully in the country, contrary to said act, during her stay for such purpose.</p> <p>2. Chinese Crews.</p> <p>The act aforesaid does not apply to Chinese who enter a port of the United States as seamen or members of the crew of a vessel arriving from a foreign port with'the intention of returning or proceeding to another foreign port in the ordinary course of commerce and navigation; .but if such Chinese leave the vessel While in the American port, or do not depart with her, their presence in the country becomes unlawful.</p> <p>3. The Deck oe an American Vessel is American Territory.</p> <p>A person on board of a vessel of the United States or any one oi them is in contemplation of law within the territory and jurisdiction of the United States, and therefore a Chinese laborer who shipped on an American vessel at London,, prior to the passage of the act aforesaid, and continued on her until her arrival in the United'States, although after the expiration of the 90 days next following the passage of said act, is entitled to reside therein.</p>

<p>1. Admiralty — Lien for Freight — Delivery.</p> <p>As a rule, where tire cargo lias been delivered to the consignee, the ship-owner does not retain a lien thereon for his freight unless there is an understanding between the parties, when the goods are delivered to the consignee, to that effect, or it is the usage of tiie port where the cargo is delivered that the lien shall remain.</p> <p>2. Same — Nbgligbncb op Captain — Wintering.</p> <p>The evidence in this case showing that the captain was not guilty of negligence in not completing the voyage on account of rough weather, it was held that the district court erred in awarding damages on that account.</p>

<p>1. Collision — Limited Liability — Jurisdiction.</p> <p>Proceedings to limit the liability of ship-owners may he instituted in a district where a fund or claim equitably representing the lost vessel is in litigation, though the petitioners reside in another district.</p> <p>2. Same-Rules of Maritime Law.</p> <p>Under the decision of the supreme court (October term, 1881,) in Mat. Steam Ma'o. Co. v. Dyer, that the statute limiting the liability ol' ship-owners is to be administered in our courts as a general rule of maritime law, proceedings to limit liablity may be instituted by the owners of an American vessel against foreign as well as against domestic ships, or their owners, in respect to claims arising from collisions upon tlie high seas.</p> <p>3. Samis — 'Equitable Claim to Proceeds.</p> <p>Where the American schooner J. 11. L. and her cargo were totally lost in a collision at sea with the British steamer A., and on a libel in personam in this court an interlocuf ory decree had adjudged the owners of each vessel to pay half the damages, and pending a reference thereon the owners of the schooner filed a petition to limit their liability in respect to half the cargo lost; held, that this court had jurisdiction of the proceeding, and was the most appropriate court to determine whether the fund to be derived from the steam-ship for 1ho loss of ihe schooner, being her only remaining proceeds, should be paid over to the trustee, or retained by the owners of the schooner, or secured to the owners of the lost oargo, by provisions in the final decree in the former suit to the extent of their claim, or to the extent necessary to save the steamer from liability for lost cargo beyond the terms of the interlocutory decree.</p> <p>4. Same — Innocent Part Owners.</p> <p>Though the master, a part owner, be privy to the negligence which caused the loss, the other innocent part owners may have the benefit of the statute.</p>

<p>1. Admiralty — Rev. St. § 4283, (Act of Cong. March 3,1851.)</p> <p>Plaintiff claimed, damages for personal injuries and loss of baggage by reason of a collision in Long Island sound between two of defendant’s steamers, and defendant answered that under the act of March 3,1851, it had surrendered its vessel in the southern district of New York, and that plaintiff had filed no claim. Held, on demurrer by plaintiff,that the act of'congress of March 3,1851, does not except from its operation owners of vessels whose routes are partly by land and partly by water, nor those whose vessels are not registered, nor, in ■ the meaning of section 7 of said act, is the navigation of Long Island sound inland, navigation; and that the surrender of its vessel in the district in which it had been sued was according to law, and plaintiff was precluded from making any claim, for loss of baggage, but as to his personal injury he might he allowed to prove his caso.</p> <p>2. Same — Personal Injuries.</p> <p>Whether the exemption under section 3 of the act of March 3,1851, extends to personal injuries is not decided.</p>

<p>Appeal from a Decree of the District Court. The facts and the opinion of the district court are fully reported in 12 Fed. Rep. 728.</p>

<p>1. Admikaity— Oom/ision—Eaildee to Show Touch—Concubbent Negligence —Bukden op Pboop.</p> <p>Where a sailing vessel fails to show the prescribed torch upon the approach of a steamer, and a collision occurs which presumably would have been avoided had the torch been shown, the burden of proving concurrent negligence on the part of the steamer is on the sailing vessel, and such concurrent negligence will not be held upon uncertain proof or doubtful conclusions.</p> <p>2. Same.</p> <p>Where the evidence is conflicting as to the exhibit of a light, and if the witnesses for the sailing vessel were believed tho course of the steamer could only be accounted for on the hypothesis of criminal negligence, such a conclusion will not be adopted.</p> <p>3. Sai™—Evidence op Statements op Chew.</p> <p>3STo weight is to be attached to evidence that a statement was made by one of the steamer’s crew that he saw the light in time to have avoided the collision.</p> <p>The Roman, 12 Fed. Rep. 219, reversed.</p>

<p>Appeal from a Decree of the District Court.</p> <p>The facts and the opinion of the district court are fully reported in 7 Fed. Bep. 926.</p>

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

<p>1. Remoyaii op Cause — Controversy between Parties.</p> <p>It is the duty oí tho court, on application for removal of the cause into the circuit court, to inquire into the interest the various parties have in the controversy, and to classify them on one side or the other in accordance with their interest; and if, when thus classified and arranged, it appears there is a controversy between citizens of different states, the cause is properly removable.</p> <p>2. Same — Jurisdiction, when not Taken.</p> <p>. Where this court could not proceed with the cause without acting directly on the decree rendered in the state court, and the equity claimed by the bill could not be given to plaintiffs without interfering with that decree, this court will decline to take jurisdiction.</p>

<p>1. Equity — -Jurisdiction.</p> <p>When a court oí equity has once obtained jurisdiction of the parties and subject-matter of a suit, it will retain it for the purpose of doing complete justice between the parties.</p> <p>2. Mistake in Deed or Mortgage — Innocent Purchaser.</p> <p>The parties to a mortgage cannot set up a mistake therein against the innocent purchaser of the notes and holder of the mortgage debt, nor can an agreement to assume a mortgage, by mistake inserted in a deed conveying land subject to such mortgage, be released from or released by mortgagor after a transfer of the mortgaged notes, and a recovery against the grantor for any deficiency after foreclosure thus precluded.</p>

<p>1. Equity — Laches—Rescission op Fraudulent Contract.</p> <p>Equity will not presume a ratification of a fraudulent contract by the injured party; no particular form of rescission is required, and if he files his bill to set it aside with reasonable promptness he will be entitled to relief.</p> <p>2. Principal and Agent — Profits op Agency Belong to Principal.</p> <p>Where an agent has fraudulently made profits out of his agency at the expense of his principal, he shall account to his principal for all such profits, and shall be allowed only the actual value of whatever he turns over to his principal ; and if it be property purchased in tho course of his agency, what he paid for it shall be considered its value.</p> <p>3. Same — Pleading—Necessary Parties.</p> <p>In a suit to compel an agent who has fraudulently conspired with others to obtain title to the lands of his principal, to account therefor, and to have tlio sales of said lands set aside, the only necessary parties are the persons who have some present interest in the controversy, and against whom tho complainant has a right to a decree for relief. Those used as the instruments of the fraud, who in pursuance of the conspiracy conveyed to others the title once vested in them, are not necessary parties.</p> <p>4. Same — Charging Conspiracy.</p> <p>Where the conspiracy charged is one, though embracing within its scope many transactions, one suit is sufficient.</p> <p>5. Same — Other Frauds.</p> <p>Allegations of other frauds that cannot be specified because of their conceal ment by defendants, are sufficiently certain and not demurrable.</p>

This is a suit for decree for title for about 1,400 acres of land in Nodaway, Atchison, and Holt counties, Missouri.

<p>Exeotttors — Bond op SuRVivirr» Partners — Assets op Estate.</p> <p>Where a testator provided in his will that if his executors decided to collect from his surviving partners the money due to his estate, the amount should not he paid till a certain time had elapsed, the taking of notes by the executors for the amount due was not such action as released the sureties on a bond given by the surviving partners conditioned to pay “ all sums of money that are now due or hereafter may become due.”</p>

Bill in chancery brought to set aside a settlement made by the defendant as administrator of tbe estate of George Young, deceased. The defendant was appointed as such administrator, November 24, 1874, and thereupon took charge of the assets of the estate, consisting largely of notes and accounts.

<p>This cause is now before the court upon a plea to the bill interposed by the respondents, which is termed a plea in bar, but which, in effect, is a plea in abatement. The present bill is filed by George W. Eadford, assignee in bankruptcy of Frank Folsom, against Jeremiah Folsom in his own right, Jeremiah Folsom, administrator of the estate of Sarah M. Folsom, deceased, and Adele, Florence, and George 13. Folsom, minor heirs of said Sarah M. Folsom, who appear by J. 13. Blake, their guardian; and in substance the bill avers that complainant is the owner of certain realty in the bill described, and prays that his title thereto may be confirmed and quieted as against the respondents,.and that he may have a writ of possession. The plea sets forth that prior to the commencement of this proceeding, to-wit, in the year 1873, Frank Folsom, to whose rights his assignee, George W. Eadford, was afterwards substithted, brought an action against Jeremiah;Folsom and; Sarah M. Folsom, in the circuit court of Pot-tawattamie county, Iowa, “for the same matters and to the same effect, and for the like relief and purpose as the now complainant doth by his present bill s'et forth; in which said action issue was joined, and the same is still depending in said honorable court, and is undisposed of.” To this plea the complainant interposes a demurrer, thus presenting the question whether an action pending in the state court of Iowa can be pleaded in abatement of a subsequent action commenced between the same parties in the United States court for the district of Iowa, for the same subject-matter and the same relief.</p>

<p>1. Statutory Construction.</p> <p>The granting in a statute of privileges and powers recited in a prior statute does not include the privileges and powers recited in a statute amendatory to the prior statute.</p> <p>2. Municipal Corporations — Incorporation Acts.</p> <p>Where a statute incorporating a town declares that such town shall have all the rights, privileges, and powers conferred upon a town previously incorporated, the later incorporation act does not include the power conferred on the prior incorporated town by an act amending its act of incorporation, although the amendatory act has passed prior to the later incorporation act.</p> <p>3. Proviso in Statute.</p> <p>A proviso in a statute which limits the authority of a town, and which limit is inconsistent with a power previously given, controls the general terms of the statute.</p>

<p>Practice — Amendment- of Writs — Terms.</p> <p>While the practice in. the state courts may enlarge the power of amendmen t in the federal courts, it cannot diminish such powers as are conferred by acts of congress.</p>

<p>Marshal’s Fees.</p> <p>Where the marshal is required to serve process in suits other than where the United States requires the service, he has a right to demand his fees in advance of the service to be performed.</p>

<p>1. Patents vor Inventions — Conveyance oe Eight.</p> <p>A conveyance of “ all my right, title, and interest in and to ” a patent, though properly recorded, does not include the right for two counties covered by a prior conveyance, although the prior conveyance was not recorded in the patent-office.</p> <p>2. Conveyance oe Patent —"W"hat Includes.</p> <p>A conveyance of the right to make and sell a patent includes the right to the use of the thing patented.</p>

<p>Label.</p> <p>Neither a letter nor a horseshoe, nor any such simple device, can be claimed as a label.</p>

<p>Patents for- Inventions—Reissue. -</p> <p>A claim in a reissue cannot be extended so as to embrace an invention not specified in the original.</p>

<p>Admiralty—Opinion on District Court—3 Fed. Rep. 45, Affirmed.</p>

<p>1. Removal oe Cause—Failube to File Record—Excuse.</p> <p>"Wliere, on a motion to remand a cause to tire state court for failure to file the record in the circuit, court before the first dar of the next term, the defendant appeared and offered to file the record, and gave as excuse for not having dono so that tho information obtained at the clerk’s office was understood to moan that tho next term would be in December, when it actually began November 1st, held, that the excuse was sufficient, and the defendant must be allowed to file the record. •</p> <p>2. Same—Motive roe Removal Immateeial.</p> <p>The failure to file tho record having caused no delay of the trial, and in nowise prejudicing the plaintiff, the fact that the motive for removing the cause was to delay the trial is immaterial, and it is the duty of the circuit court to retain the cause, without regard to tho motive which impelled the removal.</p>

<p>Equity will sot Aid a Fraudulent Transaction or Breach of Trust.</p> <p>A court of equity will not aid parties in the consummation or perpetration of a fraud, nor give any assistance whereby either of the parties connected with a betrayal of a trust can derive any advantage therefrom; nor will it unravel a tangled web of fraud for the benefit of any one enmeshed therein, through whose agency the web was woven. Especially must this be the rule where one of its own officers, whose position is both advisory- and fiduciary, seeks its assistance to compel alleged confederates to share with him the spoils acquired through his own concealments and deceits in the betrayal of his trusts.</p>

<p>1. Appeal — Final Decree — Dissolution of Partnership.</p> <p>Whether a deci'ee in a suit for>a dissolution oí partnership which determines the rights of the parties, and directs that the property be sold, and that certain sums be paid out to the various parties for costs, fees, and expenses, and that the remainder be divided pro raía, according to their respective interests, between the parties, but without providing for the debts of the partnership, is a final decree, guwre.</p> <p>2. Partnership Property.</p> <p>Peal estate put into the partnership by one of the parties at' an agreed valuation becomes partnership'property without a conveyance from the owner, and such owner holds the legal title in trust for the partnership as assets of the partnership estate. .</p> <p>3. Same — Division on Dissolution.</p> <p>Where reai estate held by a partnership cannot be divided between the partners, or it is required to pay the partnership debts, the court, upon a decree of dissolution, may order the sale thereof, and the proceeds to be appropriated to the partnership debts, and the surplus to be divided between the partners.</p> <p>4. Errors not Bevibwable.</p> <p>Errors in orders and proceedings subsequent to rendition of the decree, from which no appeal can be taken, cannot be considered.</p> <p>5. Costs in Equity.</p> <p>In an equity suit costs are in the sound discretion of the court.</p>

<p>1. Equity — Pkeventing Mui/tipIíIcity ok Suits.</p> <p>A bill in equity will lie to prevent a multiplicity oí suits, but where repeated suits have already been brought, and judgments have been rendered therein, a bill in equity will not lie.</p> <p>2. Injunction — Suit by Tax-Paybiis.</p> <p>Whether the tax-payers of a town can bring suit to enjoin a judgment obtained against a town on coupons issued by it, queers.</p>

<p>1. Cloud oh Title — Judgment Creditors way Bring Suit.</p> <p>A judgment creditor lifts tlie riglit to proceed by ancillary proceedings, in any other court oí concurrent jurisdiction with the court rendering the judgments, to remove clouds from titles to any property which ho deems to be subject to the lien oí his judgments.</p> <p>2. Another Action Pending — When not a Bail</p> <p>Where a parlyholds several judgments he may pursue his remedy as to each in separate courts, and the fact that there is a suit pending in one court, iu-volving substantially the same issues, and depending substantially on the same testimony, will not bar another suit in another court.</p> <p>g. Estoppel by Judgment.</p> <p>A party is not estopped by a judgment rendered in an action to which he was not a party, although the former suit related to the same property.</p>

<p>Indictment for Obstructing the Passage of the Mail.</p>

<p>Fugitives from Justice — Extradition Treaty Construed.</p> <p>An extradited fugitive cannot, under tbe treaty of 1842 between tbe United States and Great Britain, be held to answer for any other offense than’that for Which he has been surrendered.</p>

<p>1. Railboad Company — Default in Payment oe Mortgage Debt.</p> <p>Ho relation of principal and agent, either in law or equity, is implied from the mere fact that the railroad company continues to operate its road after default in payment of the mortgage debt, nor from the further fact that the bondholders did not take possession after such default, nor from both facts combined.</p> <p>2, Sake — Receiver— Priority ov Claim to Set Earnings.</p> <p>A cause of action against a railroad company for damages for the destruction of property along the line of its road, by lire escaping from defective locomotives, is in no proper sense to be considered such a claim as to constitute part of the operating expenses of the road, and is wholly unlike claims for supplies, new equipment, right of way, and new construction, or any claim falling legitimately under the head of operating expenses, which a,re sometimes ordered paid from the net earnings in the hands of a receiver, as presenting equi-tios.superior to those of the bond-holders.</p>

<p>1. Marine Insurance — Representations—As Part oe Contract.</p> <p>A positive representation as to a material fact is as essentially a part of the contract as a warranty, and must he substantially true, or if untrue it will operate as a release of the obligor thereunder.</p> <p>2. Marine Risk — Policy, when Void.</p> <p>On a voyage policy of insurance whereby the underwriters assumed to insure the freight list of a vessel “lost or not lost ” for a voyage at sea, the condition of a vessel in respect to her seaworthiness, at the time of the commencement of the risk, is a material part of the contract, and a misrepresentation in this respect will render the policy void.</p> <p>3. Same — Warranty—Seaworthiness.</p> <p>There is an implied warranty of seaworthiness at the time of the inception of the risk in case of a marine insurance, and where a vessel encountered no extraordinary peril, and no gale or storm which would have imperiled a stanch, strong vessel, and she rolled heavily upon the waves produced merely by trade winds, and leaked badly, her unseaworthiness at the commencement of the voyage will he presumed, and unless rebutted by evidence the contract of insurance is void.</p> <p>4. Same — Estoppel by Keceipt oe Peemidm.</p> <p>Where the loss had occurred before respondent became aware of the fact of unseaworthiness at the time of the inception of the risk, or of the misrepresentation as to the rating of the vessel, the fact of their not returning or offering to return the premiums paid until the hearing of the case will hot estop respondent to deny the validity of the policy.</p>

<p>Sur petition on behalf of mechanic’s-lien creditors.</p>

<p>1. CONTRACT OF SALE — ACCEPTANCE.</p> <p>Where a contract of sale of machinery provided that notice should he given of any defect in the machinery within five days, a failure to give such notice will entitle the plaintiff to a verdict for the value thereof, but such notice may be waived.</p> <p>2. Same — Value of Propekty.</p> <p>The law presumes the amount agreed upon by the parties is the true value of the property sold, and it is for the defendant to show that it is not.</p> <p>Phelps é Brown, for plaintiff.</p>

<p>Bankhttptcv — Ad jüdica tion.</p> <p>The district court has authority, under the bankrupt act, to adjudge a party a bankrupt, both as an individual and as the surviving partner oi a hrm.</p>

<p>1. PARTNERSHIP — ASSETS—RIGHTS OP CREDITORS.</p> <p>All the assets of a partnership, together with all property of the partners, in case of insufficiency of partnership assets, are liable for debts created by the partnership, and an individual partner can neither mortgage the property of the firm nor deliver possession thereof, to pay an individual debt.</p> <p>2. Same — Dissolution—Division op Property.</p> <p>Where a partnership is dissolved, and the property of the firm has been divided and was held separately by each partner as individual property and not as property of the firm, each partner may convey, mortgage, or deliver possession of his individual share; but, if no legal dissolution has taken place, such property remains partnership property as to creditors of the firm who knew nothing of the division and who extended credit to the firm.</p> <p>3 Debtor and Creditor — Preperence.</p> <p>A debtor has a right under the limitations of the state laws to pay, secure, or prefer one creditor over another, and to make a mortgage to secure an individual debt and out of his individual property; but the transaction must be in good faith, and not done to defraud, hinder, or delay his creditors.</p> <p>4. Same — Preperence in Fraud op Creditors.</p> <p>The fact that the intention of the debtor, in making the mortgage to secure a creditor, was fraudulent, is not of itself sufficient to make the mortgage fraudulent as to such creditor, if such creditor in no way participated in the fraud, or aided or assisted in the illegal act.</p> <p>5. Same — Dealings with Debtor — Good Faith Essential.</p> <p>In dealing with a debtor under such circumstances, and in taking possession of a debtor’s property, a creditor must exercise the utmost good faith, and his failure to do so deprives him of any right under the mortgage.</p>

<p>1. Assignment for Benefit of Creditors.</p> <p>Under the laws of Missouri every voluntary assignment by ,a debtor to any person in trust for his creditors, shall be for the benefit Of all the creditors of the assignor in proportion to their respective claims; but a mere deed of trust or mortgage for the security of certain debts therein named is not an assignment, and will only inure to the benefit of such creditors as are secured thereby.</p> <p>2. Same — Assignment and Security Distinguished.</p> <p>An assignment differs from a mere security for a debt in passing both the ¿egal and equitable title to the property to the assignee absolutely, beyond the control of the assignor, to be sold for the payment of debts, leaving no equity of redemption; and as the deed in this case has that effect, it must be considered an assignment for the benefit of all the creditors, and not a mere deed in trust to secure the debtors therein named.</p>

<p>1. Patents nor Inventions — Examination op Witness.</p> <p>The complainant in a patent case, where the infringement and the validity of the patent are both denied, as part of the preliminary proof, cannot compel the defendant to disclose the names of confidential customers to whom ho has furnished articles alleged to he covered hy the patent.</p> <p>2. Same — Contempt op Witness.</p> <p>The examiner in a patent ease has no power to rule upon the admissibility of evidence, and defendant, as a witness before him, has the right, upon a doubtful question, to take the opinion of the court; and where he acts under the advice of counsel, and apparently in good faith, his refusal to answer should not be punished as for a contempt, even though he acted mistakenly.</p>

<p>Patent Expired aster Suit Brought — Reuse Granted.</p> <p>The mere fact of the patent expiring after suit brought, and before final hearing, will not defeat the jurisdiction. A court of equity will administer any relief it finds necessary.</p>

<p>1. Shipping — Discharge cot Cargo — Demurrage.</p> <p>Where a cargo oí corn was unloaded as soon as practicable at defendant’s elevator, it being the only elevator at the port of arrival, defendant is not liable for demurrage, notwithstanding there was a delay in unloading the cargo arising from the fact that other vessels had arrived before the libelant’s vessel, and preference was given to them in unloading.</p> <p>2. Same— Citarte r — Prbsum ptions .</p> <p>A party making a charter of his vessel must be presumed to know the course of business at the port of destination, and that his vessel must wait until vessels which arrived before his were unloaded.</p> <p>3. Same.</p> <p>Where there was no stipulation in the charter-party that the vessel should he unloaded within any special lime, nor for quick dispatch, her owner cannot recover for delay caused by awaiting her turn for unloading.</p>

<p>ADMIRALTY—COLLISION—SAILING VESSELS ON THE SAME TAOK—DUTY OE THE Overtaking Vessel.</p> <p>Where two schooners, the P. and the JR., wore sailing on the same tack in the East river, the overtaking vessel, the It., sailing faster and a little closer to the wind than the P., and the P. could not lull, and held her course, and, on the approach of the ft., those on the P. called out to the R. to keep off, held, that it was the duty of the leading vessel to hold her course, and it was the duty of the overtaking vessel to keep oil and pass 1o leeward; and, as she failed to discharge this obligation, she was liable for the damages resulting.</p>

In Admiralty. Hearing on libel and answer. This was a libel by John H. Truxton, a pilot licensed under an act of assembly of the state of Delaware, approved April 5, 1881, against the schooner Alzena, setting forth that on March 15, 1882, he tendered his services as a pilot to the schooner Alzena, sugar laden, then outside of the breakwater, on a voyage from a foreign port up the Delaware bay and river to the port of Philadelphia; that by the provisions of the said act of…

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

<p>Removal of Causes under Rev. St. p. 639, § 3—Affidavit.</p> <p>The affidavit required by the act of 1867 (14 St. 558 ; Rev. St. p. 639, § 3) to be made by the petitioner for the removal of a case from a state court to the federal court, on account of “prejudice and local influence,” may, in the absence of the petitioner, be made by his attorney of record, if the affiant swears that both,himself and his client “have reason to believe, and do believe, that from prejudice and local influence he will not be able to obtain justice.”</p>

<p>Removal of Cause — Indispensable Pabtieb — Ga-iinisiieks.</p> <p>Although certain defendants were made parties to a bill in equity on the allegation that, they were indebted to the principal defendant, and thus became real parties to the suit, yet it does not follow that they are indispensable parties to the controversy.</p>

<p>1. Jurisdiction — Federal Courts.</p> <p>The extent of the jurisdiction of the federal courts cannot be restricted or enlarged by state legislation or agreement; but such legislation or agreement may give definiteness or certainty to questions which congress had necessarily left undetermined.</p> <p>2. Same — Compact between States.</p> <p>By the compact entered into in 1833 between the states of Now York and Now Jersey, approved by act of congress, June 28, 1834, (4 St. at Large, 711,) it was agreed that the state of New York has exclusive jurisdiction of and over all 1he waters of Hudson river, and of and over the lands covered by the said waters, to the low-water mark on the New Jersey shore; and the state of New Jersey has the exclusive right of property in and to the land under the water lying west of the middle of the river, and exclusive jurisdiction of and over the wharves, docks, and improvements made and to be made on the Jersey shore, and on vessels aground on said shore, or fastened to any such wharf or dock, (except as to quarantine regulations,) and the exclusive right of regulating- the fisheries on the westerly side of the middle of the river.</p> <p>3. Same — District of New Jersey.</p> <p>A vessel fastened to a wharf or pier on the western side of the Kill von Kull is within the exclusive jurisdiction of New Jersey.</p> <p>Denying The L. W. Eaton, 9 Ben. 289.</p>

<p>1. JuRisdiction op Circuit Court.</p> <p>The circuit court of the United States has jurisdiction in a case where its correct decision depends on the construction of a section of the constitution of the United States.</p> <p>Railroad Co. v. Mississippi, 102 U. S. 141, followed.</p> <p>2. Corporations—Exclusive Rights—Impairment op Contract.</p> <p>The complainant, the New Orleans Water-works Company, having been chartered, in 1877, by the legislature of Louisiana, the exclusive right and privilege was then conferred on said company of supplying the city of New Orleans with water by a system of public water-works. In 1879 a new constitution was adopted by the state, by which it was provided, in section 258, that “ the monopoly features in the charter of any corporation now existing in the state, save such as may be contained in the charters of railroad companies, are hereby abolished.” Held, that quoad the complainant’s charter, the said constitutional provision was null and void, under section 10 of article 1 of the constitution of the United States, as impairing the obligations of the contract between the state and the complainant, as set forth in the latter’s charter.</p> <p>8. Pomce Power.</p> <p>Whenever any business, occupation, rights, franchises, or privileges become obnoxious to the public health, manners, or morals, they may be regulated by the police power of the state, even to suppression,—individual rights being compelled to give way for the benefit of the whole body politic; but when, in the exercise of the police power, private property or private vested rights must be taken for public use, in order to carry out, or allow to be carried out, improvements or regulations, or to carry on business or occupations, or schemes of public works, looking to the amelioration and benefit of the public health, manners, or morals, such private property, or private rights of property, must be entitled to the protection given by the constitution of the United States, and by that of the state of Louisiana, declaring that private property shall not “be taken for public use without just compensation,” and “ previously made.”</p> <p>Const. U. S. Fifth Amend.; Const. La. 1879, §§ 155, 156; Crescent City, etc., Slaughter-house Co. v. Butchers' Union, etc., Slaughter-house Co. 9 Fed. Rep. 743, affirmed.</p>

<p>1. Powers — When cannot be Delegated.</p> <p>Whenever trusts or discretionary powers are to be exercised, the exercise thereof cannot be delegated.</p> <p>2. County Indebtedness — Powers Vested in County Courts.</p> <p>Where the legislature has intrusted the county courts and judges thereof with the settlement and compromise of the bonded indebtedness of their counties, they cannot divest themselves of these trusts and delegate them to another.</p> <p>3. Same — Cannot be Delegated.</p> <p>A county court has no power to enter into a contract with a citizen of the state, delegating to such citizen the power and authority to compromise the outstanding indebtedness of such county, and give to such citizen the exclusive right to deal with the bondholders of the bonds of such county as its agent in effecting such compromise.</p>

<p>1. Practice — Service on Parties Non-Resident — Act on Congress, March 3, 1875, $ 8.</p> <p>The eighth section of the act of congress of March 3, 1875, authorizes the bringing in of parties to a suit who are non-residents of the district where the suit is brought, by service of an order of the court, as therein provided.</p> <p>2. Same — “Cloud on Title” — Equitable Relien — Jurisdiction.</p> <p>When a complainant alleges in her bill that she was fraudulently induced: to execute an agreement to receive less than her lawful share of her husband’s estate, and that the estate is being divided according to such fraudulent agreement instead of being distributed in accordance with the laws of the state where it is being administered, the suit must be considered as instituted “ to remove a cloud upon title to personal property,” within the meaning of section 8 of the act of March 3,1875, and as calling for equitable relief within the jurisdiction of the United States circuit court.</p>

<p>1. Land Grant in Aid of Railboads.</p> <p>Certain lands were granted hy congress to a state to aid in the construction of railroads, and by the state were granted toa certain railroad company, which mortgaged the same, and defendant became the purchaser at the foreclosure sale. Held, that the conditions upon which the land had been granted hy congress not having been complied with, the title still remained in the United States.</p> <p>2. Same — Lands Held in Tbust — Liability fob Waste.</p> <p>Where defendant agreed that the lands should be devoted to the payment of certain indebtedness of the railroad company to which the land had been granted by the state, and executed and delivered to the bondholders representing such indebtedness “ convertible land certificates,” which were made assignable, it held the equitable title as trustee, and was not liable for waste in the removal of valuable timber therefrom, unless actually received and used by it. The beneficiaries under the trust had the power to protect their own interests.</p>

<p>Motion to take Amended Bill from the Files.</p>

<p>1. Revivor.</p> <p>The revivor oí a suit in equity by or against the representative of a deceased party, is a.matter of right and a mere continuation of the original suit.</p> <p>Ciarle v. Mathewson, 12 Pet. 164, followed.</p> <p>2. Same—Judiciary Act oe 1789—Equity Rule 56.</p> <p>The judiciary act of 1789 governs the federal courts in matters of revival, to the exclusion of the provisions of any state law on the subject, and equity rule No. 56 is declarative, not only of the practice of the court, but of the provisions of the'statute.</p> <p>1 St. at Large, p. 90, § 31; Rev. St. 955.</p>

<p>Attachment Maintained through liifiOEirTOR.</p> <p>A deputy sheriff can maintain an attachment of personal property on the farm of an attachment debtor who does not reside upon it, through a receiptor who obtains the record title to the farm, for the purpose of keeping such property there, and the direction and control of the agents of the debtor in charge of the farm for him, one of whom was placed in chief control after the attachment was made.</p>

<p>1. Evidence — Pakol Mebgbd IN Weiting — Collateral Mattee oe Condition.</p> <p>"When parties, without any fraud or mistake, have deliberately put their engagements in writing, the law declares the writing to be not only the best but the only evidence of the agreement; but this does not prevent parties to a written agreement from proving that either contemporaneously or as a preliminary measure they had entered into a distinct oral agreement on some collateral matter, or an pral agreement which constitutes a condition on which the performance of the written agreement is to depend.</p> <p>2. PbAUD NOT PRESUMED.</p> <p>Where a defense of fraud and deceit is set up, the law will presume that the plaintiff acted honestly and in good faith, until defendant has clearly proven the contrary.</p>

<p>1. Mandamus to Compel Payment of Debt of Municipal Corporation— Return.</p> <p>Tbe return to an alternative writ of mandamus, issued against a city to enforce the payment of a judgment, must show that the city has exhausted its power in the levy and collection of taxes under power conferred upon it by its charter and its amendments, and that the revenues so collected have been properly applied.</p> <p>2. Municipal Corporation — Creditor Taking Bond — Remedy.</p> <p>A creditor taking a bond of a municipal corporation whose taxing power at the time of the issuing of the bond was and still is limited, and providing that the bond and interest shall be paid out of the yearly revenue of the city, cannot insist on remedies beyond the limitation, but may insist on the full and proper exercise of such power within the limitation.</p>

The defendant company issued a “cargo policy” on a raft of logs to be towed by the steam-boat Trader from the mouth of the Obion river down the Mississippi river to the mills in the city of Memphis, situated a few hundred feet above the mouth of Wolf river.

<p>1. SURFACE Water — Injury from Diverting.</p> <p>Tbe law regarding surface water is that no individual or corporation can make any change thereof to the injury of any one without being responsible in damages for such injury f</p> <p>2. Municipal Corporation — Increasing Flow of Surface Water.</p> <p>If a city constructs a sewer in such a manner that an additional flow of surface water into a lot is caused thereby, the owner of such lot may recover such damages as may have been caused by such inm'eased flow.</p> <p>3. Samk — Constructing Sswers — Injury to Property.</p> <p>A city, in the progress of constructing its sewerage, is not responsible for any depreciation in the rental value of property caused by the bad smells óf a sewer in course of construction, unless it is kept open an unreasonable length of time.</p>

(2) That, under the laws of the state of Pennsylvania, moneyed capital in the hands of individual citizens of said state is exempt from local taxation, and is subject to a state tax of four mills on every dollar of the value thereof, annually, and the shares of' state and national banks are taxed at the same rate.

The jury found the following special verdict: That during the years 1879 and 1880 the plaintiffs were partners, trading as Viti Brothers, and the defendant was, during said time, collector of customs for the port of Philadelphia; that between the thirteenth day of 2sTo-vember and the twentieth day of December, A. D. 1879, the plaintiffs imported into the port of Philadelphia six boxes containing statuary: One marked No. 1076, containing statues, two boys; one marked No.…

<p>1. Promissory Notes — Rights of Holder.</p> <p>A holder of promissory notes can only collect from the surety what remains due on the notes after deducting the amount received from the principal debtor.</p> <p>2. IUnkkuttcy — Proof of Claim by Créditos.</p> <p>A creditor lias no right to prove his debt and receive dividends on any more than the amount of the bankrupt’s liability; so a bankrupt indorser is liable only for the balance due on notes indorsed by him after deducting the amount paid by the maker of the notes.</p> <p>3. State Statutes — No Extraterritorial Operation.</p> <p>The holder of dishonored notes cannot import into his state the statutes of another state relating to the protest of negotiable paper. Such statutes are purely local regulations, enforceable only in the state where the statute prevails, and are not such a part of the contract as to be chargeable to the bankrupts on their contract of indorsement or guaranty.</p>

<p>1. Trade-Mark — Numbers.</p> <p>Numbers constitute a lawful trade-mark when they indicate origin or proprietorship, and are used in combination with words and other numerals.</p> <p>2. Same — Wobds.</p> <p>The words “ homeopathic specifics,” standing alone, cannot be appropriated as a trade-mark; but can be when used in connection with serial numbers.</p> <p>■ 3. Number Alone may be Employed.</p> <p>The complainant was the first to adopt such a method of putting up homeopathic medicines, and by reason thereof certain specific remedies have come .to be known in the trade by numbers alone.</p> <p>4. Same — Violation by Imitation of.</p> <p>The use of another name, such as “ Reeves’ improved,” in place of *' Hum-phreys’,” before the words “ homeopathic specifics,” does not take the defendant out of the class of imitators; such prefix does not meet the difficulty, as the remedies are purchased by the public by the numbers alone, and the defendant has made use of such numbers.</p> <p>6. Resemblance — Intent to Deceive and Mislead.</p> <p>If the resemblance is such as not only to plainly suggest an intention to deceive, but is calculated to mislead the public, who are purchasers of the article, and thus to injure the sale of the goods of the proprietor of the original device, the injured party is entitled to redress.</p>

<p>1. Patent—License fob Particular Invention.</p> <p>The holder oí a right to make, use, and vend a patented invention “for the following purposes, and no others,—that is to say, for the purpose of constructing and operating telegraph wires and instruments within the corporate limits of any of the incorporated cities or villages, or other incorporated municipalities analogous to cities and villages, in any of the states and territories of the United States, when said telegraph lines and instruments are used solely by the municipal authorities for fire-alarms, or the transmission of police or other municipal intelligence,”—is merely a licensee for a particular employment of the invention.</p> <p>2. Same—Demurrer where Legal Owner not Made a Party.</p> <p>In an action by such licensee for infringement, a demurrer on the ground that the owner of the legal title to the patent has not been made a party is well taken.</p>

In Equity. Bill to enforce compliance with agreement to enter into contract to give personal services.

<p>1. Partnership — Executor of Deceased Partner Suing in Equity.</p> <p>An executor oí a deceased member of a partnership may maintain a suit in equity to discover the amount due from defendant to such partnership, and to recover such amount when it appears that the surviving partner has refused to join in the suit.</p> <p>2. Statute of Limitations — Discovery of Fraud.</p> <p>Under section 382 of the Code of Civil Procedure of New York, as construed by the highest court of the state, the statute of limitations begins to run from the time an account is settled, and not from the time of the discovery of facts showing that such settlement was fraudulently made.</p> <p>3. Same — Foreign Corporation.</p> <p>A foreign corporation cannot avail itself of the statute of limitations of this state.</p> <p>4. Equity — Discovery—Foreign Corporation.</p> <p>* Where the officers of a foreign corporation are not made parties in an action against such corporation, there can be no discovery.</p> <p>5. Same — No Relief against Some of Defendants.</p> <p>That no relief can be had against some of the defendants who were parties to a fraud, will not avail the other defendants.</p>

<p>INTERNAL Revenue — Sale under Distress Warrant Yoid.</p> <p>The provisions of sections 3184 and 3185 of the Revised Statutes must he strictly construed and literally followed, and when land has been sold and bid in by the United States for taxes due from a firm of distillers in 1867, but not assessed until the interest and penalty exceeded the tax, and not enforced until 1876, and no formal notice and demand of payment could be proved, the United States acquires no title, and a conveyance made before such sale to an innocent purchaser will not be set aside.</p>

<p>Equity — Restraining Action at Law — Defense at Law.</p> <p>Where the facts disclosed by a bill in equity would avail as a defense to an action at law, which is sought to be restrained, and complainant is not entitled to a discovery, the bill is demurrable.</p>

<p>Docket Pee — Copy oe Answer.</p> <p>Where there was no hearing and no decision o£ the court, no docket fee is provided hy the statute; hut copies of an answer required hy the rules to he furnished are taxable.</p>

<p>Promissory Note — Defenses—Parol Testimony — Suit by Indorsee — Equities.</p> <p>Defendant, a railroad corporation, executed a note, payable on demand, for money loaned hy the payee, with the understanding that such note should stand against assessments on paime’s subscription to the capital stock of defendant, and be delivered up when the stock was issued. Assessments largo enough to cover the note were made. Afterwards, and three or 1'our months after its date, the note was transferred to the plaintiff as security for a loan. The difference between the amount of the note and the assessments was paid in cash; and the stock was delivered after the plaintiff took the note. Held, that in a suit brought by the holder of such a note against defendant it was subject to all defenses that it would have been subject to in the hands of the original parties, as it must be considered as having been taken by the plaintiff after maturity, being payable on demand, under circumstances that should have put him upon inquiry, and that parol testimony was admissible to show the understanding between the original parties at the time the note was given</p>

This was an action upon a policy of life insurance upon the life of Augustus E. Baker, “for the sole and separate use and benefit of his brother-in-law, William W. Langdon. But in case of his previous death to revert to the insured.” The facts in relation to this policy were substantially as follows: The agent of the defendant solicited Langdon, the plaintiff, to insure his life in his company.

<p>1. Master and Servant — Negligence oe Fellow-Servant.</p> <p>A master is not relieved from responsibility in all cases when a servant is injured by the negligence of a fellow-servant, but only where the servants are engaged in the same common employment; that is, in the same department of duty, not in departments essentially foreign to each other.</p> <p>2. Same — Liability for Injury Resulting prom Defect in Oar.</p> <p>Railroad companies are bound to use due oarc in seeing that their cars and other rolling stock are maintained in a reasonably-safe condition ; and when an employe, — a brakeman, for instance, — in the proper discharge of his duty, is injured from a failure on the part of the company to perform, this personal duty, it is liable.</p>

<p>Taxes — On Sicourttiks — Duty of Creditor to Pay.</p> <p>Under the constitution and statutes oí the state of California it is the duly of the mortgagee to pay the tax assessed upon the value of the security hold by him, and if he accepts the full amount due him upon the mortgage he cannot afterwards repudiate all liability for such tax, hut must discharge the mortgage and all liens incident thereto, including the lien for taxes.</p>

<p>1. INTERNAL REVENUE—FAILURE TO MAKE RETURNS OF INTEREST—PENALTY.</p> <p>Where an action was brought against a corporation under section 120 of the act of June 30,1864, as amended by the act of July 14,1870, (16 St. p. 260, § 15,) to recover penalties for failure to make return of interest and pay the tax on a bond of the defendant, held, that only one penalty is recoverable for all failures to make the required returns prior to the commencement of the action to recover penalties for such failure.</p> <p>2. Same—Failure to Pay Tax on Earnings.</p> <p>The same rule applies to penalties for failure to pay the tax on earnings and profits.</p> <p>3. Same—Pleadings.</p> <p>To constitute a cause of action under section 120, the complaint is sufficient if it aver either a dividend declared, or the earning of profits, which instead of being divided have gone to increase the surplus fund of the corporation.</p>

<p>Recovery oe Duties Paid by Third Parties.</p> <p>Where merchandise is withdrawn upon the written authorization of the importer, by third parties who pay the duties thereon, in an action by the importer against the cWlector of the port to recover duties illegally exacted, the duties thus paid may be recovered upon the assumption that they were paid in behalf of the importer.</p>

<p>1. Bankruptcy — Expun&ement op Disproved Claim:.</p> <p>Where, upon a long re-examination of a creditor’s proof of debt, the claim, as made, is disproved in form and substance, it should be expunged.</p> <p>2. Same — Joint Transactions — Filing New Proofs.</p> <p>Where a large claim was proved upon six notes, alleged to have been given for loans of money and ’accumulated interest thereon, and on re-oxamination' it appeared that none of the notes were given on a loan at interest, but that all the advances of money were made for the purposes of continuous speculation in city lots through many years upon joint account between the creditor and the bankrupt, and under his inanagement; that large losses had eventually arisen, apparently sufficient to cover áll the creditor’s claims, and that no final account as to the result of all the joint transactions had ever been had: 7ield, that the notes were not intended as unconditional promises of payment, hut were subject to the final result of the joint transactions, and that the proof of them as absolute debts on loans at interest should he expunged, with liberty to the creditor to file new proof on the result of the joint transactions, if anything should be claimed io be due thereon, on payment of costs, and on filing a statement in detail of the account on which the claim should be made.</p>

<p>1. BANKRUPTCY — SURETY GUARANTY ING ANY UNPAID BALANCE — APPROPRIATION on Dividend.</p> <p>G. & Son hypothecated certain, bonds to S. Ss Sons upon agreement that the bonds to the extent of $100,000 should bo held by the latter as a continuing secur-rity f o r any overdraft or unpaid balance that might arise upon the accoun lot' the New Orleans National Banking Association with S. & Sons. The New Orleans National Banking Association and S. & Sons having gone into bankruptcy, the claim of S. & Sons against said association, amounting to $195,315,13, was proved, and a dividend of 55 per cent, thereon paid to their trustee. Held, that the whole of this dividend should be applied to discharge the unsecured portion of the claim of S. & Sons against the banking association, and not ratably upon that part secured by the collaterals as well as upon that part unsecured.</p> <p>2. Same — Guaranty op Part op Debt.</p> <p>Where a surety guaranties a limited part of a debt and not the unpaid balance of a debt, with a limitation as to the amount of the liability in ease of insolvency, whatever is paid as a dividend arising from that part of the debt must be applied to discharge that portion; but when the guaranty contemplates the protection of the creditor against any ultimate balance that may arise upon the dealings between the debtor and the creditor, this rule does not apply.</p>

<p>Patents eou Inventions.</p> <p>"Where the patentee entered into an agreement whereby he granted to complainants the sole right to sell tlie patented articles within certain specified territory, it does not grant any part of the legal estate in the patent. The right of the patentee, not only to make and use, hut to authorize others to make and use, the articles within the specified territory, remains intact.</p>

<p>1. Admiralty — Injury at Pier — Inevitable Accident.</p> <p>Inevitable accident is where a vessel is pursuing a lawful avocation in a lawful manner, using proper precautions against danger, and an accident occurs. It .is enough that the caution exercised should be reasonable under the circumstances ; such as is usual in similar cases, and which has been found sufficient, by long experience, to answer the end in view — the safety of life and property. The highest degree of caution that can be used is not required.</p> <p>2. Same — Case Stated.</p> <p>Where a vessel, — made fast to a wharf by a competent band of stevedores by fasts which, through long experience, are deemed by them sufficient, — through the action of the winds and waves, breaks her fastenings and drifts towards a schooner, placing the schooner in such imminent peril that in moving to a place of safety she is capsized and founders, it is a case of inevitable accident.</p>

<p>Seamen’s Wages — Payments to be Affirmatively Established.</p> <p>Where the seaman shows himself entitled to a certain amount of wages, it is for the master to show payment in whole or in part; and where the testimony is conflicting and equally balanced on the question of payments claimed by the master to have been made, but of which there is no corroborative evidence, and nothing to justify rejecting the seaman’s evidence, the case must be decided against the party on whom rests the burden of Droof and duty of making out his case affirmatively.</p>

<p>1. Amendment on .Final Hearing.</p> <p>An amendment allowed to tlie bill on the final hearing, stating the value of the matter in dispute to be over $500.</p> <p>2. Fraudulent Conveyance.</p> <p>A voluntary conveyance of real property by a husband to his wife through the intervention of her father, which left him unable to pay his debts, or if made for a valuable consideration, as claimed, it being also made with the intent to hinder and delay creditors, to the knowledge of the wife, held fraudulent.</p> <p>3. Promise o» "Wife to Husband.</p> <p>At common law a husband and wife cannot contract with one another, and therefore the promise of the wife to release her right of dower in certain property of the husband’s is not a valuable consideration for a conveyance by him to her of other property.</p> <p>4. Bill by Judgment Creditor to Set Aside Conveyance.</p> <p>The assignee of a promissory note brought an action against the maker, in this court, and had judgment therein, and then brought a suit to set aside a certain conveyance of the judgment debtor to his wife as fraudulent. Held, that the wife was entitled to show as a defense to the^suit that the judgment was void for want of jurisdiction in the court to pronounce it.</p> <p>5. Action in the National Courts by the Assignee of a Promissory Note.</p> <p>The assignee of a promissory note may now sue in the national courts without reference to the citizenship of his assignor, (18 St. 470;) and if the assignment is absolutely and legally made, the motive which induced it in no way affects the right of the assignee to sue in said courts.</p> <p>6. Conveyance to Hinder, Etc., Creditors — Good Between the Parties.</p> <p>A conveyance, though made to hinder, delay, or defraud creditors, is valid as between the parties thereto, and is only so far voidable as to enable a creditoi who is prejudiced by it to enforce his demand against the grantor.</p>

It appears from the record that about the year 1877 John I. Bed-ick recovered a judgment in the district court for Douglas county, Nebraska, for about $2,500 against the Omaha & Northwestern Bail-road Company, which judgment was afterwards assigned to one James E. Brown, who commenced a suit in equity in the district court of Burt county, Nebraska, against John A. Horback, Henry W. Yates Herman Kountze, Francis Smith, Frank Murphy, and Sally A. Hor-back, for the purpose of…

<p>PRIORITV OR THE UNITED STATES.</p> <p>Tlie priority of the United States under sections 3466, 3467, of the Rev. St. does not attach in the life-time of an insolvent debtor unless his property is taken by process of law, as in bankruptcy, insolvency, or attachment, or lie makes a voluntary assignment thereof to a third person for the benefit of liis creditors; and a judgment or judgments confessed by such debtor for an amount equal to the value of his assets, with intent to hinder, delay, or defraud the United States, is not such an assignment.</p>

<p>CORPORATION — Jurisdiction.</p> <p>Tlie “ principal place of business” oí a corporation is no test of residence, whether of a corporation or of a natural person, as a person may reside in one state and have his principal or sole place of business in another state.</p>

<p>This action was commenced in the circuit court of Howard county, Iowa. The defendant is, and was at the time of the beginning of the action, a resident and citizen of Minnesota. Service of the original notice was had upon defendant at Cresco, Howard county, Iowa, on the fourteenth day of April, 1882.</p> <p>The petition alleges that plaintiff is the owner of certain personal property; that the same was in his possession; that while he (the plaintiff) was removing said property to Dakota territory it was levied on by the sheriff of Mower county, Minnesota, by virtue of a writ of -attachment issued from the district court of Olmsted county, Minnesota, in an action wherein the present defendant is plaintiff and William O. ,and W. Nichols are defendants; that such levy was for the benefit of the defendant herein, and was made by his express directions; that such levy and taking possession of said property were wrongful and to the great damage of plaintiff.</p> <p>At the September term, 1882, of the circuit court of Howard county, to-wit, on the twenty-sixth day of September, being the second day of the term, the defendant filed a petition for the removal of the cause into the federal court, which petition was granted, and the cause has been duly filed in this court. The defendant took no action in the state court save only the filing the proper petition and bond for the removal of the cause into this court. . .</p> <p>On the first day of this term of this court, and as soon as it could be done after the removal of the cause, the defendant filed a motion to quash and set aside the notice and the service thereof upon defendant, being the notice served in the state court upon defendant, notifying him of the commencement of the action, for the reasons that, when said notice was served upon him, the defendant was a resident and citizen of Minnesota; that he was in Iowa only temporarily, and for the sole purpose of attending as a party and witness upon the trial of a suit then pending in the court of Howard county, Iowa, and that service of the notice was made on him while he was in Iowa, for the above purpose, and before the cause upon which he was in attendance was heard; that being thus in attendance upon the court as a party and witness, he was privileged from being served by legal process in a civil action.</p> <p>It is shown by the affidavits filed in connection with this motion that the defendant went to Cresco, Iowa, on or about the tenth or eleventh of April, 1882, for the purpose of attending the trial in the cause then pending at that place; that previous to going to Iowa, and about the eighth day of April, he instituted an action in Olmsted county, Minnesota, against William 0. and W. Nichols, and sued out a writ of attachment therein, and caused the same to be placed in the hands of the sheriff of Mower county, with instructions to levy the same upon the property which was subsequently taken by the officer; that he instructed the officer to keep watch for said property, and informed him that he was going to Iowa, and that he would endeavor to ascertain when the property would be shipped from Iowa through Minnesota, and would notify the sheriff by telegraph of the facts, in order that the sheriff might make the levy; that while the defendant herein was at Gresco, Iowa, to-wit, on the eleventh day of April, the defendant sent a telegram to the sheriff of Mower comity, notifying him that the property was in transit, and to make the levy ; that this telegram was not received until the next day by the sheri ff, who had already found the property, and executed the writ of attachment by taking possession of the property; that on the thirteenth and fourteenth days of April the defendant sent telegrams to the sheriff of Mower county directing him to hold the property under the writ of attachment.</p> <p>Under this state of facts it is urged in behalf of plaintiff that the privilege claimed, of exemption from service of process in a civil action when in attendance upon another court as a party and witness, does not properly apply; and, further, that it is now too late to assert the claim, for the reason that the defendant did not make the claim in the state court, but simply appeared generally in the action, and filed a petition for removal into this court upon the ground that there was a controversy pending between the parties in which the amount involved exceeded $500.</p>

This action is before the court on motion for a new trial on the ground of misdirection to the jury as to the law of the case. Plaintiff’s intestate was killed by a moving train while attempting to cross defendant’s road with a team at a public crossing.

<p>1. Road Woek — Liability eor — How Enforced.</p> <p>A statute of Oregon provides that all male persons between certain ages, “ residing ” in a road district, shall be listed for road labor on or before April 15th, and be liable to perform two days’ work on the roads therein, and if any such person shall fail to do so after being assessed therefor and warned thereto by the supervisor, the latter may deliver a statement of such delinquency to the sheriff, with the amount necessary to discharge it, to-wit, two dollars for each day’s work, who shall thereupon collect the same by seizure and sale of the personal property of the delinquent; and if such property cannot be found out of which to make such tax, the sheriff shall demand the amount from any person indebted co such delinquent, and collect the same out of his personal estate, unless he makes oath that he is not indebted to such delinquent; and the sheriff shall receive for his services a sum equal to one-fourth of such delinquent tax, besides his lawful fees, to be paid by the delinquent or collected with the tax. Held: Semble, that a demand for a delinquent tax from a third person is not valid, unless it appears therefrom (1) that the officer had not been able to make the same out of the delinquent’s property; (2) that it contained a statement or allegation to the effect that unless the party paid the amount, or made oath tha'J he was not indebted to the delinquent, the officer would proceed to collect the same out of his personal estate; and (3) that it was not for a greater sum than the tax, and one-fourth thereof in addition, as a compensation to the sheriff for making the demand and receiving the money; and no other fees are demandable or chargeable thereon, unless the officer is forced to make the collection by seizure and sale of property, for -which he is entitled to the usual fees for such service, in addition to such one-fourth.</p> <p>2. Same — Who Liable to Peri-okm.</p> <p>Certain Chinese laborers came to this state to engage in labor upon public works, and on April 1, 1882, were in road district No. 8, in Multnomah county, at work on the construction of a railway from Portland to the Dalles and east-. ward, where they remained a lew months, passing through and beyond the district as the road-bed was completed, without any purpose or occasion to remain longer in the district or ever return there. Held, that they were not “ reading” in said district on or before April 15th, within the meaning of the statute, so as to be liable to perform road labor therein.</p>

<p>In Bankruptcy. Petition for review.</p>

<p>Patent — CompRomises with Infringers — Damages.</p> <p>No price is fixed or royalty established where a patentee, in compromising and settling with those who have infringed his patent, varies his price according to the courage or ability to resist of such infringers, or where there are other circumstances showing the absence of a fixed and established fee.</p>

<p>Patents fob Inventions — Jurisdiction—Contract Rights.</p> <p>Where the validity and use of a patent are admitted, and the rights of the parties depend entirely upon a subsisting contract, the case is not one arising under the patent laws of the United States, and where the requisite diversity of citizenship between the parties does not exist, a circuit court of the United States has no jurisdiction.</p>

In Equity. Hearing on bill, answer, and proofs. Bill to restrain an alleged infringement of patent No. 102,218, issued April 26, 1870, to Homer Brown, for an improvement in oil-stone holders, assigned to complainant.

<p>1. Boats ajstd Vessels — Lieu for Supplies.</p> <p>Under a state lew which gives a lien on vessels plying the interior waters of the state for materials and supplies furnished to the vessel, for her use, and on her credit, where such supplies were ordered by the master appointed by the owner, the law confers a lien.</p> <p>2. Same — Chartered Vessel — Notice to Dealers.</p> <p>Where the owner, who charters a vessel to third parties and under the terms of the charter-party appoints the master for the term of the contract, seeks to displace the lien given by statute for materials and supplies furnished the vessel by setting up a private agreement by which the master was deprived of the authority to create liens on the vessel, he should show by clear proof that explicit and unequivocal notice of the facts was given to persons dealing with the vessel.</p>

On May 31, 1882, an action was begun in the New York supreme court, the county of New York being designated as the place of trial, by Messrs.

<p>1. Collision on Eiue Canal — Canal-Boat Tied Up.</p> <p>It is tlie duty of a canal-boat, wliicli ties up in a canal in a fog, to select the berme bank; and the burden is upon a boat which ties up on the tow-path side to show that she took sufficient precautions to warn an approaching boat, either by strong light or by timely hails.</p> <p>2. Fkecauttons Omitted — AppRoacuiing Steam Canal-Boat.</p> <p>Where the first of these precautions was omitted, and the evidence as to the other precaution was contradictory and open to suspicion, and did not show that timely and sufficient hails had been given by a canal-boat tied up on the tow-path side of the Erie canal to an approaching steam canal-boat, held, that the libel against the steamK canal-boat for damages for the collision which occurred must be dismissed.</p>

Libel by the owners of the barge George Twibell against tbe ship Maryland and the steam-tugs New Castle and Yorke.

<p>Motion to Bemand.</p>

<p>1. Ab.tudtcation—How Determined.</p> <p>In determining what lias been adjudged courts will regard the decree, and in case of ambiguity, but not otherwise,, be governed by an accompanying opinion. 1</p> <p>2. Injunction—Res Adjudtcata.</p> <p>An injunction having been issued by a slate court and perpetuated by the decree of the supreme court of the state, a similar injunction granted as between the same parties, with regard to the same subject-matter, in a new suit, by a court of the same sta1 e and removed to this court, the matter will be treated by tliis court as a thing adjudged, and the injunction perpetuated.</p>

<p>1. Trust — Created by Parol.</p> <p>To establish a resulting trust created by a parol agreement, where the subject of the trust is real estate, the evidence must he clear and satisfactory.</p> <p>2. Same — Case Stated.</p> <p>Where a party, the husband of complainant, was largely indebted, and executed a mortgage or trust deed to real property owned by him to trustees, who offered the same for sale to the highest bidder, and the father of complainant became the purchaser thereof and assumed the payment of the creditors of the estate, which was to be made from the income of the property so purchased, the purchaser having agreed by parol that the purchase was made for the benefit of his said daughter, and the daughter remained in possession thereof till the bringing of her suit, held, that such parol agreement did not create a re-suiting trust in such real estate subject only to the incumbrance of the purchase money bid at the sale.</p> <p>3. Same — Estoppel.</p> <p>Where complainant subsequently accepted and recorded a deed or lease made to her by the purchaser, granting her an estate for life in said real estate, in which lease she acknowledged that the lessor Was the sole legal and equitable owner of said real estate, she is estopped from assailing the lease and seeking to have the same declared void, and set aside as a cloud on her title after 10 years’ enjoyment of the leased premises, and after the death of the lessor, and the devise of his remainder interest to a third party.</p> <p>4. Same — Undue Influence.</p> <p>A passage in a letter written to the lessee by the lessor that, in the event of her refusing the terms of the lease and returning it, there is nothing “to prevent his putting an overseer on the place, or to prevent his executors from doing the same thing,” where he does not say that he will dispossess her, but leaves her the option of returning the deed, and in that event .proposes to leave her in possession of the house, garden, and appurtenances, and an income in place of the provisions of the lease, cannot be construed as undue influence.</p>

<p>1. BEvrvon—Bev. St. 955.</p> <p>The effect of the statute of 1789, (vol. 1, p. 90, § 31; Bev. St. 955,) is that the suit descends to the representative of the deceased party, be he heir, executor, or administrator, as the case may be. An acquired jurisdiction on the part of the United States circuit court will not be ousted by a state statute which, but for that previously existing jurisdiction, would have vested it elsewhere.</p> <p>2. ADMINISTRATOR — NATURAL TUTRIX.</p> <p>The natural tutrix of the minor children is, under the law of Louisiana, clothed with the authority to administer the succession of the estate of the deceased parent.</p>

<p>CbimiNai, Practice—Rev. St. § 866.</p> <p>A. commission will be allowed to tlio defendant in a criminal case to lake depositions of witnesses residing abroad, under section 866 of the Revised Statutes. Whether such depositions can be admitted in evidence upon the trial of the case, is a question that does not need to be decided until then; and if they be not allowed to go before the jury, in case of conviction will certainly be considered by the judge who shall be called upon to exercise the large discretion given by the statute in imposing sentence.</p>

<p>1. Railroads—Duty of Employes in Charge.—It is the duty of those in charge of a railway train, on approaching a station where such trains stop, upon being flagged so to do, to he on the alert and look out for such signal, and stop when it is given.</p> <p>2. Same—Damages— Personal Injury—Showing Required.—In the absence of gross negligence, recklessness, willfulness, malice, insult, or inhumanity, actual damages can only he allowed.</p> <p>3. Same—Recovery.—No recovery can be allowed for inconvenience or even physical hardship when the same are voluntarily undertaken.</p> <p>4. Same—General Rule.—The general rule is “that pain of mind is only the subject of damages when connected with bodily injury; it must be so connected in order to include it in the estimate, unless the injury is accompanied by circumstances of malice, insult, or inhumanity.”</p>

<p>1. Pleading — Joint Action against Corporation and Stockholders. — Under section 201 of tlie chapter relating to corporations in the state of Colorado, a joint action may be maintained against a corporation and the owners of unpaid capital stock thereof, and a count in a complaint based upon this section is not demurrable for misjoinder of parties.</p> <p>2. Same — Making Report. — A joint action cannot be maintained against the officer of a corporation and the corporation itself for failure to comply with section 206 of the chapter relating to corporations, requiring a report to be made stating the amount of its capital, existing debts, etc.</p> <p>3. Same — Failure to Organize Legally. — When persons get together and assume to be a corporation, without complying with the terms of the statute in regard to organization of corporations, they may be severally and jointly liable as individuals for the debts contracted in the corporate name, but they cannot be made joint defendants with such corporation in an action.</p>

On Motion to Dismiss. This was an action by a car-coupler in the employ of defendant to recover for personal injuries sustained by him in coupling two freight cars at the Grand Trunk Junction in this city; one of which cars belonged to the defendant, and the other to some other road, being what is termed a “foreign car.” This foreign car differed in construction from those used by the defendant, in having what is known as a “platform dead-wood,” and, it was claimed, was not…

This was an action by a receiver of a national bank against Jesse M. Line and Mary S. Line, his wife, to recover an assessment levied by the comptroller of the currency upon the stockholders of such bank. On the trial it appeared that the stock was owned by Mary S. Line, and that she was a married woman at the time it was transferred to her.

<p>1. Husband and Wife—Liability of Wife.</p> <p>Where it was shown by the evidence that the wife had a separate estate; carried on the plantation for which supplies were bought; shipped the crop with her own marks; the credit was given to her; the accounts were kept in her name; the husband was absent on other business, and was without property and means,—the jury were justified in finding a verdict against the wife.</p> <p>2. Same.</p> <p>In order to find a verdict in such a case against the wife, the jury must be satisfied that the debt for which the note sued upon was given, was contracted for the benefit of her separate estate.</p>

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

<p>1. Collision — Inevitable Accident — Burden of Proof.</p> <p>Where, in case of a collision at sea at night, the defense of inevitable accident is raised, and the main issue is whether the weather was such that the lights of one vessel could be seen in time by the other to enable her by due nautical skill to keep out of the way, held, that the burden of proof is upon ' libelants to show, not only that their lights were burning, but also that the weather was such that they could be seen a sufficient distance to avoid the collision.</p> <p>2. Conflicting Evidence — Credibility of Witness.</p> <p>Where the testimony of witnesses from the two colliding vessels was in irreconcilable conflict as to the condition of the weather, held, that superior credit was due to those witnesses who were sustained by collateral evidence concerning the material subsidiary points respecting the force of the wind and time of the commencement of the rain, storm, and gale.</p> <p>8. Costs on Dismissal — Rule of.</p> <p>Upon contradictory evidence as to the state of the weather, the libel in this case was dismissed on the ground of inevitable accident; but the case being doubtful on the merits, and the claimant’s vessel havjng remained practically in concealment from the libelants for a year after the collision, held, that the dismissal should be -without costs, although costs arc, in this country, ordinarily allowed on dismissal in cases of inevitable accident, as in other cases, though it is .otherwise in England.</p>

<p>1. Charter-Party—Lighterage.</p> <p>Where a charter party provides that “ the cargo is tobe brought to and taken from along-side at merchant’s risk and expense, and free of lighterage to the ship, etc., and being so loaded shall therewith proceed,” etc., the cost of light-erage at the ports of botli departure and destination, for lading and discharge of the cargo, is at the expense of the merchant.</p> <p>2. Primage—Yariance between Charter-Partt and Bile of Lading.</p> <p>The charter-party being the contract between the parties, and that making no mention of primage, none can be allowed, although it was stipulated for in the bill of lading. Primage is no longer a gratuity to tile master, unless so express!y stipulated, but belongs to the owners or freighters, and is but an increase of the freight rate. The charter-party having fixed the rate of freight, the bill of lading given thereunder cannot enhance it.</p> <p>Costs.</p> <p>Costs of the district court, should be borne by the claimants; but as the decree of that court has been reduced, costs on appeal should be borne by the appellee.</p>

<p>1. Working Days.</p> <p>The expression “working days” has, in commerce and jurisprudence, a settled and definite meaning; it means days as they succeed each other, exclusive of Sundays and holidays.</p> <p>2. Charter-Party—Parol Evidence to Contradict—Custom.</p> <p>In a written instrument of charter-party, where an unambiguous term is used, and which has an accepted signification, both in commercial and judicial language, proof of usage will not be permitted to show that such term has a local meaning repugnant to its settled sense.</p>

<p>1. Arrest in Admiralty.</p> <p>The limitation, in the statutes of the United States and the rules of the supreme court, allowing arrests in civil causes by virtue of a process from a court of the United States only in cases in which' an arrest is authorized by the laws of the state in which such court was sitting, applies to admiralty as well as to common-law processes.</p> <p>2. Admiralty Jurisdiction.</p> <p>In the absence of .circumstances showing cruelty or great hardship, the admiralty courts of the United States cannot be required or allow themselves to entertain jurisdiction of a case where subjects of a foreign government invoke their assistance against a merchant vessel of a foreign government.</p>

<p>1. MERCHANT Shipping Act—Rev. St. §§ 4501-4512.</p> <p>The statute of June 7,1872, (17 St. at Large, p. 262; Rev. St. {{ 4501 to 4512,) does not apply to a Britisli vessel.</p> <p>2. Admiralty Jurisdiction.</p> <p>In the absence of circumstances showing cruelty or great hardship the admiralty courts of the United Stales cannot be required or allow themselves to entertain jurisdiction of a case where subjects of a foreign government invoke their assistance against a merchant vessel of another foreign government.</p> <p>The Carolina, (decided April, 1876, ante, 424,) followed.</p>

In Admiralty. Libel and answer. Libel filed by Stewart & Co., indorsees of a bill of lading, against the bark Nora, to recover the value of a shortage of 26 tons of steel-scrap. On April 6, 1880, Sanders Bros, shipped on the bark Nora, at Antwerp, to be carried to Philadelphia, a quantity of steel-scrap, weighing about 200,000 kilos, or 197 tons, and indorsed the bill of lading to libelants.

In Equity. On the thirty-first day of October, 1867, a written contract was entered into between Danford N. Barney, Jesse Hoyt, Angus Smith, William Gr. Fargo, Benjamin P. Cheney, Charles F. Latham, Ashbel H. Barney, Samuel M. Hoyt, and Alfred M. Hoyt, parties of the first part, and the Winona & St. Peter Bailroad Company, party of the second part.

<p>Indictment for Perjury.</p>

<p>1. Laud Included in a Uanal — Title.</p> <p>The owners of a canal have a right of landing and of using the hank of the canal in a manner consistent with the rights of navigation; hut if the canal is to he filled up, and not used for the purposes of navigation, the title of purchasers of such canal and its appurtenances would not extend beyond what might he regarded as the highest water line.</p> <p>2. Same — Title oe Abutting- Land-Ownebs.</p> <p>The title of owners of land abutting on a canal extends to the line of such canal, subject to the use of the hank of such canal by the canal owners for pin-poses of commerce and navigation.</p>

<p>1. Patents nob Inventions—Improvement in Stbeet-Oabs—Want oe Nov-isr/rx—Patent No. 142,810.</p> <p>Where a patent was claimed for an invention for an improvement in street-cais, 1,lie device being one for opening and closing a door, and it was shown, as a defense to an action for an infringement, that some years prior to the time when it was said to have been invented another person made a machine intended for the purpose of opening and closing a door, similar in all its essential features to that upon which the patent was claimed, and used it during two weeks to open and close a door, and numerous persons saw the machine in operation, though the device was not applied to the door of a ear, the defense of want of novelty must be held to have been made out, and patent No. 142,-810 is void.</p> <p>2. Same—Patent No. 161,568.</p> <p>In a suit for alleged infringement of a patent for a device for signaling drivers on street-cars, consisting of two bell-cords with pull-straps passing along the lower margin of the roof on opposite sides of the car, and connecting directly with a bell or gong attached to the outside of the driver’s end of the car, held, that there was no novelty in the use of cord or pull-straps, nor in the length of the pull-straps; nor was any new and different result attained by the change of the location of the cord, etc., from the top of the ear to the lower margin of the roof, nor in duplicating the cord, etc.; nor was there a patentable combination of the cord and pull-straps with the car, or the sides of the car, effected by placing the cord, etc., along the side of the car. Held, also, that the addition of pendants to the cord, and drawing the cord taut, was not sufficient to support the patent, since attaching pendants to a cord is not a new idea, nor was it shown that a taut cord was a necessary feature. Patent No. 161,568 is void.</p> <p>3. Same — Patent No. 167,585.</p> <p>A device consisting of a mirror so arranged in connection with the front hood of a car as to enable the driver to see into the car without, turning round, is not an accomplishment of a new effect by a peculiar and novel method of using a mirror, and patent No. 167,585 is void.</p>

<p>1. Patents for Inventions — Reissue—Expansion of Claim.</p> <p>Where the claim oí the original patent did not cover the device used by the defendant, and a reissue was necessary to expand or explain the patent in order to cover defendant’s plow, such reissue is void.</p> <p>’ 2. Same — What Must be Shown.</p> <p>It is incumbent on the owner of a patent, when a reissue is taken long after the date of the original, to show that there was some mistake or inadvertence in the original issue, which made a reissue necessary to cover all the patentee had nvented.</p>

<p>Patents foe Inventions — Pleading—Special Plea.</p> <p>The validity of the reissued patents questioned, on the ground that it appears by comparison of the original and reissue that the latter patent was for one thing and the former for another; that the claim in the reissue was unlawfully expanded so as to embrace improvements covered by other patents issued after the issuance of the plaintiffs’ original patent, and before the reissue, and that therefore the reissue is void: Reid, matter of defense that may be presented by special plea.</p>

<p>1. Vessel — Charter-Party—Lien eor Supplies of Coal.</p> <p>By the terms of a cliaxter-party the charterer was to provide and pay for all the coal required. The master and crew were to be appointed and paid by the owners', but the master was to be “under the orders and directions” of the charterers “ as regards employments, agency, and other arrangements.” Held, that a Hen attached to the vessel for coal supplied at a foreign port on the order of the consignees of the ship appointed by the charterer.</p> <p>2. Same — Charterer as Special Owner.</p> <p>Where the charterers of a vessel were by the charter constituted owners of the ship pro hae vice, the vessel in their possession and not in possession of the general .owner, the master subject to their directions, the vessel is bound for coals furnished upon her credit in a foreign port upon the order of the agent of the special owner.</p> <p>3. Foreion Ship — Lien for Supplies.</p> <p>It is not essential to the creation of a lien upon a foreign ship for supplies that the supplies be ordered by the general owner or his agent. When the general owner of a ship intrusts her entire possession and control to another as her special owner, and when such necessaries are so supplied upon the credit of the ship, the ship is bound, although no personal liability is incurred by the general owner.</p>

In Admiralty. Cross-libels to recover damages for injuries caused by a collision. The facts were as follows: About 9:80 o’clock A. m., September 6,1881, the steam-boat Gratitude, being nearly opposite Cramp’s ship-yard, was passing up the Delaware river at her usual speed, and in a line a little to the westward, or Philadelphia side, of the middle of the river.

<p>1. Collision — Vessel Hauled up on Maeine Wats.</p> <p>Where a vessel hauled out aud up on marine ways to be docked, for the purpose of having her hull repaired, by reason of insufficiency of the props and stays, breaks loose from her fastenings and slides down into the water, and comes into collision with another vessel, inflicting such injuries that the latter was wrecked and sunk, the same principles of law govern as in the ordinary cases of collision between vessels navigating the river, and the owners of th(! colliding vessel are responsible for the injury inflicted.</p> <p>2. Same — Negligence op Contbactoes not to Excuse.</p> <p>The fact that a contract was entered into between the master and part owner of the colliding vessel, and the persons who had charge of the dock-yard and ways, and who took the vessel to haul her up and perform their contract, will not relieve the owners of all responsibility for loss occasioned by the negligence of such contractors.</p> <p>3. CONTEIBUTOBY NEGLIGENCE — OWNERS RESPONSIBLE POE ACTS OP MASTER.</p> <p>Where the vessel wrecked by the collision had laid up after her last trip near the marine ways, and her master in charge had consented that she should bo removed from her position above to a point directly in front of the marine ways, for the purpose of having her hauled out and up on them, and actually assisted in the removal, and left a watchman in charge, and the former pilot, and both knew the situation of the vessel on the marine ways, held, that her owners are responsible for the acts of the master, and that such acts contributed to the disaster, and that no recovery can be had in damages for the destruction of the vessel.</p>

<p>in Admiralty. Appeal from district court.</p>

<p>Collision — Rules of Navigation.</p> <p>A. steam-tug having another tug, with which there is danger of collision, on her own port hand, is hound by the twenty-third rule to keep her course ; and it is no defense to a violation of this rule to show that she blew two whistles, and at once sheered to port in order to give the other tug more room to cross her bows, on the supposition that the other tug designed to cross the stream, the latter not having given any answering signals assenting to this maneuver; and where a collision ensued from such change of course, the former was held liable.</p>

<p>1. Bill oe Lading—Cabgo not Delivered—Burden on’ Pjiooe.</p> <p>A cargo of sulphur, on being weighed as delivered, proved to be 28 tons short of the amount stated in the bill of lading, which also contained a memorandum “ weight and quality unknownthree officers of the vessel testified that all the sulphur taken in was delivered, except what escaped through the pumps. Held, that the burden was upon the consignee to prove that the difference arose from abstraction of the missing quantity on the voyage.</p> <p>2. Master's Gratuity.</p> <p>On the above state of facts, the master was held entitled to recover a gratuity provided by contract to be paid to him by the consignee on proper delivery of the cargo.</p>

<p>NEGLIGENCE IN HOISTING BARREL—PERSONAL INJURY—LIABILITY.</p> <p>Where ¡in assistant United Stales weigher, whose duty it was to keep tally of a vessel's cargo while it was being discharged, was required to be about the main hatch on the main deck of the vessel, and the mate undertook to hoist a barrel from the pier on the opposite side of the vessel from that on which the cargo was being discharged, with the tackle and fall employed to raise the cargo from the hold, which was so arranged that the barrel was swung across the deck in spite of the efforts of two men stationed cn the rail to assist in getting the barrel to the deck, and the barrel, while so swinging, struck the weigher, who was standing on the deck with his back turned to the rail, and knocked. him over the combings of the hatch into the lower hold, no warning having been given him in time to enable him to move, held, that the libelant’s injuries arose from a neglect on the part of the owner of the ship to discharge a duty arising on navigable water out of the employment of the ship as an instrument of commerce, and owing to the libelant, and that the vessel was' liable for the injuries resulting, and there must be a reference to ascertain the amount.</p>

<p>Pilotage—Tender oi<> Shbvioes—State Statute.</p> <p>A pilot wlio brought, a vessel into the port of New York from sea became entitled under a state statute to pilot her to sea when she next left the port, by himself or one of his boat’s company. The master of the vessel arranged with the pilot to meet him at a certain time and place, whence they were to go on board the vessel together. The pilot presented himself at the time and place appointed; the master did not appear, but went on board and to sea without a pilot. Held, that this was sufficient tender of his services on the part of the pilot, without liis presenting himself on board the vessel, to charge the vessel with liability for the damages resulting from the non-performance of the obligation created by the statute.</p>

<p>1. Equity — 'Relief from Mistake of Law.</p> <p>Although a mistake of law furnishes no ground for the interference of a court of equity, yet where there is a plain, admitted, or undisputed mistake of law, arising from ignorance or inadvertence, and the mistake is mutual, equity will relieve.</p> <p>2. Equity Jurisprudence — Rules which Govern.</p> <p>The federal court can take judicial notice of the laws of the several states of the Union, and in construing the constitution and statutes of a state, and the laws which regulate the rights of property in a state, it will be governed by the decisions of the highest court of the state; but upon legal questions of a more general nature, and in the principles of equity jurisprudence, a federal court is influenced but not bound by the decisions of state courts.</p> <p>3. Equity Pleading — Suit by Married Woman.</p> <p>A feme covert must sue and be sued jointly with her husband, unless she claims a right in' opposition to him, when her prochein ami, with her consent, may sue on her behalf, and her husband be made party defendant.</p> <p>4. Same — Necessary Parties.</p> <p>All parties interested in or entitled to litigate the same questions in controversy, are necessary parties, and must be joined in the suit.</p> <p>5. Demurrer — What it Admits.</p> <p>A demurrer admits only matters of fact positively alleged, and not conclusions of law, or mere pretenses and suggestions, or the correctness of the ascription of a purpose, when not justified by the fact positively alleged.</p> <p>6. Bilí, — When Dismissed.</p> <p>A bill in equity, where (1) there is a want of certainty in allegation to show that plaintiffs are entitled to the relief demanded; (2) the right to relief has been barred by the statute of limitations; (3) long and gross negligence of plaintiffs in seeking relief, unexplained by sufficient equitable reasons and circumstances, — will be dismissed.</p> <p>7. FORWGN CORPORATIONS — EIGHTS—COMITY OF STATES,</p> <p>A corporation has no legal existence without the limits of the state which creates it, but where it is authorized by its charter to make contracts and acquire properly for the purpose of carrying on its legitimate business, and is invested with the capacity of suing and being sued, it may by comity make contracts and acquire property in other states, and as to such contracts and property may seek the remedies afforded, and is bound by the obligations imposed by the laws of such states.</p> <p>8. Same — Forfeiture of Franchise.</p> <p>Causes of forfeiture do not operate per se, neither can they be taken advantage of collaterally, nor in any other manner than by a direct proceeding instituted for the purpose against the corporation by the sovereign which created it, and such sovereign may waive the right of forfeiture</p> <p>9. Same — Surrender of Charter.</p> <p>A corporation may surrender up its charter and thus determine its existence, but there must be some definite act of surrender, and an acceptance by the sovereign or its duly-appointed agent. A mere non-user of its powers is not a surrender, nor will a court of equity be warranted in presuming a surrender from the abandonment of its franchise in intention only. There must be a declared purpose and act on the part of the corporation to justify such an inference.</p> <p>10. Same — Dissolution—Rights of Creditors and Stockholders.</p> <p>The rights and interests of the creditors and stockholders of a corporation are not extinguished or seriously impaired by its dissolution, and provisions are usually made, either in the charter or by the laws of the state of its creation, for winding up the business and securing such rights and interests.</p> <p>11. Same — Sure Brought by Stockholder.</p> <p>A stockholder may bring suit against the corporation of which he is shareholder, on behalf of himself and associates, in a case where the corporation refuses to bring suit, or where the directors, trustees, or other representatives are guilty of fraud, breach of trust, or are proceeding ultra vires, and in such case the corporation and its officers should be parties defendant.</p> <p>12. Same — What Must be Shown.</p> <p>In a suit by stockholders of a mining corporation to enforce a specific performance of a contract made by the defendants with said corporation, the plaintiffs must show when they became stockholders, and whether they entered into the original enterprise, or for a small price purchased their stock in the market after the failure of the company or the expiration of the charter, and that they requested the directors of the corporation to institute suit against the defendants, and that the directors had trust funds, or were offered proper indemnity for such legal proceedings; and the lime when any of the directors died, or when and how they resigned office.</p> <p>13. Trust — Acceptance of.</p> <p>A voluntary or express trust cannot be imposed on any one unless he agrees to accept, or by clear implication assumes the duties and liabilities; wliile/acceptauce in a case of an implied, resulting, or constructive trust is not necessary, the law holding him liable to the performance of such trust whether he is willing or unwilling to accept the trust.</p> <p>14. Same — Contract for Bale of Land.</p> <p>A binding contract for sale of land enforceable in equity, though in fact un-executed, is considered as performed, and the land is in equity the property of the vendee. When the vendee has paid all the purchase money he has a complete equitable estate, and the vendor is a mere trustee of the legal title, and if the vendee has paid only a part of the purchase money, the vendor is a trustee to the extent of the amount paid.</p> <p>■15. Same — Implied Trust — Vendor.</p> <p>Where a person, for a valuable consideration, contracts in writing to sell lands to the use and benefit of another, an implied trust arises in favor of the vendee against the vendor and his representatives, and those claiming under him.</p> <p>16. Same — Statute of Limitations,</p> <p>Where a trust arises by implication out of the agreement of parties, and there is no conflict of claim or adverse possession between the vendee and cestui que trust, statutes of limitation do not apply; but where there is a conflict of claim, and the party having the legal estate holds adversely, the statute of limitations will protect the one having the legal title, and who is sought to be converted into a trustee by a decree founded upon fraud, breach of trust, or some inequitable advantage obtained by him.</p> <p>17. Same — Rule of Property.</p> <p>Federal courts, in passing upon questions relating to property in the several states, recognize statutes of limitations, and give them the construction and effect that are given by local tribunals; and they will consider equitable rights as barred by the same limitations, where nothing has been done or said directly or indirectly to recognize such equitable claims by the adverse possessor.</p>

<p>1. Effect of Worms “ Hums,” Eto., Instead of “ Successors,” Etc., m a Deed.</p> <p>Execution levy was made upon certain lands to satisfy a judgment recovered in an action on a bond, with surety, taken upon the representations that one of tho defendants was possessed of valuable land in her own right. The principal on tho bond was a minor, and the judgment was against the surety alone. A suit was brought by the complainants herein asking for an injunction restraining the sale of the lands of which they claim to be the owners. In the deed to the land in dispute the defendant in the former suit appears as the grantee, named in her representative capacity as the guardian of the complainants herein, bu1 in the habendum clause of the deed the words “ her heirs and assigns” appear instead of “ successorsand the main question being in whom is the title of the lands vested, held, that the word “ heirs,” used instead of successors in the printed part of a deed, should not control or qualify the other parts of the instrument ; the test being that, in equity, the party could not hold the title in fee in hostility to the heirs, nor could she maintain such a right at law, relying upon the terms of the deed.</p> <p>2. Trusts — Statutory.</p> <p>Sections 2081 and 2090 of the Revised Statutes of Wisconsin refer to trusts created by the instrument declaring them.</p> <p>3. Guardian as Trustee.</p> <p>A guardian is trustee under the statute by virtue of which he is appointed.</p> <p>4. Execution.</p> <p>Execution can only he levied on the property of the one against whom the judgment stands. Equity cannot relieve in the application of a purely legal remedy.</p> <p>6. Cloud on Title — Restraining Sale under Execution.</p> <p>A court of equity, in order to prevent a cloud upon the title to land, will, in a proper case, restrain the sale thereof.</p>

<p>1. Statute of Limitation's — WinsN not Available as a Bab.</p> <p>A debtor wlio procures and keeps in force an injunction against the collection of a debt which he ought to pay until it is barred at law by the statute of limitations, will not be allowed to avail himself of the bar in a court of equity.</p> <p>2. Same — Pubohaskb; at Tax Sale — Remedy of.</p> <p>Where, under the state statute, the purchaser at a tax sale can bring- no suit for possession after the lapse of five years from the time of the sale, nor can the owner after that time question the validity of the sale, and such purchaser has been prevented from asserting his legal rights in a court of law by unfounded and protracted litigation until the statute has run against him, he is not rem-ediless in a court of equity.</p>

In Equity. The Minnesota, & Pacific Bailroad Company was authorized by tbe legislature of the territory of Minnesota to construct a railroad from the city of Winona, in this state, up the valley of the Mississippi river, to tho city of St. Paul. The present complainant has succeeded to all the rights of said company, and obtained all the power and authority which was granted to the Minnesota & Pacific Railroad Company by its charter for constructing this road.

<p>CONSTITUTIONAL LAW — INTERSTATE COMMERCE — TAXATION—EXPRESS COMPANIES.</p> <p>A license or privilege tax imposed by a state on the business of an express company engaged solely in commerce between the states, where there is no intention by this means to obstruct or prohibit the business, is not unconstitutional.</p>

On motion for rehearing. After the announcement of the opinion of the court in this case,* counsel for the government asked a further hearing upon the question whether the locus in quo is within an Indian Reservation, and the court ordered further argument upon that question, which was had at the December term, 1882.

<p>Equity — Enjoining Proceedings in State Courts.</p> <p>Section 720 of the Revised Statutes, which forbids United Stales courts to grant injunctions to stay proceedings in a stale court, does not restrain the circuit court from enjoining an inequitable use of a trust judgment in a state court by execution and levy, prosecuted in violation of the trust and in fraud of the rights of the cestui que trust.</p>

<p>1. Crimes — False Making of Public Record — Elements of Offense.</p> <p>In order to a conviction of the offense defined in section 5418 of the Revised Statutes, the jury must be satisfied beyond a reasonable doubt (1) that the time and pay roll described in the indictment was a false, forged, and countex-feit writing; (2) that the same was transmitted to the proper officer of the government by the defendant; and (3) that the false character of the writing was known by the defendant at the time of the sending, and that it was sent with the intent to defraud the United States.</p> <p>2. Í-5ame — Defendant as Witness — Weight of Testimony.</p> <p>The laws of the United States permit a person charged with ci’ime or misdemeanor to be a witness in his own behalf, and such weight is to be given to his testimony as, under all the circumstances, it is fairly entitled to.</p> <p>3. Same — Guilty Knowledge — Presumption.</p> <p>In ci'iminal as well as civil affairs every one is presumed to know everything that he can learn upon inquiry, when he has facts in his possession which suggest the inquiry, and this knowledge must be affirmatively shown by the government</p> <p>4. Same — Evidence of.</p> <p>Proof of other acts, which have no connection with the principal transaction, is admissable in cases where the knowledge or intent of the party is a material fact.</p> <p>5. Same — A Question of Fact.</p> <p>Tho question of guilty knowledge of the defendant in a criminal case is a question of fact for the jury.</p> <p>6. Same — False Certificates of Services.</p> <p>It is not lawful for an official to accept an office and then use false means and methods to obtain money for carrying it on, as by certifying charges for boat service, the expenses of janitor’s fees, carriage hire, ice, gas, etc., in order to obtain money from one department for services which had been rendered in another, and for tho payment of which the government has made no provision.</p> <p>7. Same — Intent and Act must Unite.</p> <p>No man is to be punished as a criminal unless his intent is wrong, and such wrong intent must be followed by a wicked act to give it force and effect.</p> <p>8. Same — Intention Inferred from Act.</p> <p>If one intends to do what he is conscious the law forbids, no other evil intent need bo shown. In such case tho law infers the intent to defraud from the act, and guilty knowledge of the false character of the pay-roll, when transmitted, is sufficient to raise the inference of a fraudulent intent.</p>

<p>Criminal Law — Usura Plates without Authority — Fraudulent Securities.</p> <p>The defendants were convicted,, under section 5430, of the Revised Statutes, of the offense of having in their possession an instrument engraved and printed after the similitude of an obligation issued under the authority of the United States, with intent to sell-or otherwise use the same. The alleged fraudulent instrument, though in the similitude'of a United States bond, was not, nor did it purport to be, executed, or signed. The court, in granting a new trial, held that the words of the statute, “ any obligation or other security,” must be construed to mean an executed instrument, or one which on its face purports to be executed, and that it appearing that the alleged fraudulent obligation or security is not an obligation or security at all, within the meaning of the statute, a conviction cannot be sustained, though the paper, in its body and general form, be made after the similitude of a United States bond. It is for the court to determine whether the case made is within the statute.</p>

The defendants are indicted under chapter 259, vol. 20, St. at Large, (Supp. to Rev. St. vol. 1, p. 358,) which provides that “any postmaster who shall make a false return to tho auditor for the purpose of fraudulently increasing his compensation under the provision of this or any other act, shall be deemed guilty of a misdemeanor, and, on conviction thereof, shall be fined in a sum not less than fifty nor more than five hundred dollars, or imprisonment for a term not…

At Law. A suit is brought against both defendants, seeking to hold them liable for a personal injury sustained by their negligence. The Minneapolis & St. Louis Railway Company owned the depot grounds and track where, the injury occurred, and had by lease permitted the Burlington, Cedar Rapids & Northern Railway Company to use them in common.

<p>1. Negligence — Fellow-Servant—Liability oe Employer.</p> <p>One who contracts to perform, labor or render services for another, takes upon himself those risks and only such as are usually incident to the employment engaged in, and in the absence of statute the negligence of a fellow-servant is a risk assumed by the employe, and for which the employer is not liable.</p> <p>2. Same — Employe under Control op Another.</p> <p>Where the employer places one employe under the control and direction of another, and the latter, in the exercise of the authority so conferred, orders the former into a place of unusual danger, and thus exposes him to extraordinary peril, of the existence and extent of which he is not advised, the employer is liable.</p> <p>3. Same — Danger Known to Employer or his Agent.</p> <p>If the employer or his authorized agent leads the employe to expose himself to a danger not ordinarily incident to the employment, which is known to the former and unknown to the latter, whereby the latter is injured, an action lies against the employer to recover damages for the injury.</p> <p>4. Same — Apparent or Known Danger.</p> <p>If the danger is apparent, and is as well known to the employe as to the employer, the former takes the risk of it; but if the employer knew, or by'the exercise of ordinary care might have known, that the employment was hazardous to a degree beyond what it fairly imports, he is bound to inform the latter of such fact.</p> <p>5. Same — Contributory Negligence — Bule op.</p> <p>The rule of contributory negligence applies to a case of this character, but with much less force than to a case where a servant is injured in the ordinary course of his employment, and net exposing himself to unusual dangers in obedience to the orders of his supeiiors.</p> <p>6. Same — Obedience to Orders op Superior.</p> <p>The servant may obey the order of his superior and perform his duty, unless the danger in doing so is so apparent that a man of ordinary prudence would refuse to. undertake it, even under the orders of his employer.</p> <p>7. Same — Knowledge op Danger — A Question op Eact.</p> <p>It is a question of fact for the jury whether, under the circumstances of the case, the party injured knew, or in the exercise of ordinary care and prudence might have known, that the danger was extraordinary.</p>

<p>1. Municipal Corporation — Negligence — Failure to Keep Sidewalks in Repair.</p> <p>A municipality having, by its charter and by-laws, charge oí the streets and sidewalks, with power to compel by assessment repairs to the same, is bound to keep them in good and safe condition, and will be liable for damages to a person who, without negligence on his part, is damaged by reason of its failure to so repair, provided the city authorities knew the existence of the cause of the injury, or were informed of it, or such a state of circumstances is disclosed that notice would be implied.</p> <p>2. Burden of Proof — Contributory Negligence to Defeat Recovery.</p> <p>The burden of proof is with the plaintiff to establish negligence. If the plaintiff materially contributed to the injuries by her own negligence, she cannot recover. The law in such cases is well settled, and the question is purely one of facts for the jury.</p>

<p>FoReeituiíe — Liquors—Stamps.</p> <p>Where packages containing liquors have once been properly stamped and marked, and the proper duties paid thereon, and alter a sale by a retail dealer of a portion of the contents the residue is diluted with water only, and still remains in the original packages, held, that such liquors are not liable to forfeiture, under section 3289 of the Revised Statutes, as “ not having thereon each mark and stamp required therefor.”</p>

<p>Patents eor Inventions —New Combinations.</p> <p>Any new combination of old ingredients is patentable when any new useful results follow; but the mere exercise of judgment or mechanical skill in selecting a few ingredients from a larger number already known and specified in prior patents, is not an invention.</p>

<p>Patents for Inventions.</p> <p>In a suit for an infringement of a patent for an improvement in feeding attachments of printing machines, where the first claim was for the method and not for the result of printing or shading illuminated cards diagonally, and the second claim is for a combination of old and well-known parts of a cylinder chromatic printing-press and the nippers, held, that the patent is not infringed by defendants’ devising’ a new and useful mode of printing those blended colors diagonally across the card, instead of printing them in bars parallel to the sides or ends of the card, where they do not use all complainants’ combination, and where they do their work on a chromatic press without making any substantial changes in its mechanism.</p>

In Admiralty. Libel filed by Henry F. Virden, master of City Ice-boat No. 3, on behalf of himself as master, and of the city of Philadelphia as owner, and of the crew of said boat, consisting of' 30 men, against the bark Arendal, setting forth that on the fourth day of February, 1881, the boat, with an additional crew of eight or ten wreckers, proceeded to search for the bark Arendal, reported to have been abandoned in the ice fields off the Delaware capes, and after great…

In Admiralty. Hearing on libel and answer. Libel filed by Michael Reilly, master of the barge Chihuahua, for damages occasioned by the loss of the barge, which, the libelant contended, had been taken in tow by the tug to lie towed to the town of Smyrna, Delaware, but was abandoned in an unsafe place in Smyrna creek, eight miles from the destination, and while poling up grounded and became a total wreck.

<p>1. Collision — Eighteenth Sailing Rule.</p> <p>Where two vessels are approaching each other nearly end on, involving the risk of a collision, the eighteenth sailing rule requires that the helms of both vessels should be put to port so that each vessel should pass on the port side of , the other, and the vessel failing to obey this rule will be held in fault in case of a collision.</p> <p>2. Same — Signal Whistle — Pilot Regulations.</p> <p>By the first rule of “ the regulations for the government of pilots ” It is prescribed that when steamers are approaching each other head and head, or nearly so, it shall be the duty of each steamer to pass to the right or on the port side of each other, and the pilot of either steamer may be first in determining to pursue this course, and shall give, as a signal of his intention, one short, distinct blast of his steam-whistle, which the pilot of the other steamer shal answer promptly by a similar blast, and if the answer be two blasts of the steam-whistle, in response to a single blast, such'steamer will be held in fault in case of a collision.</p>

<p>Conversion—Jumsdiction—Case Affirmed.</p> <p>Decision of the district court in the same case affirmed. See The Ferreri, 9 Fed. Hep. 468.</p>

<p>1. Vessel—Labor and Materials Supplied—Lien under State Statute.</p> <p>The facts that a domestic vessel was placed upon a dry-dock for the purpose of being repaired, that she was there repaired, and had not left the place where . the repairs were done pp to the time of filing a libel against her by the owner of the dock for labor and material furnished, are sufficient to support a lien on the vessel therefor under the New York state statute.</p> <p>2. Same—Tiling Specification op Lien.</p> <p>The statute does not require the filing of a specification of lien, except in case the vessel departs from the port.</p> <p>3.-Statutory Lien—Enforcement in Admirai/ty. i</p> <p>SemMc, that the facts proved in this case showed a lien enforceable in admiralty, aside from the provisions of the state statute.</p>

<p>1. Negligence—Pjrooe cot Damages.</p> <p>On a reference to ascertain the amount of damages resulting fromnegligence, the libelant is bound to prove not only the injuries sustained, but also the amount of money necessary to repair such injuries; and an estimate including repairs not proved to have been made necessary by the accident, cannot be taken as proof of the amount of damages.</p> <p>2. Costs Allowed.</p> <p>Where the libelant succeeded upon the issues, costs were allowed him, even though he recovered less than the amount claimed.</p>

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

<p>1. Cmminatj Law — Extortion—Rev. St. § 3169.</p> <p>Extortion is the taking or obtaining oí anything from another by a public officer by moans of illegal compulsion or oppressive exaction. The offense of extortion, under subdivision 1, § 3169, of the Revised Statutes, is the same as the offense of extortion in the common law.</p> <p>2. Same — Oppression.</p> <p>Oppression is an act of cruelty, severity, unlawful exaction, domination, or use of excessive authority.</p> <p>3. Same — By Officer.</p> <p>To make an act oppressive on the part of an officer under the statute, it must be done willfully, “ under color ox law,-’ and “without legal authority.”</p> <p>4. Same — Military Force — Authority of Officers.'</p> <p>Where an officer -willfully and knowingly makes false representations to his superior officers as to the violent and lawless condition of the country, and thus induces his superior officers to send soldiers, which were unnecessary for the proper execution of the law, he is guilty of oppression. The law invests its officers with the necessary power to execute its mandates, and affords them protection while properly performing official duties.</p> <p>5. Same — Acts without Authority of Law.</p> <p>The destruction of a still by a revenue officer, before it had been condemned by a proper decree of the court as forfeited to the United States, is an act of oppression, as it is without authority of law.</p> <p>6. Same — Revenue Officers.</p> <p>Where a revenue officer collects from parties sums of moneyas special taxes, as wholesale and retail dealers in spirits, when no such taxes have been regularly assessed against them, he is guilty of oppression, although such parties had been guilty of selling spirits at wholesale and retail without a license, as required by law; and the fact that he reported such taxes to the collector of the district as received, and the collector of the district, in his settlement with the revenue department, was required to x>ay the sums collected after the manner of their collection was fully known to the department, will not render legal the acts of the defendants knowingly and willfully done, without authority of law.</p> <p>7. Same-Compromising Offenses.</p> <p>The principle and policy of the common law, that a ministerial officer who had arrested a person, and who takes from such person money, or other reward, under a pretense or promise of getting the offender discharged, is guilty of a criminal offense, was intended to be extended, by subdivision 10 of section 3169 of the Revised Statutes, to the officers of the revenue; and any subordinate revenue officer who demands or accepts, or attempts to collect, directly or indirectly, as payment or gift, or otherwise, any sum of money, or other thing of value, for a compromise of the violation of the revenue laws, is guilty of a misdemeanor. -</p>

At Law. Trial by jury having been waived, the court found the following facts: This is an action upon a judgment rendered in the county court at Windsor, Yermont, at the term which began December 2,1873, for the plaintiff against the defendant, for $3,880 debt, and $33.01 costs of suit, and interest amounting now to more than $5,000. The record of that action, and the docket entries therein, are made part of this linding. The defendant, with Joseph Yila, •Jr., and JabeziF.

<p>At Law. Action to recover possession of real property.</p>

<p>1. Negotiable Paper — Draft—When Overdue.</p> <p>In determining a question as to the sufficiency of a defense interposed by the drawer or indorser of a draft, payable on presentation or demand, when sued thereon, the draft must be considered as overdue if it was not presented for payment within a reasonable time, and a delay of over five months is unreason-, able.</p> <p>2. Same — Reasonable Diligence in Presentment and Demand.</p> <p>The holder of a draft or check, payable on demand, is bound to use reasonable diligence in forwarding the same according to the usual course of business, and notice of non-payment be given to the indorser in order to hold him.</p> <p>3. Same — Defenses—Set-Off.</p> <p>Under the statute of Minnesota defendant may set up any claim against the original party which arose out of the subject-matter of the action, or was acquired by defendant while the chose in action was in possession of the original party, or before defendant had notice that he had assigned it for a valuable consideration-.</p>

<p>1. Partnership—Liability in Solido.</p> <p>Under the law of Louisiana a commercial partnership is an entity, capable of being sued, is brought into court as defendant by service of citation upon one of its members, and while the ultimate liability of the partners is in solido,—i. e., joint and several,—they, during the life of the partnership, cannot be charged individually except through the partnership.</p> <p>2. Jurisdiction—Partners—Suit by Alien.</p> <p>This court has jurisdiction of a suit by an alien against a partnership consisting of two partners, one of whom is also an alien, and one a resident citizen, the partnership being domiciled in Louisiana, and the obligation sought to be enforced originating there.</p>

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

<p>1. Municipal Bonds—Power to Issue.</p> <p>Municipal corporations have no general power to issue commercial paper; such power must be derived from tegislative authority.</p> <p>2. Purchasers op—Must Take Notice.</p> <p>Where bonds, od their face, recite that they are “ funding bonds,” and issued to fund the town’s indebtedness, purchasers assume, at their peril, that the legislature had authorized the issue of bonds for that purpose.</p> <p>3. Defenses.</p> <p>No such power having been granted by the legislature, purchasers, notwithstanding the form of the bonds, hold them as non-negotiable paper, and subject to all legal and equitable defenses in favor of the maker.</p> <p>4. Answer.</p> <p>An answer which avers that the bonds were issued without legislative authority in that behalf, and that the town did not get the proceeds of the same, and did not derive any benefit therefrom, held good on demurrer.</p> <p>The case of Hagan v. City of Watertown, 30 Wis. 259, distinguished from the case at bar.</p>

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

This information charged that J. H. Mooney, the owner and claimant of the wool proceeded against, had imported it from Montreal into the United States by means of a false and fraudulent invoice, which declared the market value of the goods at Montreal to be 32 cents a pound, when it was much more.

<p>In Bankruptcy. On demurrers to bill and cross-bill.</p>

<p>Patents for Inventions — Elevated Railwavs.</p> <p>A patent for a plan and design for the construction of an elevated street railway, to he composed of a series of arches, supported on each side of the street upon iron shoes imbedded in masonry, and connected together by arched trusses and tension-rods, to impart sufficient strength and rigidity to prevent any vertical or lateral displacement of the railway, — the essential element of the invention beipg the arcs or arches, supported and strengthened in the manner stated, — held, not infringed by any elevated railway, constructed without these essential features.</p>

<p>Patent for Invention — Expanded Claims in Reissue.</p> <p>Where the true and only allowable construction of complainant’s patent for an improvement in planing machines requires that the pressure rollers shall be used in combination with independe nt swinging arms, as described in the specifications, he cannot by a reissue be permitted to expand the claims so as to cover all divided or broken pressure rollers; and where defendant does not use the swinging arms, nor complainant’s combination of those arms, with his pressure rollers, there is no infringement.</p>

<p>Patents—Practice on Rheerence—Production oj? Books on Cross-Examination.</p> <p>Upon a reference of a patent cause to a master to take an account of damages, etc., one of the complainants testified as to the cost of manufacturing- and selling the patented article in controversy, the number manufactured and sold by his firm, etc. Held; that defendant, upon cross-examination, is entitled to the production of the books of witness’ firm, but complainants may, if they so elect, withdraw the witness and his testimony as far as given.</p>

<p>Debt Due by Stockholder to Corporation.</p> <p>Judgment was obtained by tlie plaintiff against the defendant for $19,002.05, and an execution thereon as against the defendant returned nvMa bona, and served on D. B. Harrington, as a debtor of the defendant, for $168.50, on account of unpaid calls or assessments made upon said Harrington’s shares in the capital stock of the defendant, to which Harrington answered lie owed the defendant nothing; but the answer not proving satisfactory to the plaintiff, he procured an order under section 309 of the Code requiring the former to appear before a referee for examination; whereupon the plaintiff served written allegations concerning said indebtedness, as provided in section 162 of the Code, to which the garnishee demurred that the court had no jurisdiction, and that the garnishee is not liable in this proceeding. Held, (1) thatlho proceeding by garnishment under sections 150 and 161-9 of the Code does not authorize a demurrer to the allegations of the plaintiff, but requires an answer thereto by the garnishee, to which exceptions may be taken for insufficiency; (2) a due and unpaid call or assessment upon the shares of a stockholder in the capital stock of a corporation is a “ debt” due such corporation, within the purview of section 147 of the Code, and may be collected from such stockholder by a judgment creditor of the corporation by garnishment, under sections 150 and 161-9, aforesaid.</p>

<p>1. Promissory Note — Yoid Provision in.</p> <p>A provision in a promissory note “ to pay an attorney’s fee of 10 per cent, on the amount due if suit is brought to enforce payment, for use of the attorney bringing the suit,” is a stipulation for a penalty or forfeiture, and tends to (he oppression of (lie debtor; is a cover for usury, and is without consideration and contrary to public policy, and void.</p> <p>2. Same — Bank Charter.</p> <p>Such a stipulation in a note discounted by a national bank is void, for the further reason that it is in excess of tne powers of the bank under its charter.</p> <p>3. Same — Point not Decided.</p> <p>Whether such a stipulation in a note discounted by a national bank has the effect to avoid the whole instrument, not decided.</p>

<p>L Corpohation — Contract with Birector.</p> <p>If a contract made by a director with the corporation of which he is director is to’be construed so as to cover a transaction granting to him enormous commissions, without regard to the debts or other liabilities of the company, it is unreasonable as affecting injuriously the rights of the stockholders, and giving one director of the company a right without regard to the rights of creditors or the liabilities of the company, and is unreasonable and beyond the power of the directors to make with their co-directors.</p> <p>2. Same — Who Deemed a Diüectotí.</p> <p>_ A contract which provides that plaintiff was to he chosen one of the directors of defendant corporation, and by its express terms he was to be invested with the duty of superintending and directing its affairs as one of its directors, must be construed as if he was actually a director at tha time of its inception, and as if made with him while ho was a director.</p> <p>3. Same — When Void — Want ot? .A (jthomtt.</p> <p>Directors of a corporation are its trustees, and the validity of their contracts made with a corporation depends upon the nature and terms of the contract itself, and the circumstances under which it is made, and the effect of its provisions ; and if they are pernicious, and tend to work a fraud on the rights of the corporation and the stockholders, the directors have no authority to enter into it.</p> <p>4. Sales — Commissions—When not Dub.</p> <p>Where plaintiff was not a broker, and there was no express contract and no circumstances from which it can be concluded that any kind of an implied contract existed between the defendant company and plaintiff by which he was to have a commission on the sale of a railroad effected by defendant’s corporation, he is not entitled to recover any compensation.</p>

Habeas Corpus. ' The defendant was indicted by a grand jury of the United States district court for the western district of Tennessee, on the twenty-seventh day of April, 1882, for receiving illegal pension fees on the first day of April, 1881. Subsequently he was found guilty, and sentenced to one year’s imprisonment in the Erie county, New York, penitentiary. The case now comes before the court on writ of habeas corpus.

Motion to Set Aside Service of a Summons. The action was for a penalty, alleged to have been incurred by the defendant under the provisions of section 4504, U. S. Rev. St. The summons was served without the complaint. The copy of the summons, which was delivered to the defendant, was not indorsed with any reference to the statute by which the penalty was given, as required by the New York Code of Civil Procedure, §§ 1897,1964, and 1962.

<p>1. Doties on Imports — Recovery Back — Protest and Appeal.</p> <p>In an action to recover back duties illegally exacted, protest and appeal are necessary as a condition precedent to the right to recover, even when the United States are plaintiffs in an action to recover duties in excess of those already paid.</p> <p>2. Same — Remedy oe Importer.</p> <p>Where the United States sue to recover duties upon importations of what is called steel in bars, which was entered and duties paid as upon “scrap steel,” and the goods were delivered before the final liquidation, the defendants may set up facts which make the assessment illegal in such action, and are not bound to suffer judgment to be entered against them, and proceed by suit to recover back the amount- paid at any time within 90 days thereafter, under the provisions of section 2931 of the Revised Statutes.</p>

<p>Duties ok Imposts — Wrought Scrap-Iron.</p> <p>The punchings and clippings of wrought-iron boiler-plates and wrought sheet-iron, left after the manufacture of the boiler-plates into boilers, though it is waste iron, fit only to be manufactured, cannot be deemed scrap-iron for dutiable purposes, because it has not been in actual use.</p>

<p>Distiller’s Bond — Judgment on.</p> <p>In an action on a distiller’s bond , a verdict was rendered for the full amount of the bond, subject to the opinion of the court upon the question whether the sureties were entitled to a deduction from the verdict of the amount realized from the sale of the distiller’s personal property. Held, on a motion for judgment on the verdict, that the judgment should be entered for the full amount of the bond, the sum realized from the personal property not being a legal off-set.</p>

In Equity. Motion for a provisional injunetioii. The bill in this case charges the defendant with having infringed the copyright of a book entitled the “Illustrated Stock-Doctor and Live-Stock Encyclopedia,” alleged to have been assigned by him to the complainant.

<p>1. Patents b'oh Inventions — Patentable Invention.</p> <p>Where the proof shows that complainant's devices have been generally adopted, the fact that simultaneously a number of inventors had given their attention to the subject-matter covered by tlio devices, is evidence that something more was required than mere mechanical skill to accomplish the result obtained by complainant’s patent.</p> <p>2. Same — Combination—New Result.</p> <p>Where1 the result produced by an aggregation of parts is the transmission of signals to a car when in motion, which had never been produced before the combination was adopted, and some of the parts in the combination performed a new function, the whole combination produces a new result.</p> <p>3. Same — Infringement—Decree.</p> <p>Where there is no controversy on the question of infringement, complainant will be entitled to a decree and an accounting.</p>

<p>Patents for Inventions — Reissue—Preliminary Injunction.</p> <p>A motion for a preliminary injunction against an infringement of a reissued patent, where there is no doubt that the reissue is in terms broader than the original, but which change may be legitimate, as describing the real invention, will be denied.</p>

<p>1. Patent for Invention— Coloradme Die’fbhences — Infringement.</p> <p>Where defendant’s device, used1, in a combination of parts, is the same for all practicable purposes, and performs the same function, and no other, in the mechanism as the device of complainant, and the difference between the devices is merely colorable, it is an infringement of complainant’s patent.</p> <p>2. Same — Evidence oe Novelty and Utility.</p> <p>Where the proof shows that many others had endeavored unsuccessfully to accomplish what the complainant achieved, and also that the device of complainant was at once accepted by the public, the fact of success and acceptance by the public in a field where others had tried and failed, is sufficient evidence that the device was both new and useful.</p>

In Admiralty. Suit for damages. The libelants alleged in thoir original libel that they were insurance companies; that respondent was a common carrier, and the owner of a barge line running between St. Louis and New Orleans; that several different lots of merchandise (describing them) insured by libelants had been delivered to respondent, “for the respondent, as .common carrier, to receive, take care of, and to safely and securely carry and convey from said city of St. Louis…

On Motion to Bemand. Suit instituted in the United States court by plaintiff as assignee of the instrument sued on, which was in the form of a negotiable promissory note, except that it contained an agreement by the maker to pay 10 per cent, of the principal as attorney’s fees in case suit should be brought upon it. Cause removed to this court on the ground of the citizenship of the parties.

<p>1. Citizenship — Ohan&b op Domicile.</p> <p>For the purposes of the jurisdiction of the court of the United States, domicile is the test of citizenship. A person may be a resident alien, hut cannot be a citizen of the state when he has abandoned his domicile there.</p> <p>2. Same — Case Stated.</p> <p>The defendant having removed this suit from the state court, the plaintiff moves to remand upon the ground that she was at the time of the commencement of the action, and now is, a citizen of the state of Yew York, where the defendants reside. By the affidavit of the husband of the plaintiff' in support of this motion, and another affidavit in the case, it appears that the plaintiff and her husband, a naturalized citizen of the United States, resided in the state of Yew York from 1859 to 1871; that in the latter year she removed with her husband to Hamburg, Germany, where she has since continuously resided, her husband having returned to this country occasionally on business. Held, that though by reason of her husband’s naturalization the plaintiff might be entitled to all the privileges of citizenship here, the practical inference from the facts as they appear in the affidavits is that she has changed her residence, and that the plaintiff’s position is no better than that of a native-born citizen who has changed his domicile. The suit was properly removed.</p>

<p>1. Lettebs Testamentary — Conclusive Evidence until Revoked.</p> <p>By section 2591 of the New York Code of Civil Procedure, letters testamentary are declared conclusive evidence of the authority of the persons to whom they are granted, until revoked or the decree granting- them is reversed upon appeal.</p> <p>2. Same — .Jurisdiction—Recitals oe Facts Necessary to Confer.</p> <p>The recitals of the jurisdictional facts necessary to confer jurisdiction, in the decrees of courts of exclusive though limited jurisdiction, are prima facie evidence of the facts recited. On this principle it has been repeatedly declared that the granting of letters testamentary Is in general 'prima faeie evidence of the death of the testator.</p>

This was an action to recover damages by reason of an alleged mistake in transmitting a dispatch over the lines of defendant’s company. The dispatch was sent pursuant to certain regulations and conditions as contained in the telegraph blank upon which the message was written. The original dispatch, together with the printed form upon which the same was written, is as follows, to-wit: “The Western Union Telegraph Company.

<p>1. Laborer.</p> <p>The term “ laborer ” is used in the treaty with China of November 17,1880, and the act in aid thereof, of May 6, 1882, in its popular sense, and does not include any person but those whose occupation involves physical toil, and who work for wages.</p> <p>2. Actor.</p> <p>A Chinese actor or theatrical performer is not a “ laborer,” within the purview of said treaty or law; and such person is, therefore, entitled to come to and reside in the United States at pleasure.</p> <p>3. Section 6 oe the Act oe 1882.</p> <p>The certificate provided for in section 6 of the act of May 6, 1882, is not the only competent evidence that a Chinese person is not a laborer, and therefore entitled to come to and reside within the United States, but the fact may be shown by any other pertinent and convincing testimony.</p>

<p>1. Authors and Writers — Right to Use of Assumed Name.</p> <p>An author or writer lias no better or higher right in a north de plume, or assumed name, than he has in his baptismal name.</p> <p>2. Same — Copyright the Sole Protection.</p> <p>A person becoming an author can secure to himself the exclusive right to his productions^only by a copyright under the laws of the United States; and if he publishes anything without so protecting it, it becomes public property, and any person may republish it, and state the name of the author in such form in the book as he may choose, either upon the title-page or otherwise, as to show who was the author.</p> <p>3. Same — Protection of Unpublished Works.</p> <p>An author has the right to restrain the publication of any of his literary work which he has never published or dedicated to the public.</p> <p>4. Same — False Imputation of Authorship.</p> <p>An author may restrain the publication of literary matter purporting to have been written by him, but which in fact he never did write; and this rule applies in favor of persons known to the public under an assumed name.</p> <p>5. Same — Trade Name or Trade Mark — Not a Substitute for Copyright.</p> <p>An author cannot acquire a right to the protection of his writings under an assumed name as a trade name or trade mark, and no pseudonym, however ingenuous, novel, or quaint, can give one any more rights than he would have under his own name, or defeat the policy of the law that the publication of literary matter without protection by copyright has dedicated such matter to the public.</p>

<p>Patents eor Inventions — Steam-Valve.</p> <p>In an action for infringement of a patent for a steam-valve, where tlie idea of regulating the escape of steam by a movable plate upon a spindle in the valve-head is older than patentee’s device, and was public property when his invention was made, and old English and American valves were intended to work on substantially the same principle as the valve of the complainant, but which may have failed for lack of skill in making and using them, rather than because their inventors had not conceived the true principle upon which they were 1o work, held, that the use of a similar valve by defendant was not an infringement of complainant’s patent.</p>

<p>1. Patents foe Intentions — Failure to Mark Articles as Patented.</p> <p>Section 4960, Kev. St., declares that when any patented article is not so stamped, “in any suit for infringement by the party- failing so to mark, no damages shall be recovered by the plaintiff, except on proof that the defendant was duly notified of the infringement, and continued after such notice to make, use, or vend the article so patented.”</p> <p>2. Same — Ownership—Sufficient Notice of.</p> <p>A verbal notice by one owning a patent medical compound, to one infringing thereupon, that the compound is patented, and at the same time exhibiting a copy of the letters patent, was held to be sufficient notice under the statute requiring patentees to give “ sufficient notice to the public, together with the day and year the patent was granted.”</p> <p>3. Same — Assignment of Patents — Proof of.</p> <p>Under the statute of New York an assignment of a patent, duly acknowledged before a notary public, is sufficiently proved, and it is not incumbent upon the complainant, in an action for infringement, to prove the signature of the assignor.</p>

<p>Seamen’s Wages — Voyage Broken Up.</p> <p>Where seamen shipped for a round trip, and by reason of a collision with another vessel the voyage was broken up, but they were induced by the master to proceed with the schooner to the port of delivery, and on arriving at the port of delivery ’they refused to aid in discharging the vessel, and claiming their discharge, which was denied by the master, they left and returned to the port of departure, held, that the vessel having been laid up at a distant port for the winter, and unable to complete the voyage till spring, that the seamen were entitled to their discharge without completing the round trip, and to compensation for services actually rendered, based upon the principles of a quantum mm'uit.</p>

In Admiralty. These cases having been referred by said court to Lawrence Proud-eoot, Esq., United States commissioner, to take proofs, examine into and report his conclusions as to the law and the facts therein, he reported in substance as follows: Amelia Beckley and Theodore S. Consaul, each claiming a one-quarter ownership in said schooner, becoming dissatisfied with the manner in which she was being managed, file a petition for a sale and a partition, alleging a…

In Admiralty. The bark John II. Pearson was chartered to bring a cargo of oranges and lemons for the libelants from Palermo to Boston. The charter-party contained the words, “Captain engages himself to take the northern passage,” inserted at the order of the libelants.

<p>1. CONSOLIDATED CORPORATION — DOMICILE.</p> <p>Whore a railroad corporation, was made up of four distinct corporal ions, chartered hy the legislatures of different states, and all consolidated and merged into one corporation under the laws of such states, and becomes one of that class of corporations owning a railroad extending through two or more states and chartered under the laws of each state, having a common stock, 1 lie same shareholders and officers, the same property, and a single organization, it is for most purposes one corporation. But it is a separate corporation in each state, in so far that it is governed hy the laws of each state within its own territory, and is considered to have a domicile in each state, and, in the absence of any statutory provision to tho contrary, may hold its meetings and transact its corporate business in either state.</p> <p>2. Equity- — 'Relief prom Decree Obtained by Fraud.</p> <p>Where a decree or judgment has been obtained against a party to a suit at law or in equity by fraud or deception practiced upon him by the opposite party, and he lias lost, without fault on his part, his remedy of applying to the court for the revocation or reversal of the decree or judgment, a court of equity will afford him relief.</p> <p>3. Same — Belief, when not Obtainable.</p> <p>A circuit, court of the United States cannot revise or sot aside a final decree rendered by a state court, which had complete jurisdiction of the parties and subject-matter, upon tho ground of fraud in obtaining the decree, where the injured party had an opportunity to apply to the state court to reverse tho do-creo.</p> <p>4a Same — Adjudication in Bankruptcy — jSTot Impeachable Collaterally.</p> <p>An adjudication o¡'bankruptcy made by a district court, having jurisdiction of the bankrupt, cannot be impeached collaterally by any person who is a party to tho bankruptcy proceedings. Where the plaintiff in a collateral action, and all tho shareholders whom he represents, form an integral part of the corporation adjudged to be bankrupt, they are parties to the bankrupt proceedings and are bound by the decree, and cannot impeach it collaterally.</p> <p>5. Same — Remedy Provided by Statute — Supervisory Jurisdiction.</p> <p>The only remedy provided for the coi-rection of errors in sucli cases is to bo found in the supervisory jurisdiction of the circuit court, as given by section 4986 of tho Rev. St., upon bill, petition, or other process of any party aggrieved, which jurisdiction is exclusive; and the determination of the case by the circuit court, as in a court of equity, is not reversible in the supreme court.</p> <p>6. Laches — Belief in Equity not Obtainable.</p> <p>Where a bill for relief was brought 14 years after the making of the railroad mortgage, 10 years after the commencement of bankruptcy proceedings against the railroad corporation, 9 years after the entry of the decree of foreclosure of the railroad mortgage, and 7 years after the decree of foreclosure became absolute, and the road was conveyed to the new corporation by trustees lawfully appointed, and during all this time the records of the courts, upon which appear all the proceedings by which the alleged fraud is claimed to have been consummated, have been open to inspection and examination, and what has been done might have been known to plaintiff if he had made inquiry, a court of equity will not grant relief.</p> <p>7. JURISDICTION.</p> <p>Where a suit was instituted by an alien against a corporation, citizen of the state where suit is brought, the jurisdiction of the federal court is not defeated by the mere fact that a shareholder, a citizen of the state, was admitted by the court upon liis own application as a co-plaintiff.</p>

The indictment was under the perjury act (section 5392 of the Revised Statutes) of the United States.

<p>Biieach oí? Contract to Deliver Goods for which Promissory Notes nAD been Given by Vendee and Indorsed Away by Vendor — Dishonor of Notes after Suit Brought by Vendee — Measure of Damages.</p> <p>The defendants contracted to deliver goods to tlie plaintiff, and received the plaintiffs’ notes for the purchase money, payable about one year after date. Before delivery of the goods the defendants failed in business, and plaintiffs were unable to get the goods. The defendants had meantime indorsed the notes and had them discounted. The vendees entered suit to recover the full value of the goods as of the date of the demand and refusal to deliver. After the suit was entered, but before the trial, the notes matured, and the plaintiffs did not pay them. Reid, that notwithstanding the defendants had passed the notes away, as they were still liable on them as indorsers, the plaintiffs, not having paid the notes, could not recover the full value of the goods, but only the difference between the market value at the time of the breach of the contract and the price contracted for; and that, no such difference having been proved, the plaintiffs were entitled to only pominal damages.</p>

<p>t„ Attorney and Client — -Substitution op Attorneys.</p> <p>It is the right of every client to change his attorney at his volition by substituting a new attorney of record. The right must be exercised, however, by application to the courts, which will hold the client to fair dealing with its officers, and may, in its discretion, require the client to discharge the attorney’s claim for services in the suit as a condition of substitution.</p> <p>2. Same — Contingent Fees.</p> <p>A solicitor cannot require payment in advance of the substitution of another ' as a condition precedent, when by agreement he was to receive nothing unless the suit resulted favorably, and before there has been any recovery.</p> <p>3. Same — Costs and Disbursements.</p> <p>But where a solicitor had agreed with his client to conduct a suit for a contingent fee, and the client reserved the right to employ another attorney at any time in his stead, and the first solicitor had advanced certain funds and disbursements in the conduct of the suit, it was held that these disbursements should he paid back to the solicitor before a substitution, and that the order of substitution should contain a condition to protect the solicitor as for a lien for his services in the event of ultimate recovery by the client in the suit.</p>

<p>1. Injunction — Violation of Order Staying Suits.</p> <p>Where a bankrupt obtained an injunction order from this court staying all suits and proceedings against him on the part of certain creditors, their agents and attorneys, to collect certain specified debts, and thereupon a suit by one of the creditors was discontinued, and afterwards a new suit was brought through the same attorneys in the state court for the recovery of the same debt, with allegations of fraud, held, that the last-named suit was a violation of the injunction order.</p> <p>2. Same — Vacating Order of Arrest.</p> <p>This court lias no authority to vacate an order of arrest for fraud granted by the state court, though it may restrain the proceedings thereon.</p> <p>3. Contempt — Insufficient Proof of Service — Waiver.</p> <p>On motion to punish the attorney for contempt, the proof of service of the injunction was hold too loose and general; and a reference was ordered to take further proof in respect to the service of the injunction order. Held, also, that the contempt, if proved, was not waived by the bankrupt’s noticing the cause for trial in the state court.</p>

<p>1. Patents eou Inventions — Patentable Djeeebences.</p> <p>In a patent for an improvepient on shoe-tips, the fact that one takes twice as much sole leather as the other is not of itself a patentable difference.</p> <p>2. Same — License' Fees — Suit eok Koyalties.</p> <p>In a suit by a patentee against a licensee for license fees, for the use of a patented improvement, someihing corresponding to an eviction of the licensee must be pleaded and proved if he would defend against an action for royalties.</p> <p>3. Same — Improvements in Shoe-Tips — Vamps Distinguishable.</p> <p>Where plaintiffs’ claim must be construed as a “ shortened vamp,” — that,is a vamp which ends substantially where the box-toe begins, as the means of uniting the box toe and tip to the upper, and defendant’s vamp is carried for the full length over the toe and lasted with the sole, it cannot be considered the use of plaintiff’s shortened vamps.</p>

<p>In Admiralty. Libel for half pilotage.</p>

<p>Collision — Speed oe Steamer — Fault.</p> <p>A steam-vessel but little under control of her helm, owing to the retarding influence of the mud, in which her bottom is dragging, when approaching a sail-vessel in the night-time, in a narrow channel, nearly end on, with a combined speed of at least nine knots, is bound to slacken her speed.</p>

In Equity. The complainant, a citizen of Vermont, in 1877 brought this suit in equity against the defendants, citizens of Minnesota, and in November, 1880, an amended and supplemental bill was filed, praying the court to confirm the title in him to certain shares of stock of the defendant association, and also the title to all the land which the stock represented, except five acres, and issue was joined.

<p>1. Mortgage — Priority over Unrecorded Deed.</p> <p>A recorded mortgage oí the widow’s interest in real estate of which the husband died seized, takes precedence of a prior unrecorded deed made by the husband and wife in his life-time, and of which the mortgagee had no notice.</p> <p>2. Estates of Deceased — "Widow’s Portion of Real Estate</p> <p>One-half in value of said real estate, secured to the widow "by the statutes of Kansas, is equivalent to an undivided one-half before partition made.</p> <p>3. Same — Authority of Widow to Mortgage.</p> <p>The widow may mortgage or convey her interest in said real estate, as an undivided one-half, before it is set apart to her by the probate court.</p>

<p>Lien of Judgment — Suspension of Lien — State Practice — Modification.</p> <p>Under sections 914, 915, and 916 of the Revised Statutes, in common-law actions the district court has power to suspend the lien of a judgment upon lands of the judgment debtor during appeal or writ of error, and to cause the docket of the judgment to be soynarked, in accordance with the provisions of the state practice. The lien of a judgment upon lands of a judgment debtor, depending upon the state statutes and practice as adopted under the United States laws, may be modified or suspended in accordance with the state practice, in the discretion of the court.</p>

<p>1. Indian Country — Umatilla Agency.</p> <p>Since the repeal of section 1 of the Indian intercourse act, of 3834 (4 St. 129) by section 5596 of the Revised Statutes, the only Indian country in the United States, within the purview of that phrase, as used in chapter 4, title 28, of the Revised Statutes, is the tracts of country set apart by the authority of the United States tor the exclusive use and occupancy of particular Indian trilles, and known as Indian reservations; and the Umatilla reservation in Oregon is such Indian country.</p> <p>2. Chimes Committed by oh against an Indian.</p> <p>In the exercise of its constitutional power to regulate intercourse with the Indian tribes, congress may define and punish crimes committed by white men upon the person or property of an Indian, and moa versa, within as well as without the limits of a state.</p> <p>3. Murder on the Umatilla Reservation.</p> <p>Congress having provided for the punishment of murder committed in the Indian country, (sections 2145, 5339, Rev. St,.,) the United States circuit court for the district of Oregon has jurisdiction of the crime of murder committed on the Umatilla reservation by an Indian upon a white man; and therefore it is a violation of section 5398 of the Revised Statutes for any one to resist or obstruct the execution of an order made by a circuit court commissioner, engaged in flie examination of an Indian charged before him with the commission of murder, under such circumstances.</p>

<p>1. Penalty — Cutting- Timber on Public Lands — “ Timber ” Defined.</p> <p>The term “ timber,” as used in section 2461, Rev. St., does not apply alone to large trees fitted for house or ship building, but includes trees of any size, of a character or sort that may be used in any kind of manufacture or the construction of any article.</p> <p>2. Same — Prosecution for — TTse of Trees no Justification.</p> <p>Using trees for fire-wood or burning into charcoal is no justification of the cutting.</p> <p>3. Same — Homestead Entry — No Effect on Title.</p> <p>A homestead entry works no change in the title of lands which can prevent a prosecution under the said section.</p>

<p>1. Negligence — Personal Injuries — Collision on Highway.</p> <p>Where teams have a right in the ordinary course of business to follow each other, turn about, pass and repass, that degree of care and caution must be exercised by parties using such highway, when in proximity to each other, to avoid doing each other injury, which would reasonably be expected of an ordinarily-prudent person in the surrounding circumstances.</p> <p>2. Same — Contributory Negligence.</p> <p>Negligence is not to be imputed to a driver of a team from the mere fact of a collision; it is a fact to be proved as any other fact in the case; and, even -where defendant was guilty of negligence, yet if there was a want 6f ordinary care on the part of the plaintiff, which as a proximate cause concurred with defendant’s negligence in causing the accident, plaintiff cannot recover in an action for damages for personal injuries caused by a collision between vehicles on a highway.</p> <p>3. Same — Choice of Means to Avoid Collision.</p> <p>Where a person exorcising ordinary prudence and skill as driver of a vehicle up to the moment when danger of collision was imminent, and in the presence of such danger is compelled to choose what course of action he should take to avoid the danger, and did so in good faith, the mere fact that the result afterwards may show that his choice of a way to avoid the collision was not the best course, cannot be imputed to him as negligence.</p> <p>4. Same — Measure oe Damages.</p> <p>In an action for damages for personal injuries caused by a collision on a highway, where negligence only is imputed to the defendant’s driver, and it is not claimed that the collision was caused by any intentional, malicious, or will- • ful act, exemplary damages cannot be allowed. The damages which plaintiff may recover are such as will .compensate him for the loss and injury sustained.</p> <p>5. Same — Prospective Damages.</p> <p>Where plaintiff is entitled to damages for injuries sustained from the collision, he may recover prospective compensatory damages, or such as it is proved will directly result in the future from the injury complained of, in addition to past and present damages.</p>

This case was tried by a jury. At the close of plaintiff’s testimony the defendant’s counsel asked the court to instruct the jury to find a verdict for the defendant, on the ground that there was not sufficient testimony to go’ to the jury or to justify a verdict in favor of the plaintiff.

Suit upon a policy of insurance upon the life of C. S. Alford, deceased, by his executor, Thomas C. Fletcher, for §10,000 and interest. A new trial having been granted therein, (see 12 Fed. Eep. 557,) this case was a second time tried before a jury.

<p>1. COPYRIGHT— DEDICATION— SCOPE OK.</p> <p>A dedication to the public of the arrangement of a musical composition for the piano does not dedicate what it does not contain and what cannot be reproduced from it, and defendant, does not, therefore, possess and has no right to , perform such composition as set for an orchestra, although he should have the opportunity to copy it.</p> <p>2. Same — Musical Composition — Rights ob' Composer..</p> <p>An opera is more like a patented invention than a common oooK, as to the rule that he who obtains similar results, better or worse, by similar means, though the opportunity is furnished by an unprotected book, should bo held to. infringe the rights of the composer.</p> <p>3. Same — INJUNCTION.</p> <p>Where defendant has undertaken the representation of plaintiff's full score, and has hastened his preparations and changed the day to an-earlier one for the purpose of anticipating the performance of plaintiff’s assigns, a motion to enjoin its performance will be granted.</p>

<p>1. State Pilotase Laws.</p> <p>State laws conferring upon local boards power to fix rates of pilotage are not void as granting powers which, may not be delegated.</p> <p>2. Same.</p> <p>They are enacted by a power originally within the states and not by that conferred by the United States.</p> <p>3. Same.</p> <p>They need not be general and uniform throughout the state, but may be regulated according to local needs.</p> <p>4. Same — Power to Fix Rates.</p> <p>The power to fix and determine rates also authorizes the determining what proportion of the regular rates may be demanded when services are tendered and not accepted.</p> <p>5. Statute — Repealihs Clause.</p> <p>It is not necessary that a repealing clause be embodied in an act; if the substance of the previous act is inconsistent with that of the subsequent one it is repealed by implication.</p>

<p>Seamen’s Wages — Eights to Sue in Admiralty.</p> <p>In the absence of express legislation on the subject by congress, the right of a seaman to sue in the admiralty in personam for his wages is not taken away or suspended by an attachment of his wages by trustee process in an action at law.</p>

<p>1. Services — Application of Payment.</p> <p>Where services were continuously performed on a vessel by libelant as engineer and wheelsman and pilot during a series of years, there is no distinction existing in the law of maritime liens as to such services; and the mode of appropriating payments from time to time made to libelant, in the absence of a special agreement, would be to the oldest service performed, and the balance claimed by libelant may be considered as accruing from the service most recently performed.</p> <p>2. Same — Lien hot Waived.</p> <p>Where the owner had repeatedly promised to pay the claim, and he had goue into bankruptcy and libelant was informed that affected the validity of his claim, the fact that the bankrupt had scheduled the claim as a personal demand against himself could not prejudice the right of libelant to enforce his lien against the vessel, nor would the presentment of the claim by libelant to the bahkrupt court be considered of itself a waiver of his lien.</p> <p>3. Same — Not Waived my Delay.</p> <p>Where the purchaser of a vessel had information sufficient before or at the time of his purchase, as in this case, to put him on inquiry as to any liens which might exist against the vessel, the fact that proceedings wore not instituted against the vessel till after the purchase, would not operate as a waiver of the lien which originally existed.</p>

<p>In Admiralty. Appeal from the district court.</p>

<p>1. Lien von Supplies Furnished at Home Port.</p> <p>A party íurnisliing a vessel with supplies at its home port on credit is not entitled to an admiralty lien upon the vessel, except where a lien is given by a local statute.</p> <p>2. Enforcement of.</p> <p>Where a state statute gives a lien ior supplies furnished at a home port, a lien for supplies so furnished will be enforced by a court of admiralty, but only when it comes strictly within the terms of the statute. ’</p> <p>3. Time within which Lien Must be Enforced.</p> <p>Where the state statute prescribes a time within which the lien must bo enforced, if at all, the limitation will be recognized by the federal court.</p> <p>4. Where Vessel is in the Custody of a States Court.</p> <p>Where, at the time a libel is filed against a vessel in a court of admiralty, the vessel is in the custody of a state court, the libelant cannot enforce his process by seizure until the custody of the state court ceases.</p> <p>5. Same—Limitations—Effect of Custody of State Court.</p> <p>Where a lien for supplies furnished a vessel at its home port was, by the terms of the statute conferring it, only enforceable within nine months after the supplies were furnished, and the vessel to which they were furnished was during the whole of the prescribed period in the custody of a state court, held, that the fact of such custody did not enlarge or suspend the operation of the state statute.</p>

<p>Vessel — Personal Injuries — When hot Liable.</p> <p>Where a gang of workmen, including the libelant, employed to remove ballast from the ship, removed the ladder in ordinary use for workmen from the ship’s side and put it down the hold, and at noon, o:a going oft' from the vessel, instead of returning the ladder to its place for their use, went aft and used the poop ladder, placed there temporarily for private use and not fastened, and were warned that it was unsafe, and the ladder fell as the libelant was going down, whereby he sustained severe injuries, held, that he had no ground for an action against the vessel for damages for personal injuries.</p>

<p>JURISDICTION — Does not Attach over Equitable Claims.</p> <p>Where the contract set out in the libel is merely a loan for money, for the payment of which the vessel was conveyed as security, the admiralty has no jurisdiction; the remedy is in equity.</p>

<p>Seaman — Whaling Voyage — Disohabge and Settlement witn.</p> <p>A seaman in tlie whaling service, when discharged during tlio voyage at his own request, is not disqualified from making a settlement oi' his wages, upon the payment of a sum fairly and intelligently agreed upon, when the amount to become due to him is uncertain and depends upon the future success of the voyage.</p>

<p>In Admiralty. Appeal from the district court.</p>

<p>1. Seaman’s Wages — Minor Son of Master.</p> <p>A father is entitled to tile earnings of a minor child who lives with, him, and is under his governance, protection, and support.</p> <p>2. Same — Lien does not Attach.</p> <p>Where a father agreed to run a vessel on shares, and to pay all the expenses of running her, and his minor son, being a member of his household and living on board as a member of the father’s family, acted as mate, held, no lien against the vessel could, under such circumstances, be acquired by either the father or son, and the libel, therefore, was dismissed.</p>

In Equity. On exceptions to master’s report. Tlie principal matter in controversy in this case is as to the validity of a conveyance of certain lands from respondent Mary Meacham to respondent H. H. Blodgett, of date February 7, 1880. The title to the land was, prior to February 8, 1877, in respondents Stephen A. Meacham and Nancy, his wife, who on that day executed a mortgage thereon to A. Otis Evans, to secure the payment of $2,700, with interest and attorney’s foes.

<p>Bill to Vacate Judgment — Limitation.</p> <p>A bill in chancery brought to vacate a judgment obtained in a court of law, and to order a new trial, takes the place of the ordinary petition for a new trial, provided for by the Code of Civil Procedure of this state, and must be brought-within one year from the rendition of the judgment sought to be vacated.</p>

<p>Demurrer to Petition.</p>

This was an action brought on a contract for the installments due on the purchase money of a water-power, so called, formed by tbe construction of a dam at the foot of Lake Winnebago, by means of… Held: and by the terms of the act of congress named, the government received the canals, locks, and certain other property of the Green Bay & Mississippi Canal Company, and proceeded with the work of improving the navigation of the two rivers.

<p>Will — Undue Influence — Spiritualism.</p> <p>Where a testator embraced spiritualism as practiced by Us beneficiary, who claimed to be a spirit-medium, and instead of merely believing in it as an abstract proposition, the testator became possessed of it and suffered it to dominate his life, and where his belief in spiritualism was artfully used by the, beneficiary to alienate him from his only son and child and to get his property, held, that a will made in such a mental condition and under such influences should be set aside.</p>

In Equity. The plaintiffs, as assignees in bankruptcy of William A. Saunders, bring this bill against him and his wife to recover property or its proceeds, charged to have been bought by the bankrupt with his own money, and placed in the hands of his wife, from tirhe to time, ■within eight years before his bankruptcy, in 1875.

<p>1. Manufacturing! — Partnership—Infringement of Patent — Responsibility.</p> <p>Where a manufacturing company and a firm entered into a contract, by which, the former let out to the latter all the power, machinery, etc., of the company, to be used for the manufacture of tools, and for carrying on the business of the company agreed to be done by the latter parties in co-operation with the directors, the firm agreeing to pay as rent 10 per cent, of their net sales, the profits of the consolidated company to be shared in certain proportions, held, that the manufacturing company are not responsible for the manufacture of try-squares complained of, made by the firm for its own use in the rented premises.</p> <p>3. Same — Landlord—Injunction.</p> <p>May a landlord be enjoined from permitting his tools and machinery to bo used for the injury of a third person ? Quaire.</p> <p>3. Patents von Inventions — 1Tby-Squabes.</p> <p>An improvement in try-squares, which produces a tool more convenient, with a larger capacity, and more accurate, by adding to such a tool a slot in one of the arms, is a patentable invention.</p> <p>4. Same — Ketssue—Valid in Paet.</p> <p>Whether a reissue is wholly valid or not, it may be valid to the extent that ■ claims in the original and in the reissue are alike; and if those claims are infringed, an injunction may be granted.</p>

<p>Patents for Inventions — Preliminary Injunction — When Denied.</p> <p>Where the contest is in fact between rival manufacturers, and the improvement in question is part of a large machine in daily use to print newspapers of t£e defendants, and a change of such part, is difficult and might embarrass the usual course of business of defendants and cause much expense to their guarantors from whom they purchased, and would be of no advantage to plaintiffs, except to coerce a settlement of the royalty, a preliminary injunction will be denied.</p> <p>Whether an injunction would be granted under similar circumstances after final hearing, qumre.</p>

<p>Patents foe Inventions — Licensee—When cannot Sue in His Own Name.</p> <p>A mere license to make and use, without the right to grant to others to make and use the thing patented, though exclusive, will not authorize the licensee to bring suit in his own name for infringement, without joining the patentee. Semble, if the patentee refuses to join, a court of equity can give a remedy to the licensee.</p>

<p>Patents foe Inventions — Paeloe Skates.</p> <p>Wliere skates containing an improvement on an earlier patent held by the same inventor were in use or were offered for sale by the same inventor, whether actually sold or not, more than two years before his application for his second or subordinate patent, the latter is void.</p>

<p>1. Seamen’s Wages — On Yoyage Partiai/ly Broken up.</p> <p>A contract for a voyage to be performed by seamen on vessels on tlie northern lakes is terminated by the necessary laying np of the vessel for the tv. Her at an intermediate port; and where no provision is made in the contract for such a contingency, the seamen are entitled to the necessary expenses of then-return to the place of shipment, and to their wages up to the time of their arrival at the intermediate port, and, it seems, to their wages during the necessary time occupied in their return to the place of shipment.</p> <p>2. Tender in Admiralty.</p> <p>Any real offer to pay money by one then ready and willing to pay, is treated 'as a valid tender in the admiralty, without inquiry whether the money was produced or not, or in what form; hut the offer must be without condition, and it should be renewed in the answer or distinctly made upon the record at some time during the progress of the litigation.</p>