Volume 15 — Federal Reporter

Motion to Remand Canse to State Court. In August, 1876, this suit was brought in the circuit court of Webster county, Iowa, by the present complainant, then and now a citizen of New York, against Grace H. Litchfield, a citizen of New York and Webster county, Iowa, as co-defendant, to recover the amount of certain taxes paid by the Iowa Homestead Company, an Iowa corporation, upon realty situated in Iowa, the title to which bad been in dispute between the homestead company…

In Equity. On the twenty-first of July, 1868, the general assembly of the state of Arkansas passed an aet to aid in the construction of railroads by a loan of the state’s credit. Held: in pursuance of the twelfth section of the act, to take the sense of the people at the ballot-box on the question of loaning the credit of the state, as required by section 6 of article 10 of the constitution!

<p>Suit for Partition.</p>

<p>1. Trust—Creation of—Subsequent Designation.</p> <p>If a conveyance is made to a trustee upon trusts thereafter to he declared or designated hy the grantor, and the trustee accepts the designation so made, the trustee is hound hy such declaration and designation as completely as if the deed and declaration of trust were simultaneous, and part of one and the same transaction.</p> <p>2. OoNVEVANCE TO INFANT—DELIVERY, WITEN INOPERATIVE.</p> <p>Where a deed in fee-simple was made by parents to their child, who was hut little more than four months old, convoying to such child certain town lots, which was never delivered to the grantee, and, considering the immature age of the grantee, it was perhaps impossible to have made such a delivery and unnecessary that it should he made, held, that the grantors in such deed should do some act manifesting an intention to deliver the deed and make it effective; and where such a deed was never recorded or published, or in any way, hy either of the parents, or ever after, alluded to in such way as to show that they or either of them considered it a consummated transaction, the deed is an inoperative conveyance.</p> <p>3. Deed of Trust—Undue Influence.</p> <p>The allegation that a conveyance of real and personal property was obtained hy undue influence of the grantee upon the mind of the grantor, must be established hy evidence or it will not be considered.</p> <p>4. Same—Certainty in Terms.</p> <p>Where there is sufficient certainty in the terms of the declaration of a trust for charitable uses to enable a court of equity to take possession through its own trustee or receiver and execute the trust, and carry out the wishes and intentions of the donor, it is sufficient when made to an express trustee.</p> <p>5. Same—When Deemed Executed.</p> <p>Where a party made a deed of trust to a trustee of all his property, real and personal, and delivered to such trustee all his credits and securities, so indorsed and transferred to such trustee as to enable him, if he had chosen to do so, to exorcise absolute control and ownership over them, the fact that the trustee returned them to the cestui que trust, who collected and reinvested and expended a portion of them in the exorcise of his own judgment, and to some extent in accordance with the arrangements he had previously made, is not sufficient to show that the trust never became executed, notwithstanding the deed of trust was not recorded during the life of the cestui que trust.</p>

<p>1. Railroads—Receiver— Certificates of Indebtedstbss—Repair of Road.</p> <p>A court of equity may authorize the receiver of a railroad to issue certificates of indebtedness and make them a first lien upon the road, for the purpose of raising funds to make necessary repairs and improvements, but it is a power to be sparingly exercised; and when the road cannot be kept running without its exercise, except to a very limited extent, the sound practice is to discharge the receiver or stop running the road and speed the foreclosure.</p> <p>2. Same—Duty to Build Road.</p> <p>It is not a judicial duty to build railroads, and the assent of all the parties interested in the property cannot make it one, and there is no difference in principle between a court building a railroad by the issue of receiver’s certificates, and making extensive and general repairs and betterments, approximating the original cost of construction by like means.</p> <p>3. Railway Mortgage—Beneficiaries Bound.</p> <p>In the absence of fraud the beneficiaries in railway mortgages are bound by what is done by their trustee.</p> <p>4. Railroad Bonds—Foreclosure.</p> <p>Where a holder of railroad bonds alleged the trustee had filed a bill and obtained a decree of foreclosure for the principal of the bonds not due, as well as for the interest which was due, without the written request of the holders of one-tliird in amount of the bonds, which it was claimed was a necessary prerequisite by the terms of the mortgage to the exorcise of the power to declare the principal debt due, and sought for this reason to avoid the foreclosure proceedings, held, (1) that it was competent for the trustee to file a bill to foreclose for the interest due; (2) that the plaintiff ratified the action of its trustee by filing and proving in the master’s office, in the foreclosure proceedings, more than ono-third in amount of all the bonds issued; and (3) that the absence of such a requisition did not affect the jurisdiction of the court, and a decree for a larger sum than was due was error merely, to be corrected on appeal, and that as the error was one of which the trustee could not complain, and there was no fraud, the bondholders were as much bound as the trustee, and could not avoid the decree, on this ground, in any form of proceeding.</p> <p>5. Same—Eb’fect oe Laches.</p> <p>The effect of laches is not avoided by a general averment that the plaintiff was ignorant of the facts until a short time before the bill was filed. A general allegation of ignorance at one time and knowledge at another is of no effect. If the plaintiff made any particular discovery, it should be stated when it was made, what it was, how it was made, and why it was not made sooner.</p> <p>6. Same—Fobeclosube—Sale under.</p> <p>When the property of a railroad company is sold under a decree of foreclosure, at which all persons are authorized to bid, the fact that it is purchased by the president of the company in his individual right will not in itself raise a trust relation between him and a holder ,of the bonds of the company which will entitle the latter to treat him as a trustee of the property so purchased.</p> <p>7. Same—Purchaser as Trustee.</p> <p>One claiming the right to avoid a purchase made by another at a judicial sale, or of treating the purchaser as a trustee, and availing himself of the purchaser’s bid, cannot delay the assertion of this right to enable him to decide in the light of subsequent events whether he would or not be profited by its assertion.</p> <p>8. Pleading—Laches Need not be Pleaded.</p> <p>Laches need not be pleaded. If the cause as it appears on the hearing is liable to the objection, the court will refuse relief without inquiring whether there is a demurrer, plea, or answer setting it up.</p>

In Equity. Bill in equity by the holder of certain coupons attached to income bonds of the Kansas Pacific Railway Company, for an accounting and a decree of payment.

The plaintiff, who is about 85 years of age, purchased tickets at reduced rates for himself, his wife, about 76 years of age, and his daughter and her child, from Town Creek, a station on defendant’s road, to Memphis and return, upon which a limitation was printed, “Not good after 30 days.” They were persons of the highest respectability. Going to Texas, they returned after the limitation expired, and the conductor refused to receive the tickets, demanding train fare.

<p>1. Foreign Corporations—Service of Summons on.</p> <p>An insurance company existing under the laws of one state and doing business in another, may be served with a summons by service upon any one of its agents appointed to transact its business in such other state.</p> <p>2. Same—Appointment of Agent or Attorney.</p> <p>Where, by the statutes of the state where suit, is brought, no insurance company existing under the laws of another state is allowed to transact business in the state until such company shall first duly appoint an attorney in said slate on whom process of law can be served, it was held that such statute did not preclude the service of such process upon any other agent of such foreign corporation transacting the business of the company in that state, and that the provisions of the statute of Illinois, regulating the service of legal process upon corporations, was not confined to domestic corporations, but applied alike to all foreign corporations having agents for the transaction of its business in that state.</p>

<p>In Bankruptcy. Heard upon demurrer to bill.</p>

<p>Patent Law—Infringement— Specifications.</p> <p>A patent, like a contract, must be so construed as to effectuate tlie intention of the parties. So, where, in the specifications for a patent “ bed bottom,” the patentee describes the frame-work as “ wooden,” it was held that the intention of the patentee was to claim a “ wooden frame ” to the exclusion of other material, and that the use of an iron frame for the same purpose is not an infringement. j</p>

<p>1. Patent Law—Infringement.</p> <p>The questions which arise in this case are the same as those in the earlier cases of Andrews v. Carman, reported in 13 Blatchf. C. C. 307, and Andrews v. Cross, reported in 8 Fed. Rep. 269, in which the same party is plaintiff, and the opinions of Judge Benedict and Blatciiford in those cases are followed by this court without discussion.</p> <p>2. Driven Well—Infringement—Boring Through Hard Soil.</p> <p>It is no argument against infringement on the “ driven-well ” patented process of well-driving, that in certain soils it is necessary to bore or dig through the hard soil which lies over the sources of water-supply, provided, before a supply of water is reached, the patented process is threafter used.</p>

<p>Patents eor Inventions—Improvement in Shoes. ..</p> <p>Where an improvement on a shoe effects the same results m substantially the same way, it is an infringement on plaintiff’s patent, although it presents great simplicity and cheapness as compared to complainant’s patent.</p>

<p>Patents fob Inventions—Reissue—Validity.</p> <p>The unwarrantable expansion of the claims in a reissue defeats its validity.</p>

<p>Patents for Inventions—Shade-Rollers—Combinations—Infringement.</p> <p>Defendants may read the original patent in evidence at the trial, though not, put in before the examiner, in order to show that the reissue is for a different invention, in fact, from the original, if the evidence cannot surprise the plain-till.</p>

<p>1. Patents for Inventions—Restraining Issue of Patent.</p> <p>The decision of the commissioner of patents is not final on a question of the priority of invention, but the successful applicant will not be enjoined from receiving his patent upon the mere suggestion that the commissioner Was mistaken.</p> <p>2. Same—Jurisdiction—Appeal from Decision of Commissioner.</p> <p>The jurisdiction of the circuit courts to grant a patent, notwithstanding an adverse decision of the commissioner of patents, is an independent original jurisdiction, and it is not within, the mere discretion of the defeated party when and under what circumstances the action of the office shall be suspended.</p>

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

<p>1. Collision—Entering Narrow Channel—Pilot Rule 3.</p> <p>Tlie question of negligence, where a vessel enters a narrow channel while another is aground on its banks, depends on the apparent situation and circumstances of the vessel aground, making proper allowances for a change in the relative situation of the vessel aground; hut unexpected changes, not brought about by the vessel attempting to pass, should not be considered in determining whether there has been any blame. Whore, therefore, pilot rule No. 3 requires an ascending vessel, about to enter a narrow channel at the same time with a descending vessel, to lie below the channel until the descending vessel has passed through, she may, without negligence, enter the channel, if the descending vessel, being a tow-boat with barges in tow, has grounded one of the barges, and is not coming on, and there he room to pass without collision; and the unexpected drifting of one of the barges, by which a collision occurs, is an inevitable accident, for which the ascending vessel is not liable.</p> <p>2. Same—Tug and Tow.</p> <p>A tow-boat working at one of its barges aground should, if possible, make way by temporarily suspending work to permit another vessel to pass, where that is necessary to prevent delay.</p> <p>3. Same—Barge Adrift.</p> <p>Where a barge, constituting part of a tow, is adrift in a narrow channel, a passing steam-boat owes the duty of doing all that is possible to prevent collision with it; but if she reverses her engines as speedily as possible, and otherwise does all she can, there can be no blame, because she is in a narrow channel, where the tug and tow would have had the right of way if it had not been partially aground.</p>

<p>1. Salvage—Proximity to Burning Pier—Grain Elevators—Extent of ■ ' Peril.</p> <p>A salvage, service rendered by a tug to two grain elevators, worth $12,000 to $15,000 each, which consisted in towing them out into the stream from a pier on fire, where their peril was not great, was rewarded by $500, half to be paid by each elevator.</p> <p>2. Same—Elevators Adrift.</p> <p>The service of a tug which took hold of the same elevators adrift in the stream and took them to a pier, their peril being slight and the labor small, ■was rewarded by $50.</p> <p>3. Same—STEAM-Snip on Eire in Proximity to Burning Pier—Pumping.</p> <p>At the time of this fire the steam-ship R., valued with cargo at $378,000, lay along-side the pier, and caught fire in many places from the pier: and cotton in her between-decks also caught fire. The tug M. made a line fast to her and attempted to haul her out; the line broke and the tug engaged in efforts to get a second line to her, but she was finally moved from the pier by a hawser attached to another tug, the X. A. Afterwards, the tugs S. and E. rendered service in throwing water on the steam-ship by means of their steam-pumps. The tug X. A. was compensated for her service, and no claim in her behalf was before the court. Held, that the M. contributed in some degree to the success ef the tug X. A., and she was allowed $500; that the pumping service of the S. and the E. was an undoubted salvage service, and they were awarded $2,000.</p> <p>i. Same—Costs.</p> <p>As no tender of any sum had been made, costs were allowed in all three cases.</p>

<p>1. Removal of Cause—Sepabate Controversy.</p> <p>In a suit brought by a city against known and unknown owners, for the condemnation of land for the opening of a street, where the only controversy is as to tlie value of the land, where a non-resident voluntarily appears as one of the unknown owners, held, that as to him it is a controversy wholly between himself and the city, and that he has the right to remove the cause as to himself into the federal court, and that the cause may proceed as to the other defendants in the state court.</p> <p>2. Same—Application in Time.</p> <p>Where a party never was in court in person in the case until he voluntarily came in by petition, and the day following his -appearance made application for removal of the cause into the federal court, and the hearing of the cause had not commenced, held, that the application was in time.</p>

<p>1. Statutory Offense—Indictment.</p> <p>Where sections 5485 and 4785 of the Revised Statutes must be construed together in order to constitute the offense charged in the indictment, and section 4785 has been repealed before the commission of the offense alleged, by a subsequent amendment thereto, it is wholly inadmissible, in dealing with the criminal provisions of section 5485, to extend them by construction to the future acts of congress, when, by the express words of the section, its provisions are confined to the then existing pension law, of which the amended section was a part.</p> <p>2. Verdict—Sustained by One Good Count.</p> <p>Where the verdict in a criminal case is general, if any one count in the indictment is good, the judgment cannot be arrested.</p>

(1) Certificates of stock are non-negotiable instruments. Lanier v. Bank, 11 Wall. 369; Mechanics' Bank v. Railroad, 13 N. Y. 599; Schuyler v. Railroad, 34 N. Y. 30. (2) The assignee of a non-negotiable instrument takes no better title than his assignor. Where a party intentionally issues such a paper, he will be held liable to innocent holders on the ground of estoppel in pais. But mere negligence will not create such estoppel.

Ejectment. Only so much of the opinion in this ease as relates to the question of jurisdiction is reported here. The remaining portion relates to defenses against the tax title, which are unimportant, since there is no permanent system of direct taxes on real estate, and the questions raised involved only an application of the settled decisions under the tax acts to the special facts of this case.

Ejectment. This is an action of ejectment for a lot of land claimed by the plaintiff under the direct-tax- sales of lands within the insurrectionary districts of the United States, held under authority of the act of June 7, 1862, (12 St. at Large, 422,) he holding a deed from the commissioner of internal revenue, approved by the secretary of the treasury in pursuance of an act of congress of June 8, 1872, (12 St. at Large, 330.) The plaintiff and defendant are citizens of…

<p>Patents eon Inventions—Substitution.</p> <p>The substitution of a new ingredient in a combination of old ingredients u not an infringement.</p> <p>Babcock v. Judd, 1 Fed. Rep. 408, followed.</p>

<p>Collision—Canal-Boat at End of Piek—Peofeller.</p> <p>Where a canal-boat, sound and strong, was lying at the end oí a pier, and a propeller, in attempting to get into the adjoining slip, brought up against the canal-boat and injured her, held, that if it was necessary for the propeller to come up along-side and against the canal-boat, it was her duty to do so in an easy manner, and the propeller must be held liable for the damage resulting from the blow.</p>

<p>1. Collision—Several Vessels—Joinder in One Suit.</p> <p>Where several vessels are alleged to be in fault in causing a collision by which the property of a third person is injured, in a libel by the latter to recover his damages, all the vessels in fault should be proceeded against as defendants to avoid multiplicity of suits, and to enable the damages to be justly apportioned among those liable according to the law in admiralty.</p> <p>2. Same—Vessels Brought into Suit by Further Process.</p> <p>If in such a suit the libelant proceeds against one vessel only, it is competent for the district court to award its further process in the cause, upon the petition of the vessel sued, for the arrest of the other vessel to answer for its share of the damage.</p> <p>3. Same—Apportionment op Damages.</p> <p>Under the recent decisions of the supreme court the right to an apportionment of the damages between the vessels liable to third parties, in a case of collision, is a substantial right which cannot be suffered to depend upon the caprice, the mistake, or the collusion of the libelant in suing one vessel only.</p> <p>4. District Court—Practice and Procedure.</p> <p>In cases not provided for by the supreme court rules in admiralty, it is competent for the district court to regulate its own practice, and to allow remedies according to the analogies of admiralty procedure, as new exigencies arise, as the court may deem necessary for the due administration of justice.</p> <p>6. Same—Bringing in Third Parties.</p> <p>Under the Ifnglish judicature act of 1873 it is the constant practice, at the instance of the defendant, to bring in third persons as parties to be bound by the judgment, where they have a common interest in the subject-matter of the litigation, or in the question of liability to be determined.'</p> <p>6. Same—Application to Collision Oases.</p> <p>Collision cases in admiralty present an aggregate of features which make them sui generis, and thé due administration of justice renders it essential and expedient in this class of cases that the liability of all persons or vessels involved should be determined in a single action, rather than in successive independent suits.</p>

Suit for an Injunction. as to the right of the county court to appropriate a public road or street for the use of a railway without compensation to the owners of the adjacent property.

<p>Suit for Partition.</p>

<p>On motion to vacate order setting aside interlocutory decree, and permitting defendants to file further answers.</p>

<p>Motion to Vacate Judgment after the Term.</p>

<p>1. Pbincipal and Agent—Liability fob Malicious Acts of Agent.</p> <p>An agent acting under an authority to control and supervise the lands of a corporation cannot institute against parties a criminal prosecution for larceny or other oilense against the criminal laws, committed in reference to the property in his custody as agent, and so bind his principal in damages for a malicious prosecution, though it be shown that the prosecution was without probable cause and was malicious.</p> <p>2. Same—Liability, wheue Attaches.</p> <p>If an agent, while acting within the range of his employment, do an act injurious to another, either through negligence, wantonness, or intention, then for such abuse of the authority conferred upon him or implied in his appointment the master or employer is responsible in damages to the person thus injured; but if the agent go beyond the range of his employment or duties, and of his own will do an unlawful act injurious to another, the agent is liable, but the master or employer is not.</p> <p>S. Railroad Companies—Unlawful Acts of Land Agents—Liabilitt.</p> <p>An agent of a railroad company, having and exercising supervision over the lands of the company and in chai'ge of such lands, making leases, collecting rents and stumpage, and negotiating sales of the lands for the company, who invokes the criminal law by bringing a charge of grand larceny against a party for spoliation of the timber lands of the company, is not in so doing acting within the scope of his agency or in the course of his employment, and the company is therefore not to be held responsible for such actions done maliciously by him.</p>

<p>1. Master and Servant—Defective Machinery—Liability oe Master for Personal Injury to Servant. .</p> <p>Where a master has expressly promised to repair a delect in the machinery used by the servants in his employment, the servant may recover for an injury caused thereby within such a period of time after the promise as would be reasonable to allow for its performance.</p> <p>2. Same—Promise by Agent of Master.</p> <p>A promise to repair made by the agent of the master is binding on the master, but the burden of proof is on the plaintiff to establish such promise.</p> <p>3. Same—Measure of Damages.</p> <p>The award of damages in such cases must not be excessive. They are only to bo remunerative,—compensatory,—a just and fair amount for the injury sus. tained.</p>

<p>1. Carriers oe Live-Stock—Construction oe Statutes.</p> <p>By the provisions of the Revised Statutes of the United States, §§ 4386, 4390, no common carrier of cattle, sheep, swine, or other animals, conveying the same from one state to another, shall confine the same in cars, boats, or vessels for a longer time than 28 consecutive hours, without unloading the same for rest, water, and feeding for a period of at least five consecutive hours. Section 4387 gives to those who give such care a lien on the animals for the expenses incurred, and relieves them from liability for the detention. Section 4388 fixes the penalty for violating such statute at not less than $100 nor more than $500. Sections 4389 and 4390 provide that the penalty may be recovered by civil action in the name of the United States in the circuit and. district courts, and that the lien given by section 4387 may be enforced by petition in the district court.</p> <p>2. Same—Constitutionality oe Statute.</p> <p>Authority for this legislation is found in that clause of the constitution which confers upon congress the power to regulate commerce among the several states.</p> <p>3. Same—Penalty for Violation.</p> <p>The penalty imposed by section 4388 is not less than $100 nor more than $500, where more than one animal is carried and confined in violation of the statute. The statute cannot bo so construed as to make the unlawful confinement of each animal constitute a separate offense, and thus multiply the penalty by the whole number of animals.</p>

<p>Treaty—Stipulations Construed.</p> <p>The stipulation in a treaty with.a foreign power, to the effect that no higher or other duties shall be imposed on the importation into the United States of any article, the produce or manufacture of the dominion of the treaty-making power, * * * than are or shall be payable on the like articles being the produce or manufacture of any other foreign country, held, not to prevent congress from passing an act exempting from duty like products and manufactures imported from any particular foreign dominion it may see fit.</p>

<p>1. Execution—Levy—Wiiat Artigues Embraced.</p> <p>A sheriff's levy described the premises as ‘ ‘ having erected thereon a large two-story brick building, known as the Oorry Wooden-ware Works, with machinery for manufacturing tubs, pails, etc., large boilers and engine, pulleys, shafting, belting,” etc. Held, that the levy embraced two patented machines, although loose and portable, used in the works in the ordinary course of the manufacture of tubs and pails, to paint or grain designs thereon and thus finish them for the market.</p> <p>2. Same—What Passes with Patented Machine.</p> <p>Whatever right, to use a patented machine the defendant in an execution may have, passes with the machine to the purchaser upon a sale thereof by the sheriff.</p>

<p>Motion to Prorate Judgment with Attaching Creditors.</p>

<p>1. Internal Revenue—Taxation of National Banks.</p> <p>Under section 120 of the revenue act of June 30, X864, (X3 St. at Large, 283,) the plaintiff, in order to recover a duty upon certain sums alleged not to have been returned, must prove that these sums were either declared as dividends, or added to the surplus or contingent funds of the bank</p> <p>2. Same—Surplus Funds.</p> <p>Construing together sections 120 and 121, their import should be held to be to tax only the actual profits made—i. e., under section 120 for profits declared or added to their surplus funds, and under section 121 for such profits earned as were not so declared or added to the surplus or contingent fund; and where a dividend was declared by a bank, besides paying under the state law the state tax imposed upon the par value of its shares as against the stockholders, and the bank made return of and paid to the United States officers the tax on the dividend declared, but not on the state tax paid on account of its stockholders, and it afterwards appeared that embezzlements concealed during this period exceeded the amount of the state tax not returned: held, on demurrer, that if the bank would have been liable to pay the duty upon the sum paid for state tax, it was entitled to show the embezzlements as a correction of the returns, and that no further tax under section 120 was due to the government.</p>

<p>In Equity. On final hearing.</p>

<p>In Bankruptcy.</p>

<p>Application for Discharge in Bankruptcy.</p>

<p>1. Teade-Maeks—Rights of Aliens—Property in, as Affected by Acts of Congress.</p> <p>The fact that one is an alien does not afEeet his right of property in a trademark ; but that fact is a necessary allegation to establish the requisite diversity of citizenship to confer jurisdiction upon a federal court. The acts of congress fortify the common-law right to a trade-mark by conferring a statutory title upon the owner, but “property in trade-marks does not derive its existence from an act of congress.” 100 U. S. 82. By the express terms of section 10 of the present act of congress the common-law right in trade-marks is preserved • intact.</p> <p>2. Same—Demurrer.</p> <p>Where the demurrer was to the whole hill, and the bill was in itself sufficient, aside from the allegations contained in it, upon which the demurrer was taken, the demurrer was overruled.</p>

<p>1. Patents fob Inventions—Reissue—Fly-Tbaps—Yoid fob Want of Novelty.</p> <p>Reissued letters patent No. 6,811, granted to John Parker for an improvement in fly-traps, held void for want of novelty. The claim of said patent to the arrangement, and relation of an outer ease and an inclosed cone, both made of wire cloth, as forming two chambers, one dark, the other light, into the former of which flies are enticed by moans of a bait through an entrance passage, and from which, when they fly, they naturally escape through a narrow aperture into the upper and bet ter-lighted one, from which they are not likely to return through the small and darkened aperture which admitted them, held to have been anticipated. The claim of said patent to upright and horizontal stays in the wire-cloth case and to annular and upright stays in the wire cone, held to he to mere matters of workmanship, involving no invention.</p> <p>2. Same—Base-Block for Fly-Traps.</p> <p>Reissued letters patent No 6,493, granted to James M. Harper, for a base-block for fly-traps, described as “ tbe concave base-block, having extensions and shoulders in combination with tbe cylinder and its cone, substantially as described,” and being a single piece, tbe bottom of wbicb is flat, and tbe top recessed to form a receptacle for bait, provided with shoulders and extensions to hold the bottom of the cylinder, and having spaces between tbe extensions for tbe passage of flies upward into tbe cone, tbe base of the cone being adapted to fit closely tbe conical shoulders of the piece, thereby serving to sustain tbe cylinder in its place, held to be limited to a base-block of tbe particular construction described, and not to be infringed by a base-block wbicb is a circular disk with a depression on tbe upper surface for containing the bait, and using metallic springs, over which tbe case and cone are slipped, and by wbicb they are held in place, instead of shoulders and extensions.</p>

<p>1. Patents—Infringement—Contempt Proceedings.</p> <p>Where there is doubt upon the question of infringement, the court will not determine that question in contempt proceedings, instituted after a decree in a pending suit, but will remit the party to his right to file a supplemental bill, or to institute a new and plenary action.</p> <p>2. Same—Demurrer. ■</p> <p>Where the bill alleged the prosecution of a former suit, and the entry of decree therein, holding an infringement as to one of the claims of a patent, and embraced in its allegations and prayer for relief both claims of the infringed patent, held, that it was not open to demurrer on the ground that the allegations of the bill show that complainant had received full relief in the former suit.</p> <p>3. Same—Preliminary Injunction.</p> <p>Where an infringement does not clearly appear to the court, it will not grant a preliminary injunction .</p>

<p>1. Patent Law—Infringements—Patents for Designs.</p> <p>To properly sustain a defense to a complaint of infringement on the ground ' that the original patent lacks the quality of novelty, specimens of the articles alleged to have been made before the time of the complainant’s invention should be produced in evidence.</p> <p>2. Same—Public Use.</p> <p>By the terms of section 4886, Rev. St., no article is patentable which has been in public use or on sale for more than two years prior to application for letters patent, unless the same is proved to have been abandoned.</p> <p>3. Patents for Designs.</p> <p>Section 4929, Rev. St., provides for patents on any new and original designs, and by section 4933, Rev. St., all regulations and provisions that are applicable to the obtaining or protecting of patents for the inventions of useful articles are made applicable to design patents.</p> <p>4. Same—Improving a Conception not an Invention.</p> <p>Merely improving the conceptions of another by change in form, proportion, or degree, is not-such an invention as will sustain a patent.</p>

<p>1. Patents for Inventions—Reissue—Infringement—“ Disclaimer,” Etc.</p> <p>In reissued patents, compared witli the original, there is not the same reason for indulgence in the use of vague language, because the reissue is taken after the working of the machine may be supposed to be understood, and broad claims are inserted for the very purpose of being construed broadly.</p> <p>2. “Mode of Operation.”</p> <p>In specifications for letters patent, where the invention falls within the category of machines, a claim not only for the mechanism but also for the mode of operation generally, is void.</p> <p>3. Same—Disclaimer.</p> <p>Where, upon the purchase of a patent, the purchaser in a reissue of such patent disclaims a portion of the mechanism as insufficient to produce the desired result, held, that a third person has the right to improve such part of the machine by changing its internal form so as to effect a result which the purchaser of the patent, in his reissue, disclaims for it.</p> <p>4. Same.</p> <p>It seems that the mere fact of showing a new article in the drawings of a patent for a machine will not of itself be an abandonment of the new article, which might properly be the subject of a new patent, until the statutory forfeiture of use for two yeai's has been incurred.</p> <p>5. Article Made by Hand.</p> <p>It seems that an article made by hand in such a way that it might have been used separately from the larger thing to which it was attached, though there ' was no occasion to so use it, cannot he patented as a new manufacture. A slight variation of form is not sufficient to make a thing a new article of manufacture for which a patent may be obtained.</p>

<p>1. Patents for Inventions—Cartridges.</p> <p>Where the cup anvil cartridge of the defendant has the distinctive grooves or indentations of the patent of the plaintiff's assignor, it is an infringement of the patent.</p> <p>2. Same—Suit against United States Officer.</p> <p>The case of Campbell v. James, 104 U. S. 356, does not definitely decide that a hill in equity will not lie against an officer of the United States for his unauthorized use of a patent solely in the service of the government.</p>

. In Equity. Suit is upon letters patent for an improvement in lifting-jacks, issued September 15, 1874, No. 154,989, to Jacob 0. Joyce, complainant, and alleges infringement on the part of defendants, who manufacture lifting-jacks under letters patent issued to S. E. Mosher, October 11, 1875, No. 168,663, and January 18, 1876, No. 172,471; and asks an injunction, and an accounting for profits and damages.

<p>1. Patents for Invention—Pleadings—Demurrer..</p> <p>Courts will refuse to decree unless the substantial groundwork of the ease in which relief is sought is distinctly alleged in the complaint; hut objections to the form of a pleading should be taken by demurrer, and after proof has been taken' the bill will not be critically studied to find defects in the form of the pleading.</p> <p>2. Same—Evidence.</p> <p>Where the proof shows that the complainant had no legal or equitable interest in the matter in controversy, the bill will be dismissed.</p> <p>3. Infringers—Defenses of.</p> <p>Where the defendants were treated in the complaint as ordinary infringers, they were allowed to avail themselves of any defense open to defendants charged with infringement.</p>

The decision in Barker v. Todd, reported in 13 Fed. Rep. 473, has since been set aside upon the application of the L. M. Rumsey Manufacturing Company, and the ease finally disposed of by the following decree.

<p>3. Shipping—Usage op Port—Landing Cargo.</p> <p>In ibe absence of any different usage of the port, or other indication in the bill of lading, a vessel is bound to land her cargo at some suitable wharf.</p> <p>2. Same—Bills op Lading—How Construed.</p> <p>Bills of lading, like other commercial instruments, when indefinite in their terms, are to be construed reasonably according to the presumed intention to be gathered from the situation of the parties, and their relations to the ship and to each otlier; they should not be construed, unnecessarily, so as to make different consignees responsible for each other’s faults, nor for delays of the vessel, if they have no control of her movements or in selecting a dock.</p> <p>3. Same—Lay Days—When Commence.</p> <p>Where the bill of lading contains nothing to indicate a contrary intention, the stipulated lay days should be held not to begin to run as against the consignees of cargo on a general ship until the vessel has arrived at her berth, or is in actual readiness to discharge, according to her legal obligation. Seaua, as against the charterer, or a consignee assuming all the obligations of the charter-party, or having the control of the ship.</p> <p>4. Same—Custom and Usage.</p> <p>A custom or usage to dispense with this legal obligation must be so fixed, uniform, and well understood, as to be presumed to form a part of the contract. Such a usage is not made out by evidence that in the majority of cases merely certain kinds of cargo are discharged on lighters for the mutual convenience of the consignee and the vessel, where it also appears that it is not unusual to discharge upon the dock, and that plenty of docks were available.</p> <p>5. Same—Mode of Discharging Vessel.</p> <p>The words “ to be taken free from on board,” in a bill of lading, do not, necessarily, mean to be taken on lighters away from the wharf.</p> <p>6. Same—Case Stated.</p> <p>The ship Petropolis having arrived with2,090 empty petroleum barrels stowed above a cargo of iron, which by the charter-party and bill of lading were to be discharged at the same berth, was directed by the consignees of the latter to go to the Brie basin, where barrels would not then be received. The ship arrived there on May 26th, but could not reach the wharf, and moored along-side another vessel. She was unable to get a berth along-side the wharf until June 1st, and the barrels were discharged by the 4th. The bill of lading gave four lay days, and demurrage thereafter, not indicating when they commenced to run. On May 25th the vessel notified the consignee that she would be ready to discharge on the 26th, and the consignee, on the 27th, notified her to discharge the barrels on the dock if lighters were not along-side. Held, that the lay days, as' against the respondents, did not commence until June 1st, and that no demurrage accrued.</p>

<p>1. Bottomry Bond—Mortgagee—Mala Bides—Estoppel.</p> <p>A bottomry bond executed in a foreign port for repairs to a vessel putting back in distress, by tbe master, who is also the sole legal owner, cannot be declared void for mere want of authority to execute it as against a mortgagee not in possession, whatever his equities. Where such mortgagee, however, has claims exceeding the value of the vessel, and the lenders on bottomry know that fact, or are chargeable with knowledge of it, one of them being the agent of the ship, and arrangements having been first made with them by which the mortgagee should accept drafts for the repairs, and near the close of the repairs a bottomry bond is demanded, without further communication or notice to the mortgagee, and the master thereupon executed the bond, with a premium of 20 per cent., under a promise of some compensation to himself, which was afterwards paid: held, that the bottomry was unnecessary and in bad faith upon the part of the master and lenders, as respects the mortgagee, and that the premium of 20 per cent, included in the bond should be wholly disallowed.</p> <p>2. Same—Payment for Repairs.</p> <p>The bills for repairs having been paid by the lenders in bottomry in good faith, upon the master’s certificate, held, that it was too late to consider whether the prices charged were excessive.</p>

<p>1. Seamen’s Wages—Libel.</p> <p>A libel for seamen’s wages will not necessarily be dismissed for tbe reason that tbe action was prematurely brought, if substantial justice cán. be done under it.</p> <p>2. Same—Enforcement of Contract.</p> <p>A written contract which appears to be a reasonable one, and, if enforced, will do no injustice to either party, will be so enforced by a court of admiralty, even though it appear that the meaning of the contract may not have been clearly understood by the parties.</p> <p>3. Wages ox? Minoti—Costs.</p> <p>Where it appeared that the managing owner of a vessel was directed by the libelant, in an action by a father to recover the wages of a minor son, not to pay the wages to the son, hut to retain them until the libelant called for them, and that the libelant never demanded them before the suit was brought, held, that the libelant could not recover costs.</p>

<p>1. Jurisdiction—Petitory Suits^-Equitable Titt.es not Enforceable. ~</p> <p>Petitory suits must be based upon legal tilles; admiralty has no jurisdiction of such suits to enforce a merely equitable title, based upon the respondent’s breach of trust.</p> <p>2. Same—Preliminary Contracts not Maritime.</p> <p>Where the libel alleges the employment of the respondent to procure a “ concession” from the French government in the libelant’s name to remove guano ; that the respondent fraudulently procured such concession in liis own name ; and that the cargo of guano attached, and which the libelant sought to recover in this action, had been removed without the authority of the libel-ant: held, that upon such facts respondent held a legal title to the cargo; that the eontract or employment, was not maritime, but only preliminary thereto; and that in both respects admiralty has no jurisdiction, and the libel must be dismissed.</p> <p>3. Same—Question of Jurisdiction, how Raised.</p> <p>The question of jui'isdiction may be raised on motion to dismiss the libel before the cause is reached on the calendar, although not raised by exceptions before answer.</p>

Sur motion of defendant to remand cause to the state court; and petition ex parte plaintiffs for leave to file a bill on the equity side of the court.

<p>1. Navigable Waters—Improvement—Power of State.</p> <p>The state of Illinois, in the absence of national legislation upon the subject, can improve the navigable waters within its limits in such mode and to such extent as to her seems best.</p> <p>2. Same—Tolls for Use of Locks—Statute Constitutional.</p> <p>The statutes authorizing tolls to be exacted for the use of the lochs on Illinois river are not in conflict with that clause in the national constitution which forbids a state, without consent of congress, from laying duties of tonnage. '</p>

In Equity. Upon rehearing. The controlling question in this case is whether the sale of the real estate in controversy, under the judgment of this court, in a case in which John I. Eedick -was plaintiff, and the respondent, George W. Frost, alone, was defendant, rendered in a suit in attachment, was a valid sale.

<p>1. Liability of thf. Lands of a Decedent to Pay his Debts.</p> <p>The liability of the lands of a decedent to pay his debts depends upon the statutory provisions in relation thereto.</p> <p>2. Same—Jurisdiction in Equity.</p> <p>The statute of Mississippi, which renders lands so liable, provides the mode bjr which they shall lie so applied, and that mode must be pursued, when it can be done, and only in event that it cannot bo done, can it be reached by a bill in equity.</p> <p>Partee v. Kortrecht, 54 Miss. 66.</p> <p>3. Demurrer to Bill Sustained.</p> <p>A demurrer to a bill in equity, praying for the sale of lands of a decedent, and that the proceeds of the sale be applied to the payment of complainant’s claims, will be sustained when the averments of the bill fail to show that the complainant has pursued the mode which the statute lays down to be followed before relief can be sought in a court of equity.</p>

<p>Tjhe questions now presented for decision arise upon defendant’s motion to quash the indictment against them. The grounds alleged in Support of the motion are that the indictment does not allege any offinse against the statutes of the United States under the title of “Climes.” The indictment in substance alleges and charges that the defendants were appointed and acted as inspectors of the election at Tajfylor’s election precinct in Lafayette county, at the election held on thje seventh day of November, 1882, for the election of a represeotative in congress for the second congressional district of Mississippi; that as such inspectors it became their duty/ under the statutes of the state of Mississippi, to appoint some suitable person to act with them as such inspectors; and that said defendants neglected and refused to appoint a suitable person to act as such inspector, but that they did then and there appoint as such inspector one Richard Henderson, who was then and there totally illiterate and wholly incompetent to discharge the duties of said office, with intent to affect the election,.or the result thereof.</p>

<p>1. Sale and Delivery—Good-Will of Business.</p> <p>The good-will of an established business, is a common subject of contract, although it is nothing but the chance of being able to keep the business which has been established, yet the rights of a purchaser of such good-will will be enforced in equity and recognized at law as effectual between the parties to the contract.</p> <p>2. Insurance Company—Authority of General Agents.</p> <p>Where the general agents of an insurance company, by their representations, induced complainant to invest money in the purchase of the good-will of a special insurance agency; if without right he was deprived of an opportunity of transferring his interest to another, he is entitled to compensation to the extent of his loss.</p> <p>3. Same—Restriction on Authority.</p> <p>The general agents of a foreign insurance company in a state other than the state of its creation, having authority to solicit applications for insurance and collect the premiums therefor, and authorized to appoint local agents and pay them reasonable commissions, and obligated to bear all the expenses of the business within their territory, cannot bind the company by their conduct or representations respecting the purchase of the good-will of a local agency.</p> <p>4. Same—Contract not Binding on Company.</p> <p>A contract which would create the relation of vendor and purchaser between .an insurance company and a third party, and as such outside the ordinary and customary contracts, which are within the implied authority of the general agents of the company, is not binding on the company.</p>

<p>1. Stock Companies—Subscription—How Made—Liability—When Attaches.</p> <p>A person cannot be held liable as a stockholder of a company until his name has been signed by himself or his authorized agent in the stock-book of the ' company, kept for that purpose. Writing one’s name in the private memorandum-book of a party soliciting subscriptions to the stock of the company is not of itself authority to such person to sign a subscription for stock.</p> <p>2. Same—Proxy—Eatification of unauthorized Acts.</p> <p>The defendant agreed to subscribe to the stock of a company, providing a ■ certain appointment was secured for him, but declaring at the same time that he could not then subscribe for the stock. He subsequently authorized the party soliciting for subscription to the stock to appear for him by proxy at the meeting of the stockholders, in anticipation of his future subscription to the stock, which was never made. Held, that such proxy was not a ratification by the defendant of the act of the one to whom it was given in having signed defendant’s name on the stock-book of the company as a subscriber without his knowledge or consent.</p> <p>S Same—Rathhcation op Acts op Agent—What Essential to.</p> <p>The ratification of an act of an agent previously unauthorized must, in order to bind the principal, be with a full knowledge of all the material lacis.</p> <p>Owings v. Hull, 9 Pet. 607, followed.</p>

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

Buie for a New Trial. Debt, by Knapp and Thompson, for use, etc., against the Williams-port National Bank, to recover the penalty, under section 5198 of the Bevised Statutes of the United States, for alleged payments to defendant by plaintiffs of a usurious rate of discount.

On the twenty-sixth of December, 1882, the defendant executed and delivered to Allison, as assignee, a deed of assignment for the benefit of creditors. Two days afterwards the plaintiffs sued out an attachment against Martin, which was levied on a stock of goods in the possession of Allison, the assignee, and which had belonged to Martin.

<p>Patents—Violation on Injunction.</p> <p>Tbe plaintiff’s motion, for an attachment against the defendant for violation of an injunction restraining the defendant from the infringement of plaintiff’s patent, and t'o compel obedience of the master’s order to file an account of the articles which are the subject of the motion for an attachment, and which have been made since the service of the injunction order, denied, on the ground that the article complained of is not an infringement,</p>

<p>Patehts for Inyehtioxs—Reissue—Void for Yariaece.</p>

<p>Patents foe, Inventions—Validity of Kaissm.</p> <p>A reissue may be good as to some of its claims and bad as to others. A patentee may rely on tlie infringement of the valid claim.</p>

<p>1. Collision—Propeller Entering Harbor.</p> <p>Where a propeller was entering a harbor on a dark night at a high rate of speed, she was held liable for a collision with a schooner leaving such harbor, notwithstanding the evidence was conflicting as to the position of the lights of the schooner, or the period at which a torch-light had been flashed on the schooner, and although the propeller may have had a proper lookout.</p> <p>2. Same—Fault—Higii Rate oe Speed—Want of Vigilance.</p> <p>In such a case it is fault in a propeller, when entering a harbor on a dark night, not to slacken her speed and take the necessary precautions to avoid a collision.</p>

<p>Negligent Delivery of Cargo—Delivery by Special Bequest—Burden of Brood of Bequest.</p> <p>The libelant filed a libel against the defendant to recover damages for the non-performance of a contract for the delivery of merchandise in good order. The defense admits the improper delivery, but seeks to justify on the ground that the delivery was made at the request of the libelant, who was anxious for an immediate delivery, and assented to assume the risk. Held, that the burden of proof is with the defendants to establish satisfactorily such exculpatory-theory.</p>

<p>1. Corporations—Creditor’s Bill to Subject Unpaid Subscriptions.</p> <p>A creditor who has obtained a judgment against a corporation, and is unable to realize thereon upon execution, may file a bill in equity against stockholders to subject the unpaid balance due on their subscriptions to the stock of the corporation ; but where the complainant is also a stockholder, he must contribute pari passu with the defendant stockholders towards the liquidation of his demand against the corporation.</p> <p>1 Subscription to Stock of Kentucky Kiver Navigation Company by Certain Kentucky Counties — Validity — Ratification — Estoppel — State .Decisions.</p> <p>In a suit brought in the circuit court hy a creditor of the Kentucky River Vavigation Company, to subject subscriptÉ'v?. made to its stock by JSstilh Owsley, and Jessamine counties, Kentucky, under the act of March 1,1864,, passed by the Kentucky legislature, incorporating said company, which authorized the county courts of the several counties bordering upon or interested in the navigation of said river to subscribe on behalf of their respective counties to the capital stock of said company, and levy and collect a tax to pay the same, held, that the decision of the court of appeals of Kentucky in the cases of Mercer and Garrard Counties v. Ky. Riv. Nav. Co. 8 Bush, 300, was an affirmance of the constitutionality of said act, and that said decision and the construction of said act by said court, (being the highest court of said state,) wherein it was held that subscriptions could only be made under the act through orders of the county courts, made and entered of record by the courts when sitting in their organized capacity, which, in themselves, amounted to completed contracts of subscriptions, and that subscriptions made by commissioners, appointed by said county courts for the purpose, under an order,—in one case declaring “that $23,000 be directed to be subscribed,” and in the other “that $100,000 shall bo subscribed,”—were not valid, are binding on the circuit court ; and held, further, that the subscriptions of Estill and Owsley counties come wi1 bin said rule, and are therefore invalid; but as to Jessamine county, held, that wild her the original subscriptions were binding or not, the subsequent conduct of the parties was such a ratification of and acquiescence in the subscriptions as to estop said county to deny the validity thereof.</p> <p>3. Corporations—Stockholder’s Liability — Collusive and Fraudulent Judgment against Corporation not Conclusive as to Stockholders.</p> <p>In a suit by a judgment creditor of a corporation (who was also a stockholder) to subject unpaid subscriptions made by other stockholders, it appeared that, for some time prior to the rendition of complainant’s judgment, the defendants and the other stockholders of the corporation, except the complainant, had denied the validity of their subscriptions, and refused to participate in the management of the corporation, and thereafter the complainant, hy virtue of the stock he held, had assumed the exclusive management and control of the corporation and its affairs, and elected its board of directors ; that the action he brought against the corporation, in which his judgment was rendered, was defended by one of the directors lie had elected; that it was brought to trial three months and six days after its commencement, was tried upon a false copy of the contract sued on, in the absence of material and important witnesses for the defense, and resulted in a judgment largely in excess of the amount due. Held, that said judgment was collusive and fraudulent, and not conclusive against defendant stockholders of 'the amount due complainant.</p>

In Equity. The plaintiff filed his bill to foreclose a vendor’s lien on certain lands reserved in the deed by which he eonveyed the lands to the defendant with covenant of warranty against those only “claiming or-to claim the same by, through, or under” the grantor. The defendant filed an answer and cross-bill identical in their statements. The plaintiff has demurred to the cross-bill and excepted to the answer.

<p>Making ob Using False Affidavit to Obtain Payment of Claim—Section 5438, Rev. St.</p> <p>To support a conviction under section 5438, Rev. St., for making or using a false affidavit for the purpose of obtaining the payment or approval of certain claims against the government, it must be shown, not, only that the affidavit was false, but also that the claim, the payment of which was sought to be obtained by the use of the affidavit, was false, fictitious, or fraudulent.</p>

<p>1. Actions for Libel—New Trial—Surprise—Excessive Damages, Etc.</p> <p>Where a new trial is asked for on the ground of surprise, and that the party seeking the new trial forgot to offer certain letters in evidence, the omission to show the letters, or copies of them, is significant, and raises an inference against their importance.</p> <p>2. Same—Proof of Falsity of Statements.</p> <p>It is not necessary for the plaintiff, m a suit for libel, to disprove the truth of the criminal charges contained in it; but he may always give proof of the falsity of the statements in order to enhance damages. It is only by such evidence that the essential character of the publication can be determined.</p> <p>3. Same—Mental Sufferings.</p> <p>Mental suffering is one of the elements of personal injury for which compensation should be awarded, and this, even when the injury is not malicious, but merely negligent.</p> <p>4. Same—Exemplary Damages—Principal and Agent.</p> <p>There is nothing in the law of damages, or of principal and agent, to justify the assumption that the principal is not liable in exemplary damages for the acts of his agent. An employer is responsible for the willful as well as the negligent acts of his servants, when they are performed in the course of the servant’s employment. Actions of libel, so far as they involve questions of exemplary damages, and the law of principal and agent, are controlled by the same rules as are other actions of tort. The right of a plaintiff to recover exemplary damages exists wherever a tortious injury has been inflicted recklessly or wantonly, and it is not limited to cases whore the injury resulted from the personal malice or recklessness of the defendant. It follows that the owner of a newspaper is responsible for all the acts of omission and commission of those he employs to edit it and manage its affairs, as he would be if personally managing the same.</p> <p>5. Same—New Trial in Actions for Libel.</p> <p>The court will not grant a new trial in actions for libel on the ground of excessive damages, “ unless the amount is so flagrantly atrocious and extravagant as to show that the jury must have been actuated by passion, partiality, prejudice, or corruption.”</p> <p>6. Same.</p> <p>Where it seems evident that the refusal of the court to charge the jury as requested, though such refusal be not properly subject to an excepton, had the effect upon the jury to render their verdict larger than it otherwise would have been, the court will grant a new trial.</p>

<p>1. Municipal Bonds—Town “Officers.”</p> <p>An act df the legislature of the state of Yew York, entitled “An act for the relief of the towns of Yewfane, Wilson, and Lewiston, to abolish the office of railroad commissioners of said towns, and to enable each of said towns to adjust its indebtedness and issue bonds therefor,” authorized the supervisor and justices of the peace, “ or any three of such officers,” to issue the bonds provided for thereunder. Held, that tbc term “officers of a town ” includes the supervisor, and that the bonds having been executed and issued by four of the officers so named, though the supervisor was not one of them, were valid.</p> <p>2. State and Federal Courts.</p> <p>State and federal tribunals are entirely independent of each other, and the United States circuit courts cannot be called upon to, close tlicir doors to suitors because the questions which they seek to litigate are also involved in other actions between different parlies in the courts of the state.</p> <p>3, Same—Unconstitutionality of State Acts.</p> <p>The federal courts will not willingly pronounce, in advance of the state courts, a state act unconstitutional.</p>

<p>Duties—Action to Recover for Erroneous Assessment.</p> <p>Where, under decision 3633 of the secretary of the treasury for 1878, a merchant leaves a sum of money with the collector of duties instead of the goods, and an examination is made by the appraisers before delivery, and the importer binds himself to abide the results of the appraisement “ the same as if the goods had been retained,” held, that neither party can take advantage of the delivery as changing the rights of the other.</p>

<p>1. Penalty—Proceedings to Recover—Violation of Revenue Law.</p> <p>. Whenever a vessel, or-the owner or master of a vessel, has become subject to a penalty for a violation of the revenue laws of the United States, such vessel shall be holden for the payment of such penalty, and may be seized and proceeded against summarily by libel to recover such penalty.</p> <p>Section 3088, Rev. St.</p> <p>2. Same—When Vessel not Subject to Seizure.</p> <p>The act of congress of February 8,1881, provides that no vessel shall be subject to seizure or forfeiture as above by reason of the penalty incurred under section 2873, Rev. St., unless it shall appear that the master, at the time of the alleged illegal act, was a consenting party or privy thereto.</p>

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

<p>1. Patent Law—Construction of Clams nr Letters Patent.</p> <p>The disclaimers, qualifications, and limitations imposed by the patent-office upon a patentee are forever binding upon him if he chooses to accept a patent containing them. Such qualifications are conditions precedent, and are made to protect third persons, who might otherwise be misled to their injury by the subsequent enlargement by reissue or by construction.</p> <p>2. Same—Remedy of Patentee.</p> <p>The applicant for a patent may refuse to take it with limitations, and being rejected may apply to the supreme court of the District of Columbia, under Rev. St. § 4911; and, if still dissatisfied, he has his remedy in equity by section 4915.</p>

<p>1. Patent Law—Infringement.</p> <p>Where a wholly new method or art has been discovered by a patentee, the courts will construe the claims of his patent broadly, and so as to coverall such ■ mechanical means as embody the real invention.</p> <p>2. Same—Evidence of Infringement.</p> <p>Evidence, in an action for infringement of a patent, that the defendants made one machine of the kind complained of and exhibited it at a mechanic’s fair, is not sufficient, in the absence of proof that thev ever used or sold such machines.</p>

<p>1. Patent Law— Construction of the Claims of the Patentee.</p> <p>Whore tlie patentee appears to have been the first to discover a new method or process, the court will, if possible, give a broad enough construction to his claims to cover all such mechanical means as embody the real invention.</p> <p>2. Same—Infringement.</p> <p>The defendants employed the plaintiil’s patented process of treating tobacco, with the exception that they made use of an equivalent for the gum arable used by the plaintiffs to produce the same effect as that rendered by the plaintiff’s process. Held, an infringement.</p>

<p>1. Damages for Infringement of Patent—When Equity has Jurisdiction.</p> <p>The proper forum in which to sue for damages arising from infringement of a patent is a court of law, but chancery courts may tafee cognizance of such cases if they involve some element of equitable jurisdiction; and when such courts have once rightfully obtained jurisdiction they may proceed and decree full relief.</p> <p>2. Same—Suit Brought just Before Expiration of Patent—Fraud on Equity Jurisdiction.</p> <p>Where, though a bill in equity, alleging infringement of a patent and praying for an injunction and an account, was filed only five days before the expiration of the patent and no effort was made to obtain an injunction, held that the prayer for an injunction was a mere pretext, and that the court never acquired jurisdiction of the case.</p> <p>Gottfried v. Moerlein, 14 Fed. Rep. 170, distinguished.</p> <p>3. Defect of Jurisdiction—Whfjst Available.</p> <p>A plain defect of jurisdiction may be insisted upon at the hearing.</p>

<p>1. Hepijcatjon—New Cause of Action</p> <p>A replication cannot go behind the case made by the declaration and add another and different cause of action.</p> <p>2. Patents—Action for Damages for Infringement—Insufficient Hepmcation to Plea of an Accord and Satisfaction.</p> <p>In an action for damages for infringement of a patent, plaintiffs averred the construction and use by defendants of certain infringing machines from January 23,1861, when plaintiffs acquired their joint title to the patent, until the commencement of the action, October 6,1861. Defendants pleaded an accord and satisfaction with an authorized agent of plaintiffs, to which plaintiffs replied that on March 13, 1860, (nearly a year before plaintiffs acquired their joint title to the patent,) the defendants purchased the infringing machines from persons unknown to and with whom plaintiffs had no connection, and that defendants thereafter used said machines as alleged in the declaration. On demurrer such replication held to he bad.</p>

In Equity. Suit on reissued letters patent No. 5,544, granted to the McGowan Pump Company. ' The original patent was No. 63,418, issued to John Morton for an improvement in water-tanks for railways.

<p>In Equity. Suits on reissues Nos. 7,972 and 8,252, for improvements in velocipedes. The original patents were Nos. 59,915 and 46,705, respectively.</p>

In Equity. On demurrer to bill. The material allegations of the bill are, in substance, as follows: (1) On the twenty-ninth day of August, 1876, one Stephen Hardin filed his declaratory statement in the proper local land-office for pre-emption upon the quarter sections of land now in controversy, and on tho twenty-second of December following he made proof and payment, under the act of congress of August 11,1876, (19 St. 127,) and obtained the usual certificate and receipt.

<p>1. Wham Franchise—City Grant—Eights op Grantee.</p> <p>Where a city had full power derived from the state to establish wharves and to cause them to bo erected by the owners of the adjacent property, and to grant the right to receive and collect wharfage, but was restrained from conveying the land in controversy by an act of the legislature, and the restricting act was subsequently repealed, with a proviso enacted that no grants should be made beyond the exterior line fixed by statute, and it granted to the orator the land of which he was riparian owner to the exterior bulk-head line, as fixed by the legislature, upon which, by the terms of the indenture, he was required and covenanted to build a wharf, with the right to collect wharfage and cranage advantages by or from that part of the exterior line of the city, but the grant was not to be construed as a warranty of seizin, or to operate further than to pass the title or interest the city may lawfully have or claim by virtue of its charter and the various acts of the slate legislature, held, that a preliminary injunction may issue to restrain the city from building permanent structures outside of the orator’s wharf, which structures would have the effect to cut plaintiff’s wharf wholly off from the navigable waters of the river and destroy his right to collect wharfage and cranage at his wharf without making compensation therefor.</p> <p>3. Same—Eights under Contract cannot be Divested.</p> <p>Where the state legislature fixed ,the exterior lino of the city, and left the city with authority to grant wharves to that line, and expressly declared that there should be no solid filling beyond that line, the act of the legislature is a part of the consideration for the purchase of the land and the building of the wharf, and the city cannot divest rights which have accrued under its contract Without just compensation therefor.</p>

<p>In Equity. On exceptions to answer.</p>

Criminal Information. This was a criminal information against Gilbert and George C. Moyers, in which they are jointly charged with demanding, receiving, and retaining from a pensioner illegal fees as her attorneys in the prosecution of her claim, and also with unlawfully withholding from her a portion of her pension money in violation of the provisions of section 5485 of the Revised Statutes. On motion of the defendant George 0.

<p>Suit in Equity in aid off a judgment creditor.</p>

The Northampton National Bank was robbed of the property of iteelf and of various special depositors, including the plaintiff, to the amount of about $1,600,000. Five years later, all but $130,000 of the property was recovered from the thieves. Among the property not recovered were bonds to the value of $10,180 belonging to the plaintiff. The other facts appear in the statements of counsel and the opinion of the court.

<p>1. Usury.</p> <p>Section 3198, Rev. St., makes tlie receiving or charging “a rate of interest greater than is allowed ” “ a forfeiture of the entire interest.” In case a greater rate of interest has been paid, the debtor may recover back “ twice the amount of interest thus paid.”</p> <p>2. Same—Amount of Penalty—Hot Limited to the Excess.</p> <p>The amount of penalty recoverable in an action against banks under section 5198, Rev. St., is twioe the whole amount of the interest paid, and not merely twice the amount paid in excess of the legal rate. .</p>

<p>1. Taxation—Non-Resident Executors—Assessment oe Personal Property Held by.</p> <p>The General Statutes of Massachusetts, c. 11, § 12, próvida that property-held by an executor residing out of the state, in trust to pay the income to persons within the state, is taxable to the latter, but does not authorize the taxation of personal property in the hands of an executor, residing out of the state, which is part of the estate of his testator and held by him in trust to pay the income for life to inhabitants of the state, but is not shown to be itself in the state.</p> <p>2. Same.</p> <p>The statute of 1878, c. 189, § 2, has for its only object to amend the provision of chapter 11, § 12, Gen. St., in the single point, that after the expiration of three j'ears from the appointment of the executor, the property, whether distributed or not, should be assessed according to the provisions cited above.</p>

<p>Customs Duties—Measurement oe Liquids.</p> <p>All importations of liquids, including ale and porter, are to bo estimated according to the standard of the wine gallon of commerce, containing 231 cubic inches of measurement.</p>

<p>On Exceptions to Master’s Report.,</p>

<p>1. Dedication of Opera by Publication of Uncopyrighted Boons and Libretto.</p> <p>Tlie non-resident alien authors of the comic opera of “lolantho,” having sanctioned the publication in the United States of the libretto and vocal score, with a piano accompaniment, and having kept the orchestration in manuscript, held, that a person who had independently arranged a new orchestration, using for that purpose only the published vocal and piano-forte scores, could not be enjoined from publicly performing the opera with the new orchestration.</p> <p>2. Same—Hew Orchestration—Injunction Denied.-</p> <p>It appearing that the orchestration was a subordinate accessory of the opera, held, that the use of the coinposer’s name and the title of the opera would not be enjoined, provided the announcements of the performance were not so worded as to mislead the public into believing that the original orchestration, of which complainant had exclusive use, was to be performed.</p> <p>3. Injunction Granted to Restrain Misleading Advertisements—Form.</p>

<p>1. Patents eoe Inventions—What not Patentable—Process Patentable.</p> <p>Tliere can be no patent for a mere principle, nor can the discoverer of a natural force or a scientific fact obtain a patent therefor; but if he invents a process by which a certain effect of one of the forces of nature is made useful to mankind, and fully describes and claims that process, and describes a mode or apparatus by (Which it may be usefully applied, he is entitled to a patent for the process, and is not restricted to the particular form of mechanism or apparatus employed.</p> <p>2. Same—Transmission op Sounds by Electricity.</p> <p>Where a party discovered that articulate sounds could he transmitted byundulatory vibrations of electricity, and invented the art or process of transmitting such sounds by means of such vibration, the mere fact that such art or process is the only way by which speech can be transmitted by electricity does not lesson the merit of the invention, or the protection which the law will give to it.</p> <p>S. Same—Process—Mode and Apparatus—Infringement. ,</p> <p>Where a party avails himself of the prior discovery of a patentee, as well as of the process which he invented, and by which ho induced the discovery to practical use, and copies the mode and apparatus of the patentee, it is an infringement of the patent and should be restrained by injunction.</p>

<p>1. Patents for Inventions—Ueissue—Enlargement of Claim.</p> <p>Where the reissue covers only claims which do not appear on the face of the original, it is invalid.</p> <p>2. Same—Unreasonable Delay.</p> <p>If an all eration and enlargement, of the scope of a patent by reissue is in any case allowable, an unexplained delay of more than live years in taking out the reissue is an unreasonable delay.</p>

<p>1. Patents for Inventions—New Combinations—Reissue Void—Introduction of New Matter.</p> <p>If the claim in a reissue of a patent lor a new combination of known parts be substantially the same as that of tho original, hut expand the scope of the invention by assigning additional uses to certain parts which are prominent features of another patent, made subsequent to the original, so that one skilled in tho art, constructing according to its terms, would exclude some things described in the original and substitute others, the reissue, not being a correction provided for and allowed by law, but an alteration, is invalid for showing a different invention; though if the terms were so changed as not to avoid it on tills ground, it might he void for tho enlargement after tho lapse of time.</p> <p>2. Same—Infringement.</p> <p>A suit for infringement cannot bo maintained on such an invention against a parly constructing a different arrangement, not involving all the parts the other used.</p> <p>3. Same—Reissue No. 8,784 Void.</p> <p>Reissued letters patent No. 8,784, for an improvement in vapor-burners, held invalid.</p>

<p>Patents fob Intentions— Combination—Dieeeeent Aeeangement.</p> <p>Where the arrangement of a patented combination, many of whose elements were in use before the patent was granted, has many advantages over the patented device and is an improvement thereon, held, a different combination and its use is not an infringement.</p>

<p>Patent Law—Infringement.</p> <p>The accomplishment, by a patented article, of the same result as that produced by another patent, is not such an anticipation as will make it an infringement, unless the result is produced by the same means, and in substantially the same way.</p>

<p>Chaktek-Paktt—Detention—Liability oe Chakteiíek.</p> <p>Where the voyage described in the charter-party was a voyage “ to SanPran cisco, or as near thereto as the vessel can safely get,” and the cargo was to be delivered “along-side of any craft, steamer, floating depot, wharf, or pier, as may he directed by the consignees,” and the consignees named a wharf to which, by reason of its crowded state, the vessel could not enter for a time greater than that within which, by other provisions in the charter-party, the discharge was to be effected alter it had been commenced, held, that the charterer was liable for the detention.</p>

<p>L East-River Navigation—Rule 21.</p> <p>Steamers navigating the East river are bound to keep as near the middle of the river as may be, and under rule 21 must stop and reverse, if necessary, to avoid a collision. The steamer J. O. held liable in this case for disregarding both these obligations.</p> <p>2. Same—Ferry-Boat—Vigilance Required.</p> <p>Eerry-boats, in crossing the East river, are bound to maintain a vigilant watch before leaving their slips to avoid danger from vessels which may be passing near. The ferry-boat M. held liable for a collision occurring about 140 feet outside of her slip, where she started without any lookout upon her bows, it being held that the steamer J. O., approaching within 50 feet of the wharf next above her, might have been seen by such lookout, or by the pilot, shortly after starting.</p> <p>3. Both in Fault—Damages Divided.</p> <p>Where both vessels are guilty of independent faults contributing to the collision each is liable and the damages are divided.</p>

<p>Charterers’ Power to Bind Yessel for Coal.</p> <p>It was held in this case that the charterers of a vessel had no authority to bind her owners or the vessel, for a supply of coal in a foreign port, and that the vendor was put upon inquiry to ascertain the fact of authority.</p>

<p>Jurisdiction—Removal.</p> <p>A suit was instituted in a Louisiana court by a citizen of that state against a citizen of Mississippi, and a preliminary writ of injunction issued, enjoining the defendant from proceeding under an execution issued upon a judgment obtained in that court, on the grounds that said judgment had been extinguished by compensation, and had beenrendered by reason of error both of fact and law, and was therefore null and void. On the application of the defendant the suit was removed to this court, and the plaintiff moved to remand on the ground that the federal court had no jurisdiction, these proceedings being merely incidental and auxiliary to the original action in the state court, and so within the decisions in BanJcv. Turnbull, 16 Wall. 190, and Barrow v. Hunter, 99 TJ. 8. 80; held, that the proceeding instituted and removed is not only “ tantamount to a bill in equity to set aside a decree for fraud in obtaining it,” but really amounts to “ a new case arising on new facts, although having relation to the validity of a judgment,” as laid down in Barrow v. Hunter, 99 U. 8. 83.</p> <p>Bondurant v. Watson, 103 U. S. 281, followed.</p>

<p>1. Taxation—National-Bank Shakes—Overassessment.</p> <p>It is not sufficient to invalidate the taxation oí national-bank shares to show that in the case of a single state bank, the shares of which are subject to a like taxation, the assessors, either by mistake or intention, have shown favor. The system of assessment of bank shares, owing to the fact that the shares of different banks are differently rated, must necessarily be imperfect, and the law does not require absolute accuracy. It was the intention of congress to prevent the state by hostile legislation, and the taxing officers by a hostile rule, from discriminating- against national hanks; to place all bank shares, state and national, on a common level. Where the shareholders have the same rights as other individuals taxed for moneyed capital, they should look to the statutes of the state for relief.</p> <p>2. Transb'er oe Causes op Action.</p> <p>Where a parly, who is entitled to sue in the federal courts, transfers his cause of action to another who has the same right, the fact that the transfer was made for an inadequate consideration will not invalidate it, so long as the legal title is transferred.</p> <p>3. Same—Right to Sue in Federal Courts, where Claim is Made Up op Items op Less than $500 Each.</p> <p>If a party is the honest owner of a claim which he is entitled to enforce in the federal courts, his right should not be defeated by proof that the claim was at one time composed of several separate and distinct items of less than $500 each.</p>

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

<p>Public Teeatibs—Pleading.</p> <p>The court takes judicial notice of the public treaties between the United States and foreign countries, and a citizen of such a foreign country, in bringing a bill against a citizen Of Louisiana, need not allege that there is such a treaty in force.</p>

<p>1. Negligence—Personal Injuries—Collision on Highway.</p> <p>Where teams have a right iu 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 highways, when in proximity to each other, to avoid doing each other injury, as might be expected of a person of ordinary care and prudence; and it is not enough to exonerate one from a charge of negligence, that after a collision had become inevitable he did all that he could to aiftid it, when it appears that if he had exercised the proper degree of care and prudence in keeping at a safe distance behind the plaintiff's vehicle the accident never would have happened.</p> <p>2. Same—Contributory Negligence.</p> <p>The law does not impose upon the driver of a vehicle in a crowded city thoroughfare the duty of giving a signal to the vehicles behind him of his intention to turn; it is the duty of the driver in the rear of such vehicle to be on the lookout for such a deviation from the course by the driver in the advance. Although both parties are bound to use ordinary prudence and care, yet ordinary care on the part of a driver of a team following another team in the streets of a city may mean, in the circumstances in which the parties are placed, a higher degree of care then would be exacted from the driver of the team in advance.</p> <p>3. Same—Excessive Damages—Practice in the Federal Courts.</p> <p>The court will not, as a rule, disturb a verdict in an action for damages resulting from negligence, unless it is apparent that the verdict was the result of passion, or prejudice, or partiality on the part of the jury. It is the practice of the fedez-al courts, whez-e excessive damages are believed to have been awarded, to give to the recovering party an option to remit a part of the verdict, and, if a remission is made, then to refuse a new trial.</p>

Agreed Statement of Facts, Admission of Documents, etc. The following is hereby agreed upon and admitted as a statement of the facts of the above-entitled ease, and the said facts are hereby admitted to be true for the purposes of the trial of this action: On the twentieth day of May, 1868, one Samuel Wilmot was the owner of 10 shares of the capital stock of the Pequonnock National Bank, the above-named defendant, a corporation created by and under the laws of the United…

<p>1. Pleading—Existence oe Corporation.</p> <p>In an action brought by a corporation it is not necessary to allege that it is a corporation ; it is sufficient if the name be stated at the commencement of the narration, since the plaintiff need only prove the material allegations of his declaration. Non constat why there should be required proof of the existence of plaintiff corporation, not averred and not challenged by the defendant.</p> <p>2. Same—Denial—Rule in Federal Courts.</p> <p>In federal courts the existence of foreign and domestic corporations alike can be denied only by a special plea in abatement or bar, or notice.</p> <p>3. Same—General Issue.</p> <p>The pleading of the general issue in an action of assumpsit by a foreign corporation admits the corporate existence, and evidence should be received to establish the cause of action without proof, but not to show want of corporate capacity to sue.</p>

<p>1. Extradition—Complaint, when Sufficient.</p> <p>In extradition proceedings the complaint is sufficient from which it cleaily appears that a treaty offense is meant to be charged. Where the form used in the complaint was that the accused “ is charged,” and the complaint contain^ other statements alleging a treaty offense, held sufficient.</p> <p>2. Same—Treaty with Swiss Confederation—Prior Charge—Habeas Corpus.</p> <p>Under the treaty with the Swiss confederation it is immaterial what prior charges have been made in Switzerland against the accused if the complaint here presented charge a treaty offense; and if the commission of the offense be duly established before the commissioner, he cannot be discharged on habeas corpus, though it should appear that a proceeding for a different and less offense, not included in the treaty, had been previously taken against him in Switzerland.</p> <p>3. Documentary Proofs in Foreign Language — Certificate — Errors in, Immaterial.</p> <p>Documentary proofs being in German, and describing proceedings in Switzerland as for “unterschlagung,” which may mean embezzlement, (“soustraction,”) or only abuse of trust (“d’abus de confiance,”) the latter not being a treaty offense, and the certificate to the authentication of the documents stating, in French,'that they were for a proceeding “d’abus de confiance.” Held, that the error in the certificate, if it was such, was immaterial, and that it was to be presumed that the requisition for the accused wqs for a trial upon the treaty offense.</p>

<p>Imprisoned Debtor—Discharge under New York Code—Escape.</p> <p>Tlie defendant, an imprisoned debtor, petitioned for a discharge. The plaintiff opposed on the ground that the application Was premature, the defendant not having been imprisoned on the execution issued from this court for a period of three months, as is required by section 2202 of the New York Code of Civil Procedure. Held, that such objection was well taken. The statute in such cases must be strictly followed to give the court jurisdiction, and a discharge granted before a strict compliance with the statute in this respect would render the marshal liable in an action for an escape.</p>

<p>On Habeas Corpus.</p>

<p>Costs—In Common-Law Actions.</p> <p>The prevailing party in. actions at common law in the United States courts, under section 823 of the Bevised Statutes, has a right to recover costs in all cases, except where otherwise provided by some law of congress ; the laws of the states no longer affect either the right to costs or the rates.</p>

<p>In Bankruptcy.</p>

<p>1. Bankruptcy—Fraudulent Transper—Prima Facie Evidence op.</p> <p>Where a transfer of property is made outside of the usual course of one’s business, by one who is insolvent and who is known to be so by the parties to whom he transfers, and with whom lie has confidential business relations, it will be considered as prima facie evidence against the parties to the transfer that a fraud upon the bankrupt act was intended, and the facts and circumstances surrounding such transfer impose upon the party to whom the transfer is made, the active duty of inquiring into the debtor’s financial situation, and the number of his creditors.</p> <p>2. Same—Non-Joinder.</p> <p>All the parties to a transfer, such as the above, are necessary parties to an action brought to invalidate the transfer, without whose presence the court could not proceed to a decree.</p>

In Admiralty. On July 14,1880, about 2 o’clock a. m., the iron steam-ship Pomona, while on a voyage from New York to Montego bay, was attracted by signals from the iron steam-ship Colon, which was lying nearly in her course, and bore towards her. As she approached she was met by a small boat from the Colon, bearing a request from the latter’s captain for an interview.

<p>1. Salvage—Reward for.</p> <p>The reward given for salvage is based upon the danger to life and property incurred by the salvors, the value of the property saved, and the skill, labor, and duration of the services.</p> <p>2. Same—Amount of Salvage when Vessel is Derelict.</p> <p>The present state of the law does not allow a too-close discrimination, in regard to the amount of salvage, between property which has become derelict, and that which is not: the true principle is adequate reward, according to the circumstances.</p>

<p>1. Jurisdiction.</p> <p>A raft of timber is subject to the jurisdiction of the admiralty urt in the matter of salvage</p> <p>2. Salvage.</p> <p>If part of a salvage service is performed by one set of salvors, and the salvage is afterwards completed by others, the first set are entitled to reward pro tanto for the services they actually rendered, and this even though the part they look, standing by itself, would not, in fact, have effected the salvage.</p>

<p>In Admiralty. On petition for a rehearing.</p>

<p>1. Vessel—Ship’s Husband—Lien for Advances—Subrogation.</p> <p>Although, ordinarily, the general agent of a ship, or the ship’s husband, has no maritime lien for advanees made in the usual course of his employment about the business of the ship, because made presumably on the credit of the owners, yet when the circumstances show that his agency was an attendant upon his situation as mortgagee of the vessel, and for the purpose of further security, his advances in the management of the ship’s business should be held to be made, not upon the personal credit of the mortgagor, but upon the credit of the vessel, and for the protection of his mortgage; and a maritime lien should, therefore, be sustained in his favor for such necessary payments and supplies as would be liens in favor of other persons, and he should be deemed equitably subrogated to the liens paid by him.</p> <p>2. Same—No Lien for Commissions.</p> <p>The agent’s own commissions for advances and for obtaining freights should not, however, be allowed as liens. .</p>

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

<p>1. Corporations—Dividend on Preferred Stock—Dependent on Declaration of Profits.</p> <p>The dividend on preferred stock may judiciously be conditioned on the declaration of profits by the board of directors of a corporation; and when such intention appears from the juxtaposition of terms, and an examination of the agreement of the shareholders, it will he sustained.</p> <p>2. Same—Nature of Profits.</p> <p>That a hoard of directors has determined to apply all profits made by a road to its improvement does not take away their present character, in this respect net earnings and profits are alike; and, largely at least, the improvement would be chargeable to capital.</p> <p>3. Same—Right to Compel Division.</p> <p>The rights of preferred stockholders are not those of creditors; but still they may, under the plan of organization of a corporation, be made so far superior to those of common stockholders as to enable them to compel a division of profits, which the board of directors had determined to accumulate.</p> <p>4. Same—Case Stated.</p> <p>Owners of preferred stock entitled to an annual, non-accumulating dividend, dependent on a declaration of profits by a board of directors, which had reported more than sufficient net profits, but had determined to use all for the improvement of the road, can compel the payment of dividends therefrom. If they do not get their dividends each year, they will never get them; the expected increase in net earnings could not benefit them as long as the road could otherwise pay these non-accumulating dividends. Such property could be appropriated for the general good of all stockholders no more than any other property of these stockholders.</p> <p>5. Same—Assignment.</p> <p>Such rights of ¿preferred stockholders to share in profits are mere increments of, and pass by assignment of, the stock; though this might not be true of fully-declarbd dividends.</p>

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

<p>At Law. Action to recover damages for personal injuries. Motion to make declaration more specific.</p>

<p>In Bankruptcy.</p>

In Bankruptcy. Exceptions to tliereport of the register who allowed the claim of the bankrupt for exemption. The facts are set forth in the opinion.

<p>3, Field of Invention—Restriction—Description, how Construed.</p> <p>If tlie field of invention be bounded by pi'ior patents, though referring to the objects of the patent in issue only by general terms known in the art to which they belong to include them, the description of what the inventor undertook to cover must be construed in the light of their existence.</p> <p>2. Same—Foreign Patents not within Terms of Act of 1836, §{ 7, 15, not Considered.</p> <p>Foreign patents urged as anticipations of domestic patents, where the article is not properly proved to have been known or used in this country, or the patentee’s circular to the trade was not a printed publication, or his provisional specification did not make'the invention described in it patented, within the meaning of sections 7 and 15 of the act of 1836, will not be considered.</p> <p>3. Residuum—Nature—Infringement.</p> <p>A residuum is what is left after a process of separation. There are as many different residuums of a substance as there are distinct products which may be taken away from it. Showing that both residuums come from the same source, that all in the residuum of the earlier of two patents is also in and is obtained by separation from that of the patent of later date, does not make oiit an infringement on the former. It does not show that they are the same; otherwise a prior patent for the same use, of the common source, would cover both. The proper effect is to limit the application of “ residuum.”</p> <p>4. Same — Uncharred Residuum of Petroleum — Use in Soap— Patent No. 237,484—Anticipation—Validity.</p> <p>Letters patent No. 237,484, for use in manufacture of soap of vaseline, produced by simmering petroleum down in open kettles, and afterwards filtering through bone-black, does not infringe letters patent No. 56,259, employing for the sanie purpose another uncoked residuum of petroleum so obtained by vacuum and steam process; for, while the charred and uncharred" particles are, always mechanically mixed, and the filtering out may be without chemical reaction, vaseline does not contain all the latter residue does ; nor is it anticipated by other patents using residuums of petroleum in soaps; they confine it, however, to that particular residuum.</p>

<p>Patent Laws- Limitation on Actions—Copy under the Provisions ov Rev. St. § 721.</p> <p>State statutes oí limitations are applicable to actions at law Xor the infringement oí a patent.</p>

<p>1. Patent Law—Infringement—Choice of Actions.</p> <p>Tlie sale of machines embodying the patented inventions of another to one for use, is an invasion of the patentee’s rights, and such a conversion of his property as will render the party so selling the invention liable in an action for tort. But in such case the plaintiff may waive the tort and sue in assumpsit for the money received from the sale.</p> <p>2. Same—Measure of Damaoes—Waiver.</p> <p>In an action or proceeding for the money, the measure of damages would be the amount of money received, not the amount of damages done, and all right of recovery beyond that would be waived. This is the effect of waiving the tort. The recovery of satisfaction in either form would pass the right to that for which satisfaction was had, and there could be no damages beyond. Consequently, when the plaintiff has recovered and received satisfaction for the tort committed the title to so much of his property as was wrongfully converted will have passed by the sale and conversion and no damages will accrue to him on account of further use of that property.</p>

In Admiralty. Appeal by the steamer Harrisburg from the decreó of the district court awarding $5,100 damages against her upon a libel,… Held: that “ where no injury would result from granting the remedy, and there is reason to believe that no evidence has been lost by the delay, the lienholders may sustain a suit after a very considerable period; even, in the United States, after the lapse of the time prescribed by the statutes of the state as a peremptory bar to similar…

<p>1. Practice—Supplemental Libel—Exceptions.</p> <p>A libel having been filed claiming freight and demurrage under a charter-party, the libelant thereafter filed a supplemental libel, setting up the same and additional facts, and claiming the same freight and demurrage and additional demurrage, to which supplemental libel the claimant excepted on the ground that it set forth facts occurring after the suit was commenced. Held, that as it did not appeal- upon the face of the supplemental libel that any of the facts therein stated occurred subsequent to the commencement of the suit, the except ions must be overruled.</p> <p>2. Same—Motion to Strike Out Supplemental Libel.</p> <p>Where it appeared that the original libel was filed and process issued and served on September 22d, and the supplemental libel, claiming an additional amount, was filed October 4th, before the return of process, no claimant having appeared, and on October 6th the claimant appeared and procured a discharge of the property by depositing in court money to the amount claimed in the supplemental libel, semble, that a motion to strike out the supplemental libel on the ground that it set, forth facts occurring after the suit was commenced, would be denied, on the ground that the claimant would be deprived of no right by allowing it to stand, while to strike it out would increase expense without, benefit, and would also deprive the libelant of the security which the claimant had given for the demand made in the supplemental libel.</p> <p>As to when a proceeding in admiralty is deemed to be commenced, qumre.</p>

Admiralty. Libel, answer, and proofs. On August 20, 1881, 7,061 empty petroleum barrels wpre shipped on the Sultan, the bill of lading stipulating that the same should be delivered at the port of Philadelphia, at a wharf to be selected by the consignees. The Chester Oil Company was established in March, 1881, and a large proportion of the barrels afterwards consigned to the port of Philadelphia were discharged at Chester.

<p>Costs—Docket Fee—“Final Hearing” under Rev. St. $ 824.</p> <p>Where a vessel was in custody of the court under process issued against her, and the case was entered in the admiralty docket, a consent was given that the case be discontinued on payment of the amount claimed and libelant’s costs. Held, that the granting of a motion for an order discharging the vessel from custody and canceling stipulations, was a final hearing under Rev. St. $ 824, and the libelant was entitled to a docket fee of $20.</p>

<p>1. Seamen’s Wages.</p> <p>A vessel under charter is name íor me wages of seamen hired by the charterers, although the owner may not personally bo liable therefor.</p> <p>2. Shipping Conthacts.</p> <p>A seaman is not bound by a clause in his shipping contract unfavorable to his interest if it was concealed from him, or its meaning misrepresented; and if, from any canse, he is un tide to read tlie contract, he may show that it differs from his oral engagement, upon clear proof that, the written contract was not read or explained to him.</p>

<p>.1. Collision—Rules of Navigation—Fault by Non-Observance. ,</p> <p>The non-obseryance of the statutory rules of navigation is itself a fault which charges'the vessel with .damages, where it appears .that but for this fault the collision would have been avoided.</p> <p>2. Steamer in Fog—Moderate Speed—Rule 17.</p> <p>Where a steamer in a fog- does not go at “ moderate ” speed nor “ slacken,” as soon as there is perceptible danger of collision, as required by rule 17, and a cpllision ensues, which would have been avoided had the rule been observed, held,- that the steamer'is chargeable with fault, and responsible, notwithstanding the fault of the other vessel, also without which the collision would not have happened.</p> <p>3. Same—Case Stated..</p> <p>Where the steamer “ 0. of N. Y.,” in a fog,.kept oh her usual speed of 10 knots, and heard the fog-horn from the bark H. about a point on her starboard bow, and starboarded her helm, without either moderating .or slackening'her speed until she saw the bark coming across her bows about an eighth of a mile distant, and a collision afterwards ensued by which the H. was sunk, held, that -the steamer was in fault both in going at too great a rate of speed, and also in not slackening her speed when the fog-horn was heard; it appearing that if she had done either the collision would have been avoided.</p> <p>4. Contributory Cause—Mutual Fault—Damages Divided.</p> <p>’ The bark being, at the time of the collision, headed about E., four points to the eastward of N. E., the usual course of vessels under similar- circumstances, .and the witnesses from the steamer testifying that when first observed the bark was heading N. E., but changed her course across the steamer’s bow, while the mate of the bark testified that the only change about the time of the collision was a slight luff a few moments preceding it, and alleged a prior change from the course of- N. E. nearly-three hours previous, and it appearing that the latter change alleged by the mate involved extreme improbabilities as to the previous navigation, and was not in haripony with other parts of his "testimony as to the'bearing- of lights, held, that the mate’s testimony as to this change should be rejected, and the change of four points held to have been made near the time of the collison, notwithstanding the usual rule giving superior credit to a vessel’s own officers as to her navigation, and the difficulties of observation from the steamer in the fog; and as this change of course contributed to-the collision,-the bark was also in fault and the damaees should ■he divided.- "</p>

<p>Collision on Erie Canal—Alibi—Conflicting Evidence—Presumption.</p> <p>In an action to recover damages for collision between two canal-boats, tbe I. and tbe L., on the Erie canal at Little Falls, tbo defense set up was an alibi. Several witnesses declared that tbe L. was the boat that collided with the L., and several declared that tbe L. was not at Little Falls at tbe time of tbe collision, and was not in collision with any boat that night. Held, that the fact that a witness on tbe I., who was known to have ascertained by inspection the name of the colliding boat, was not produced, no excuse being given for his non-production, warranted the presumption that, his testimony would not, support the libelant’s case, and that in such a conflict of testimony this presumption was controlling, and the libel was dismissed. . .</p>

<p>1. Admiralty—Practice—Rule 53—Security.</p> <p>Rulo 53 {formerly rule 54) in admiralty, providing that security may he required of the respondents “whenever a cross-libel is filed upon any counterclaim arising out of the same cause of action for which the original libel was filed,” is to be construed as embracing cases arising out of the same subject-matter of dispute, when the question in litigation is substantially the same in both suits. The words “ cause of action ” are not used in this rule in the sense of the same identical legal demand.</p> <p>2. Same—Security in Cross-Suit.</p> <p>Where a libel is filed to recover an alleged deficiency of cargo delivered, and the payment of freight having been refused by the libelants on the same ground, a cross-libel is filed to recover the freight on the cargo delivered, and security having been obtained in the first suit through the arrest of the vessel, held, that (he respondents should be required to give security in the cross-suit, under rule 53.</p>

<p>Tow- Boats—Torres.</p> <p>The relation of a tow-boat to the vessels it has in tow is not such as to make it liable for the tolls due hy said vessels for passing through a channel excavated by private enterprise, and for which passage tolls are allowed by statute to bo charged.</p>

<p>1. United States Commissioners and Supervisors—Fees of—How Audited and Allowed.</p> <p>The act oí February 22, 1875, regulating fees, requires that before any bill of costs shall he taxed by any judge or other officer, or any account payable out of the moneys of the United States shall be allowed by any officers of the treasury in favor of clerks, marshals, or district' attorneys, the party claiming such account shall render the same, with the vouchers and items thereof, to a United States circuit or district court, and in presence of the district attorney or his sworn assistant, whose presence shall be noted on the record, prove in open court, to the satisfaction of the court, by his own oath or that of other persons having knowledge of the facts, to be attached to said account, that the services therein charged have been actually and necessarily performed as therein stated * * * and by section 2031, Rev. St., the above provision is extended to accounts of fees of chief supervisors.</p> <p>2. Same—Public Officers in Dual Capacity.</p> <p>•Where an act is required to be performed or services to be rendered, and the officer required to perforin it necessarily holds two positions intimately and indispensably connected, and provision is made by law for the payment of services rendered in each capacity, it is more consonant witli the principles of justice and equity that compensation for that service should be made according to the provisions of the statute that applies to it, rather than tr deny such remuneration on mere technical grounds.</p> <p>3. Same—Supervisors of Election, Fees of.</p> <p>Section 2031, Rev. St., provides that there shall be allowed to each supervisor of elections who is appointed and performs his duty under the preceding provisions, compensation at the rate of five dollars per day, for each day he is actually on duty not exceeding 10 days. The chief supervisor is included under the provisions of this section.</p> <p>4. Same.</p> <p>Fees for drafting and furnishing certain papers, and the rate per folio or otherwise at which public officers are allowed to charge therefor, are provided for under section 828, Rev. St.</p>

At Law. On motion for a now trial and motion in arrest. The case is very fully reported in the written decision.

One John W. Bailey sued the plaintiff Henry in one of the courts of the state of Colorado, and, having caused a writ of attachment to issue, served process of garnishment upon the defendant, the Gold Park Mining Company.

<p>1. Railroads—Contract not to do Business at Certain Points.</p> <p>A. contract by which one railway company agrees with another upon a division of territory and traffic between them, and that one will not “ do any through business to and from Trinidad, or to and from New Mexico via Trinidad or El Moro,” amounts to an express renunciation of a duty of transportation enjoined by the state, and is therefore void.</p> <p>2. Same— Combination — Contract not to do Business in Connection with Rival Company.</p> <p>A contract by which two railway companies agree to exchange their traffic, and not to “ connect with or take business from or give business to any railroad ” which may be constructed in Colorado or New Mexico after the date of the agreement, is against public policy and void.</p> <p>3. Same—Discrimination—Injunction.</p> <p>If such companies refuse to accept “through” freight and passengers from a third company, whose road has been built in the territory specified in the contract, alter the date thereof, except at rates or fares higher than the rates or fares charged persons or property coming over the roads of the parties to the contract, such refusal amounts to an unreasonable and illegal discrimination against such traffic coming over the new road, and will he restrained by injunction at the suit of the new company.</p> <p>4. Constitutional Law—Prohibition of Railway Discrimination—Construction.</p> <p>Const. Colo., art. 15, § 4, providing that “every railroad company shall have the right with its road to * * * connect with * * * any other railroad,” is not merely authority to the legislature to pass laws on the subject to which it applies, and otherwise incapable of enforcement. While, in the absence of a special law directing such a proceeding, this provision would hot authorize a company to mate a physical connection of unconnected railroads,. yet, independently of legislative power and action, it requires the railroads in the state of Colorado to he operated in conjunction for the convenience of the public; at least, to the extent usual and customary between connecting lines in the control of companies not hostile to each other; and to this extent it will be enforced by the courts.</p> <p>5. Same—.Not in Conflict with Federal Constitution.</p> <p>The above provision of the constitution of Colorado is not in conflict with section 8, art. 1, of the constitution of the United States, conferring upon congress the power “ to regulate commerce with foreign nations and among the several states.”</p>

On Bill and Answer. This ease has been heard on bill and answer, except so far as they have been explained or qualified by the admission and proofs of the parties, in a stipulation filed at the hearing.

Gordon & Gomilla shipped in January, 1880, a large lot of corn by the St. Louis & New Orleans Navigation Company barge, Sallie Pearce, from St. Louis to New Orleans. The barge was one of four barges, composing the tow of the steam-boat E. M. Norton.

This cause was removed from the district court of Bamsey county by the defendant, upon the ground that it was at the time of the commencement of the action a citizen of the state of Minnesota and the plaintiff an alien. The plaintiff filed a plea to the jurisdiction of the court, alleging that at said time he was a citizen of the same state with the defendant. A jury trial was waived, and the issue raised by the plea was brought to trial before the court.

<p>1. Railroads—Reorganization—Dissolution—Bondholders Bound by Acquiescence.</p> <p>A bondholder of a former organization has no standing in chancery to dissolve the present organization of a railroad company, for which his agent had voted his bonds, it was alleged, in excess of authority, and to enforce a different plan, where it appears that he had known of what his agent was doing, but bad not dissented, and that he liad accepted his share of the bonds of the new organization, had offered to buy and self, and had brought suit for them. Such conduct ratified the act; or, inducing others to believe he had acquiesced in the organization, worked estoppel.</p> <p>2. Same—Capacity to Own Siiabes—Objection—By Wiiom to be Raised.</p> <p>A bondholder of one railroad company is not the proper person to object tc the right of another road to own shares of the stock of the former. If it exceeded its corporate power in purchasing, they belong to the vendor; if it only could not hold, the state incorporating is the party offended.</p> <p>3. Same—Intention to Sacrifice Interests.</p> <p>A court of equity will not interfere wlien it is alleged that the parties in control of one road intend to sacrifice its interest to that of another, if there is no proof of the fact, and the complainant is wanting in equity on the merits, and no irreparable injury is threatened, and the road is able to respond in damages.</p>

<p>1. Wills—Testator may Designate an Umpire to Construe his Will—When such Umpire’s Decision Final.</p> <p>A testator may in liis will designate liis executor an umpire, and invest him with power to construe his will and determine every doubtful question that may arise touching the testator’s intentions; and if such umpire exercises the power honestly and in good faith, his decisions will not be revised by a court, notwithstanding the court may think the same are erroneous.</p> <p>'A. Same—Courts of Equity will Interfere—When.</p> <p>But if the umpire refuses to act, transcends his authority, makes an incompíete award, or commits some gross mistake or error of judgment evincing partiality, corruption, or prejudice, or violates some statutory requirement oa which the dissatisfied party had a right to rely, a court of equity may interfere and correct the error, and, in proper cases, restrain further abuse of such power.</p> <p>3. Interest—WnEN it will not Disqualify an Umpire.</p> <p>Such an umpire, interested in the residuum, that may bo increased or diminished by his decisions, is not disqualified to act, provided the contingency in which he acts was foreseen and understood by the testator when he conferred the power.</p> <p>4. Wills—Peculiar Bequest Construed.</p> <p>The testator by will, after providing for the payment of his debts, certain legacies, and expenses of administration, declared that he supposed there would be a large balance remaining, out of which he directed his executor, “in pro rata distribution, to pay over to the appropriate medium of ,the following bodies the indefinite sum of letter A, the maximum of which shall be $30,000, to-wit: To the American Board of Commissioners of Foreign Missions, the pro rata of letter A; to the American Bible Society, the like pro rata of letter A; to the American Tract Society of Boston, the pro rata of one-half of letter A; and to the Presbyterian Publication Committee, the like pro rata of letter A. Should the indefinite amount prove to be adequate to the whole payment, from $30,000 down to $15,000, then the whole is to be paid; otherwise, each is to receive their definite proportion, but in no case to exceed the pro rata of the full amount of the letter A.” Reid, that the maximum amount of said bequest was $30,000, and that of said sum the first two bodies named should receive one-third part each, and the other two one-sixth part each</p>

<p>1. Jurisdiction ok Suits by or against Rational Banks—Act ok July 12, 1882—Parties.</p> <p>The act oí July 12, 1882, to enable national banks to extend their corporate existence, placed national and other banks, as to their right to sue in the federal courts, on the same footing, and consequently a national bank cannot, in virtue of a mere corporate right, sue in such courts.</p> <p>2. Same—Subject-Matter—Case Artsing under an Act ok Congress.</p> <p>But national banks may, like other banks and citizens, sue in such courts, whenever the subject-matter of litigation involves some element of federal jurisdiction. Thus a suit by a national bank against a county treasurer, to enjoin the collection of an excessive tax upon its personal property, alleged to be made in violation of the act of congress permitting the state to tax national banks, presents a case arising under a law of congress, and is, therefore, maintainable in a federal court. -</p>

Motion to Quash Beturn to Alternative Writ of Mandamus. ' • The relator obtained judgment by default against Knox county upon certain bonds issued by the county to aid in the construction of the Missouri & Mississippi Bailroad. It was averred in the petition in this suit upon said bonds, that they were issued under certain provisions of the General Statutes of Missouri, in pursuance of a vote of the people.

<p>Action to Recover Damages on Fire Insurance Policy.</p>

<p>1. Subpoena Duces Tecum—Telegraph Operator—Practice—Examination before Grand Jury.</p> <p>When the district attorney, either upon his own motion or at the instance of the grand jury, applies for a subpoena duces tecum, he should state that there is a question either pending before, or which is intended to be brought before, the grand jury or the court, in which certain telegrams, sent from or received at the telegraph office in charge of the witness named, are believed to be per■ünent to the question to bo considered, and should state the name of the parties sending or receiving the telegrams, and should further state the periods between which, or the day upon which, they were sent or received, which should be a reasonable time; or, if the names of the parties should not be known, then the time, and the subject-matter which the dispatches contain, or to which they relate, should be stated.</p> <p>2. Same—Subpcbna—What to State.</p> <p>The subpoena should describe the telegrams required to be produced as they are described in the application for the writ, either naming the parties sending or receiving them and tlie subject-matter to what they relate, or, if the names are unknown, then the subject-matter and the time or the periods between which they were sent or received.</p> <p>3. Same—Dutjt op Witness to Appear—Submission to Inspection op Court —Province op Court.</p> <p>It is the duly of the witness so subpoenaed to appear before the grand jury or court and produce the telegrams staled in the subpoena, and if he has doubts as to whether or not he should produce any telegram called for, ho may submit it to the inspection of the court, which may decide on the question of its production.</p>

<p>Evidence—Production oe Books and Papers—Rights oe Liti4ants.</p> <p>A corporation may be compelled to produce its books and papers in evidence, wbicb may be necessary and vital to tlie rights of litigants, and considerations of inconvenience must give way to the paramount rights of parties to the litigation.</p>

Buie for a New Trial. . Assumpsit, for a tax of one twenty-fourm of 1 per centum each month upon the capital stock of a bank, amounting, with fines and interest, to $3,168.12. The plaintiff put in evidence the official assessment list, made by the commissioner of internal revenue, under section 3408, Bev. St., subsec. 2, and closed.

<p>1. Costs—View oe Ground by Jury—Allowance oe Expenses.</p> <p>Where, by the practice and procedure of the state courts of record yvitliiiA ■ the district, the costs and expenses of viewing the ground by the jury in civil actions are allowed, such costs and expenses may be allowed in courts of the United States held within such district, in civil suits other than suits in equity or admiralty, under the provisions of section 914 of the Revised Statutes, which adopts as near as may be the practice, pleadings, forms, and modes of procedure of the state courts of the district in which such United States courts are held.</p> <p>2. Docket Fee.</p> <p>Where there have been two trials of a cause, the first of which resulted in a disagreement of the jury and the second in a verdict for the defendant, but one docket fee of $20 will be allowed.</p>

In Bankruptcy. The firm of Gillespie & Co. having been adjudicated bankrupts, T. J. Daly & Co., holders of four promissory notes of the bankrupts, payable to their own order and indorsed in blank, proved the notes in bankruptcy, and in March, 187é, received a dividend of 25 per cent, thereon, which was indorsed upon the notes.

Bill to review the action of the district court in the matter of the State Insurance Company, bankrupt, upon the petition of A. J. Stillwell, creditor, in 'which he asks for an order of court… Held: until the late decision of the United States supreme court in Scoville v. Thayer established a contrary doctrine, that the statute of limitations of two years ran in favor of said stockholders from the date of the adjudication without any call or assessment.

<p>Criminal Procedure.</p> <p>TVhere the accused was ready for trial and attended court during the term fixed for his trial, and pressed the district attorney to try his case, but the district attorney omitted to call up the case, without sufficient reason existing for such omission, a motion to discharge accused on his own recognizance was refused, he being on bail at the time.</p>

<p>1. Patents for Inventions — Electro-Deposition of Nickel — Chemical Equivalents.</p> <p>Where defendant’s solution is amenable to the same laws as that of the plaintiff, and to give the same result must be used under the same conditions and be free from the same impurities, and he made according to the same principles as that of the plaintiff, it is a chemical equivalent of the plaintiff’s solution.</p> <p>2. Same—Similar Process and Modes of Woiraa.</p> <p>Where the defendant did not vary the process or the mode of working, or its essential conditions, but applied a new solution,'worked in the same way and under the same conditions as the solution of the plaintiff, it is an infringement of plaintiff’s claim.</p> <p>3. New Products—Patentable.</p> <p>1 A new product or article of manufacture is patentable as a manufacture; and Where the patent describes the product and the mode of making it, having certain characteristics which are defined, and stating that they were never produced before, it is a sufficient specification of a claim.</p>

<p>1. Patent .Law—Reissued Patents.</p> <p>A reissued patent which enlarges an original patent, {. <?., which makes the invention patented other and more inclusive than the original letters patent, is void as against intervening rights and the public as well.</p> <p>2. Same.</p> <p>The object of the law on the subject of patents is to advance the interests of the public by securing certain exclusive rights to patentees, and among these rights is that of changing, by a surrender and reissue, the language, where the idea remains the same.</p>

<p>Patents nor Inventions—Inerinuemiont—-Evidence on.</p> <p>Where defendant was called by plaintiff in rebuttal oí his own testimony, and it was insisted that defendant, by one answer in regard to a date, established an infringement which had not been 1 he subject of previous testimony, and 1 hat this answer was to overthrow his uniform denial of the infringement, and of the infringing device having been made during the life of the patent, without the knowledge and permission of the patentee, held, that such testimony is not sufficient to make out a case of infringement.</p>

<p>. Patent Law—Dismissal oe Bill.</p> <p>Where the subject of the patent in controversy in this case has been decided by the circuit court for this district not to be patentable, such decision is conclusive on this court, and the bill will be dismissed.</p>

<p>Patents—Reissue Invalid—Claim too Broad—Laches.</p>

<p>Seamen’s Wages—Shipping without Articles—Verbal Agreement.</p> <p>If the master of a vessel dispenses with shipping articles and disputes arise as t.o the rate of wages to be paid the mariners, the court will incline to allow their claim to the rate paid by other like vessels leaving the same port at the same time on the like voyage. If the seamen can be held to a less rate, by reason of a verbal contract, such contract must be clearly established.</p>

<p>1. Equity—Limitation of Suits.</p> <p>Courts of equity refuse to interfere where the suitor has allowed a considerable lapse of time before bringing his action, from considerations of public policy and from the difficulty of doing justice, when the original transactions have become obscured by time and evidence is lost.</p> <p>2. Same—Diligence an Essential Condition to Equitable Relief—Laches.</p> <p>A suitor in equity is required to be “ prompt, eager, and ready ” in the pursuit of his rights. Diligence is an essential condition of equitable relief, and laches and negligence are always discountenanced. '</p> <p>3. Same—Trusts—Operation of Law of Laches.</p> <p>Whore a valid express trust has been created, and is recognized or treated by both parties to it as subsisting, mere delay upon the part of the cestui que trust may not defeat his remedy for the enforcement of his rights under the trust; but when a trustee denies the right of the cestui que trust, and his relation 1o the latter in respect to the trust property becomes adverse, from that time the right of the cestui que trust to relief is subject to the operation of the law of laches.</p>

In 1862 the Toledo & Wabash Eailway Company, of Ohio and Indiana, made an issue of bonds to the amount of $600,000, with interest payable semi-annually at 7 per cent., and principal payable May 1, 1883. Each bond bore upon its face the name, “equipment bond,” although they were not especially secured upon any equipment of the company. At the time of their issue the company was liable for bonds to the amount of $5,900,000, secured by mortgages.

<p>In .Equity. Sur motion for. a preliminary injunction.</p>

<p>1. Equity Practice—Infant Defendants—Costs—Receiver.</p> <p>Where a hill is filed to avoid deeds for fraud, and the property is placed in the hands of a receiver, the current expenses oí minor defendants for costs of litigation will not be paid out of funds in the hands of the receiver.</p> <p>2. Same — Guardian ad Litem—Defending in Forma Pauperis — Indigent Minors.</p> <p>Although it is the settled practice in Tennessee that infants can neither sue nor defend in forma pauperis, such is not the rule of the federal courts of equity, in which they may so sue or defend.</p>

<p>1. Option Contracts—Intention or Parties.</p> <p>When it is the intention of the parties to contracts for the sale of commodities that there shall be no delivery thereof, but that the transactions shall be adjusted and settled by the payment of differences, such contracts are void.</p> <p>2. Same—Burden or Proor.</p> <p>It is the duty of the courts to scrutinize very closely contracts for future delivery ; and if the circumstances are such as to throw doubt upon the question of the intention of the parties it is not too much to require a party claiming rights under such a contract to show affirmatively t^iat it was made with actual view to the delivery and receipt of the commodity.</p> <p>3. Same—■ Contracts Held Void.</p> <p>As the evidence in this case establishes the fact that the parties did not intend the actual delivery of the corn contracted for, but did intend to speculate upon the future market and to settle the profit or loss of defendant upon the basis of the prices of grain on the third of May, 1881, as compared yúth the prices at which defendant contracted to sell, the contracts sued upon are void, and plaintiff cannot recover.</p>

<p>1. Railroad Mortgage—Rolling Stock.</p> <p>Rolling stock does not necessarily become affixed to tlie railroad upon which it is placed. Therefore, a mortgage, although in terms covering future-to-be-acquired rolling stock, does not attach to the rolling stock of a third person subsequently placed on the road under a contract with a company then operating it.</p> <p>2. Execution—Levy under Writ.</p> <p>A sheriffs return ;o a writ of fi. fa.—“And I have, therefore, by virtue of the same written writ, levied upon all the right, title, interest, and claim of the S. & M. Railroad Company, of, in, and to the 8. <fc M. Railroad, in Somerset county, and state of Pennsylvania, and upon all the property, real, personal, and mixed, including locomotive, cars, * * * now in the regular use of the said S. & M. Railroad Company, in the conducting of its business as a carrier”—imports a seizure of the locomotive and cars, and in an action of trespass against the sheri.f, is conclusive evidence against him of such seizure.</p> <p>3. Same—Agreement as. to Rolling Stock Seized.</p> <p>The attorneys at law of the plaintiff, (the owner of tne rolling stock,) in that capacity merely, and without special authority so to do, signed an agreement as the basis of a consentable decree in an equity suit, to which the plaintiff was a stranger, and in which he had no interest, which provided, inter alia, for the withdrawal of exceptions to the sheriff’s sale, filed by the railroad company, (the defendant in the execution,) and the confirmation of the sale, and the return of the locomotive to the railroad, and its delivery to the sheriff’s vendee; the preamble of the agreement reciting, “Whereas, it is desirable that the relative rights of all parties interested or concerned should be determined at law;” and the sixth clause of the paper declaring, “ The rights of R. 8. Hardesty [the plaintiff] to any title or claim to the rolling stock, if he has any legal right, shall be determined according to law. This agreement is not to prejudice any right he may, and which can be, legally established to the rolling stock.” The sheriff was not a party to the equity suit or the agreement. Held, that the agreement must be construed as reserving to the plaintiff all his legal remedies,. and did not operate as an estoppel to bar his action of trespass against the sheriff.</p>

<p>1. Municipal Bonds—Issue of—Transfer for Purpose of Suit.</p> <p>Courts are iiot permitted to invalidate transactions between vendor and vendee upon a mere presumption or conjecture of fraud. A party seeking the dismissal of a suit on the ground that the claim was transferred for the purpose of making a case within the jurisdiction of the court, must establish the invalidity of the transfer by sufficient proof.</p> <p>2. Same—Amendatory Acts.</p> <p>An act which amends a general law by extending its provisions, cannot pro'perly be called “ a private or local bill,” and hence would not come within the terms of the section of a state constitution which provides that no “ private or local bill” which may be passed shall embrace more than one subject, which shall be expressed in the title.</p> <p>3. Samf.—Omission of Immaterial Statements.</p> <p>Omissions of immaterial statements in a petition or other document, provided for by statute, are not sufficient to invalidate it, provided that all the material statements conform to the statute, and are free from ambiguity and doubt.</p> <p>á. Same—Recitals in Municipal Bonds—Estoppel.</p> <p>Where municipal bonds recite on their face that they are issued pursuant to the statute providing therefor, the town is estopped, in an action by a bona fide holder, from questioning the truth of the recital. It cannot take advantage of irregularities committed by its own agents.</p> <p>5. Same—Ratificaton—Estoppel.</p> <p>Where a town has received railroad stock, and issued therefor its bonds, and has paid the interest on such bonds for a succession of years without objection, it is estopped by its own acts, which amount to a ratification and confirmation,.</p> <p>6. Same—Questions Preliminary to Issue of Bonds.</p> <p>The judgment and determination of a town officer, charged by law with the duty of deciding the questions preliminary to the issue of bonds, is conclusive until reversed in a direct proceeding by an appellate court.</p>

<p>1. Bills and Notes of Insolvents—Mutual Mistake—Attachment.</p> <p>When bills of an insolvent bank, or the notes of a party who has previously failed, are transferred in payment of a debt or sold as solvent paper, both parties being ignorant of the failure and innocent of fraud, the creditor or buyer may repudiate the payment or sale, upon a tender or return of the dishonored note, and recover the amount due.</p> <p>2. Same—Case Stated.</p> <p>The plaintiffs were the owners of a promissory note made by a firm in New Orleans. The note was sold by note brokers of New York to the defendant. On the same day, an hour before the sale of the note, an attachment, upon which their establishment was seized, was issued against the makers of the note by local creditors. The money received by the note brokers for the note being paid into court, the question remained whether the plaintiffs or the defendant, both parties being ignorant of the attachment and acting in good faith, should bear the loss. Held, that the defendant might rescind the contract for the purchase of the note and recover back what it paid therefor, on the same principle that the plaintiffs would have been allowed to rescind had the note been paid for the day following in bills of an insolvent bank.</p> <p>3. Same—Insolvency.</p> <p>When a firm is unable to meet its obligations and allows its property to he taken under an attachment on the charge of fraud, which it does not deny, it is legally if not actually insolvent.</p>

<p>Schedule M, $ 2504, Rev. St., Construed.</p> <p>The words “ the whole quantity” (schedule M, § 2504, Rev. St.) refer to merchandise shipped by one consignor from one place and to the particular kind of fruit damaged, and not to the whole invoice aggregating several varieties of fruit.</p>

<p>Bill of Review.</p>

<p>Demurrer to Indictment.</p>

Indictment for Conspiracy to Defraud the United States of 100,000 acres of land. Motion of defendants for a dedimus potestatem to take the depositions of witnesses residing in Iowa, Wisconsin, and Dakota.

The defendant, George S. Stickle, was put on his trial in this court, on information being filed under section 5480 of the Revised Statutes, for a fraudulent use of the post-office of United States. The evidence being closed, the court charged the jury as follows.

<p>Motion for a preliminary injunction to restrain the defendant from infringing two letters patent of the United States, one being for an “improvement in cases for transporting eggs,” and the other for an “improvement in egg-boxes. ” The first of said patents contains two and the other three claims.</p>

<p>1. Subcombination Claims Imported into Reissues.</p> <p>1 Such claims are void, upon the principle declared in Bantz v. Frantz, 105 U. S. 160.</p> <p>2. Right of Reissue to Cover such Claims Lost, because of Unreasonable Delay, the Defendant not Using- the Entire Combination.</p> <p>These claims in the reissue for the subcombinations are void, being granted many years after date of the original patent, and after the invention of another device which did not use the entire combination—-original claim—of that patent, and when “the right to have the correction made” had been “abandoned and lost by unreasonable delay.”</p>

<p>Patents for Inventions—Improved Skate—American Club Skate.</p> <p>^The operative locking mechanism is the lever, which operates as the ordinary toggle-joint does alter the parts have passed centers and is automatically held in against the runner by the pressure of the clamps, and the hook-like action alone of one of the links would not keep the clamps closed or locked, hut the efficient locking cause is the toggle-joint and lever, the use of which in defendant’s device will be enjoined.</p>

<p>Patents fob Inventions—Vioeatj on of Injunction.</p> <p>Wlierc defendant lias been guilty of a contempt in disregarding the injunction of the court, but the act of contempt does not appear to be at all willful or defiant, but merely the exorcise oí a supposed right under advice taken and given in good faith, it does not deserve punishment as such, but he should make the orator whole as to the damages sustained thereby.</p>

The owners of the schooner S. B. Hume recovered a judgment for half damages upon a libel for collision against the steam-ship Pennsylvania, reported in 12 Fed. Rep. 914, and the decree reserved the question of costs, whereupon the libelant moved for an allowance of full costs.

<p>1. Salvage—Amount Awakded.</p> <p>Measure of reward in cases of salvage where the peril to the salved vessel was great depends upon the circumstances of the case and the award is in the sound discretion of the court; it is not to bo measured positively by the value of the property in peril, yet this may always be taken into account in determining the amount, as the owners are benefited in that proportion, and a small percentage assists in compensating salvors for services that are frequently performed where the property is so small that adequate remuneration cannot be given without a hardship to the owner.</p> <p>2, Same—Pbecedents.</p> <p>Although each cause is disposed of upon its own merits, the discretion of the court should be guided by general principles, and in applying them should, as far as practicable, where circumstances show a similarity of reasoning and common point of agreement as to amount, consider the precedents of adjudicated cases.</p> <p>Amounts awarded in cited cases.</p>

<p>1. Common Carrier—Delivery—Negligence.</p> <p>Common carriers are bound to make delivery of goods according to their address. They are answerable for frauds upon themselves, but not for frauds upon the shipper, or. which they are not chargeable with notice.</p> <p>2. Same—Two Persons oe Same Name.</p> <p>Where goods were shipped by the steamer D., addressed to “ J. K., Albany,” without any street address, and there were two persons in Albany of that name, one an old tradesman of good repute, who, on tender of the goods, refused them as not intended for him, and the goods were aftewards delivered from the steamer to the other person of that name, who had had a store there for a few weeks previous, where he had received goods purchased, and he was, in fact, the same man who purchased the goods of the shipper in New York, but who, shortly after the delivery, abandoned his store and disappeared, held, though presumptively a swindler, and though the shipper supposed the purchaser was the other tradesman of the same name, yet that the steamer was not chargeable with any knowledge of these facts, and was not liable as upon a delivery of the goods to the wrong person, but, upon refusal by the other “ J. K.,” was warranted in delivering them upon the claim of the former.</p>

<p>Practice—Security eor Costs.</p> <p>By the long-standing practice in courts of admiralty, parties prosecuting or defending or intervening are required to give a stipulation for costs. In actions in personam, such security was formerly obtainable under the express rule, when the process was by warrant, which was at the option of the libelant. Now that the process by warrant is abolished in ordinary cases, the requirement of security for costs should still be maintained under the supreme court rule 25, and an amendment of the old rule 44 of this court should be made, in order that no doubt may exist as to the proper practice.</p>

<p>1. Removal of Causes—Motion to Docket—Cause, -when Considered Entered.</p> <p>When the papers are regularly transmitted from the state court to the clerk of this court and are on the files of the court on the first day of the first term after the filing of the petition, for removal and bond, and proceedings have been taken in this court by both parties, although a formal motion to docket the case was not made, they must be considered as having been filed and the cause entered.</p> <p>2. Same—Diversity of Citizenship at Time of Application.</p> <p>It is enough that the proper diversity of citizenship of the respective parties exists at tlie time the application for removal is made; it need not be shown to have existed at time suit was instituted.</p> <p>3. Same—Allegations as to Diversity of Citizenship—Amendment of Petition—Waiver ob’ Defect.</p> <p>The allegation in a petition for removal that defendants are “residents ” of Minnesota and Ohio instead of “ citizens,” is not a compliance with the statute ; but the court may, where such defect is the result of'inadvertence, allow the petition to be amended to correspond with the actual facts, especially where such defect has not been discovered, >r objected to by the opposite party, and he has taken important steps in the cause, and prepared it for trial in the circuit court.</p>

<p>Demurrer to the Petition.</p>

<p>1. Municipal Bonds—'Validity of Execution—Bulb of Construction.</p> <p>That full value has been paid for municipal bonds will not remedy failure to conform their execution to the terms of the act under which they were issued ; hut any doubt as to the construction of the statute should, under certain circumstances, be resolved in favor of bona fide holders.</p> <p>2. Same—Proper Signing.</p> <p>Examination of the use of the terms “ town ” and “ township,” in sections 16 and 17 of the act of April 19, 1869, (Illinois,) and in the statute relating to township organization, makes it reasonable to construe certain bonds which had been issued by a town organized under the township system, and which had been signed by the town clerk, and not by the county clerk also, but by the supervisor of the town, as properly subscribed.</p> <p>3. Same—Certain Issue Held Good in Law.</p> <p>Bonds authorized before the constitution of 1870 (Illinois) took effect, and issued thereafter by a majority of the voters in such a town, at an election called by the clerk of the town and not of the county, reciting compliance with all other requirements of law as to such special elections, and so signed, on which interest had been paid for several years by the town and county, their object having been in fact accomplished, held valid under the act of 1869, and within the reservation of the constitutional prohibition.</p>

<p>1. Ex Paste Injunction—Motion to Dissolve.</p> <p>A motion to dissolve an ex parte injunction may be made before answer.</p> <p>2. Board on' Trade—Right to Exclude Reporters or Telegraph Companies —Market Reports.</p> <p>A board of trade, composed of merchants dealing in the products of the country, who solely for their own convenience provide a room where they meet to transact business, although incorporated under the laws of the state, is not a public corporation, and is not obliged to allow the reporters o£ a telegraph company on the floor of its exchange for the purposes of collecting and transmitting the reports of the markets therefrom.</p> <p>3. Telegraph Companies—Not Bound to Collect and Transmit Information. ^</p> <p>It is no part of the duty of telegraph companies to collect and transmit information; and while they are bound, if they voluntarily follow that class of employment, to do it with fidelity during the continuance of their contract, when they terminate such contract no person can compel them to enter into another, or continue it when they wish it terminated.</p>

<p>In Equity. On demurrer.</p> <p>This action is one for damages for trespass, in seizing and converting certain goods, alleged by the plaintiff to have belonged to him. Plaintiff sets out his ownership, as derived under a certain deed of assignment, in these words and figures, to-wit:</p> <p>The State of Texas, Kaufman County: This .indenture made the twenty-fourth day pf October, A. D. 1881, between S. W. "Wallace of the first part, I. G. Lawrence of the second part, and the several creditors of the party of the first part, who shall hereafter accede to these presents, of the third part, witnesseth: That whereas the party of the first part is indebted to divers persons in considerable sums of money, which he is at present unable to pay in full, and he is desirous to convey all his property for the benefit of his creditors: Now, the party of the first part, in consideration of the premises, and of one dollar paid to him by the party of the second part, hereby grants, bargains, sells, assigns, and conveys, unto the party of the second part, and his heirs and assigns, all his lands, tenements, hereditaments, goods, chattels, and chosos in action, of every name, nature, and description, wheresoever the same may be, except such property as may be by the constitution and laws of the state exempt from forced sale. To have and to hold the said premises unto the said party of the second part his heirs and assigns. But in trust and confidence, to sell and dispose of said real and personal estate, and to collect said dioses in action, using a reasonable discretion as to the time and mode of selling and disposing of said estate, as it respects making sales for cash or on credit, at public auction or by private contract, taking a part for the whole, when the trustee shall deem it expedient so to do. Then in trust to dispose of the proceeds of said property in the manner following, viz.:</p> <p>First. To pay the costs and charges of these presents, and the expenses of executing the trusts herein declared, together with all taxes which are a charge upon any of said property.</p> <p>Seoond. To distribute and pay the remainder of the said proceeds to and among all the parties of the third part who will accept thereof, in full satisfaction of their claims against said party of the first part, ratably, in proportion to their respective debts.</p> <p>Third: To pay over any surplus, after paying all parties of the third part who shall accede hereto, as aforesaid, in full, to the party of the first part, his executors, administrators, or assigns; and the party of the first part hereby constitutes and appoints the party of the second part his attorney, irrevocable, with power of substitution, authorizing him in the name of the party of the first part, or otherwise, as the ease may require, to do any and all acts, matters, and things to carry into effect the true intent and meaning of these presents, which the party of the first'part might do if personally present; and the party of the second part, hereby accepting these trusts, covenants to and with each of the other parties hereto, to execute the same faithfully; and the party of the first part hereby covenants with the said trustee, from time to time, and at all times when requested, to give him all the information in his power respecting the assigned property, and to execute and deliver all such instruments of further assurance as the party of the second part shall be advised by counsel to be necessary in order to carry into full effect the true intent and meaning of these presents; and the parties of the third part, by acceding hereto, and by accepting the benefits herein conferred, hereby and thereby agree to and with the said party of the first part, to release him from any and all claim or claims, debt or debts, demand or demands, of whatever nature, which they respectively have and hold against him; and this assignment is made for the benefit cf such of the parties of the third part only as will consent to accept their proportional share of the said estate of the said party of the first part, and discharge him from their respective claims.</p> <p>Witness our hands, this twenty-fourth day of October, A. D. 1881.</p> <p>[Signed] . ' S. W. Wallace,</p> <p>I. G. Lawbence.</p> <p>Then follow separate acknowledgments and lists of liabilities and assets.</p>

<p>1. Draft—Deposit in Bank for Collection—Fraudulent Conversion.</p> <p>Where complainant sent a draft to a bank for collection charged with a trust to pay the proceeds thereof when collected to complainant, the bank being insolvent at the time, and its officers knew of its insolvency, and that the bank would be obliged to suspend within a day or two, and the bank received the draft of an agent of the owner to remit the proceeds thereof, when converted into a draft on another bank to the credit of complainant, but instead of so remitting the proceeds thereof, it kept the same, and mingled the proceeds of such draft with its own funds, held, that such conversion by the bank was fraudulent, but that in an action ''by complainant for the recovery of such proceeds, it is incumber if upon the complainant to trace the fund misappropriated into the hands of the receiver substantially appointed for the insolvent bank, before the latter can be charged with recognizing complainant’s equitable title thereto.</p> <p>2. Same—Funds in Hand of Trustee.</p> <p>A cestui que trust cannot follow his fund into the hands of an assignee in bankruptcy, or of an executor of such trustee, but must occupy the position of a general creditor of the estate, unless he can identify his fund.</p> <p>3. Same—Right to Follow Trust Fund—When Ceases.</p> <p>The right to follow a trust fund ceases when the means of ascertainment and identification fail, as where the subject-matter is turned into money, and mixed and confounded in a general mass of property of the same description.</p>

In Equity. On demurrer. The bill in this case charges that on the twenty-eighth of December, 1874, the Complainant executed and delivered to the defendant his promissory note for the sum of $3,522, due June 1, 1875, and on the same day he executed and delivered to the defendant a deed of trust, conveying to Thomas M. Jack and Marcus E. Mott, as trustees, 44 sections (28,160 acres) of land, in Shackleford, Callahan, Stephens, Palo Pinto, Jack, and Knox counties, to secure the…

In Equity. Demurrer to bill. This is a suit brought by Max Dahlman against Joseph M. Hayes, Amelia Jacobs, and Henry Jacobs, her husband, to have a certain instrument executed by the two last-named defendants held and decreed to be and operate as a deed of assignment for the benefit of all the creditors of said Amelia Jacobs, under the laws of the state of Missouri, and for other relief.

<p>1. Extradition—Authentication op Documents.</p> <p>Thie authentication of documents in extradition proceedings, which would be received “ in similar proceedings” in the demanding country, when aided by oral proof of handwriting, and by proof showing the purpose for which they are issued, is sufficient under section 5 of the act of August 3, 1882.</p> <p>2. Same—Treaty with Great Britain.</p> <p>Under the treaty with Great Britain, the latter is entitled to extradition on evidence of the offense sufficient to justify commitment here. The accused, though entitled to examine witnesses in his defense, is not entitled to a full trial here.</p> <p>3. Same—Practice—Judicial Discretion.</p> <p>It is not the practice before committing magistrates to receive the depositions of foreign witnesses taken abroad on the part of the defense. Held, therefore, that the commissioner, in extradition proceedings, rightly refused an adjournment applied for by the accused to enable him to obtain the depositions of witnesses in his defense from the country of the demanding government, and that his refusal was not such an abuse of judicial discretion as to be remedied by habeas corpus.</p> <p>4. Tihati—Act 01? August 3, 1882, Constkued.</p> <p>The word “trial,” in section 3 of the act of August 3, 1882, must be confined to such a preliminary hearing only as was already allowable under the existing practice.</p>

<p>1. Express Company—Failure to Deliver Money.</p> <p>In an action against an express company for the loss of money delivered to it, to be carried to and redelivered at a certain place, it is only necessary to prove the delivery of the money to the company and its failure to redeliver the same.</p> <p>2. Same—Burden of Proof.</p> <p>In such a case the burden of proof rests upon the plaintiff, and he has to establish by a preponderance of evidence that the allegations in his petition are true.</p> <p>3. Jury Judges of Credibility of Witnesses—Testimony of Employes.</p> <p>The jury are the exclusive judges of the credibility of witnesses, and in considering the weight to be attached to the testimony of certain witnesses, they may take into consideration the fact that they are the employes of the party in whose behalf they are testifying.</p> <p>4. Same—Circumstantial Evidence.</p> <p>If circumstantial evidence preponderates, or overthrows or overcomes, in the opinion of the jury and in their judgment, the direct positive testimony of witnesses, they have the right to take that kind of evidence and give it all the weight it is entitled to.</p>

<p>1. Principal and Agent—Negligence—Liability.</p> <p>Where axi owner of propei’ty lets the whole work of excavating and finishing a vault in front of his property to a party, as a contractor, to finish and complete the whole as a job, without reserving any control or direction over him in its construction, or over the construction of the work or the place where it was being constructed, or the mode of its execution or the workmexx to he employed to doit, although such contractor is to be paid a reasonable compensation for the work when completed, or is to bo paid by the day, and no fixed price is agreed on, and although the owner furnishes the material, he will not be liable for the negligence of such contractor in not providing suitable guards against danger to persons passing on the sidewalk. But if such owner reserves tlxo control of the place of the excavation, or the control of the contract, or the right to diroct him in the constructxon of the work, or does control him or direct him ixx tlxe doing of the work, sxxclx contractor is the mere servant of such owner, and the owner will be liable for his negligence axxd carelessness.</p> <p>2. Negligence—Reasonable and Proper Care.</p> <p>Negligence is a failure to do what a reasonably-prudent person would ordinarily have done under tlxe circumstances of tlxe situation, or doing what sxxclx person under existing circumstances would not have done. Reasonable axxd proper care must have reference to surrounding circumstances. These may otton demand a higher or lower degree of care and diligence of a party.</p> <p>3. Same—Matter of Law and Pact—Province of Court and Jury.</p> <p>Negligence is a question of law and fact. The duty of the party is matter of law, and to be settled by tlxe court. Wlxat was done by tlxo party is matter of fact, and to be determined by tlxe jury.</p> <p>4. Same—Preponderance, of Evidence.</p> <p>In an action for damages for an injury caused by negligence, it is incumbent upon tbe plaintiff to establish, by a fair preponderance of evidence, that the party charged with negligence, or his agent or servant, was guilty of the negligence complained of, to entitle him to recover.</p> <p>5. Same—Measure of Damases.</p> <p>Where a jury find defendant guilty of negligence resulting in injury to plaintiff they should assess him such damages as they think will reasonably compensate him for the injuiy received, and may take in account in such assessment of damages his loss of time, bodily and mental suffering, expense of nursing and doctors’ bills, diminished capacity to attend to business or work in the future, and permanent disability, occasioned by the injury, if such is shown by the evidence. '</p>

<p>1. Negligence—Definition.’</p> <p>Negligence is tbe failure to do wliat a reasonably-prudent person would ordinarily (have done under the circumstances of the situation, or doing what a person under -the existing circumstances would not have done.</p> <p>2. Same—Recovery—Contributory Negligence.</p> <p>Where a plaintiff so far contributes to an injury complained of by his own negligence, or want of ordinary care and caution, that but for that negligence br want of care and caution oh his part the injury would not have happened, he is not entitled to recover.</p> <p>3. Same—Owner of Vessel—Degree of Care.</p> <p>The owner of a vessel is required to exercise the usual and customary mode and care adopted by reasonably-prudent persons in control of vessels of like character, for safety to their employes from hatchways, usually adopted and used on board of vessels of the character of his, and under like circumstances, and if that was not done by the owner and his agents, such failure would be negligence, and if an employe was injured thereby without his own carelessness contributing thereto, the owner would be liable to damages therefor.</p> <p>4. Same—Neglect of Porter to Light Vessel—Co-Laborer.</p> <p>Where it is the duty of a.porter on a vessel to place lights upon a vessel and about the hatchways, if left open, and by reason of his failure to place such lights an employe falls down a hatchway and is injured, although such porter .may have, been a co-iaborer in performing his duty in regard to the lighting of the-vessel, he is. the agent of the owner of the vessel, and his negligence would he the negligence of such owner.</p> <p>'5. Master and Servant—Risks of Employment.</p> <p>A party accepting the employment of a deck hand holds out to the employer that-he is competent to discharge the ’duties of such employment, and incurs áli the necessary and reasonable liabilities to accidents incident thereto, and if at'the time of the hiring nothing is said as to his inexperience, the emplojrer has a riglit to presume that he is familiar with all the duties of a deck hand; but if he informs the employer that he has no such, experience, and no knowledge of the localities of the hatchways or of thq gangways of the vessel, a greater degree of care would be required’on the part of the employer to protect him-from dangers that might be incidental to the employment under those circumstances.</p> <p>6. Negligence—What Jury to Consider.</p> <p>Whore an injury is alleged to have been caused by falling through a hatchway on a vessel, left open at night and-not properly lighted, the jury should consider what is the usual custom, manner, and mode of lighting up such vessels, then determine whether the hatchway was negligently left open or was properly lighted by the parties in charge of the-vessel, and whether, under all the circumstances of the case, the party injured was not himself guiltv of negligence.</p> <p>7. • Same^-Measure of Damages.'</p> <p>In such a case, where the jury find in favor of the plaintiff, they should assess him such damages as imder the circumstances would be a reasonable com- . pensation for the injury received, taking into cón'^ideratioa'the physical pain and suffering endured by him, liis loss of time, his expenses for nursing and doctors’ bills, his diminished capacity to attend to business or work in the future, and whether or not the disability occasioned by the injury is permanent.</p>

<p>1. Banking—Discount of Note of President Indorsed by Bank.</p> <p>Wliere a party discounts a note given by tlie president ol a bank, with tho Indorsement of the hank thereon, supposing that he is dealing with and advancing the money to tho bank, and not the president personally, the bank will bo held liable for the payment of such note. Claflin v. Farmers’ Loan & Trust Co. 25 N. Y. 293, distinguished.</p> <p>2. Same—Becovery of Loan—No Authority to Do Banking Business.</p> <p>Although an association may not have power to do a general banking business, if a person borrows money from such association such money may he recovered in an action for money had and received. Trust Co. v. Helmer, 77 N. Y. 64, distinguished.</p>

At Law. Decision on the motion to strike out evidence of payment of one joint debtor to take the case out of the statute of limitations.

At Law. This was an action to recover the value of a certain article of personal property which was sent to the plaintiff by a relative residing in Germany, in a sealed envelope, through the mail, and which it was claimed had been unlawfully converted by the defendants to their own use.

<p>1. Duties—Recovery of—Burden oe Proof.</p> <p>In an action to recover duties, on imports, the burden of proof is on the government to show that defendant imported the articles without the payment of the duty required by the statute, and also to show the quantity so imported by him, and this must be done by a fair preponderance of evidence.</p> <p>2. Same—Liability.</p> <p>If the articles were purchased by defendant after they had been imported and passed the custom-house, without the payment of duty by others, he is not liable for the duty, unless he connived at and is shown to be privy to the importation.</p> <p>3. Same—Importer’s Liability.</p> <p>The fact that dutiable goods were allowed by the customs officers to pass through the custom-house without payment of duties, will not relieve the importer from liability to action for such duties.</p> <p>4. Same—Measure oe Recovery.</p> <p>In an action for the recovery of duties on imports, the government is not. entitled to interest on the unpaid duties. The amount of the recovery cannot exceed the amount claimed in the petition.</p>

<p>Revenue Laws—Sale of Manufactured Tobacco—Retail Trade.</p> <p>Section 3303, Iiev. St., provides, inter alia, that “no manufactured tobacco shall he sold or offered for sale unless put up in packages and stamped, as prescribed in this chapter, except at retail, l>y retail dealers, from, wooden packages stamped as provided in this chapter.” Held, that a sale by a retail dealer, in the course of his business, from a wooden package properly stamped, of part of the tobacco to another retail dealer, who proposed to sell it again, is a retailing within the excepting clause. The vendor is not answerable for the acts of the purchaser, and need not concern himself as to his intentions.</p>

<p>1. Cox,lector of Customs—Receipt of Freight on Bonded Merchandise—Act of June 10,1880.</p> <p>It is not the official duty of a collector of customs to receive the freights due to carriers for transportation of merchandise in bond, in pursuance of the act of Juno 10, 1880; hut if the collector agrees to receive such freight in lieu of giving notice to the carrier, as required by the statute, before delivering the goods to consignees, he would be liable for any amount so received for the use of the carrier.</p> <p>2. Same—When Liable for Acts of Deputy.</p> <p>The receipt of such freights not being an official duty, a deputy could not render the collector liable for his acts by reason simply of his official relation to his superior. The collector would not be liable for freights collected by a deputy unless he had in some way authorized his deputy so to act, or unless he had so acted as to estop him from denying that the deputy was, in the matter complained of, acting by his authority for him.</p> <p>8. Sash?,.</p> <p>If the collector knew that his deputy was receiving the freight due to the carrier, and permitted the carrier to receive the freight through his deputy in the belief that he was acting for him, or by his acts or declarations held out his deputy as his agent in the matter to receive the freight duo to the carrier, in lieu of the notice required by the statute, he would he liable to the carrier for any amount so paid to the deputy.</p> <p>4. Collector of Customs — Freight on Bonded Merchandise—When not Liable for Failure to Dive Notice to Carrier.</p> <p>The plaintiff, not having alleged that the freight is unpaid, hut, on the contrary, having alleged payment of the freight for his use and sued for its recovery, the carrier cannot recover damages by reason of the failure of the collector to give notice before delivering the merchandise to the consignees.</p>

<p>1. Bankruptcy—Trust Estate—Lapse oe Time as a Bar.</p> <p>Mere lapse of time will not bar a claim against a trust estate, valid and in full life when the trust was created, so long as the estate is unadministered and the trust subsists.</p> <p>2. Same—Statute oe Limitations.</p> <p>The statute of limitations is no bar to proof in bankruptcy if it had not run against the claim at the commencement of the proceedings in bankruptcy.</p>

<p>In Bankruptcy.</p>

In Equity. This was a bill in equity to recover damages for the infringement of patent No. 236,052, issued to Elon A. Marsh, for an improvement in steam-engine valve gear. The only defense made upon the hearing was that there was no such patent in existence at the time the bill was filed.

<p>Patents nor Inventions—Hydrocarbon Stoves.</p> <p>Whore defendants’ combination lacks essential elements of the plaintiff’s invention, the bill for an infringement will be dismissed.</p>

<p>Colmsion—Dangbu Signals—Duty to Repeat.</p> <p>Where a tug- and her tow were meeting a steamer about head on, and tlie captain oí the tug saw the approaching steamer and blow two whistles to indicate his intention to go to the left, but the signal was not answered by the steamer, it was his duty not to go forward upon his proposed course without either renewing his whistles or making an effort to get out of the way of the steamer, when he had good reason to know that it was a steam-boat which was upon her regular route, and was taking the ordinary way to make her usual landing.</p>

<p>Tug with Dredge in Tow—Negligence in Starting Suddenly.</p> <p>A tug was conducting a tow from New London to Fall River at niglit. Tlie tow consisted of a dredge with square ends, attacked to the tug by a single hawser with a bridle, and nine substantially-empty scows towed by two hawsers attached to corner posts at the rear end of the dredge. As the tow approached Point Judith the hawser from the tug parted and was replaced by two hawsers, the tug stopping for the purpose. When they were out the tug started again; shortly after, the dredge’s port rear corner post pulled out and the dredge sank. Her owner filed a libel against the tug to recover her loss. Held, upon all the evidence, that the tearing out of the corner post of the dredge was not to be attributed to a defective construction of the dredge, but that the tearing out of the post and the sinking of the dredge were the result of want of due care, on the part of the tug, in starting up again with a sudden jerk, after the hawsers were got out, and there must therefore be a decree for libelant, and order of reference.</p>