Volume 150 — United States Reports

<p>After the expiration of the time limited by the act of June 8, 1872, 17 Stat. 339, c. 354, for the completion of its road'to Santa Eé, if not before that time, the Denver and Rio Grande Railway Company was entitled to claim the benefit of the act of March 3, 1875, 18 Stat. 482, c. 151, upon complying with its conditions.</p> <p>The act of March 3, 1875, 18 Stat. 482, c. 151, granting a right of way to railroads through the public lands, and authorizing them to take therefrom timber or other materials necessary for the construction of their roadways, station buildings, depots, machine-shops, sidetracks, turnouts, water stations, etc., permits a railway company to use the timber or material so taken on portions of its line remote from the place from which it is taken. ■</p> <p>Inits ordinary acceptation and enlarged sense, the term “railroad” includes all structures which are necessary and-essential to its operation.</p> <p>While it is well settled that public grants are to be construed strictly as against the grantees, they are not to l?e so construed as to defeat the intent of the legislature, or to withhold what is given.</p> <p>General’legislation, offering advantages in the public lands to individuals or corporations as an inducement to the accomplishment of enterprises of a quasi public character through undeveloped public domain should receive a more liberal construction than is given .'to an ordinary private grant.</p> <p>It is not decided that the act of March 3, 1875, gave a right to taka timber from the public domain for making rolling stock; nor what .structure, if any, not enumerated in that act would constitute necessary, essential, or constituent parts of a railroad.</p>

<p>In this case the court follows its rulings in No. 3, ante, 1.</p>

Held: that this power of extension might be exercised after the expiration of the time previously fixed, the act providing that “ in all cases where.the Superintendent, under the direction of said Board, has extended the time for the performance of contracts, the same shall í»e held to have been legally extended.” The law remained in this, condition until the session of 1871-72, when another act was passed, Act of April…

<p>In an action to try the title to land, where there is conflicting evidence as ■ to certain natural objects named in running the lines, an instruction to the jury that if, after fully considering the conflicting'evidence they are left doubtful and uncertain, they will be justified in locating the grant by referring to such of the natural objects as are certain, is not error.</p> <p>Such is the effect of the instruction to the jury in this case.</p>

Motion to dismiss. This was a bill of complaint filed' by . James O. Wood and others against the Aspen Mining and Smelting Company and others in the Circuit Court of the United States for the District of Colorado on April 14, 1888, which resulted, upon final hearing on pleadings and evidence, • in a decree, October 20, 1890, one of the days of the May term, 1890, of the court, dismissing the bill at the costs of the’ complainants.

In .equity, to prevent the infringement of letters patent. Decree below dismissing the bill, from which the complainant appealed. The case is stated in the opinion.

<p>APPEALS FROM THE CIRCUIT COURT OF 'THE UNITED STATES FOR THE SOUTHERN DISTRICT OF OHIO.</p> <p>These four bills in equity, for the alleged infringement of the same letters patent- by different parties, were arguéd together here. In each the bill was dismissed below, from which decree the complainant appealed in each case;</p>

This was a petition by the marshal of the United States for the Territory of Idaho for fees earned in executing warrants of commitment of certain prisoners to the penitentiary at Boisé City, and also for commissions upon disbursements for the support of such penitentiary. In connection with the latter claim the court made the following findings of fact: “ IY.

This was a writ of error upon the conviction of the plaintiff in error for the murder of Charles Palmer, on July 25, 1889, in Blue County, Indian Territory.

Held: that there was no error in this instruction. The plaintiff in error was convicted in the Circuit Court of the United States for the Western District-of Arkansas of the crime of murder, and sentenced to be hung.

This was an appeal from a judgment of the Court of Claims, in favor of the claimant and against tlie United States.

NEW YORK. • This was an action brought, after due protest and other proceedings, by the members of a firm of importers against the 'collector ’of the port of-New York, to recover back duties assessed and levied by the .collector under the tariff act of„ March 3, 1883, c. 121, upon three importations in 1887 of an article invoiced as “manure salts,” which the collector held to come within the clause “ Potash, sulphate of, twenty per centum ad valorem,” in “ Schedule A.…

Held: that he was entitled to a new trial. This was an indictment, found at August term, 1891, of the Circuit Court for the Western District of Arkansas, against Robert M. Hall, for the murder of James Yates, by shooting him with a gun, at Choctaw Nation in the Indian country in that district, on August 4, 1S91.

This was an application for leave to file a petition for a rehearing of a case decided at October term, 1892.

• This was an action brought by Hector C. Bollong agáinst the Schuyler National Bank, a corporation located and doing business in Colfax County, Nebraska, in the District Court of that county, to recover the penalties imposed by the statutes of the United States for knowingly contracting for and receiving usurious interest.

<p>The question of excluding a witness, pending the testimony of other witnesses in a trial for murder, is within the discretion of the trial court; but if a witness disobeys the order of withdrawal, he is not thereby disqualified, but may be proceeded against for contempt,. and his testimony is open to comment to the jury by reason of his conduct.</p> <p>A general exception to a charge, which does not direct the attention of the court to the particular portions of it to which objection is made, raises no question for review.</p> <p>The denial of a motion for a new trial cannot be assigned for error.</p>

<p>ERROR to the circuit court of the united states for the WESTERN DISTRICT OF ARKANSAS.</p> <p>The case is stated in the. opinion.</p>

<p>APPEALS FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF NEW YORK.</p> <p>In admiralty. The case is stated in the opinion.</p>

This was a bill in equity originally filed for the. infringement of six letters patent for improvements in glove fasteners, 'five of which patents were issued to William S. Richardson and one to Albert G. Mead. A plea having been filed upon the ground of multifariousness, two of the patents were stricken from the bill upon the application of the plaintiff. The only patent relied upon at the hearing or covered by the assignments of error was that to Albert G. Mead,.

Held: and rightly, that his non-production was a subject for consideration and also for comment. See also Gavigan v. Scott, 51 Michigan, 373; Tobin v. Shaw, 45 Maine; 331; Commonwealth v. Webster, 5 Cush. 295 , 316; McDonough v. O'Neil, 113 Mass. 92 ; Blatch v. Archer, Cowper, 63, 65 ; 1 Starkie on Evidence, 54.

Held: that he could not repudiate the transaction in part and ratify it in part; and that having- ratified it in part by the receipt of the sum paid in cash, he could not maintain this action.

This case came to this court on error from the Supreme Court of the State of Alabama. On the 3d of. June, 1856, Congress made a grant of public lands to the State of Ala-barn a to aid in the construction of certain railroads. 11 Stat. 17, c. 41. This grant was renewed and extended by an act of April 10, 1869. 16 Sta.t. 45, c. 24.

This was an action in ejectment brought by John Turckagainst the Colorado Consolidated Mining Company, December 2, 1885, in the Circuit Court of .the United States for the District of Colorado. The complaint alleged ■: “ First.

<p>APPEAL FROM THE SUPREME COURT OF THE TERRITORY OF UTAH.</p> <p>This was a motion for a decree. The case is stated in the opinion.</p>

ORIGINAL. These were applications for leave to file petitions for writs of mandamus against the-judge of the District Court of the United States for the Middle and Northern Districts of Alabama, commanding him to vacate certain orders made and entered by him June 20,1893, while holding the Circuit Court for the Southern Division of the Northern District of Alabama, as to each of said petitioners, and hereinafter set forth, and to reinstate petitioners in the offices of…

Held: that the allowance of this bill of exceptions was not seasonable.

In equity, for the infringement of letters patent. Decree dismissing the bill, from which complainants appealed. The. ■ case is stated in the opinion.

Held: had determined should be issued. There is a radical difference in these respects between'that case and the one under consideration.

Held: That, on authority of MoGlurg v. Kingsland, 1 How. 202 , it might be presumed that S. had licensed B. & B. and the L. & B. Company . to use his invention; (2) That, on the authority of Solomons v. United States, 137 U. S. 342 , it might be presumed that S. had recognized an obligation, flowing from his employment by the partnership and by the corporation, to permit them to use his invention; (3) That he was guilty…

Held: that under the provisions of § 1 of the act of March 3, 1875, 18 Stat. 470 , c. 137, which statute was in force when the suit was commenced, it could not be maintained. The jurisdiction of this court in this case is limited by the act of February 25,1889, 25 Stat. 693 , c. 236, to the determination of the questions as to the jurisdiction of the Circuit Court.

OP OKLAHOMA. This was a proceeding in mandamus brought in the District Court of the First Judicial District of Logan County, in the Territory of Oklahoma, April 2.7, 1891, to compel Daniel J. McDaid, William.

<p>The second claim in letters patent No. 233,240, for improvements in dress forms, issued October 12, 1880, to John Hall, and by him assigned to Charles A. Morss,viz.: “ 2. In combination with the standard a and ribs c, the double braces e2, the sliding blocks J'1 and /2, and rests hl and 7i2, substantially as and for the purposes set forth,” when read and interpreted with reference to other and broader claims which were made by the patentee and were rejected by the Patent Office, must either be held to be invalid for want of invention, or must be so limited in view of that action by the Patent.Office, and in view of the prior state of the art, as not to be infringed by a combination leaving out one of the elements of the patentee’s device.</p> <p>A claim in letters patent cannot be so construed as 'to cover what was rejected by the Patent Office on the application for the patent.</p> <p>The combination of old elements which perform no new function, and accomplish no new results, does not involve patentable novelty.</p> <p>The end or purpose sought to be accomplished by a device is not the subject of a patent, but only the new and useful means for obtaining that end.</p>

This case was commenced in the District Court of Clay County, Dakota Territory, on August 31, 1886, by the plaintiff in error, Biddena Elliott, widow of John Elliott, deceased, against the railway company to recover damages on account of the death of John Elliott, alleged to have been caused by the negligence of the defendant and its employés. .The defendant answered, a trial was had at the September term, 1886, and the plaintiff recovered a verdict for seven thousand…

Held: not coming within the description in section 8 of the act of April 30, 1790, c. 9, “upon the high seas, or in. any river, haven, basin or bay, out of the jurisdiction of any particular State.” But the jurisdiction of the Circuit Court of the United States was also sought to be maintained under the provision, of section 7 of the same act, for the punishment of murder committed “ within any fort, arsenal, dockyard,…

' This was also an intervening petition against Humphreys and Tutt, receivers of the.property of the Wabash, St. Louis and Pacific Railway Company, and was instituted by Seney as trustee in a mortgage covering what was known as the “ Clarinda branch ” of the Wabash Railway, to recover a rental equal to the interest at six per cent on $261,000 of bonds, from August 1, 1881, to April. 1, 1886, which bonds were secured by a mortgage to Seney as trustee.

Held: That the contract was not a contract of sale of the goods by B. to S., but a bailment upon the terms stated in the correspondence, and as it was clearly expressed in the writings between the parties, it could not be varied by the terms of the printed bill-head of the invoice;' (2) That S., as bailee, was exempted by the common law from liability for loss of the consigned goods arising from inevitable accident; (3)…

ERROR • TO THE CIRCUIT COURT OE- THE UNITED STATES EOR THE ■ EASTERN DISTRICT OE VIRGINIA.

On February 14,1887, Charles H. Bolles and George F. Wilde, as surviving members' of tbe firm of B. Collender & Company, filed a petition in insolvency in tbe insolvency court within and for the county of Suffolk, State of Massachusetts.

Held: That this was error, and that the bill should have been dismissed for want of jurisdiction. Simple contract creditors of a corporation, whose claims have, not been reduced to judgment, and who have no express lien on its property, have no standing in a Federal court of equity, to obtain the seizure of their debtor’s property, and its application to the payment of their debts..

Held: on the evidence, that it was practical and successful, and embodied the same principle as that of Gordon ; that it was continued in use for nearly two years after Gordon obtained his patent; and that, although it did not contain the non-conducting jacket surrounding the outer wall of the cold-air passage, which was a feature in claim 3 of the patent, there was no patentable invention in adding a non-conducting…

On March 11, 1893, the Toledo, Ann Arbor and North Michigan Railway Company filed its bill of complaint in the Circuit Court of the United States for the Northern District of Ohio against the Lake Shore and Michigan Southern Bailnvay Company and other railroad companies, which connected with complainant in the carrying on of interstate commerce, charging that it was the duty of defendants under the act of Congress of February 4, 1888, and the amendments thereto, regulating…

Held: ■ (1) That the bill was clearly a supplemental and ancillary bill, such as. the court had jurisdiction to entertain, irrespective of the citizenship of the parties; (2) That the original decree not only undertook to remove the cloud on M’s title, but it included and carried, with it the right to possession of the premises, -and that right passed to W as privy in estate; (3) That certain facts set up as to an alleged…

<p>When an appeal is allowed in open court, and perfected during the term at which the decree or judgment appealed from, was rendered, no citation is necessary.</p> <p>When an appeal is allowed at the term of the decree or judgment, but is not perfected until after the term, a citation is necessary to bring in the parties; but if the appeal be docketed here at the next ensuing term, or the record reaches the clerk’s hands seasonably for that term, and legal excuse exists for lack of docketing, a citation may be.issued, by leave of this court, although the time for taking the appeal has elapsed.</p> <p>When an appeal is allowed at a term subsequent to that of the decree or judgment appealed from, a citation is necessary; but it may be issued, properly returnable even after the expiration of the time .for taking the appeal, if the allowance of the appeal-were made before.</p> <p>A citation is one of the necessary elements of an appeal taken after the term, and if it be not issued and served before the end of the next ensuing term of this court, and be not waived, the appeal becomes inoperative.</p>

This was an action to recover duties paid under protest on importations' made in 1888. The first count of the plaintiff’s declaration was on an account annexed as follows : “ Boston, July 3, 1888. “Leverett Saltonstall, collector, etc., to Joseph Birtwell,- Dr. “Feb. 29, 1888., To excess of duty paid on 432 pieces of manufactures of iron entered ex-steamship Jan Breydel, Feb. 27, 1888..........................$1800 “Mch. 14, 1888.

" NORTHERN DISTRICT OF ILLINOIS. These were actions against the collector of the part of Chicago to. recover duties claimed to have been erroneously assessed upon certain consignments of pearl opera glasses. The facts and the questions of law involved in the two actions were similar, except in some unimportant details. The opera glasses consisted of lenses in a- metal frame, with an. outer covering of shell.

Held: that -this instrument constituted a contract fully executed on both sides, which gave the right to the Treasury Department, without liability for remuneration thereafter, to make and use the machines containing the patented improvements to the end of the term for which the letters were granted; which contract could not be defeated, contradicted, or varied, by proof of a collateral parol agreement inconsistent with…

Motion to dismiss. This was a, bill of complaint filed by R. S. Powell and fourteen others, resident citizens and taxpayers of the county of Brunswick, suing on behalf of themselves and all other citizens and taxpayers of the county, making themselves parties, March 25, 1889, in the Circuit-Court of the county of Brunswick, in the.

Held: that this was errqr, as it tended to defeat th.e wise and humane provision of the law that “ the person charged shall, at his own request, but not otherwise, be a competent witness.” The exception to the judge’s chax’ge does not embrace too lax’ge a portion of it, and is not subject to the often sustained objection, of not being sufficiently precise and pointed to call the attention of the judge to the particular…

In equity to restrain an alleged violation of a trade-mark. Decree dismissing the bill, from ivhich complainant appealed. The case is stated in the opinion.

This was a oivil action 'in form, to recover a penalty for importing an alien under contract to perform labor, in violation of the act of February 26, 1885, 23 Stat. 332, c. 161. The point upon which the case turns in the opinion ié, that the action being criminal in nature, though civil in form, the defendant could not be compelled to be a witness against himself.

Held: per Story, J., that the decision of the commissioners within the scope of their authority was final and conclusive; that the parties must abide by it as the decree of a competent tribunal of exclusive jurisdiction.

Held: goes only to the remedy and not to the jurisdiction, and the action of the District Court is binding in a collateral proceeding. The rule that the death of a party to a suit, either pending the suit or after judgment and before execution, abates the suit, does not apply to a case where land has been sold upon execution, but no deed delivered.

Held: approved its proceedings, findings, and sentence, and on April l3, 1869, forwarded the record to the Secretary of War for the action of the President of the United States. May 12,' 1869, John A. Rawlins,...then Secretary of War, made an order or endorsement on the proceedings and sentence of said general court-martial as follows, to wit: War Department, Washington City, May 12, 1869.

Held: That the death of W. revoked IC’s authority to act for him or his estate, and payments made to K. as his agent after his death did not discharge T.’s obligation to his estate; (2) That whether it also operated as a revocation of the verbal authority given by S., may admit of some doubt, but is unimportant in view of the long silence of S.; (3) That in view of the character of the notes, and in view of tho-fact that…

Held: that, under well settled rules of equity pleading and practice, this answer could be overcome only by the testimony of at least two witnesses, or of one witness with corroborating circumstances, and that tlie proofs in this case fail to break down the defendant’s denial.

Held: Dove v. State, 37 Arkansas, 201, that the common law presumption that a person between the ages of twelve and fourteen is incapable of discerning good from evil, until the contrary be affirmatively shown, still prevails. A homicide was committed in May.

On May 4, 1889, Alfred B. Mullett filed his petition in the Court of Claims, seeking to recover for services as an architect rendered in the year 1871, in preparing designs for the building now occupied by the State, War, and Navy Departments, and working drawings for the construction of the same. Other claims were stated in the petition, but they have since been abandoned by the petitioner.

In equity. Decree dismissing the bill, from which, complainant appealed. The evidence was voluminous, but the court seems to have stated in its opinion everything that is necessary to be stated in order to understand it. The case was before this court at October term, 1886, as staled in the opinion, under the title Farley v. Kittson, reported in 120 U. S. at p. 303.

Held: That T. acquired no interest in the share of S. in the mine by the sheriff's deed; (2) That T. was not a coowner in the mine with S. during the year 1884, within the meaning of the statute, which, as it provides for the forfeiture of the rights of a coowner, should be construed strictly. By the laws of Colorado, title to land sold under execution remains in the judgment debtor till the deed is executed.

<p>APPEAL FROM THE COURT OF CLAIMS.</p>

This was an action of ejectment brought at the November term, 1887, in the Circuit Court of' the United States for the District of Nebraska, by Seth E. Ward, a citizen of the State of Missouri, against. Elmer Gf.

The single question presented by the record in this case is whether the action of the court below, in sustaining the plea in bar of the suit and dismissing the bill, was correct.

Held: with regard to- the double-cover process used by Blakesley, that the braided covering was immersed in the dextrine^ “ not in order to cement it to the core,- .but to'enable-the material to be cut without fraying out.

<p>ORIGINAL.</p> <p>By an order of the Circuit Court of the United States for the District of South Carolina in .the case of F. W. Bound v. The South Carolina Railway Company and others, Daniel H. Chamberlain was appointed receiver of the railway company; and al'1 of its property was placed under his care and management and protected by injunction. In the operation of - the railroad as a common carrier, there was delivered to the receiver April 12, 1893, a barrel of liquor shipped by citizens of North Carolina from Statesville in that State, and consigned .to their agents in Charleston, South Carolina. By reason of some confusion arising over the bill of lading, or from the markings on the barrel, there was difficulty in discovering the consignees, and the barrel was stored in the warehouse of the railroad company awaiting the result of an • investigation in that particular.</p> <p>An act of the'general assembly of South Carolina, commonly called the Dispensary Daw, and entitled “An act to prohibit the manufacture and sale of intoxicating liquors as a beverage, within this State, except as herein provided,” was approved December 24, 1892, and by-its terms was to go into full operation July 1, 1893. Acts South Carolina, 1892, No. 28, p. 62.</p> <p>On the first of August, 1893, while the matter of the ascertainment of the consignee was being investigated and the barrel .was in the warehouse of the receiver, freight unpaid, -one C_B. Swan entered the warehouse, seized.the barrel, took it out of the custody of. the receiver, and deposited it in the jail of Charleston County, in the care of the sheriff. Swan showed no authority either from the consignee or the consignor of the goods, and produced no warrant by virtue of which the seizure was made. "When questioned by the receiver, the sole authority referred to by him was his commission as a constable of the State. His suspicions had been excited respecting this barrel, it having been, presumably from necessity, removed from one part of the floor of the warehouse to another, and he acted on his suspicions. It was admitted that he took the course he did of his' own motion without instructions from-any one in the legal department-of the State, and probably without instructions from any other person. After the seizure the goods remained in the place where deposited by Swan without any proceeding or application whatever until on August J, 1893, the receiver filed his petition in the Circuit' Court in the case in which he was appointed, -setting forth the facts and praying that Swan be attached and punished for contempt of court in seizing the goods without warrant, and that he- be compelled to restore them to the receiver’s custody for delivery to the consignee. A rule to show cause was accordingly entered, to which Swan made answer, disclaiming any purpose to commit contempt of court, but justifying the seizure under the Dispensary Act, and making no offer to restore the goods. The court after full hearing ordered that the rule be made absolute, and committed him to the custody of the marshal to be imprisoned in the jail of Charleston County until he returned, “to the custody of the receiver, the barrel taken by him from the warehouse without warrant of law. And when that has been surrendered that he suffer a further imprisonment thereafter in said county jail for three months and until he pay the costs of these proceedings.”</p> <p>In its opinion, the court, (Simonton, J.,) after stating the, facts, said: “Were this a simple case of interference with property in the hands and custody of this court, without notice to it, and without action on its part, its settlement would be easy. Were it even based upon a charge of violation of the law on the part of the receiver, and sustained by a mandate issuing from any proper authority, the court would not be slow to believe that the manner of the execution of the mandate arose from inadvertence, and would lend its aid to an investigation of the charge, and a due execution of the law. As a'common can’ier, the receiver is bound to respect .and obey the laws of the State. He and the court from whom he holds his appointment are servants of the law, exceptionably bound to pay it the. utmost deference and respect. But the real issue in this case is vastly more important than an interference with property in the hands of the court. It is far reaching in its consequences, and concerns, not only the receiver, but every other citizen. Has any constable the right, without warrant, to search premises, and to seize property, when he suspects that a violation of the law is intended ? ”</p> <p>The various sections of the Dispensary Act were then considered and the result reached that a constable had no authority to so search and seize under the terms of the act, on general principles, or under the constitution' of South Carolina, and it was said in conclusion :</p> <p>“ In the case now before us there is not even the excuse for haste. The goods were stored and kept in a warehouse, not at a place for sale. No concealment whatever was practised. In his answer the respondent says that for several days he saw the package, and watched it. Any notification to this court would have absolutely secured him from any removal of it. Within his reach, at any hour of the day, he could have gone before any justice or judge, and could have obtained, or at least could have sought, a warrant. The process of law was within his reach. Even when he searched and seized the package, he openly disregarded the law. For eight days he remained inactive, taking no steps whatever to justify, support, or legalize his action. It does not appear even that he reported it to any one. His contempt of private rights went far beyond his disregard of the existence and authority of this court.”</p> <p>Swan, having been committed, presented his petition for the writ of habeas corpus, and a rule having been entered thereon, and a return having been duly made thereto, the application was heard by this court upon the petition and return, and the accompanying exhibits, which included the opinion, now reported in 57 Fed. Rep. 185.</p> <p>By the first section of the Dispensary Act it was provided that after July 1, 1893, the manufacture, sale, barter, or exchange, or the keeping or offering for sale, barter, trade, or exchange, within the State, of intoxicating liquors,- should be regulated and conducted as provided in the act.</p> <p>The second section provided for the appointment of a commission to purchase all intoxicating liquors for lawdul sale in the State and to furnish the same to persons designated as dispensers thereof, to be sold as prescribed.</p> <p>In all purchases or sales made by the commissioner it was made his duty to cause a certificate to be attached to each and every package, “and without such certificate any package containing liquors which shall - be brought into the State, or shipped out of the State, or shipped from place to place within tbe State by any railroad, express company,, or other common carrier, shall be regarded as intended for unlawful sale.”</p> <p>The following are applicable sections of the act, some immaterial parts being omitted:</p> <p>“ Seo. 22. All places where intoxicating liquors are sold, bartered or given away in violation of this, act, or where persons are permitted to resort for the purpose of drinking intoxicating liquors as a beverage, or where intoxicating liquors are kept for sale, barter or delivery in violation of this act, are hereby declared to be common nuisances; and if the existence of such nuisance be established, either in a criminal or equitable action, upon the judgment of a court, or judge having jurisdiction, finding such place to be a nuisance, the sheriff, his deputy, or any constable of the proper county or city where the same is located, shall be directed to shut up and abate such place by taking possession thereof, if he has not already done so, under the provisions of this act; and by taking possession of all such intoxicating liquors found therein, together with all signs, screens, bars, bottles, glasses, and other property used in keeping and maintaining such nuisance; and such personal property so taken possession of shall, after judgment against said defendant, be forthwith- confiscated to the State. . . .</p> <p>“ Sec. 23. The attorney general, his assistant, the circuit solicitor, or any citizen of the county where such nuisance exists, or is kept or maintained, may maintain an action in the name of the State to abate and perpetually enjoin the same. The injunction shall be granted at the commencement of the action in the usual manner of granting injunctions, except that the affidavit or complaint, or both, may be made by the attorney general, his assistant or the solicitor of the circuit, upon information or belief, and no bond shall be required; and if an affidavit shall be presented to the court or judge, stating or showing that intoxicating liquors, particularly describing the same, are kept for sale, or are sold, bartered or given away on the premises, particularly describing the same, where such nuisance is located, contrary to law, the court or judge shall at the time of granting the injunction issue his orders, commanding the officer serving the writ of injunction, at the time of such service, diligently to search the premises and carefully to invoice all the articles found therein, used in or about the carrying on of the unlawful business, for which search and invoicing said officer shall receive the fees now allowed by law for serving an injunction. If such officer upon such search shall find upón any such premises any intoxicating liquor, or liquors of any. kind, in quantity going to show it was for the purpose of sale of barter, he shall take the same into his custody and turn over the same to the sheriff of the county, who shall securely hold the same to abide the final judgment of the court in the action (the expenses for holding to be taxed as part of the costs of the action); and such officer shall also take possession of all personal property found on such premises, and turn over the same to the sheriff of the county, who shall hold the same until the final judgment in the case. The finding of such intoxicating liquors on such premises, with satisfactory evidence that- the same was being disposed of contrary to this act, shall he prima facie evidence of the nuisance complained of. Liquors seized as hereinbefore provided, and the vessels containing them, shall not be taken from the custody of the officer in possession of the same by any writ of replevin or other process while the proceedings herein provided for are .pending; and final judgment in such proceedings in favor of the plaintiff shall, in all cases, be a bar to alL suits against such officer or officers for recovery of any liquors seized, or the value of the same, or for damages alleged to arise by reason of the seizure and detention thereof. Any person violating the terms of any injunction granted in such proceedings shall be punished for contempt. . . .</p> <p>“ Seo. 24. It shall be’ the duty of the sheriffs, deputy sheriffs and constables having notice of the violation of any of the provisions of this act to notify the circuit solicitor of the' fact of such violation, and to furnish him the names of any witnesses within their knowledge by whom sucli violation can be proven. . ...</p> <p>“ Sec. 25. No person shall knowingly bring into this State, or knowingly transport from place to place within this State, by wagon, cart or other vehicle, or by any other means or mode of carriage, any intoxicating liquors with the intent to sell the same in this State in violation of law, or with intent that the same shall be sold by any other person, or to aid any other person in such sale, under a penalty of five hundred dollars and costs-for each offence, and in addition thereto shall be imprisoned in the county jail for one year. -In default of payment of said fine and costs the party shall suffer an additional imprisonment of- one year. Any servant, agent or employe -of any railroad corporation, or of any express company, or of any persons, corporations or associations, doing business in this State as common carriers, who shall remove any intoxicating liquors from any railroad car, vessel or other vehicle of transportation, at any place other than the usual and established stations, wharves, depots or places of business of such common carriers within some incorporated city or town, where there is a dispensary, or-who shall aid in or consent to such removal, shall' be subject to a penalty of fifty dollars and imprisonment for thirty days for every such'offence: Provided, That said penalty shall not apply to any liquor in transit when changed from car to car to facilitate transportation. All such liquors intended for unlawful'sale in this State may be seized in transit, and proceeded against as if it were unlawfully kept and deposited in any. place. And any steamboat, sailing vessel, railroad, or express company, or other corporation, knowingly transporting or bringing such liquors into the State shall be punished upon conviction, by a fine of five hundred dollars and costs for each offence. Knowledge on the part of any authorized agent of such company shall be deemed knowledge of the company.</p> <p>“ Sec. 26. The • governor shall have authority to appoint one -or more state constables at a salary of two dollars per . day and expenses', when on duty, to see that this act is en-' forced, the same to be charged to the expense- account of the state commissioner.”.</p>

ORIGINAL. ■ This, was a petition for a writ of mandamus to the Judges of the Circuit Court of the United States for the Southern District of Now York, to command them to take jurisdiction and proceed against the Hamburg-American Packet Company upon a bill in equity, filed in that court on September 15,1888, by the petitioner, described in the bill as of the city of New •York, and a citizen of the .State of New York against “the Hamburg-American Packet Company, a corporation…

Held: that the lessees engaged to pay, as rent, in each year, the royalties fixed in the lease; and if, in any year, the royalties fell below the sum of one thousand dollars,' they were to make up the deficit, so that the latter sum should, in any event, be paid annually as rent. ■A person who makes representations of material facts, assuming or intending to convey the impression that he has actual knowledge of the…

Held: That in refusing to give the instructions 'asked for and in charging in this general way, the obligatory force of the rules of navigation was substantially ignored; (2) That the instruction did not put to the jury the question whether the second vessel was justified in departing from the rules, which was error j (3) That th^\ jury should have been told that two vessels approaching-head .tip head and exchanging the…