Volume 152 — United States Reports

Held: in that case, that it was competent for the legislative power of the State to grant to a stranger lands constituting the shore of a navigable river under tide water, below high water mark, to be occupied and used with structures and improvements in such a manner as to cut off the access of the riparian owner from his land to the water, and that without making compensation to him for such loss.” Hoboken v.…

This was a bill in equity, filgd December 29, 1891, and amended May 27, 1892, in the 'Circuit Court of the United States for the District of Washington, by the Northern Pacific Eailroad Company, a corporation created and existing under the laws of the United States, for an injunction to prevent Prosser and four other persons, constituting the board of harbor line commissioners of the State of Washington, from establishing harbor lines and lines of waterways in front of the…

This was an action brought by John Caldwell against D. B. Miller (for whom the Hutchinson Investment Company was substituted) and L. B. Miller in the District- Court for Reno County, Kansas, to have his title established and recover possession of the northeast quarter of section twelve, township twenty-three south, range six west, in that county.

<p>APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF FLORIDA.</p> <p>The case is stated in the opinion.</p>

This was an action by Schumacher to recover for personal injuries received by him while in the employ of the defendant railway company as a laborer upon a gravel train, which was engaged in “surfacing” or-ballasting defendant’s‘tracks in the Indian Territory.

Held: in Sabine & East Texas Railway v. Johnson, 65 Texas, 389, 393, that “ since the .fence law of 1840 the owner of unenclosed land has no right of action for the intrusion of stock upon it. . . . The appellee had no right to graze his cattle on these leagues, but in doing so was guilty of no actionable wrong.

This was, as in the preceding case, an action by the defendant in error to recover the rental value of certain sections of land alleged to have been depastured by the plaintiffs in error, constituting the firm of Rowe Bros. Upon the trial of the case 'the jury returned a verdict . for the plaintiff in the sum of $7739, for which judgment was entered, and defendant sued out this writ of error.

APPEAL EEOM THE’ CIRCUIT COURT OE THE UNITED STATES EOR THE DISTRICT OE ■ COLORADO.

Held: that there was no contract, express or implied, between them and the United States, for a breach of which judgment should be rendered against the latter. . The case is stated in the opinion. Mr. Edvrin B. Smith and Mr. T. H. EF. McPherson for appellants. Mr. Assistant Attorney General Dodge and Mr. George H. Gorman for appellees.

<p>APPEAL FROM THE CIRCUIT COURT OF THE UNITED ’ STATES FOR THE WESTERN DISTRICT OF MICHIGAN.</p> <p>The case is stated in the opinion.</p>

Held: that, as there was no conclusive evidence of a want of due care on the part of the switchman in not observing the projecting timber while in discharge of his duty, and while his attention was directed to his work, there was no error or unfairness in these.instructions.

<p>ERROR TO THE SUPREME COURT OF THE STATE OF KANSAS.</p> <p>The case is stated in the opinion.</p>

Held: very properly we think, that these statutes should be strictiy construed.

Tuts was an action at law-instituted in the Supreme Court for the county of Jefferson by the plaintiffs in error against the defendant in error, together with Edward L. Sargent and Richard U. Sherman, for the conversion of fifteen hoop and fyke nets of the alleged value of- $525. Defendants Steele and Sargent interposed a general denial.

Held: that this court had no jurisdiction. This was an appeal from a decree of the Circuit Court of the United States for the Western District of Texas, sustaining a demurrer to the plaintiff’s original and amended bills, and dismissing the same.

Held: so far as the right to equal protection of law is concerned.

This was an action of ejectment commenced by Jason G. Miller in the Circuit Court of the United States for the District of Nebraska, on February 21, 1887, to recover of the defendant the possession of certain real estate situate in an addition to the city of Lincoln, in that State. After answer and reply, the case on November 15, 1887, came on for trial before a jury, which returned a special verdict finding the facts.

Held: that the contract was one for hiring, and not for service, and that the government, during its possession of the vessel, was a special owner, and bound to pay rent for it until re- ' turned to S. The facts of this case are stated in the findings of the Court of Claims.

This case came before the court on error to the Supreme Court of the State of Illinois.

Held: That the defendant, having accepted the goods from the plaintiff, was bound to pay for them; (2) That his liability for them was to' be measured by the contract price, and not by the market rate; (3) That with reference to the sale of the patented articles in the licensed territory, the scienter was. an essential part of the agreement, and, in the absence of proof of actual knowledge of the sale, by the plaintiff,…

<p>ERROR TO THE DISTRICT COURT OF THE UNITED STATES FOR THE DISTRICT OF KANSAS.</p> <p>The case is stated in the opinion.</p>

<p>APPEAL FROM AND IN ERROR TO THE SUPREME COURT OF THE STATE OF MONTi NA-</p> <p>The case is stated in the opinion..</p>

This was an action brought by the executor of a deceased person under Rev. Stats. Indiana, § 284, against the plaintiff in error, defendant below, to recover damages for the death of the plaintiff’s testator alleged to have been caused by the wrongful act of the defendant. The accident by which the plaintiff was injured was alleged to have taken place November 25, 1886, and the death to have happened by reason of his injuries February 23, 1888.

This was a bill in equity, filed May 7,1889, for the infringement of letters patent issued April 2, 1889, for the term of three and a half years, by the United States to Julius Stroheim for a design for rugs.

<p>APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF ILLINOIS.</p> <p>The case is stated in the opinion.</p>

By written agreement executed November 24,1885, between William Wharton, Jr., & Co., a limited partnership association, and the Johnson Steel Street Bail Company, a corporation — to be hereafter referred to as the Wharton and Johnson companies — the latter acquired the right to make and sell, upon certain conditions, guard rails constructed according td the specifications attached to letters patent granted to William Wharton, Jr., for an improved guard rail.

Held: That the company was guilty of negligence, in view of the statutory obligation to fence; (2) That the lad was not a trespasser, under the circumstances, and had not been guilty of contributory negligence; (3) That the case was within the rule that the court may withdraw a case from the jury altogether and direct a verdict, when the evidence is undisputed, or is of such conclusive character that the court would be…

Held: in this respect, as simply a recognition by Congress of an existing right, in the company,, to locate and construct a road from Portland to Puget Sound, with the right to obtain lands, in aid thereof, as provided in the act of 1864.

Held: that the new organization held the Missouri road subject to the provision in the constitution of Missouri adopted in 1865, that “ no property, real or personal, shall be exempt from taxation, except such as may be used exclusively for public schools, and such as may belong to the United States, to this State, to counties, or to municipal corporations within this State.” The consolidation of the Missouri corporation,…

This was a bill in equity filed by the Keokuk and Western Railroad Company to revive a suit begun August 6, 1879, by Charles A. Seoor and other stockholders of the Missouri, Iowa and Nebraska Railway Company against the judges of the county courts of Scotland, Schuyler, and Clarke Counties, the object of which suit was to enjoin the collection of taxes upon such railway company for the year 1879 and several years prior thereto. . .

<p>ERROR TO THE SUPREME COURT OF THE STATE OF OREGON.</p> <p>The case is stated iu the opinion.</p>

<p>APPEAL PROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF OHIO.</p> <p>In December, 1888, the Western National Bank of New York, organized under the laws of the United States, and having its place of business in the city of New York, filed a bill of complaint, in the Circuit Court of the United States for the Southern District of Ohio, against David Armstrong, as receiver of the Fidelity National Bank of Cincinnati, Ohio. The bill alleged that the Fidelity National Bank was indebted to the complainant bank in the sum of $207,290, on account of a loan made on May 28, 1887, by the New York bank to the Ohio bank, “ at the special instance and request of E. L. Harper, who was then the vice-president and general manager of the said Fidelity National Bank, with, full authority to make said loan on its behalf.” The bill further alleged that said loan was secured by collateral notes, signed by one A. P. Gahr, and endorsed by said E. L. Harper, and by the endorsement and delivery to the complainant by E. L.' Harper of certificates for 1600-shares of the capital stock of the said Fidelity National Bank; that said notes were, when they fell due and still are, entirely worthless by reason of the insolvency of said Gahr and Harper; that said stock certificates did not and do not represent stock of the Fidelity National Bank, but were wholly invalid' and void, because they did not constitute a part of the original and authorized stock of said bank, but were a part of a proposed increase of the capital stock of said bank, on account of which E. L. Harper had paid into the bank upwards of $180,000, but which increase had never been voted for by the stockholders of said bank, nor had notice of said intended increase of said capital, with a certificate that the full amount of the same had been fully paid in, ever been sent to the Comptroller of the Currency of the United States, nor had the Comptroller ever assented to such increase of capital, as required by law; but that, nevertheléss, said Harper had procured from the president and cashier of said bank the certificates of stock so as aforesaid pledged with the complainant; that when said certificates were so issued to Harper the stock of the Fidelity National Bank had an established market value of $153 per share, and that the complainant bank relied on said certificates as one of the securities for said loan when it made the same; that said money, so paid in by Harper on account of proposed stock, was held by said Fidelity National Bank on special deposit and in trust for said Harper until such increase of stock should be duly authorized. The relief prayed for was that David Armstrong, receiver of the Fidelity National Bank, which had become insolvent, should allow the claim for said loan, and pay, out of the assets in his hands, dividends, the same as to other creditors of said bank, and that the complainant bank should be subrogated to the rights of Harper on account of ■ the moneys so paid in for stock proposed to be issued, and which the complainant alleged to constitute a preferred claim.</p> <p>Armstrong, receiver, entered an appearance, and demurred to those portions of the bill in which were alleged the facts respecting the proposed issue of additional stock, and in which the complainant prayed to be subrogated to Harper’s supposed rights in respect to the same. The alleged grounds of the demurrer were a want of necessary parties, in that the Fidelity National Bank and E. L. Harper were not made parties to said bill, and for multifariousness.</p> <p>Subsequently, in November, 1889, the court below sustained the demurrer to so much of said bill as was recited therein — being the said allegations seeking subrogations — and gave leave to answer the remainder of said bill.</p> <p>An answer was duly filed, denying that the Fidelity company was indebted to the complainant bank; that the complainant had, on May 28, 1887, or at any time, loaned the Fidelity National Bank the sum of two hundred thousand dollars or any other sum, and alleging that the notes mentioned in the bill, made by A. P. Gahr and endorsed by E. L. Harper, were discounted by the complainant bank for said Harper, and that the proceeds of such discount were received by said Harper; that the said notes were at no time the property of the Fidelity National Bank, and that the Fidelity National Bank never had any interest in said transaction, and was in no way responsible therefor.</p> <p>The cause was put at issue, evidence taken, and, on April 8, 1890, a final decree was entered dismissing the bill at the cost of the complainant. The case comes to this court on appeal from said decree.</p>

Held: at' least in actions at law, that this court has no jurisdiction toi revise the decision of the highest court of a State upon a pure question of fact, although a Federal question might arise if the question of fact were decided in a particular way. Dower v. Richards, 151 U. S. 658 , and cases cited. Writ of error dismissed.

Motion to dismiss. This was a bill of information filed on behalf of the State of Michigan .in the Ingham Circuit Court, December 13, 1887, against the Flint- and Pére Marquette Eailroad Company and others, claiming title to certain lands under and by virtue of the grant by act of Congress of September 28, 1850, c. 84, commonly known as the swamp land grant. 9 Stat. 519. •The claims of the respective parties appear in the pleadings, which were in substance as follows: .

This was an action to recover duties paid under protest. The bill of exceptions, omitting formal parts, was as follows : “ The plaintiff imported in the year 1886 into the port of New York certain goods, consisting of mugs, plates, cups, and saucers, made of china, of small size, and claimed by him to be dutiable as toys.

This was an action to recover duties paid under protest upon importations of nails, described in the bill of particulars as “upholstering nails,” between September 21, 1883, and January 22, 1884.

<p>The privileges andMmmunities of citizens of the United States, protected by the Fourteenth Amendment, aré privileges and immunities arising out of the nature and essential character of the Federal government, and granted or secured by the Constitution.</p> <p>Due process of law, and the equal protection of the laws are secured if the laws operate on all alike, and do not subject the individual to an arbitrary exercise of the powers of government.</p> <p>An ex post facto law is one which imposes a punishment for an act which was not punishable at the time it was committed; or an additional punishment to that then prescribed; or changes the rules of evidence by which less or different testimony is sufficient to convict than-was then required; or, in short, in relation to the offence or its consequences, alters the situation of a party to his disadvantage.</p> <p>The prescribing of different modes of procedure, and the abolition of courts and creation of new ones, leaving untouched all the substantial protections with which the existing law surrounds the person accused of crime are not considered within the constitutional prohibition.</p> <p>To give this court jurisdiction over a judgment of the highest court of a State, the title, right, privilege, or immunity relied on must be specially set up or claimed at the proper time and in the proper way, and the decision must be against it; whereas, in this case, the question was not suggested until after judgment, and after an application for rehearing had been overruled, and only then in the form of a motion to transfer the cause.</p>

These were petitions for a rehearing of two cases decided January 22, 1894, and reported in 151 U. S. 362 and 366. In Alger’s case the petition said : “ In this case the claimant was appointed cadet midshipman September 22, 1876; graduated June 22, 1882, and promoted to midshipman the same, day; commissioned ensign June 26, 1884. He resigned November 10, 1890, and on November 11, 1890, was appointed professor of mathematics, to rank from November 1, 1890.

Held: following the ' doctrine of the Pennsylvania cases, that a legal title in Dr. Huston had been established by the warrant, survey, and payment of the purchase money, and that it was not competent for the Commonwealth of Pennsylvania to affect that title'by a subsequent patent to a stranger. To' the same effect are Maclay v. Work, 5 Binn. 154 ; Woods v. Wilson, 37 Penn. St. 379 .

<p>ERROR TO THE SUPREME COURT OF THE TERRITORY OF UTAH.</p> <p>The facts in this case were as follows : On June 9,1888, the defendant in error as plaintiff commenced his action in' the District Court of the county of Weber, in the Territory of Utah. His complaint consisted of five counts. The first, for moneys paid out for the defendant; the second, for feeding and caring for certain stock of the defendant; the third, for his services as general manager of the defendant; the fourth and fifth, respectively, a claim for work and labor, and one for board alleged to have been due from defendant to Lea Owsley, and by him assigned to plaintiff.</p> <p>The defendant answered, denying all but the claim in the fourth count of the complaint, and pleading also certain counter-claims. The case went to trial before a jury, which returned both a special and a general verdict, andón such verdicts judgment was rendered, March 19, 1889, in favor of the plaintiff, for the sum of $11,339.56. Subsequently, on July 12, 1890, this judgment was affirmed by the Supreme 'Court of the Territory, and thereupon defendant sued out this writ of error.</p>

On January. 24, 1885, plaintiff filed in the District Court of the United States for the District of West Virginia his bill of complaint against A. G. Grinnan, the Forest Hill Mining and Manufacturing Company, Robert Soutter, trustee; William Wyant, and the unknown heirs of William K. Smith, deceased.

This was a bill in equity to recover damages for the infringement of three letters patent issued to Oliver H. Hicks of Chicago, and assigned to the appellant, viz.: Patent No. 325,410, issued September 1, 1885, for a “package of toilet paper,” known as the “Oval Koll” or “Oval King” package.

Held: in short, that the statute did not apply to cases not tried and disposed of. The *443 opinion of Attorney General Brewster, of March 2, 1885, (18 Opins. 126,) and of Attorney General Garland, in a letter to the Secretary of the Treasury, of November 17, 1885, (31 Internal Revenue Record, 382,) are to the same effect.

<p>APPEAL FROM THE CIRCUIT COURT OE THE UNITED STATES EOR THE WESTERN DISTRICT OE MISSOURI.</p> <p>This was an appeal from a decree dismissing, for want of equity, a bill brought by the appellants to subject, in satisfaction of their demand against the Kansas City and Southern Construction Company, certain railroad property in the possession of and claimed by the Kansas City and Southern Railway Company.</p> <p>The facts, so far as it is necessary to state them, were as ■ follows: On the 11th day of January, 1877, the roadbed, masonry, rights of way, and appurtenances of the Kansas City, Memphis and Mobile Railroad Company, a Missouri corporation, were sold at public auction under the order of the District Court of- the United States for the Western District of Missouri, sitting in bankruptcy — John D. Bancroft, of Kansas City, becoming the purchaser at the price of $15,025 in cash paid. And a deed was made to the purchaser on the 25th day of April, 1877.</p> <p>Bancroft, by deed of April 27, 1877, conveyed to Thomas K. Hanna, Benjamin McLean, and himself, as trustees for sundry residents of Kansas City who had contributed the purchase money, and in whose behalf the property was purchased.</p> <p>By deed executed January 13, 1880, Hanna, McLean, and Bancroft, trustees, in consideration of $19,156.87, cash in hand paid, conveyed to James I. Brooks all the property and rights so purchased, upon the following terms and conditions :</p> <p>“ Said party of the second part is to build said railroad from Kansas City to Harrisonville or Belton, as said second party may elect, on or before January 1, 1881, so as to be ready for use as a railroad, and also to build said railroad to the coal fields of Bates County to a point south of Butler, on or before-July 1, 1881, so as to be ready for like use as aforesaid ; and if said second party shall fail to build said railroad to said coal fields as aforesaid, then the property hereby sold as aforesaid shall revert to said first party and reinvest in them the same as they now hold the same : Provided, however, That as soon as said second party shall expend the sum of fifty thousand dollars in the construction of a roadbed for said railroad, commencing at Kansas City and running southwardly, then the said provision shall become null and void and of no effect whatever, and upon said expenditure being made in the building of said railroad as aforesaid, by said second party, of said sum of fifty thousand dollars, then said trustees are to execute to said second party or his assigns an instrument in writing acknowledging the waiver and extinguishment of said forfeiture. ’ In the event of a disagreement between the said trustees and said second party as to the expenditure in fact by said second party of said fifty thousand dollars, as aforesaid, as said second party, may hereafter claim, said trustees- and said second party shall each select an arbitrator, and they, in case of disagreement between them, shall select a third arbitrator,, and in case either party refuses to select an arbitrator, then the arbitrator chosen by the other party shall select two additional arbitrators, and the arbitrators selected in any of the above-mentioned modes shall determine whether such expenditure has been made by said second party, and such determination of said arbitrators shall be binding on both parties and may be enforced by judgment as provided by the laws of this State. Said first party covenants and warrants to and with said second party that they, the said trustees, have not in anywise encumbered' the said property, and that the same is free from all encumbrances done or suffered by them.”</p> <p>By a declaration in writing, executed February 27, 1880, Brooks acknowledged that the 'property conveyed to him was held in trust for the benefit of the Kansas City and Southern Construction Company, and covenanted that he would, by a sufficient quit-claim deed, transfer it to that company or their assigns, as they might direct and require. And by deed of April 1, 1880, he conveyed the property by quit-claim deed to the Construction Company.</p> <p>On the 2d day of March, 1880, the Construction Company made a written contract with the appellants, under the name of Naylor & Co., for the furnishing of steel rails to be used in completing the railroad. . But, on the 18th of May, 1880, Naylor & Co. were notified by the Construction Company, that it was unable to carry out its contract with them, and they were authorized to sell the rails for account of that company, but without prejudice to any rights or claims of Naylor & Co. for damages.</p> <p>The Construction Company, by deed of May 24, 1880, conveyed the property to the Kansas City and Southern Railroad Company, the consideration recited being $300,000 of the capital stock of the railroad company, for which certificates were to be issued, and $300,000 of its first mortgage bonds to . be secured by mortgage upon the property. But, in fact, there was at that time no such corporation. Brooks, the president ..of the Construction Company, contemplated the organization of a railroad company to be named the Kansas City and Southern Railroad Company, but he failed to effect suoh an organization.</p> <p>By deed of September 18, 1880, the Construction Company conveyed to the Kansas City and Southern Railway Company, a corporation of Missouri, the Kansas City, Memphis and Mobile Railroad, running from Kansas City in the direction of Memphis and Mobile, together with all its rights' of way, roadbed, masonry, property, rights of property, and appurtenances, etc. This deed was executed in the name of the grantor company by Henry Ashley, agent, and is attested by its corporate seal, which, the acknowledgment of Ashley states, was' affixed thereto by order of the board of directors. The' consideration recited was $250,000 cash in hand paid.</p> <p>Hanna, McLean, and Bancroft as trustees, made, December 15, 1880, a written contract with, the Kansas City and Southern Railway Company,-as follows: “Whereas the Kansas City, Memphis and Mobile Railroad Company, with all its ■roadbed, rights of way, and appurtenances and property and ■rights of property whatsoever connected with the said railroad, with all the franchises of the Kansas City, Memphis and Mobile Railroad Company, were, by deed dated January 13, a.d. 1880, sold and conveyed by the undersigned trustees to one James I. Brooks on certain conditions contained and specified in said deed, and whereas the title to said property subject to the conditions has by sundry mesne conveyances passed to and vested in and is now owned and held by the Kansas City and Southern Railway Company; and whereas said last-named company has not been able to comply with and perform said conditions within the time specified in said first-named deed for their performance,'but is now willing to deposit and has deposited with the said trustees the sum of $25,000 as a guaranty by said last-named company of the good faith of its purpose to build a railroad southeasterly from Kansas City, Missouri, through the coal fields of Henry County, Missouri, and the iron fields of St. Clair County, Missouri, the receipt of which sum of twenty-five thousand dollars by said trustees is hereby acknowledged; and whereas, since the making of said deed to said James I. Brooks, various sums of money have been expended for rights of way, for engineering, and other necessary expenses connected with the enterprise of building said railroad, in addition to the purchase price paid to said trustees on- the execution of the said first-named deed by them; and whereas the owners of more than two-thirds of the money and shares furnished by the persons and firms in the deed of said property to said trustees, dated April 27, 1877, have directed the undersigned trustees to execute and deliver this instrument to said Kansas City and •Southern Railway Company: Now, therefore, in consideration of the premises and the sum of one dollar in hand paid, the receipt of which is hereby acknowledged, it is agreed, stipulated, and covenanted by and between said trustees, for themselves and their said beneficiaries and said Kansas City and Southern Kailway Company, as follows: 1st. The conditions provided and expressed in said deed of said trustees to said James I. Brooks are hereby annulled, extinguished, and the said Kansas City and Southern Kailway Company are hereby forever released and discharged from the performance of the same or any part thereof, and in lieu the following conditions are hereby provided, that is to say, said trustees or a majority of them shall, as said railroad from Kansas City, Missouri, southeasterly through the coal fields of Henry County, Missouri, and the coal fields of St. Clair County, Missouri, shall be constructed, pay out said $25,000 on the estimates and orders made and given in the building of said road by the chief engineer of said K. C. and S. K. W. Co., and as soon as said $25,000 is so paid out and the additional sum of fifteen thousand dollars is expended by said last-named company in the building of said road, the last-named company shall hold said property.so conveyed free from any and all claims of whatsoever kind on the part of said trustees or their beneficiaries, or any of them. 2d. It is further provided and covenanted that-if said last-named company shall not expend the full sum of $25,000 in the building of said railroad before July 1, 1881, then so much of said $25,000 so deposited as shall on the last day aforesaid be unexpended shall be forfeited to and becpme the money and property of said trustees for the benefit of their beneficiaries. 3d. It is further provided and covenanted that as soon as said $25,000 so deposited shall be paid out, and as soon as the chief engineer of said last-named company shall make the certificate of expenditure by said last-named company of said $15,000 shall be expended before October 1, 1881, then said trustees shall deliver to said last-named company an instrument in writing, duly executed and acknowledged, evincing the full compliance with and performance of all the conditions herein contained by said last-named company, and if the sum of forty thousand (40 M) dollars shall not as above provided be expended by said company before October 1, 1881, then said property shall revert to said trustees as by said'deed to said Brooks is provided.”</p> <p>This agreement was executed by the trustees Hanna, McLean, and Bancroft, with the consent in writing of the requisite number of those whom they represented.</p> <p>On the 11th day of May, 1881, the Construction Company, by James I. Brooks, its president, in consideration of one dollar and other good and valuable considerations, and “ by virtue of a vote of the directors of said corporation,” conveyed this property to said Brooks, in trust to secure “ the payment to him of all indebtedness of whatsoever nature, whether in cash or stock or bonds due said Brooks under the vote whereby the property herein conveyed was deeded by said Brooks to the Kansas City and Southern Construction Company to the date of this conveyance,” and after the execution of these trusts to hold the same for the benefit of whom it might concern.</p> <p>On the 7th day of October, 1881, the present appellants — claiming that the Construction Company was largely indebted to them on the contract of March 2, 1880, for steel rails-—■ instituted an action at law in the Circuit Court of Jackson County, Missouri, against that company, on said alleged liability. Upon affidavit and bond for attachments, writs of attachment and summons issued to the counties of Jackson, Cass, Henry, and St. Clair, Missouri, and were levied by the sheriffs of those counties, respectively, on the 7th, 11th, and 12th days of October, 1881, upon all the right, title, interest, and property of the Construction Company, in the Kansas City, Memphis and Mobile Railroad, in such counties, with its right of way, roadbed, masonry, property, rights of property, and appurtenances—the same-property described in the deeds of May 24, 1880, and September 18,1880 —to the Kansas City and Southern Railway Company. The Construction Company answered, and denied all the material allegations of the petition. In that action, which was removed into the Circuit Court of the United States for the Western District of Missouri in April, 1882, the Kansas City and Southern Railway Company, after such removal, filed their interplea asserting their ownership, prior and subsequent to the attachment suit, of all the property attempted to be levied on as the property of the Construction Company. In that action, a verdict was returned against the Construction Company for $49,448.11, for which a judgment was rendered October 20, 1885, on which execution was allowed “to be levied on the property and effects attached, and other property of the defendant.” Subsequently (a motion for a new trial having been made) the plaintiffs remitted $13,546.72 of the verdict. Thereupon the former judgment was set aside, and it was adjudged, February 1, 1886, that the plaintiffs recover of the Construction Company $35,901.39 and their costs, “and that they have thereof execution, and that the judgment and execution thereon hold not only the property attached heretofore in this, case, but the other property of the. defendant; but execution shall not issue, without special leave of court, until after final decree in chancery in case No. 401, in the case of Barthold Schlesinger et al. v.' The Kansas City and Southern Railway Company et al.”</p> <p>The equity case thus referred to was the present suit which was brought, November 10, 1881, by Barthold Schlesinger and Sebastian B. Schlesinger, doing business as Naylor & Co., .against the Kansas City and Southern Railway Company, the Kansas City and Southern Construction Company, the Farmers’ Loan and Trust Company, and James I. Brooks. The Farmers’ Loan and Trust Company was made a defendant because it was the trustee in a mortgage, given by the railway company, January 1, 1883, to secure $6,500,000 of its first mortgage bonds, which mortgage covered all of the property and income of the mortgagor, and warranted the title to the property. The relief sought was a decree adjudging the deeds of May ‘24, 1880, and September 18, 1880, to the Kansas City and ■Southern Railway Company, and the deed to the Farmers’ Loan and Trust Compamq to be voluntary, fraudulent, and void as against the demands of the plaintiffs, and that the property and rights of the Construction Company, attempted to be conveyed by said deeds, and levied upon and attached as aforesaid, be subjected, charged, and sold for those demands ■and the costs of the attachment proceedings; and that, in the meantime, a receiver be appointed to take charge of the property, receiving the profits thereof, and paying all taxes and assessments against it.</p> <p>Some time after the institution of this suit, and before it was determined in the court below, the appellants sold their claim to one Sargent of Boston for $4000.</p>

Held: decreed, or construed to repeal or affect any jurisdiction or right mentioned either in sections six hundred and forty-one, or in six hundred and forty-two, or in seven hundred and twenty-two, or in Title twenty-four of the Revised Statutes of the- United States, or mentioned in section eight of the act of Congress of which this act is an amendment, or in the act of Congress approved March-first, eighteen hundred…

This appeal brought up the final decree of the Circuit Court of the United States for the Eastern District of Arkansas, sustaining a demurrer to a bill filed by the appellant, and dismissing such bill for want of equity. The appellant, who was the plaintiff below, was a citizen of G-reat Britain.

This was an action, brought February 12, 1889, in the civil district court for the parish of Orleans in the State of Louisiana, by Robert P. Maclay, a citizen of Louisiana, and tutor of Mason Snowden, a minor child and sole issue of Samuel H. Snowden and Mary Louisa, his wife, against the Equitable Life Assurance Society of the United States, a corporation of New York; and removed by the defendant into the Circuit Court of the United States for the.

<p>A deed of a mining claim by a qualified locator to an alien operates as a transfer of the claim to the grantee, subject to question in regard to his citizenship by the government only.</p> <p>If, in a contest concerning a mining claim, under Rev. Stat. § 2326, one party, who is an alien at the outset, becomes a citizen during the pro- ■ ceedings and before judgment, his disability under Rev. Stat. § 2319 to take title is thereby removed.</p>

<p>APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF TEXAS. '</p> <p>In City National Bank of Fort Worth v. Hunter, 129 U. S. 551, 519, will be found a full history of the litigation, between the parties to the present appeal. The final decree was •reversed, with costs, and the case was remanded with directions to proceed in conformity with the opinion of this court. After the mandate and opinion of this court had been filed in the court below, the cause was again heard, and it was. among other things,adjudged: “That said complainants, R. D. Hunter, A. G. Evans, and R. P. Buel, do have and recover of and from the defendants, the City National Bank of Fort' Worth, the sum of twelve thousand nine hundred and eighty-four and ($12,981.85) dollars, together with i nterest thereon from this date at the rate of eight per cent per annum. It is further ordered, adjudged, and decreed that all costs accrued in this cause up to September 30, 1881, be, and the same are hereby, adjudged against said complainants, R. D. Hunter, A. G. Evans, and R. P$ Buel, and for which let execution issue; and as the costs of the Supreme Court have been allowed against said complainants, all other costs incurred herein which have not been otherwise adjudged be, and the same are hereby, adjudged against said defendant, the City National Bank of Fort Worth.”</p> <p>From this decree the present appeal was prosecuted by the bank. The errors assigned are: 1. The court gave interest on the plaintiff’s portion of the fund to be divided. 2. Costs were awarded against the defendant bank.</p> <p>Before discussing the merits of the question at issue, it may be well to allude to the matter of appeal here, upon a sum less than the jurisdictional amount in ordinary cases, as some confusion may arise upon this point since the ruling in In re Washington & Georgetown Railroad, 140 U. S. 91. In that case affirmance was had, and nothing more, and the cause sent back to the court below for simply an enforcement of that judgment — no order to proceed further, etc.'—no room ■was left for the exercise of discretion. The lower court, however, did proceed further, and exercised its discretion and added interest when this court had been silent as to interest. The court in this case did proceed as it was directed, but it went outside of the opinion of this court, and did, as appellant contends, what the law did not authorize. The distinction, and the difference between the two cases are clear and marked, and this case comes plainly under the ruling in Perkins v. Fourniquet, 14 How. 328, and reconciles any apparent conflict there may be between the Washington & Georgetown Railroad case and the others of long standing. Humely v. Rose, 5 Cranch, 313; The Santa Maria, 10 Wheat. 431; Boyce v. Grundy, 9 Pet. 275.</p> <p>To say that, after the court below was commanded to proceed in conformity with the opinion of this court, and it does proceed and puts an additional burden, not claimed or mentioned in the previous proceedings at all, on the bank of nearly or quite $4000,— the bank cannot appeal to see if this is' in conformity with the opinion of this court, would be quite .unreasonable, in fact harsh, and in the teeth of Perkins v. Fourniquet, which this court, in the Washington & Georgetown Railroad case, quotes with approbation. And it is most earnestly submitted that, in no case, however small the amount added tó a judgment or decree, after the mandate goes down, that may be considered by the party as inconsistent with the opinion of this court containing directions to proceed as here, can a writ of error, or appeal, as the case may be, be. denied ? This is but one manner, out of several, to get this court to see if the lower court has not misunderstood, or misconstrued, or both, the judgment or decree of this court.. While there should be no doubt of the correctness of this view, yet, if there be one, it should be entirely removed, since this is now a controversy with a national bank, .and there is no jurisdictional question of amount.</p>

This was a bill filed by James C. Covert against Joseph B. and George H. Sargent in the Circuit Court of the United States for the Southern District of New York for infringement of letters patent No. 161,757, dated April 6, 1875, issued to complainant for “ improvement in clasps or thimbles for hitching devices,” upon which a final decree was entered adjudging the patent to be good and valid; that the defendants had infringed the same; and that complainant should recover of…

Held: that this protest was defective in that it failed to point out or suggest, in any way, the provi-sion which actually controlled, and in effect only raised the question which of two clauses, under one or the other of which it was assumed that the importation came, should govern as being most applicable. Action to recover duties paid under protest.

This action was originally begun September 28, 1889, by Kingman & Co., a corporation organized under the laws of Illinois, against one Duncan, whose Christian name is not given, and whose surname is sometimes spelled Duncum and sometimes Duncan, a white man, a citizen • of the United States, and a resident of the Indian Territory, to recover the sum of $1994.42 with interest and exchange, being the amount of two promissory notes made by Duncan, payable to the order of the…

On December 16, 1892, an indictment was returned by the grand jury in the District Court of the United States for the District of North Dakota, charging this plaintiff in error, together with others, with the crime of conspiracy to defraud the United States as denounced in section 5440, Eevised Statutes, which reads: “If two or more persons conspire either to commit any offence against the United States, or to defraud the United States in any manner or for any purpose, and…

On April 23, 1889, the appellants as plaintiffs, citizens of the State of New York, filed their bill in the Circuit Court of the United States for the Northern District of Illinois, making as defendants the following persons, citizens of the State of Illinois: Sigismund Heidweyer, Norbert Stieglitz, the National Bank of Illinois, Siegmund Florsheim, Philip Florsheim, and Simon Florsheim. On January 15, 1890, they filed an amendment to their bill.

Charles Gf. Am Ende, a citizen of. the State of New Jersey, filed a bill of complaint in the Circuit Court of the United States for the Southern District of New York, against Seabury & Johnson, a corporation of the State of New York, in which he alleged that he was the patentee and owner of letters patent of the United States, dated August 15, 1876, and numbered 181,024, for an improvement in borated cotton, and that the defendant corporation, in disregard of his rights, was…

<p>ERROR TO THE DISTRICT COURT OF THE UNITED STATES FOR THE WESTERN DISTRICT OF ARKANSAS.</p> <p>The case is stated in the opinion.</p>

This was an action to recover duties alleged to have been unlawfully assessed, and was tried by the Circuit Court, without a jury, upon the following agreed statement of facts-: “The plaintiffs, on the nineteenth day of January, 1888, imported from Montreal, Canada, into the port of St. Albans, Vermont, one hundred barrels of dry salted codfish consigned to John S. Story, to be by him entered at the custom-house at St. Albans, and thence to be immediately transported in bond…

This was an action by the firm of Scblesinger & Mayer against the collector of the port of Chicago to recover duties paid upon certain importations of Chinese goat skins and pearl opera glasses, entered for consumption at the custom-house at Chicago. The case was tried by the court, without a jury. The court made a special finding of facts, and awarded the plaintiff judgment for $113.60 for excess duties upon the goat skins, and $6.60 upon the opera glasses.

On February 18, 1889, the Mercantile Trust Company of New York filed in the Circuit Court of the United States for the Southern District of Ohio its bill against the Kanawha and Ohio Railway Company. The bill alleged that on May 1, 1886, the defendant, the Kanawha and Ohio Railway Company, issued a series of bonds, and on the same day executed to the Mercantile Trust Company its mortgage or deed of trust to secure the payment of the principal and interest 'of such bonds.

Held: affirming Greene v. Darling, and citing approvingly Chancellor Kent’s decisions in Duncan v. Lyon, 3 Johns. Ch. 358 , and Dale v. Cooke, 4 Johns.

<p>ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW YORK.</p> <p>This was an action, brought May 23, 1888, against the collector of the port of New York, after due protest and appeal, to recover back an excess of duties exacted and paid upon goods imported and invoiced by the plaintiffs in 1886 and 1887 as “fish pastes,” and which they contended should have been assessed as “ fish, prepared or preserved,” twenty-five per cent ad valorem, but which the defendaht assessed as “sauces,” thirty-five per cent ad valorem, under the tariff act of March 3,1883, c. 121, Schedule G of which imposes the following rates of duty:</p> <p>“Anchovies and sardines, packed in oil or otherwise,” in small tin boxes, certain rates varying from ten to two and a half cents per box, according to its size; “ when imported in any other form, forty per centum ad valorem.</p> <p>“ Fish preserved in oil, except anchovies and sardines, thirty per centum ad valorem.</p> <p>“ Salmon, and all other fish, prepared or preserved, and prepared meats of all kinds, not specialty enumerated or provided for in this act, twenty-five per centum ad valorem.</p> <p>“Pickles and sauces, of all kinds, not otherwise specialty enumerated or provided for in this act, thirty-five per centum ad valorem.” 22 Stat. 503, 504.</p> <p>At the trial, one of the plaintiffs, who were importers of fancy groceries at New York, testified that the goods in question (samples of which were produced in court) were imported as “anchovy paste” and “bloater paste.” The definition in "Webster’s Unabridged Dictionary of “sauce,” as “a mixture or composition to be eaten with food for improving its relish ; a relishing condiment; appetizing addition to the principal material of a dish;” being read to him, he testified that the word had a significance in the wholesale commerce of this country in 1883 and theretofore, differing from the definition read; that the commercial meaning of a sauce was a liquid, and that was the only particular in which it varied from the definition read; and that anchovy paste or bloater paste, such as represented by the samples, was not recognized in trade and commerce in 1883 and prior thereto as a sauce. On cross-examination, he testified that he understood the sense of the dictionary definition of sauce to be “ anything used as a relish, either liquid or solid, as an addition to the food; ” that these articles were used as food, principally in sandwiches, or like potted meats or devilled meats; that “ anchovy paste ” was manufactured out of anchovies, and “bloater paste” out of bloaters; that these were the only names by which,they were known in trade and commerce in and before 1883, as well as since; that they had a fish taste; and that no part of each fish could be distinguished, but all, was ground up fine, and spiced; '</p> <p>Three other importers and sellers of fancy groceries at New York, called as witnesses for the plaintiffs, testified that the term “sauces,” as used in trade in and before 1883, had reference to liquids only, and did not include solids; and that tire-goods in question were not commonly known as sauces. One of them testified that each of these pastes was used as a direct article of food, and not as an addition to anything to give zest to it, and was used only in a distinct form, as in a sandwich, or the like; and on cross-examination testified that “ he had often eaten the same articles as those in suit with a cracker or cake, eating the paste alone first and the cracker afterwards— probably within thirty seconds after— as soon as he was able to swallow.” The two other witnesses testified that it had a spicy flavor, and would induce hunger and thirst, and was used as an appetizer before a meal. The witnesses also testified that they dealt in the article known as “ anchovy sauce ” or “essence of anchovies,” which was a liquid, and altogether different from these pastes, and never eaten alone or as an addition to bread, but as a condiment.</p> <p>At the close of the plaintiffs’ evidence, the court, upon motion of the defendant, directed a verdict for him, upon the grounds that “ the plaintiffs had not proved facts sufficient to entitle them to recover; ” that “ the term ‘ sauces of all kinds,’ in the tariff act, was a descriptive term of ordinary use, to be taken in its ordinary meaning, and not in any restrictive or trade meaning,” and that “ the ordinary use of the term ‘ sauces ’ included the articles in suit.” 40 Fed. Eep. 226.</p> <p>A verdict was returned accordingly, and judgment entered thereon; and the plaintiffs tendered a bill of exceptions, and sued out this writ of error.</p>

This was an action, brought May 15, 1888, against the collector of customs for the port of Boston and Charlestown, to recover back duties exacted by him, and paid under protest, upon blueberries imported by the plaintiffs from New Brunswick. No answer w,as filed.

Held: That it was not competent for S,, by his own act, and without the consent of the State, to transfer any interest in the contract; (2) That all that could have been acquired by an assignment by S. without the consent of the State was a right to maintain an action against S. for the share of the profits which he had attempted to transfer; (3) That when the contract was transferred to T., who was accepted by the State…

<p>The evidence does not bring this case within the operation of the following principles of law, laid down by the court in its opinion, namely:</p> <p>(1) That an agent is precluded from taking advantage of his principal, or from dealing with the property committed to his care in any other capacity than as an agent, who is bound to subordinate his own interests to those of his principal;</p> <p>(2) That an agent cannot directly or indirectly become the purchaser of property of his principal, entrusted to him to sell, and cannot maintain a title thus acquired as against-his principal; for, in so purchasing, his duty and his interest would come in conflict;</p> <p>(3) That if an agent to sell effects a sale to himself, under the cover of the name of another person, he becomes, in respect to the property, a trustee for the principal, and, at the election of the latter, seasonably made, will be compelled to surrender it, or, if he has disposed of it to a bona fide purchaser, to account not only for its real value, but for any profit realized by him on such resale; and this will be done upon the demand of the principal, although it may not appear that the property, at the time the agent fraudulently acquired it, was worth more th.an he paid for it;</p> <p>(4) That the law will not, in such case, impose upon the principal the burden of proving that he was, in fact, injured, and will only inquire whether the agent has been unfaithful in the discharge of his duty; for, while the agency continues he must act, in the matter of such agency, solely with reference to the interests of his principal; and the law will not permit him, without the knowledge or assent of his principal, to occupy a position in which lie will be tempted not to do the best he may for the principal.</p>

This was an action brought by William Daniels against the Union Pacific Railway Company, in the District Court for the Third Judicial District of the Territory of Utah, to recover damages for personal injuries alleged to have been sustained because of defendant’s negligence. During the pendency of the writ of error in this court, Daniels died and his administrator was substituted.

<p>EEEOE TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW YORK.</p> <p>The case is stated in the opinion.</p>

<p>EEEOE TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF MASSACHUSETTS.</p> <p>The plaintiffs in error, as surviving partners of a firm doing business under tbe name of Henry R. Worthington, brought this action upon a written agreement concluded, May 19, 1885, between that firm and the Boston Water Board — the latter assuming to act on behalf of the city of Boston.</p> <p>This agreement involved the expenditure of a large sum of money for pumping engines and machinery in connection with the “high-service” extension of the water works of the city, and was made without an advertisement for proposals by bidders.</p> <p>The court below tried the case without a jury pursuant to a written stipulation of the parties, and, being of opinion that without such advertisement the Water Board had no authority to make the agreement, gave judgment in favor of the city. 41 Fed. Rep. 23. Whether the Water Board had such authority depends upon certain facts set forth in an agreed statement of the parties. These facts are as follows:</p> <p>The city of Boston previous to, and ever since, the year 1875 was authorized to take water from Lake Cochituate, Sudbury River, and Mystic Lake, to build and maintain aqueducts, dams, reservoirs, and to lay pipes, establish hydrants, and supply its inhabitants with water in such manner and by such agents, officers, and servants as the city council should from time to time direct; and previous to 1875 it had established the Cochituate Water Board and the Mj'stic Water Board to exercise those powers, subject to the ordinances and orders of the city.</p> <p>By chapter 80 of the statutes of Massachusetts of 1875, it was provided: “ The city council of the city of Boston may establish by ordinance a water board to be known as the Boston Water Board, consisting of three able and discreet persons to be appointed by the mayor, with the advice and consent of the city council, and to receive such compensation as the city council may from time to time determine. The said board may be empowered by said city council to exercise all or any of the powers conferred by the statutes of the Commonwealth upon the city of Boston, with reference to supplying said city with water, or of the Cochituate and Mystic Water Boards, and also to act as the agent of the city of Boston in doing any and all things which the city is now authorized to do in relation to the taking of lands, water-rights, and other property, and the establishment and maintenance of works and appliances for supplying the city of Boston or other cities and towns with pure water, and the said Boston Water Board shall, so far as the city council of said city may by ordinance prescribe, succeed to all the powers and duties formerly vested in the Cochituate Water Board and Mystic Water Board.”</p> <p>On the 22d day of March, 1876, the city council of Boston, with the approval of the mayor, passed an ordinance that was in force when the agreement in question was made, and which, among other things, provided: “ There shall be a board to be known as the Boston Water Board and to consist of three members. Said board shall have and exercise all the powers so far as such powers can be legally delegated by the city council, which were granted to the city by or are held by the city under chapter one hundred and sixty-seven of the statutes of the Commonwealth of the year eighteen hundred and forty-six, chapter one hundred and seventy-seven of the said statutes of the year eighteen hundred and seventy-two, and by or under any and all statutes in addition to either of the before-mentioned chapters, subject, however, to the authority of the city council from time to time, by ordinances, orders, or resolutions, to instruct said board, and to change and limit their powers. Said board may, subject to the approval of the mayor, sell or lease such of the property connected with the water works as they deem expedient, and all necessary deeds and leases shall be executed by the mayor and countersigned by the chairman of said board. No contract or purchase which is estimated to involve an expenditure of more than ten thousand dollars, except a contract for the laying of pipe, shall be made by the said board until they have advertised, as hereinafter provided, for sealed proposals thereof. . . . All proposals shall be publicly opened at the time and place designated in the advertisement, and the said board may reject any or all bids which are offered, and it shall be their duty to reject the bids of all irresponsible parties.”</p> <p>For several year§ prior to 1884 the question of extending the high-service works of the' Cochituate Water Department, which comprised a part of the city water works, was before the city council.</p> <p>In 1881, the Water Board submitted to the council, the fob-lowing estimate of the cost of such extension: “ For engine buildings, wells, engine foundations, etc., $149,000; one engine, capacity 10,000,000 gallons, $75,000; one relief engine, capacity 5,000,000 gallons, (based on using one of Mystic pumping engines,) $18,000; lands and reservoir, (No. 1,) capacity 15,-000,000 gallons, $169,000; land damages for reservoir (No. 3) and pipe lines, $28,000; pipe mains, force, and supply, $237,-000; add 10 per cent for superintendence, engineering, and contingencies, $67,600 ; total, $743,600.”</p> <p>The Water Board, November 17, 1884, submitted to the council another estimate of the cost of such extension, as follows : “ For engine buildings, wells, engine- foundation, connection chamber, $142,000; one engine, capacity 10,000,000 gallons, $60,000; one relief engine, capacity 5,000,000 gallons, $25,000; land and reservoir, capacity 15,000,000 gallons, including gate chamber, $210,000; land damages for reservoir No. 3, $28,000; pipe mains, force and supply, $231,000; add 10 per cent, engineering and contingencies, $69,600; total, $765,600.”</p> <p>On December 23, 1884, an order was duly passed by the city council, and approved by the mayor, to this effect: “Ordered, That the city treasurer be authorized to borrow, under the direction of the committee on finance, and at such a rate of interest as they shall determine, the sum of $766,000, which sum is hereby appropriated, and the Boston Water Board is authorized to expend the same for the extension of the high-service works of the Cochituate Water Department.”</p> <p>On December 31, 1884, the City Engineer, Henry M. Wightman, addressed to the Water Board a letter, in which he said : “ The board should determine the pumping engine it will use, as such determination is necessary before a plan of the pumping station can be made. I am of the opinion that the improved Worthington engine will prove the most advantageous for the city, and as a three-million-gallon engine of this type is running at the Worthington pump works in New York, it would be advisable for the board to examine this engine before any decision is made.”</p> <p>The Water Board adopted plans and specifications for the proposed extension, requiring, among other things, two engines of the daily capacity of five million and ten million gallons, respectively, estimated by the board to cost from $85,000 to $93,000, and the discontinuance of the pumping station on Elmwood Street, at the Highlands, and the engines and machinery therein. And on the third day of April, 1885, it sent this communication to the city council: “ The plans for the extension of high service, as detailed ex-City Engineer, Joseph P. Davis, and the late City Engineer, Henry M. Wightman, require the establishment of a new pumping station at Chest- ‘ nut Hill of larger capacity than the present one at the Highlands, and the discontinuance of the latter. Mr. Wightman,after a careful examination of the matter, concluded that it would be advantageous for the city to exchange if possible the small engines now in use for the larger ones required in the extension of the high service, and so recommended to the board. We therefore ask ‘That the Water Board be authorized to exchange such pumping engines and machinery as are inadequate or of insufficient capacity for those of the capacity required by the plans and estimates of the new high-service extension.’ ”</p> <p>On April 20, 1885, the following order, prepared by the chairman of the Water- Board, and which had duly passed both branches of the city council, was approved by the mayor: 11 Ordered, That the Water Board be authorized to exchange such pumping engines and machinery as are inadequate or of insufficient capacity for those of the capacity required by the plans and estimates of the new high-service extension, the expense of such exchange to be charged to the appropriation for high-service extension.”</p> <p>On April .21, 1885, the Water Board visited New York and examined the improved or high-duty Worthington engine, and other engines in New York, Philadelphia, and Brooklyn, all of which they had done several times before subsequently to January 1, 1885, and on the previous visits had been accompanied by the City Engineer; and on April 24, 1885, received from the firm of Henry B. Worthington the following proposal, sent at the suggestion of the chairman of the Water Board; in accordance with the recommendation of the City Engineer as above set forth : “ We beg leave to submit' the following proposal: For $106,575, will furnish and erect the pumps, etc., ready for- continuous service. Whole to the satisfaction of the City Engineer, and under such specifications as to details as may hereafter be agreed upon. Above price on assumption that we are to receive other engines and boilers on Elmwood Street. Boilers according to specifications accompanying — also feeding apparatus. We guarantee 100,000,000 foot pounds with 100 pounds of coal. Also materials and labor shall be first-class and equal to any other work furnished by us. We agree to complete work in eight months from date of signing contract.” On the same day the Water Board returned the following answer: “Tour proposal of April 24, 1885, to furnish high-service pumping plant for the city of Boston for the sum of one hundred and six thousand five hundred and seventy-five dollars ($106,575) is hereby accepted under the conditions that the detailed specifications and terms of the contract for the above-mentioned work shall be satisfactory to both parties concerned in the said proposal; it being understood that the present pumping plant at the Elmwood Station is to be exchanged, as per the terms of your proposition.”</p> <p>The “other engines and boilers” and “ pumping plant ” above referred to were the engines and machinery of the pumping station on Elmwood Street at the Highlands, that were to be discontinued, and consisted of one small low-duty Worthington engine, made in 1878, and of the daily capacity of 3,000,000 gallons, and one engine and two boilers made by the Boston Machine Company, said engine being made in 1870, and of the daily capacity of 1,800,000 gallons — all of the aggregate value of $3500.</p> <p>The distinguishing feature of the improved or high-duty Worthington engine was a “high-duty” attachment, the patent for which was owned and used exclusively by the plaintiffs. This device, so far as the parties to this suit knew, was the only one beside a fly-wheel that secured high economy of steam and fuel by enabling the steam to be cut off from the cylinder at an early point in the stroke of the piston without causing a loss of speed; the effect of plaintiff’s device and of the fly-wheel, together with the expansion of the steam left in the cylinder, being to carry the piston through the remainder of its stroke without loss of speed. It avoided the vibration on the water column incident to the use of a crank and fly-wheel, and could be used on the duplex low-dutv Worthington engine the motion of which was such that a fly-wheel could not be used with it. The duplex high-dutv or low-dutv Worthington engine was the only form of engine that secured an absolutely steady and regular flow of water, and whose steadiness and regularity of flow -was in no way dependent on speed, and the low-duty duplex engine was, January 1, 1S85, and ever since has been, manufactured by other parties besides the plaintiffs.</p> <p>The plaintiffs had knowledge of the above ordinance requiring advertisement for proposals, but were informed by the chairman of the Water Board that the order of April 20,18S5, avoided any necessity of advertising in this instance; and on May 19, 1885, the Board, in the name of and claiming to act for the defendant, and whose whole authority in the promises, if any it had, was derived from the orders, ordinances, and statutes referred to, and the plaintiffs’ firm, without any advertisement for proposals, entered into a contract the material portions of which were that Worthington should make and erect at Chestnut Hill reservoir two high-duty Worthington pumping engines, one of ten million and one of five million gallons daily capacity, and the boilers and appurtenances for the same; that the defendant should pay the plaintiffs therefor the sum of $106,575, and the pumping machine^, boilers, and all their appurtenances then located in the Highland pumping station, and valued at $3500, were to become the property of the contractors.</p> <p>That agreement provided for payments to the contractors as follows: Twenty per cent of the contract price to be paid when the steam cylinders of the engines were cast; fifteen per cent, when the water c3Tlinders were cast; fifteen per cent, when the steam cylinders of the engines were bored and planed; fifteen per cent, when both engines were erected; and fifteen per cent, when the boilers and engines were delivered at the pumping station at Chestnut Hill reservoir in Boston ; such payments not to be made nor demanded unless the work was progressing faithfully and to the satisfaction of the city engineer. The balance of the money due the contractor was to be paid, and the pumping machinery at the Highland pumping station was to become the contractor’s property, upon the completion of the entire work according to the terms of the agreement, and “its connection to the high-service system of the city of Boston, all to the satisfaction of the said engineer.”</p> <p>On the date of the execution of the agreement a bond in the sum of $25,000, with sureties, running to the city of Boston, was delivered to the Water Board to secure the faithful performance of the contract. This bond was accepted for the city by the' Board and attached to the contract, and, when this action was brought, was in possession of the City Auditor.</p> <p>The pumping engines and machinery called for by the contract were of a capacity required by the plans and specifications for the new high-service extension, and were capable of doing the work contemplated by the orders of December 23, 1884, and April 20,1885. The expenditure for piping was less than the estimate therefor, and the entire amount expended and agreed to be expended for the new high-service extension by the Water Board did not exceed the whole sum appropriated for that purpose.</p> <p>The plaintiffs, before the commencement of this action, had performed so much of the work described in the contract as entitled them to receive 65 per cent of the contract price, and notified the defendant that they were ready and willing to deliver the engines and boilers and perform the remainder of the work described in the contract; but the defendant had refused to receive the same, or to pay any of the instalments named in the contract, although requested so to do, and notified the plaintiffs that it would not allow said engines and boilers to be delivered, and would not pay for the same.</p> <p>In the year 1877 the Water Board and Henry R. Worthington contracted for an engine, at a cost of $20,000, without advertising therefor, and the price stipulated therein was paid by the city.</p> <p>I. The ordinances cited provide that the Boston Water Board shall not make any contract estimated to involve more than ten thousand dollars until it has advertised for proposals therefor, and all persons having to do with the city must take notice of the ordinance. Heland v. Lowell, 3 Allen, 407; S. C. 81 Am. Dec. 670; Taylor v. Lambertville, 10 Atl. Rep. 809.</p> <p>II. The Boston Water Board not having complied with this ordinance, the contract made by it was not the contract of the city, and is not binding upon it. Brady v. Mayor of New York, 30 N. Y. 312; Nicholson Pavement Co. v. Painter, 35 California, 699; Zottman v. San Francisco, 20 California, 96; S. C. 81 Am. Dec. 96; Dean v. Charlton, 23 Wisconsin, 590; S. C. 99 Am. Dec. 205; The Floyd Acceptances, 7 Wall. 666; Petition of Laura E. Eager, 46 N. Y. 100; Lowell Savings Bank v. Winchester, 8 Allen, 109; Palmer v. Haverhill, 98 Mass. 487; Baltimore v. Eschbach, 18 Maryland, 286; Moran v. Miami County, 2 Black, 722; Agawam Nat. Bank v. South Hadley, 128 Mass. 503; Horton v. Thompson, 71 N. Y. 513.</p> <p>III. The fact stated in the sixteenth clause of the statement of facts has no bearing on this case. Butler v. Charlestown, 7 Gray, 12; Sikes v. Hatfield, 13 Gray, 347.</p> <p>IY. The 'order did not annul or repeal the ordinance. Third Nat. Bank v. Harrison, 8 Fed. Rep. 721; Chicago &c. Railway v. United States, 127 U. S. 406; United States v. Benson, 31 Fed. Rep. 896; Chew Heong v. United States, 112 U. S. 536; Gilson v. Emery, 11 Gray, 430.</p> <p>Y. Nor can there be any claim of a ratification by the city. Turney v. Bridgeport, 55 Connecticut, 412.</p>