Volume 16 — Federal Reporter

<p>Removal on Causes.</p> <p>Jn a suit ponding in a state court oí Texas between parties who were all citizens oí that state, certain citizens oí other states holding liens which entitled them, under the laws oí Texas, to intervene, applied for leave to interven e and litigate their rights, which was refused by the state court. The next day, without leave, they filed their petition asserting their claims, and contesting the lien and alleged priority of the plaintiffs in the suit, and then removed the suit to this court. On a motion to remand, held, that an order oí the state court was not necessary in order to make them parties to the suit, and it was properly removed.</p>

On Motion to Remand to State Coart. The suit is one brought by the plaintiff, in the district court of Fannin county, against the defendant, as marshal of the northern district of Texas, for trespass in seizing (under certain writs of attachment issued from the United States circuit court of said district against one A. P. Ryan) a lot of goods belonging to plaintiff.

<p>On Demurrer to the Jurisdiction.</p>

In Equity. On motion for an injunction and receiver. Certain creditors of Martin G-eiger obtained judgment, and levied execution upon his interest in the stock in trade and accounts of Geiger & Phelps, a firm engaged in the crockery business in the city of Detroit. Both partners, vero citizens of Michigan. The property of the partnership, which complainant alleged to be of the value of $8,000, was incumbered by a mortgage to Geiger’s wife of $1,170.

On Demurrer. Bills for an injunction to restrain assessment and collection of taxes upon judgments held and owned by non-residents.

<p>Equity — Relit®’—Remedy at Law.</p> <p>Where moneys wore deposited with defendants, to he hold subject to the order of the complainants, and were by the defendants misappropriated and used for their own purposes, there is an adequate remedy at law, and a bill for relief in equity will not lie without showing that the moneys were misappropriated in violation of some active trust between the parties, involving confidence on the one side and discretion on the other, or that there were mutual accounts between the parties, or an account on one side of a nature to justify a bill of discovery.</p>

<p>L CORPORATIONS — LEASE BY BOARD OP DIRECTORS — VARIDITY — MAJORITY Off Board of Lessor Directors of Lessee.</p> <p>As the directors of a corporation are its agents, and represent stockholders, who are often practically voiceless in behalf of their own interests, they are held to the exercise of the utmost good faith in the administration of their trust; and where a statute authorizes a telegraph company to lease or sell Us franchises and property to any other telegraph company, provided the lease or transfer be approved by a three-fifths vote of its board of directors, and also by the consent in writing, or by a vote at a general meeting, of three-fifths in interest of the stockholders, a lease of the property and franchises of a telegraph company is voidable at the election of the lessor, if at the time the lease was made a majority of the board of the directors of the lessor were directors of the lessee also, and the lessee owned nearly two-fifths of the stock of the lessor.</p> <p>2. Same — Suit by Stockholder, when Maintainable.</p> <p>An individual stockholder can maintain an action to set aside such a lease only when it is made to appear to the court that he has exhausted all the means to obtain, within the corporation itself, the redress of his grievances, or action in conformity with his wishes, and that he has made proper effort to induce action on the part of the other stockholders.</p>

On Motion for Rehearing on Allowance of Counsel Fees. Simon Silverman instituted suit in the state court against the Louisiana State Lottery Company, claiming that he was the true and lawful owner of a certain half ticket of the lottery company which had drawn a prize of $30,000, of which he had been unlawfully dispossessed, and procured a writ of injunction enjoining the lottery company from paying the prize to any other person, and prayed for a judgment against the lottery…

<p>On Demurrer to Supplemental Bill.</p>

<p>1. MULTIFARIOtTSVESS — NUISANCE.</p> <p>Several parties owning extensive mines at various points on the affluents of the Yuba river work them independently of each other by the hydraulic process, discharging their waste .earth and other debris into the stream, whence it flows down into the main river, where the debi’is becomes mingled into one indistin-guisliable mass, passes on, and is deposited along the course of the river in the' valley below, burying valuable lands and creating a public and private nuisance. A bill in equity by a party injured against all the parties thus contributing to the nuisance to enjoin it is not demurrable as being multifarious, or for a misjoinder of parties defendant.</p> <p>2. Same.</p> <p>The parties thus creating the nuisance may be joined in equity, both on the ground that they co-operate in fact, and actually contribute to the nuisance, the injury being the single result of the action of the debris combined, and operating together long before it reaches the place where the injury is effected; also, on the ground of avoiding a multiplicity of suits.</p> <p>3. Nuisances — Pauties—Tenant in Common.</p> <p>One tenant in common of land, injured by a public and private nuisance, may sue to enjoin the nuisance without making his co-tenant a party, either as complainant or defendant.</p>

In Equity. Pleas and demurrer to a cross-bill.* This is a suit to quiet the title to certain real estate situated in the city of St. Louis, by removing a cloud therefrom, caused, as alleged, by the execution to the defendants’ grantor, of a certain tax deed.

<p>1. CONTRACTS — Artists’ Services — Exclusive Rights — Damages—Injunction.</p> <p>Contracts for tlie exclusive services of distinguished artists in theatrical representations are personal and peculiar. Damages for violation of such contracts are not capable of definite determination, and violations of them may he properly restrained by injunction. Where damages for the violation of a covenant are liquidated by agreement, semble, an injunction will not be allowed.</p> <p>2. Same — Penalty—Liquidated Damages.</p> <p>A mere penalty designed solely to secure observance of a contract will not be construed as liquidated damages nor prevent an injunction.</p> <p>3. Same — Threatened Violation oe Contract — Injunction.</p> <p>When tlie contract for the exclusive services of a singer in opera provided for “ tbe forfeiture of a week’s salary, or the termination of the engagement at the manager’s option, without debarring him from enforcing the contract as he might see fit,” held, that this clause was not liquidated damages, and that an injunction should issue to restrain a threatened violation of the contract. An injunction should not be permitted to be used as a means of indirectly enforcing collection of a disputed claim. Conditions to that effect imposed.</p>

On Rule for a New Trial. About the facts in the case, as developed by the evidence on the trial, there can he no dispute. The following may be taken as a full and fair statement: Prior to the war the firm now represented by plaintiff had dealings with the Arm of Copes & Phelps, of which defendant is now the representative, consisting in tlie consignment to the latter firm for sale of large quantities of hoop-iron and. clasps for cotton ties.

<p>1. CONFEDERATE BONDS — CONTRACT TO SkIjTi AND DeTAVER — SUIT FOR BREACH.</p> <p>As tlie bonds of tlie confederate states have been declared illegal by tlie fourteenth amendment to tlie constitution of the United States, a contract for the sale and delivery of such bonds at a specified rate per 1,000, entered into since the war, is void, and a suit for damages for a failure to deliver as promised cannot bo maintained.</p> <p>2. Contract — Consideration—Ielegal, Transaction.</p> <p>When a contract is connected by its consideration with an illegal transaction, a court of justice will not aid its enforcement.</p>

This is the same ease reported, as to the facts relating to the issuance of the bill of lading, in 9 Fed. Bbp. 129, and those facts are omitted here.

This is a suit to recover the value of a large quantity of jewelry stolen from a salesman in the plaintiff’s employ who was stopping at the time at a hotel kept by the defendants, known as the Planters’ House. The jewelry was stolen from the salesman’s room, where it was kept for sale, by a person unconnected with the house.

<p>1. Parties — Action for Negligent Burning op House — Owner and Insurers as Joint Plaintiffs.</p> <p>In an action to recover the value of a building destroyed by a lire caused by the alleged negligence of defendant, the owner of the building and an insurance company that has paid the amount of insurance on such building and taken an assignment of the claim from the owner to that extent, may join as parties to the action when the value of the house exceeds the amount for which it was insured.</p> <p>2. Negligence — Definition op.</p> <p>Negligence is the omission to do something which a i-easonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do. It must be determined in all cases by reference to the situation and knowledge of the parties under all the attendant circumstances.</p> <p>3. Same — Burden op Proof.</p> <p>In an action for negligence the presumption is that due care was exercised, and the burden of proof is upon the plaintiff to show by a preponderance of credible evidence that the defendant has been guilty of negligence. He must satisfy the jury that defendant by some act or omission violated some duty, and that such violation caused the injury complained of.</p> <p>4. Same — Fire Caused by Dependant’s Negligence — Negligence of Owner —Loss op Adjoining House.</p> <p>Where a building has been set on liro by reason of the negligence of defendant, and the fire has extended to and destroyed a house belonging to plaintiff near by, negligence on the part off the owner of the building first burned wili not of itself relieve the defendant from liability for his negligence; for where an injury is the result of two concurring causes, the party responsible for one of these causes is not exempt from liability because the person who is responsible for the other cause may be equally culpable.</p> <p>5. Same — Proximate Cause.</p> <p>Where a planing-mill is set on fire by sparks from a steamer which es'eaped because of the negligence of the owner of the boat, or those in charge of her, and such Are extends to plaintiff’s house, and the burning of such house is a result naturally and reasonably to be expected from the burning of the mill under the circumstances, and is the result of the continued effect of the sparks from the steamer, without the aid of other causes not reasonably to be expected, the negligence of the defendant will be considered as the proximate cause of the burning of plaintiff’s house.</p> <p>6. Same — Oontsebutort Negilgence — Question for Jury.</p> <p>Where the negligence of plaintiff contributes proximately to an injury alleged to have been caused by the negligence of defendant ho cannot recover; but the question as to whether plaintiff exercised, under all the attendant circumstances, the ordinary care that a reasonable man would under like circumstances exercise, is for the jury to determine from all the evidence in the case.</p>

<p>Trespass on Read Estate.</p> <p>By the common law, and by the statute law of the state of Texas, neither a devisee of real estate nor the universal legatee of the testator can bring or maintain an action for damages for a trespass committed on said real estate during the life of the testator.</p> <p>Texas Code, arts. 3128,. 4858, 1201.</p>

<p>Agent—Liability to Third Pebsons.</p> <p>An agent is liable only to bis principal for non-feasance. Whether an agent per se is liable to third persons on any account, doubted.</p> <p>Delaney v, Bochereau, 34 La. Ann. 1123, followed.</p>

<p>1. Cotton Factor—Contbact bob Receiving and Selling Cotton.</p> <p>When defendants make a contract that all their shipments of cotton to a certain place during the season shall be made to plaintiffs, and that said shipments shall amount to at least 200 bales, the contract is not fulfilled by the shipment of 200 bales to plaintiffs, and plaintiffs are entitled to recover commissions upon all other shippients of cotton made by defendants to that place during the season.</p> <p>, 2. Same—Commissions.</p> <p>Such commissions allowed should be the full commissions; it appearing that plaintiff's main expenses were in skill, experience, and iudgment previously acquired, and that all other expense was nominal.</p>

On Application for Leave to Filo a Motion for a New Trial. This suit was instituted against J. P. and Z. T. Addington, as the makers, and Mulliall & Scaling, as the indorsers, on a promissory note, of which the following is a copy: “Gainesville, Texas, November 8, 1880. “ Seven months after date-—, or either of us, promise to pay to Mulliall & Sealing, or order, ten thousand eight hundred and ninety-one 67-100 dollars, at the office of Putman, Chambers & Co., in Gainesville,…

<p>1. Exteaditiox — "Warrant ob Akrest — Description of Ofbtunse.</p> <p>In a warrant of arrest in extradition proceedings the oii'onse or accusation need be described in general terms only, such as are used in. the statute or treaty.</p> <p>2. Sauk — Dreuminaby Mandate.</p> <p>A preliminary mandate from the executive is not essential to jurisdiction in such proceedings, unless made obligatory by the treaty.</p> <p>3. Same — Inter-Spanish Treaty.</p> <p>In the Convention with Spain, the provision that it shall be competent for th* demanding government to obtain a mandate or preliminary warrant, is permissive only, and not obligatory; the demanding government may, at its option, proceed, under section 3270 of the Revised Statutes, without a preliminary mandate, or may demand it under the provisions of the treaty.</p> <p>4. Treaty — Construction.</p> <p>The construction of treaties adopted by the executive department should be followed when not repugnant to tlie language or purpose of the treaty.</p> <p>5. Malicious Prosecution — Essential Elements of Offense.</p> <p>In an action for malicious prosecution both malice and the want of probable cause.must co-exist to render the defendant liable.</p> <p>6. Same — Verdict.</p> <p>Where there is no dispute as to the facts, nor any reasonable doubt concerning the inferences to be drawn from them in respect to want of malice and the want of probable cause, it is the duty of the court to direct a verdict for the defendant.</p> <p>7. Same — Probable Cause.</p> <p>The defendant, the consul general of Spain, was ordered by telegram, from Havana, tO' procure the extradition of the plaintiff for forgery, the accused having just arrived from Havana, and it being feared he would depart for Canada. Held, that the only reasonable and probable inference concerning the date of the forgery was that it was since the treaty of 1877; and it being conceded that there was no express malice, held, that the consul had probable cause for assigning the date of the forgery as within the treaty period, and that the verdict was, therefore, rightly directed in his favor.</p>

Scire Facias on Bail-bond. The principal defendant, R. P. Stevens, was indicted at the October term, 1881, with others for a conspiracy to pass counterfeit money, and the usual writ of capias issued for his arrest, returnable to the April term, 1882, under which said Stevens was arrested on March 6,1882, by the marshal, and taken before one of the circuit court com. missioners, when he gave bond in the penal sum of $1,000, with the other defendants herein as his sureties;…

<p>On Demurrer to Pleas to the Indictment.</p>

<p>1. Criminal Law—Burden of Proof.</p> <p>In criminal causes, not only is the burden upon the prosecution to establish the guilt of the accused, but in order to justify a verdict of guilty, the jury must be satisfied beyond a reasonable doubt that every fact material for the conviction lias been established.</p> <p>'%'Same—Reasonable Doubt.</p> <p>The proof must exclude reasonable doubt; not necessarily all doubt. The meaning of this expression is that the jury, in order to render a verdict of guilty, must find the facts to be established to such a degree of certainty as they would regard as sufficient in the important affairs of life.</p> <p>3. Same — Defendant Indicted under an Alias.</p> <p>The meaning of a defendant being indicted under an alias is, that he is described in the indictment under one name, otherwise called another name. If the jury find as a fact that the accused’s name is as sot forth in the indictment, and that he acted as charged under the alias name, then the description in the indictment is such as conforms sufficiently to the facts.</p> <p>4. Same — Rev. St. §§ 5515, 5522.</p> <p>These facts are to be established: (1) That the defendants were officers of an election, namely, commissioners ; (2) that the election was for a member of congress of the United States; (3) that they made fraudulent additions of names of persons not voting for representative to congress to a list which they were by law required to keep. (4) As to the addition of names, the proof must be of at least one of the names charged as added, it need not be of all; (5) the addition must have been fraudulently made ; (6) the names must have been added with regard to the election of a member of congress, and with the intent to affect the election of a member of congress and its result.</p> <p>The proof must be that the additions were made by the defendants themselves, i. e., by one of them, in the presence and with the assent of the other two, or by some person in the presence and with the assent of the three defendants, and with the common guilty knowledge, and with the common intent, to affect the congressional election.</p>

<p>1. Rev. St. §§ 5515, 5522.</p> <p>Congress had power to prohibit, and follow witn penal consequences, the doing, by the officers of election for members of congress, of any act unauthorized, with the intent to affect any election or its result.</p> <p>Em parte Siebold, 100 U. Ü 373, followed.</p> <p>Ex parte Clarke, 100 U. S. 399, followed.</p> <p>2. Same—State Laws and Oeeicees.</p> <p>The state officers and state laws on the subject of election of members of congress, having been adopted by the United States, become pro tanto officers and laws of congress, and the conclusion of the indictment is the proper one, v that the entire offense is against the form of the federal statute.</p> <p>3. Same—Indictment.</p> <p>The indictment charged that the defendants were officers of an election held at a certain precinct in the city of New Orleans on the seventh day of November, A. D. 1882, for a member of congress, and that they, “being then and there officers of said election, with intent then and there to affect said election and its result,” “ did acts unauthorized, in this : that they, being required to keep a list of the persons then and there voting, and to swear to said list as correct, did then and there add to said list.” Held good, and that it was unnecessary that there should have been added the words, “ which they then and there, as such officers as aforesaid, kept.”</p>

<p>X. Criminad Law—Venire Facias.</p> <p>A paper purporting to bo a venire facias is irregular when it is addressed to the “marshal of the district of Louisiana,” when there was no such officer, and when the title of the executive officer of the court is “the marshal of the eastern district of Louisiana.”</p> <p>3. Same—Rrav. St. § 911.</p> <p>Such a paper, tested in the name of the deputy clerk, was neither writ nor process, the statute of congress providing that all writs and processes issuing from a circuit court shall bear teste of the chief justice of the United States, (1 St. at Large, p. 295, § 1; Rev. St. § 911;) it was not a writ of venire facias, nor any process in the nature of that writ.</p> <p>3. Same.</p> <p>A writ of venire facias, or a process in the nature of that writ, under the law, is indispensably necessary for the bringing together a grand jury.</p>

<p>Motibn for a Provisional Injunction for the Infringement of a Patent.</p>

<p>Patents for Inventions — Partner Allowing Firm to Make and Use His Inventions — Section 4899, Bev. St. — Bights on Dissolution.</p> <p>When an inventor, as a member of a firm and at the joint expense, makes and alters machines so as to embody his invention, and permits their use by the firm, the firm acquires the right to the continued use of such machines, under the provisions of section 4899 of the Bevised Statutes; and as the machines are the property of the firm, upon dissolution each member, to the extent of his interest in the partnership assets, has a right in them and to their use.</p>

<p>Ln Admiralty. In the matter of the appeal of Sophia Kaichen.</p>

<p>(Ten cases united in one transcript of appeal, by consent, and argued and decided as one case.)</p> <p>The only contest in this case is between libelants and the Home Insurance Company; all the other defendants having settled.</p> <p>The libel in each case alleges that libelants were respectively employed on board of the steam-tug Tyler, in the capacities stated; and at the dates stated there were salvage services rendered by said Tyler and her crew to various vessels in distress, as follows;</p> <p>October 25,1872, to bark Brookwan.</p> <p>March 30, 1872, to steam-ship City of Galveston.</p> <p>April 16,1872, to bark Moneta.</p> <p>November 13,1872, to steam-ship Darien.</p> <p>For which there was respectively paid by the owners, agents, and representatives of said vessels and cargo to the Harbor Protection Company, of New Orleans, the owner of said Tyler, as follows:</p> <p>Steam-ship City of Galveston, - - - - $ 8,896 00</p> <p>Bark Moneta, ....... 13,500 00</p> <p>Steam-ship Darien, ....... 11,528 15</p> <p>Bark Brookwan, ..... . 8,164 85</p> <p>The libels further allege that said Harbor Protection Company was, at the time said services were rendered, and said sums respectively paid therefor, an unincorporated company, and a commercial partnership, and the members thereof were certain insurance companies named in the libels, and among them the Home Mutual Insurance Company, which, it was alleged, is now (when the libel was filed, April 23, 1878) consolidated with the Home Insurance Company.</p> <p>The libels further alleged that after this salvage money was paid to said company it was invested in city and state bonds, which tho company, while it was insolvent, divided among said insurance companies in December, 1873; and that said company refused, and had. refused to give libelants any part of said salvage money or bonds, of which they claimed their pro rata of one-half, or pay them anything on account of said services by them rendered.</p> <p>The suit is for libelants’ proportion of said salvage money, respectively.</p> <p>The Home Insurance Company, which was alleged to be consolidated with the Home Mutual Insurance Company, and its predecessor, was cited.</p> <p>The material allegation of the answer is as follows:</p> <p>“* * * And the truth is that the Home Insurance Company was not in any manner interested in the Harbor Protection Company, and the Home Mutual Insurance Company was not consolidated with the Home Insurance Company, the respondent; and, further, that the Home Insurance Company i3 an entirely new organization, and did not receive the assets of the Home Mutual Insurance Company, and is not bound for any liability incurred by the Home Mutual Insurance Company.” ,</p> <p>About the rendition of the services — that they were salvage services; that they were paid for as such to the Harbor Protection Company — there is no dispute. Nor can there be any dispute as to the Harbor Protection Company being an incorporated company, and a partnership in which the insurance companies were the partners. This has been held by both Judges Billings and Woods, in other cases, and may be considered as settled. Those judges found that an attempt had been made to form a corporation under the general law of the state of Louisiana; and a copy of what was thought to be a charter is given from pages 169 to 179. ■ This document, which was an attempt at making a charter, failed to become such, because it did not provide means for windingvup the affairs of the company at the termination of its existence, and which was an absolutely necessary provision under the law relative to corporations. See Rev. St. La. § 685. This section declares: “Every charter of incorporation shall contain — First, * * *; second, * * *; third, *' * *; fourth,. * * *; fifth,. * * * the mode of liquidation at the ter-.ruination of the charter.” This defect, the above judges held, under .the authority of Field v. Cooks, 16 La. Ann. 154, and .the Workingmen’s Bank v. Converse, 29 La. Ann; 369, was an absolute prerequisite condition, which struck the instrument with nullity, as a charter, •and made the concern an ordinary partnership; each of the companies, or partners, composing the sarde being liable for its virile share . of the debts of the company. If this question were open for review there could be no doubt about the correctness of the decision. It is purely one of Louisiana law; and in courts of the United States is to be governed by the decisions of the highest courts of the state.</p> <p>The question in this case turns on the fact as to whether the Home Insurance Company-was consolidated with the present Home Insurance Company, or whether the present Home Insurance Company received the assets of the Home Mutual Insurance Company, and is bound for any of the liabilities of that company.</p>

<p>In Admiralty, • ■ . •</p>

<p>1. USAGE — CHARTER-PARTY.</p> <p>Evidence of usage is admissible to explain what is ambiguous in a charter-party, but is inadmissible to vary or contradict what is plain.</p> <p>3. Charter-Party — Delivery of Cargo.</p> <p>Where the contract declares that the consignees are to take the cargo “ from along-side,” that means that it is to be taken from where the ordinary appliances of the ship would leave it in discharging, — “at the end of the ship’s tackle,” on a wharf, if the ship was discharging at a wharf; on a lighter, if the ship could not reach a wharf and was discharging in the stream.</p> <p>3. Same — Impossible Condition.</p> <p>Where the liability of the vessel is limited by a condition impossible of execution, such condition becomes nugatory, the same as not written, and the general liability of carriers for the non-delivery of freight attaches.</p> <p>See Turnbull v. Blochs of Marble, 9 Fed. Rep. 320.</p>

<p>Stowage.</p> <p>"Where the groat bulk of the cargo of a vessel consisted of iron rails, steel, and tin in boxes, and that is stowed in the bottom of the vessel, the iron rails being stowed first and in block, fore and aft, and locked together, such storage was bad, and increased the labor and strain of the vessel in heavy weather, and the vessel is liable for damages resulting therefrom to other cargo.-</p>

In Admiralty. The libelant was the master and owner of the canal-boat Hope, which, together with her cargo, was lost by a collision with the steamer Franconia, on the twenty-sixth day of November, 1878. The' canal-boat, carrying a cargo of coal, was in tow of the tug Maride, and was lashed to her side. The tug was a small vessel, and the canal-boat projected' beyond the tug’s bow some 30 feet.

<p>1. Admiralty Law — Collision at Sea — Inevitable Accident.</p> <p>A collision of vessels in a severe and sudden gale, which, by proper and skillful seamanship in conformity with the rules of maritime law, might have been avoided, is not fairly attributable to inevitable accident.</p> <p>2. Same — Burden of Proof.</p> <p>The burden of proof, in an action to recover for loss caused by a collision at sea, rests with the libelants, who must establish the affirmative by a fair preponderance of evidence.</p> <p>3. Same — Division of Loss in Certain Cases.</p> <p>Where a collision by vessels was owing to the negligence of each, though it may be in unequal degrees, the loss should not fall wholly upon one. The law provides for a division of loss in three cases: Where the fault is inscrutable; where there is no fault on either side; and when both parties are guilty of negligence.</p> <p>4. Same — Contributory Neoltgence — Rule in Admiralty.</p> <p>The rule of the common law that contributory negligence prevents a recovery is not applicable in admiralty.</p>

<p>Motion to Bemand Case to State Court.</p>

<p>Motion to Quash Venire of .Jurors.</p>

<p>Plea interposed to bill that plaintiff, being a married woman, cannot maintain the action.</p>

<p>1. Mutual and Dependent Undertakings.</p> <p>The undertakings in a contract whereby one party agrees to sell and deliver an article to another on the demand of such other at a certain place and upon the payment by him of a certain price are mutual and dependent; but before either party can maintain an action against the another for non-performance of such contract, ho must aver and show an offer of performance on his part, or a readiness and willingness to perform according to the circumstances of the case.</p> <p>2. Speciau Demurrer.</p> <p>Under the Code of Civil Procedure special demurrers are not allowed; but if the allegations of a pleading are open to the objection of indefiniteness or uncertainly, Ibe remedy is by motion, under section 84 of the Code, to make tlie same more definite and certain.</p> <p>3. DemaNd — Allegation of.</p> <p>Y. agreed to sell and deliver to "M. and B., at a certain place, for a certain price, a certain quantity of hops, upon the demand of said N". and B., but without any time being specified in which such demand should be made. Held, in an action by 1ST. and B. against Y. for the non-delivery of the hops, that an allegation that the plaintiffs had demanded the hops from the defendant without stating when, was sufficient on general demurrer; and that an allegation that they were ready and willing to receive and pay for the hops, without stating when or where, was also sufficient.</p> <p>4. Allegation of Readiness and Willingness to Receive and Pay for an Article.</p> <p>Whore it is agreed that an article shall be delivered to the buyer by the seller at a certain place for a certain price, on the demand of the former, and the demand is made for the delivery on a certain day, in an action for the nondelivery of the article, it is sufficient to allege that he was ready and willing to receive and pay therefor at the time and place appointed ; but if the seller has the article at such time and place, in such action the buyer must also allege and show that ho then and there offered to receive and pay for the same.</p>

<p>Action against Stockholder of Insolvent Bank.</p>

<p>Action of Trespass on the Case. '</p>

<p>1. Trover to Recover Value of Timber Sold by Owner oe Undivided Interest in Land.</p> <p>It being by statute unlawful for an owner of an undivided interest in timber land to cut down or remove from the land any timber trees without having first obtained the consent of his co-tenants, and, as against his non-consenting co-tenants, his sale of lumber manufactured out of timber so cut or removed passing no title to his vendee, held, in an action of trover against such vendee by a non-consenting part owner, that the plaintiff was entitled to recover the value of his interest in the lumber as of the date of the defendant’s conversion, with no allowance for the expense and labor of the trespassing vendor.</p> <p>2. Timber Felled Treated as Real Estate.</p> <p>Timber unlawfully cut down by an owner of an undivided interest in the land without the consent of his co-tenant, and still lying upon the land at the time of the marshal’s sale of the undivided interest in the land of the non-consenting owner, who had not elected to treat the felled timber as personalty, remains part of the freehold, and the interest of the defendant in the execution therein passes to the marshal’s vendee as realty.</p>

<p>At Law; Motion to quash writ of replevin.</p>

<p>L. Penalties and Forfeitures — Intent—Rev. St. $ 2873 — Smuggling.</p> <p>As guilty knowledge or evil intent are not necessary ingredients m statutory crimes or penalties, where the intention of the statute appears not to make them so, in an action against the master of a vessel, under section 2873, for un-lading goods without a permit, the master’s want of knowledge or of participation in the unlawful acts is no defense.</p> <p>2. Same — Resign of Statute — Masters oe Vessels.</p> <p>The design of section 2873, like that of section 50 of the act of March 2,1799, is to secure vigilance on the part of masters, or the persons having charge of the vessel, in preventing illicit traffic, which hy virtue of their command they are presumed to be able to prevent.</p> <p>S. Same — Rerelict or Salvage Goods — Accident.</p> <p>Section 2873, imposing a penalty for unlading goods without a permit, is to he interpreted and applied according to its intention, — viz., to impose vigilance in preventing such unlading upon the persons having command, — and it is not to be applied in cases evidently outside of the intention of the statute, such as derelict or salvaged goods, or goods unladen in case of accident to save them from loss, nor to cases of unlading by a superior attacking force; nor, in like manner, where it is affirmatively shown that it could not by any practicable means be prevented by the master or person in command.</p> <p>4. Same — Section 16, Moiety Act — Question for Jury.</p> <p>In an action for a penalty against the master in such cases, section 16 of the moiety act (1 Supp. Rev. St. 80) requires only that the intent with which the acts were done by the persons who committed them should be submitted to the jury, not the intent of the master.</p> <p>5. Sections 2873 and 2768, how Construed.</p> <p>Sections 2873 and 2768 are to be construed together as the equivalent of section 50 of the act of March 2, 1799, and as imposing only one penalty, viz., a penalty either upon the master, or, if he be not in command at the time, then upon the person who is in command of the vessel.</p> <p>6. Same — Suit against Absent Master.</p> <p>Where 77 packages of cigars were secretly lowered for the purpose oí smuggling from the bows of the steamer S., at 2 o’clock a. m., while she lay at anchor at lower quarantine, New York harbor, while the master was absent from the ship, he having gone the day previous to the New York custom-house, 15 miles distant, to make entry of the arrival of the vessel, as he was bound to do by law, held that, though the penalty of $400 was incurred, the suit should have been against the person in actual command of the vessel at the time, and not against the'absent master, and that the latter was not liable.</p>

At Law. 1. Under the allegations of the complaint the defendant is a foreign corporation engaged in the business of carrying passengers, and as to corporations of this character the state has no more power of control than it has over a natural person engaged in the same business. Paul v. Virginia, 8 Wall. 168; Pensacola Telegraph Co. v. Western Union Tel. Co. 96 U. S. 1; Liverpool Ins. Co. v. Mass. 10 Wall. 566-573; Ducat v. Chicago, Id. 410; Rorer, Interstate Law, 288. 2.

<p>1. Fraudulent Conveyance — Attachment.</p> <p>Facts stated upon which an attachment was sustained, on the ground that defendant had disposed of his property to hinder and delay his creditors.</p> <p>2. Mortgage — Crops to be Grown.</p> <p>In Arkansas, crops to be grown may he mortgaged, and the lien attaches a* soon as they are produced.</p> <p>3. Same — Description of Property.</p> <p>A mortgage which described the property mortgaged as “30 bales of good lint cotton, the first picking of our crop of 1882, to average 450 pounds each,” describes the cotton with sufficient certainty.</p> <p>4. United States Court — Enforcing Remedies Given by State Law.</p> <p>The remedies given by state law to suitors in the state courts, supplementary to writs of attachment for discovery of the debtor’s property, are applicable to suitors in the federal courts, and may be enforced at law or in equity, according as the state law provides.</p> <p>5. Same — Disclosure of Defendant in Attachment Suit — Payment to Marshal.</p> <p>When a statute provides that if property to satisfy a writ of"attachment cannot he found, the defendant in the writ may be summoned before the court to give information on oath respecting his property, and a defendant so summoned admits on his examination that he has money in his possession legally liable to seizure in payment of his debts, the court may order him to pay the same to the marshal holding the writ, or into the registry of the court, and obedience to such order may be enforced by the usual methods by which courts enforce obedience to their lawful commands.</p>

On Motion for a New Trial. The plaintiff brought suit against the city of Detroit to recover damages forpersonal injuries sustained by her,by reason of a defective -walk across an alley which intersects Twenty-third street, between Fort and Lafayette. The plaintiff recovered a verdict, and defendant moved for a new trial upon the grounds stated in the opinion of the court.

<p>In Bankruptcy.</p>

<p>In Bankruptcy.</p>

<p>On Demurrer to the Information.</p>

Demurrer to Information. The information in this case charged that defendants— “ On or about the first day of November, 1882, and on divers other days thence next ensuing, continuously, up to and including the sixth day of November, A. D. 1882, at said eastern district of Virginia, to-wit, at Richmond, Virginia, and within the jurisdiction of this court, did unlawfully combine and confederate together with each other, and with others to the jury unknown, to hinder, delay,…

<p>Bkeakinu into Post-Office — Section 5478 of the Revised Statutes.</p> <p>Section 5478 of tlie Revised Statutes, which provides for the punishment of any person who breaks into a building used in part as a post-office with intent to commit larceny therein, interpreted as if it read, with intent to commit larceny in the part of said building used as a post-office; and a demurrer sustained to an indictment drawn upon said section in the words thereof, because in effect it charged that the breaking was done with the intent to commit larceny anywhere in the building.</p>

<p>1. Patents for Inventions — Anticipation—Patent No. 127,211 Sustained.</p> <p>Patent No. 127,211, granted to Jonathan Q-. Aram and Robert S. Williams, May 28, 1872, for an improvement in machines for turning carriage axles, compared with the patents granted August 16, 1870, to William H. Heffley and David Barb, patent No. 130,782, issued to Reuben Zeider. August 20,1872, and a machine invented by Thomas Blanchard, and held not anticipated by such inventions, and not void for want of novelty.</p> <p>2. Same — Claim—Infringement.</p> <p>The new thing that plaintiff invented was the pivoted bar, carrying the knife upon one end, and with its motions controlled by the revolutions of the other end within the hollow pattern; hut, to make this work effectively, he combined with it certain old and well-known mechanical devices, such as the feed-screw, sliding fulcrum block, slide-ways, and gearing-wheels, by which the fulcrum block and pivoted bar were to be revolved ; and the claim in his patent should not he construed as a mere combination claim of old elements, hut as a claim for the pivoted bar, which was a new element brought into the art hv him and made efficient when used with these older devices, and in this view .of the claim his invention is,infringed by the machine of defendants.</p>

<p>1. Patents fob Inventions—Disclaimer—Reissue. _</p> <p>"Where a patentee has defectively or insufficiently described his invention, and claimed more than he has a right to claim as new, he is entitled to a reissue of his patent upon a surrender of the original; but it is not the office of ■ a disclaimer to reform or alter the description of an invention.</p> <p>2. Same—Office of Disclaimer.</p> <p>Where there are several claims, some of which he is entitled to, and the part of the invention which is his own can be definitely distinguishable from that which is not his own, a disclaimer before suit brought will put him right and enable him to recover upon his patent as though it had originally been confined to the proper claims ; but he cannot convert a claim for one thing into a claim for something else, and amend the description to effectuate such claim.</p> <p>3.’ Same—(Jase.</p> <p>In this case as there was nothing in the description or claim of the complainant’s patent to indicate to the public that they were appropriating anything , of which the patentees were the inventors, the disclaimer filed by the complainants cannot avail, and the bill will be dismissed</p>

<p>Exceptions to Master’s Report.</p>

<p>1. DISCHARGING CARGO — CHARTER-PARTY—PHYSICAL OBSTACLE.</p> <p>Wliere by a charter-party the vessel is to go to certain docks to discharge,. “ or as near thereto as she can safely get,” and there discharge her cargo “ at a proper discharging berth,” and the owner of the docks refuses to permit the discharge of the cargo on the wharf, or the necessary use of the wharf for the purpose of putting in lighters, held, such refusal is in the nature of a permanent physical obstacle which entitles the ship to resort to the alternative place of delivery, namely, “ as near thereto as she can safely get.'”</p> <p>2. Same — Liability of Charterer.</p> <p>Where, upon the charter of a part of a ship, the charterer undertook to receive-the cargo as fast as the vessel could déliver, “ after ship is in a proper discharging berth,” with no other stipulated period for delivery, held, that the charterer was not liable for any detention of the vessel until she had found a berth where she could make delivery of the cargo. The vessel not being able to find a proper discharging berth for the respondents’ part of the cargo in the docks where she had first gone, held, the respondents were not bound to pay for expenses for removal to another berth where she could discharge.</p> <p>3. Same — Demurrage.</p> <p>After a proper berth was found, the receipt of the cargo having been delayed through delay by a United States weigher in weighing the cargo as put upon the wharf, held, the charterer was answerable for the detention thus caused.</p>

<p>In Admiralty. ' On exception to libel.</p>

<p>1. Lien — Supplies op Goal — Quartered Vessel.</p> <p>Where supplies are furnished at a foreign port, they are presumed to .have been furnished on the credit of the vessel.</p> <p>2. Same — Charterer as Owner por Voya&e.</p> <p>A charterer to whom is given the entire possession, control, and management, becomes the owner pro hae viee, although by the terms of the charter-party the general owner appoints the master and the crew.</p> <p>3. Same — Authority to Bind Vessel.</p> <p>When the general owners allow the charterers to have the control, management, and possession of the vessel, and thus to become the owners for the voyage, he must be deemed to consent that the vessel should be answerable for necessary repairs and supplies furnished at a foreign port for the prosecution and completion of the voyage.</p>

<p>1. Salvage — When Allowed.</p> <p>To justify a salvage award it is not necessary that a vessel should he in such peril that it would be impossible for the master to relieve her; it is sufficient if the danger is such that it would be continued and increased by the delay necessary for him to do so.</p> <p>2. Same — Steam-ship Aground.</p> <p>Where a steam-ship is aground on an open and exposed reef, and is relieved from the bottom by taking out some cargo and throwing overboard by direction of the master, those engaged may be entitled to a salvage compensation, although the}'- carry out no anchor.</p> <p>3. Same — Duty of Salvor to Aid Master.</p> <p>It is the duty of a salvor to aid the master m all ways, and he should in no case refuse assistance in the way proposed because they differ in judgment, unless there is unquestionably bad faith in the means suggested.</p> <p>4. Same — Good Faith oe Salvors — Measure of Compensation.</p> <p>Salvage service demands the utmost good faith in every relation with wrecked property, and it is as much the salvor’s duty to assist in saving it from unnecessary expense after being brought into port as to rescue it from peril; and any trouble, detention, or expense caused or incurred thereby will be considered and compensated in the general award.</p>

<p>1. Making Up a Tow — Duty.</p> <p>It is the duty of those making up a tow to act with that reasonable and ordinary care which a prudent man exercises for the preservation of his own property.</p> <p>2. Same — Position- in Tier — Old Boat Sunk — Concurrent Negligence— Knowledge op Owner — Half Damages.</p> <p>Where the defendants, before leaving the Kill Von Kull, in March, had taken the libelant’s barge from the second tier, knowing she was an old boat, and put her in the head tier, against the libelant’s protest, and on coming out into New 5Tork bay a gale suddenly sprang up, about 0 r. m., causing the boats to chafe so as to start the sheer-plank of the libelant’s boat, and to take in water faster than she could keep it clear, whereby she sank shortly before reaching the landing at Jersey City, held, the defendants were chargeable with negligence in carelessly putting the barge in a position of special danger, when she was unfit to encounter the hazards of the trip at that season in the head tier. Held, also, that the libelant, knowing that his boat was old and weak, and more deeply laden than the others, and unfit for the trip in the head tier at that season, should recover but half his damages, not having objected to proceeding on the voyage with his boat in that position. Notwithstanding a previous protest against being removed to the head tier, there was concurrent negligence in both parties. To avoid responsibility the owner, in such case, must give notice of the unfitness of his barge for the trip in the front tier, and refuse consent to proceed except at the risk of the tug.</p>

<p>1. OollisioN — Failure to Answer Signal — Rule 8.</p> <p>Where two steamers are running in the same direction, and the one astern, under the eighth rule for the government of pilots on western rivers, signals her desire to pass the one ahead, the latter is bound to answer the signal, and the failure to respond is a fáult in her; hut such failnre, so far from exonerating the pursuing steamer from taking the care demanded by the circumstances to avoid a collision, calls for special caution on her part.</p> <p>2. Tow-Boat on Western River — Liability for Negligence — Not Common Carrier — Abandonment of Wrecked Tow.</p> <p>While the owners of a western-river tow-boat, who have undertaken to tow a barge and deliver it at an agreed place, are not common carriers, they are bailees for hire, hound to fulfill their engagement, unless prevented by some cause affording lawful excuse; and if, by reason of their culpable negligence, the barge while in their exclusive custody is wrecked and sunk, the duty of rescue, if practicable, is upon them. Hence, when sued by the owner for a total loss, they will not be heard to allege that he might have mitigated the damages by raising the barge.</p>

<p>1. AdmiRAltt — Rule 21.</p> <p>Rulo 21 in admiralty does not authorize a personal judgment against the claimants in an action in rem, except against such as have signed the stipulation given in lieu of the vessel seized.</p> <p>2. Action in Rem — Bar—Suit in Personam.</p> <p>An action in rem, is not a bar to a subsequent suit in personam, for the same claim, unless the defendants executed a stipulation for the amount of the claim.</p> <p>3. Same — Collision.</p> <p>Where the owners of a bark sunk in a collision sued in rem, to recover the value of the bark, and also for the value of the cargo owned by others, and a stipulation was given and accepted in place of the vessel seized, signed by one only of the several owners and claimants, and the insurers of the cargo afterwards commenced an action in personam, for the loss of the same cargo, against the same owners who were the claimants in the former suit, held, that the plea in the latter suit of the former action pending was not good, because in the former suit all the claimants could not be held personally responsible for the loss.</p> <p>4. Collision — Damages—How Applied.</p> <p>Both vessels being in fault, held, that the amount recoverable in the suit in rem for the loss of the vessel and freight should bo first applied in payment of the libelants’ share of the loss of the owners of the cargo, and applied upon the claim in personam.</p> <p>5. Same — judgment in Rem.</p> <p>For any excess over their own share of the loss of the cargo for which the respondents in the suit in personam would remain liable, semble, they would be entitled to judgment against the libelants in the suit in rem.</p>

In Admiralty. This was a libel by an administrator to recover damages for the the death of his intestate, a minor son, occasioned by a collision between the Garland and steamer Mamie, upon the Detroit river, on the twenty-second of July, 1880.

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

<p>At Law. On motion to remand.</p>

<p>Memorandum of Decision.</p>

<p>Plea to Jurisdiction of Court.</p>

<p>Motion for Injunction.</p>

On Demurrer to Bill of Review. This is a bill filed to review and modify the decree rendered by this court in the case of Cornelia 0. Harrington v. John B. Finley et al. The original bill was brought for the double purpose of removing from the title to certain lands a cloud thereon caused by certain tax deeds, and of canceling a certain mortgage thereon alleged to have been paid in full. The present complainants were interested in the mortgage.

<p>1. Municipal Corporation — Authority of Mayor of City — Removing Telegraph Wires — Ordinance Limiting Time — Injunction.</p> <p>Where a telegraph company erects poles and strings wires within a city under authority of an ordinance of the city council which provides that such authority or privilege shall expire on and after a certain day named therein, the mayor of such city has no right of his own motion, and without any express direction from the city council, and without notice to the company, to cut and remove the wires after the expiration of the time limited in the ordinance, and ho will be liable as a trespassor for so doing; but notwithstanding that fact, an injunction will not he granted to restrain the city authorities from interfering with the company in replacing the wires, because this would enable it to do what it has no legal right to do under the ordinance.</p> <p>2. Same — City Authority to Regulate Telegraph Privileges.</p> <p>Notwithstanding telegraph lines are instruments of commerce, a city nas the right to determine how, in what manner, and upon what condition a telegraph company Shall enter the city and pass through it for the purpose of communication, or allowing- the citizens of the country to communicate by telegraph one with another.</p>

<p>1. Partnership — Payments of Debts of Members by Pirm — Deed Void as to Creditors.</p> <p>Where one loans money to the individual members of a firm, taking their individual notes therefor, a conveyance of land owned by the firm in part payment of such notes is an appropriation of partnership property to the payment of the debts of its members; and if, at the time of such conveyance, the firm is insolvent, it is fraudulent as to existing creditors, although valid as between the-the parties thereto, and will be set aside at the suit of a creditor who has obtained a judgment against such firm.</p> <p>2. S.UIK — ISTSOITVEXCY of FlEM.</p> <p>So long as a firm is solvent, all its members assenting, the individual debts of the parties may be paid out of the firm assets ; but if the firm is insolvent at the time a transfer of the firm property to make such payment is made, it is fraudulent and void as to existing creditors of the firm.'</p>

<p>Judgment by Default — Service on Party — Bill to Set Aside.</p> <p>A judgment by default against a party who has been regularly served with summons in the action, will not be set aside after the term, on the ground that such party had a good defense to such action and 'wrote to an attorney to appear for him, but did not disclose his defense, and that he had no knowledge that such letter was not delivered to the attorney until after the judgment was rendered and the court had adjourned sine die</p>

<p>1. Sale of Real Estate by Marshal — Equitable Jurisdiction — CLAIMANTS of Proceeds — Distribution.</p> <p>Where, upon a marshal’s sale of real estate, he takes for the hid the receipt of the purchaser as the first lien creditor, and exceptions are filed to his special return, a bill on the equity side of the court at the suit of the exceptant will lie to determine the rights of the rival claimants of the proceeds of sale; and this is the proper practice to obtain a review of the decision on the question of distribution, if the amount in controversy brings the case within the appellate jurisdiction of the supreme court.</p> <p>2. Delivery of Deed and Security — Presumption.</p> <p>The presumption is that a deed for land and the vendor’s purchase-money security, of the same date, were delivered simultaneously.</p> <p>3. Principal and Agent — Agent Pledging Principal’s Credit — Duty to Make Inquiry as to Authority.</p> <p>No agent, however general his powers, has implied authority to pledge the Credit of his principal for his own private debt, and if he undertake to do so, it is the clear duty of the party dealing with him to make inquiry as to his authority.</p> <p>4. Judgment Security — Alleged Fraud — Proof.</p> <p>To justify a court of equity in striking down a defendant’s judgment security for alleged fraud, which the answer denies, the evidence of the fraud should be clear and convincing, and unless so established by the preponderance of proofs, relief will be denied.</p>

Action on the official bond of a receiver and register of a land-office, for default in the discharge of the duties of his office occurring after the expiration of his term and before a successor had been appointed.

<p> Habeas Corpus. </p>

This is an action to recover damages for the breach of a contract for the sale of 40,000 dozen cans of corn.

<p>Action to Recover Illegal Duties — “ Peáis Juscju’a Bord Peculiar, Verdict Construed — Modification—Bar.</p> <p>, In 1864 a verdict was rendered in open court, by consent of counsel, in an action to recover certain duties alleged to have been illegally exacted by the collector of the port of New York, “for the plaintiffs, for excess of duty, with interest thereon, illegally exacted from, the plaintiffs, and paid under protest to defendant, and not barred 'by the statute of limitations.” Among the charges which were specified as recoverable were “charges on merchandise imported at New York for the transportation of the goods from the inferior of the country by railroad or water carriage, incurred prior to the time of exportation.” A reference was made to ascertain the amount due, and defendants excepted to the report. Held—</p> <p>(1) That tho verdict precluded the defendant from denying that the plaintiffs were entitled to recover the excess of duties illegally exacted by and paid under protest to him, and that when plaintiff showed that he had paid excessive duties under protest he was entitled to recover the same.</p> <p>(2) That the verdict was to he treated as a stipulation, and subject to modification, and an order of tho court refusing to allow defendant to set up tho statute of limitations precluded him from making such a defense at this stage of the case.</p> <p>(3) That, construing the verdict with the aid of the protests, it was never intended to authorize the recovery of duties paid for frais jmqu’a bord."</p> <p>(4) That, as the verdict did not liquidate the damages recoverable by the plaintiff, there was no rest at the date of the verdict, hut the interest ran continuously from the date of payment of the excessive duties until the date of the liquidation by tho referee.</p> <p>(5) That a misjoinder of parties could not be availed of by defendant undo-a plea of non-assumpsit, though possibly under this very peculiar verdict it might have been taken advantage of by plea of misjoinder.</p>

This suit was brought against the defendant, November, 1863, to recover the same kind of duties paid to him as collector of customs, and under the same kind of a protest, as that of Bartels v. Bedfield, ante, 336. The plaintiffs’ declaration was a common-law declaration, and alleged indebtedness as existing at the date of the commencement of the suit. The defendant’s plea was non-assumpsit.

<p>Constitutional Law—Regulation of Commerce.</p> <p>Section 29S5 of tiie Political Code of California, so far as it requires tlie payment of 70 cents for each passenger, inspected to ascertain if he is afflicted with leprosy, coming into the United States by sea, and imposing a fine for non-payment upon the owners and consignees of the vessel bringing the passengers, is unconstitutional and void.</p>

<p>1. Patent to Lands Embracing Mines.</p> <p>Where a patent to lands is issued by the United States, it carries all mines in the, lands patented, to which no right has attached at the time the patent issues.</p> <p>2. Patent Relates to Entry.</p> <p>Where a purchaser enters and pays for a tract of public lands receiving a certificate of purchase therefor, the patent subsequently issued in pursuance of such certificate relates to and takes effect from the date of the entry.</p> <p>3. Reservation in Patent of Right to Work a Mine.</p> <p>Where a patent to public land reserves the right of a proprietor of a mining vein or lode to extract and remove his ore therefrom, should it be found to penetrate or intersect the lands grhnted by the patent, the reservation refers only to parties who are proprietors at the time when the right of the patentee attaches to the land, or the date of the entry or patent.</p>

This proceeding was instituted by the plaintiffs, under the provisions of section 1244- of the Code of Iowa, for the assessment of the damages claimed by plaintiffs to have been caused to their property by the construction and operation of the railroad track now occupied by the defendant corporation at and near the intersection of Iowa and First streets, in the city of Dubuque, Iowa.

<p>Damages — Personal Injury — Verdict.</p> <p>Where, in an action for damages for a personal injury caused by the negligence of defendant, the instruction to the jury was as favorable as the plaintiff was entitled to, and there is nothing to indicate that the jury were actuated by passion or prejudice, the verdict will be sustained.</p>

<p>1. TaxattoN op Negotiable Papeh — Notes Payable in Goods.</p> <p>Section 19 of the act of February 8, 1875, wliicli provides “that every person, firm, association, other than national-bank associations, and every corporation, state bank, or state banking association, shall pay a tax of 10 per centum on the amount "of their own notes used for circulation and paid out by them,” must be construed as limited in its effect to notes payable in money; otherwise all sorts of negotiable paper, such as “grain receipts,” fare tickets, and the like, might be subject to the same taxation</p> <p>2. Same — Notes Contemplated by the National-Bank Act.</p> <p>Section 5172 of the Revised Statutes provides how the notes contemplated by the national-bank act shall be printed and what they shall contain. No provision is made for a note for less than one dollar. A note for a fractional sum is not only unknown to the law, but its issue is unlawful. Section 3583. The supreme court, by deciding that an obligation “ payable in goods ” was not illegal, has left the inference to follow almost necessarily that it was not such a note as was contemplated by the statute, and therefore not taxable.</p>

Exceptions to the Register’s Report, allowing a set-off to the claim of P. W. Shaefer and others, executors and trustees under the will of John Gilbert, deceased.

<p>On Motion in Arrest of Judgment.</p>

<p>1. Patents—Driven Well — Original Patent No. 73,425, and Reissue No. 4,372, Yoid—Dedication to Public-Public Use—Anticipation.</p> <p>As the evidence in this case shows that in 1861 Nelson W. Green, who was at that time the colonel of a regiment, in order to supply his men with pure water, devised and put in operation a method of driving wells ; that he did not at that time contemplate procuring a patent for his invention, hut intended simply to benefit his regiment; that his invention was in open and public seu, with his acquiescence and consent, for more than four years before ho applied for a patent; and that this method of driving wells was known and resorted to by certain other persons in Milwaukee, Wisconsin, in 1849 and 1850, and in Independence, Iowa, in 1851,—the reissued letters patent No. 4,372, granted to said Green under date of May 9, 1871, and the original patent No 73,425, dated January 14, 1868, for an “ improved method of constructing artesian wells,’’ must be held invalid and void.’</p> <p>2. Same—Reissue Void.</p> <p>When the original invention did not embrace the idea of creating a vacuum in the lining of the well for the purpose of utilizing the pressure of the atmosphere, nor the original patent, expressly or impliedly, cover or describe the application of this principle, the enlargement of the claims in a reissue for the purpose of covering this idea of atmospheric pressure caused by a vacuum in an air-tight tube will render such reissue void.</p> <p>3. Same—Reissue may Embrace, Wiiat.</p> <p>A reissue can be validly granted only for the same invention which was originally patented. A reissue that goes beyond this, and covers other and different inventions or improvements suggested by the use of the original invention, will be void.</p> <p>4. Same—Prior Use—Consent oe Tnvhntob—Act 1839—Section 4886, Rev. St.</p> <p>The two-years’ limitation was intended in the act of 1839, as it unquestionably is in section 4886 of the Revised Statutes, to be general, and it applies to all cases in which the invention has been in public use or on sale for more than two years prior to the application, whether with or without the consent or allowance of the inventor. Per Love, J., concurring.</p> <p>Nelson, J., dissents.</p>

” The first of said patents contains two claims, which are as follows: “ (1) A case for transporting eggs, in which are more than two removable trays,' each containing a series of bottomless cells or compartments, some of these cells having walls irrespective of the walls of the case, and each tray being separated from its adjoining tray by a removable diaphragm or dividing board; (2) the combination of more than two trays, each containing a series, of bottomless cells or…

<p>Demurrer to Bill.</p>

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

<p>1. Constitutional Law — Title of Act.</p> <p>Under the constitution of the state of New York, which requires that the subject of every private or local bill shall he single and expressed in its title, it is sufficient if the .title indicate the powers given in the act by reasonable implication, so that the public would not naturally be misled. Where the title of an act was “to authorize the town to raise money to construct a town dock,” held,, that this indicated by reasonable intendment the power to charge and collect wharfage,- and that the act was not in that respect unconstitutional.</p> <p>2. Right to Collect Wharfage.</p> <p>The right to collect wharfage is a franchise resting only upon legislative authority.</p> <p>3. Same — Meaning of “ Wharfage’’ — When Chargeable.</p> <p>The town having by resolution declared that the rates of wharfage for the town dock should be “ one cent per ton per day; all goods to be allowed to lie on the dock 24 hours free of charge; after 24 hours to be charged five cents per ton per day,” — held, that the wharfage referred to was the ordinary use of the wharf by vessels afloat in leading or unloading, or mooring for safety in the irdinary^course of commerce; and that the resolution did not authorize the fharge as for “wharfage ” against a vessel while she lay scuttled and sunk between high and low water mark, at a distance of 10 or 15 feet from the wharf, and fastened thereto by only one of several lines, others being attached to the shore.</p> <p>“ Wharfage is a charge for the use of a wharf, made by the owner therefor, by way of rent or compensation.” Parkersburg & Ohio River Trausp. Co. v. City of Parkersburg, 2 Sup. Ct. Rep. 732.—[Ed.</p>

<p>1. Rules of Navigation — Inspectors’ Rules — Section 4233 — Section 4412.</p> <p>The rules of navigation established by the supervising inspectors under section 4412 of the Revised Statutes, are valid and binding, in so far as they do not conflict with the statutory rules of navigation in section 4233.</p> <p>2. Same — Rule 2.</p> <p>Rule 2 of the supervising inspectors, which requires a steamer in the fifth situation, having the other steamer on her own starboard bow, to go to the right,.is not in conflict with rule 19 of the Revised Statutes, § 4233, though it takes away the option existing under the latter to go to the right or the left.</p> <p>3. Contrary Signals — Rule 19.</p> <p>Where the steamer G. R. was coming up the middle of the North river, having the steamer A. about one point on her starboard bow about a mile distant, and the latter was coming down the river from the easterly side, heading somewhat to the Jersey shore, and the latter gave one whistle, which was not heard by the G. R., and the G. R., when half a mile off, gave two whistles, which wore answered by one whistle, to which the G. R. replied with two whistles when only one-eiglith mile distant, and a collision ensued, and neither steamer slackened her speed until they were within two, or three lengths of each other, held, that both were in fault for not slacking speed sooner, and that the G. R. was further in fault for not porting her helm to go to the right, as required by the inspectors’ rule 2.</p>

Petition to Vacate the Entry of Judgment against stipulators in the district and circuit courts in admiralty. In a cause of libel for collision by the bark Luna against the steamship Belgenland, the district court decreed in favor of the libelant, and upon appeal to the circuit court this decree was affirmed. The Belgenland, 5 Fed. Bep. 86; 9 Fed. Bep. 126; Id. 576. The petition of William G-.

<p>In Equity. Plea to the jurisdiction of the court.</p>

<p>Stats Statute as Rule op Decision — Section 721, Rev. St. — Admission op Depositions.</p> <p>Where depositions taken to he used in an action in a state court that has been dismissed would be admissible as evidence under the ssatute oí the state in another suit subsequently brought, and such second suit, after being brought, has been removed from the state court into the United States circuit court, under the provision of section 721 of the Revised Statutes, such depositions are admissible in the circuit court.</p>

<p>1. Trade Name — Right to Sell Article — INJUNCTION.</p> <p>C., under tlie style of A. B. Cook & Co., was engaged for several years at Erie, Pennsylvania, in tlie manufacture and sale of sundry patented devices, to one of which, he gave the name “ taper-sleeve pulley,” displaying on his factory the sign, “Taper-sleeve Pulley Works.” In 1876 l)is establishment was sold by the sheriff to W., to whom C. assigned his patents. W. soon sold the establishment to one of the complainants, with the exclusive right to said patents for the territory east of the Mississippi river, and the right also to sell the devices west of said river upon the payment of certain royalties, W. reserving to himself and assigns the right to sell on like terms east of said river. The complainants adopted as their trade name the designation “Taper-sleeve Pulley Works,” and in that name built up a large general trade throughout the United States. In 1882 W. sold to one Christian the territorial right in said patents in certain states west of the Mississippi, with his reserved right to sell east of that river. Christian and his associates selected Dubuque, Iowa, as their place of manufacture, adopting as their firm name “ Parrar, Christian & Co.,” but in December, 1882, organized themselves into an Iowa corporation, assuming the corporate name, “Taper-sleeve Pulley Works,” and issued catalogues, price-lists, and advertisements which are almost exact fae similes of those of the complainants. Held, that while the Towa corporation, having the right to make and sell the device called the “taper-sleeve pulley,” had also the right to so designate the article and advertise itself as a manufacturer and vendor thereof, it had no right to assume the complainants’ trade name, “Taper-sleeve Pulley Works,” and the complainants were entitled to equitable protection in the exclusive use thereof.</p> <p>2. FOREIGN Corporation — Torts—Jurisdiction.</p> <p>For a tort committed by a foreign corporation within the slate of Pennsylvania, such corporation is liable to be sued therein if found in the state in the person of an officer or agent upon whom process may be served.</p>

<p>Constitutional Law — Compensation for Property Taken for Public Use— Constitution of Missouri of 1875.</p> <p>By the constitution of Missouri, adopted in 1875, it was evidently intended that before property could be taken for public use the amount of compensation to be made to the owner should be ascertained and paid, and when this has not been done the owner niaj' recover its value in any proper form of action.</p>

<p>1. Judgment against Maeeied Woman.</p> <p>Where a married woman lias inherited, under the laws of aSother stale, property from her father, for whose debt she is also made liable by the laws of that state, and she afterwards being domiciled In this state is sued here upon a note executed by her father there, judgment may be rendered against her here, which will be enforced by the common-law remedy proper in case a valid contract had been made in this state.</p> <p>2. Against Her Husband foe Heb Debt.</p> <p>Judgment may also be rendered against her husband, but as to him to be paid out of assets which may come into his hands thereafter (none having been as yet received by him) by reason of the marriage relation.</p>

<p>1. Surety on Cashier’s Bond — Liability — Neglect oe Directors to Discover Condition oe Bank.</p> <p>A plea by a surety on tire bond of a cashier, in an action for the breach of the covenants in such bond, that charges no fraud or complicity against the president or directors, but simply a neglect of duty in not themselves discovering what the sureties covenanted, the cashier should reveal, is bad.</p> <p>Minor v. Mechanics’ Bank of Alexandria, 1 Pet. 46, followed.</p> <p>2, Same — Failure oe Directors to Volunteer Information.</p> <p>A plea that substantially alleges that a cashier’s bond is invalid, as against the sureties, because the corporation did not volunteer information of the fact that the cashier was also a director of the bank, is also bad.</p> <p>Magee v. Manhattan Go. 92 U. S. 93, followed.</p>

<p>1. Contract — When Voidable.</p> <p>In all contracts where stipulations avoiding the same are inserted for the sole benefit of one of the parties, the word “void ” is to be construed as though the contract read “ voidable.”</p> <p>2. Same — Fire ,Insurance — Policy, when Voidable — Double Insurance.</p> <p>Where a policy by its terms provided that it should be void on a breach of any of its conditions, its legal effect is simply to render it voidable at the election of the insurer, and the insurer may waive the forfeiture and continue the policy in force.</p> <p>3. Same — Policy—Breach of Covenant — Effect of.</p> <p>Where a policy of insurance contained the provision that it should be void in case the insured should have made or should thereafter make any other insurance on the property without the written consent of the company, and no notice was given of any other insurance, nor was the fact discovered until after the fire, the policy is voidable at the election of the insurer,</p>

<p>1. Bankruptcy — Jurisdiction—Partnership.</p> <p>Where the bankrupt, S., had done business .as a merchant individually, and also as a member of two independent firms, and resided in the district, held, the court had jurisdiction upon his own petition, in favor of himself and as against his copartners, to adjudicate the insolvency of himself and his firm.</p> <p>2. Same — Objections to Discharge.</p> <p>An objection to the assents given by certain creditors to the bankrupt’s discharge, that they were not bona fide creditors, or that their forms of proof of debt were insufficient, the same having been passed and allowed by the register, cannot be heard indirectly and for the first time on the hearing of the application for the bankrupt’s discharge, but can only be heard upon direct proceedings to set aside the proof of debt.</p> <p>S.Same — Bankrupt’s Failure to Keep Books.</p> <p>General objections that the bankrupt did not keep proper books of account,</p> <p>' are only available in showing that he did not keep some necessary books, or that the books kept were not as a whole sufficient to show the course or condition of the bankrupt’s business. If the objection be merely that some particular transactions were not entered, the objection, to be available, must indicate the omissions complained of.</p> <p>4. Same — Amendments to Specifications.</p> <p>Amendments to specifications should not be allowed after proofs have been closed and after the argument of the cause, for the purpose of opposing the discharge of á partner who had nothing to do with the books, where the creditor, after argument, has assented to the discharge of the other two partners who were specially charged with the office work and the book-keeping.</p> <p>5. Same — Creditor Holding Claim agatnst Partner and against Firm.</p> <p>Where the creditor had large claims against the bankrupt individually and-a small one only against the firm of which he was a member, and the specifications of objections are limited to the individual claim and to the individual discharge, held, that the specification was not sufficient to raise objections to the book-keeping of the firm.</p> <p>6. Same — Cash-Book. .</p> <p>A cash-book may be kept as part of a'book embracing other matters, and cither under the name of cash, or in the name of the person who receives and disburses it.</p> <p>7. Same — Accounts—Money Borrowed — Separate Papers.</p> <p>Where the account of exceptional transactions for borrowed money are kept on separate papers, which are preserved and turned over to the assignee with the books, held, that this was a sufficient compliance with the law.</p> <p>8. Same — Separate Books of Account — Discharge Allowed.</p> <p>Where numerous books of account are kept, in which all the transactions are entered in some form, with minor exceptions, and the books thereby afford means for their own rectification, and there appears to be no intentional or fraudulent omission or concealment, the discharge should not be-refused.</p>

<p>1. Patents — Master’s Report — Exceptions.</p> <p>Where a master had notified the respective attorneys that the draft reports were ready for their' inspection, and verbal objections wore made before him to his findings, but said objections were not reduced to writing and filed, and the exceptions to the master’s report are substantially the same as the verbal objections, it will be sufficient if the objections are reduced to writing and filed with the master nune pro tuna.</p> <p>2. Same — Evidence—Production ott Books.</p> <p>Where a master, to whom a reference has been made to ascertain the profits made by defendant in the use of an infringing machine, was unable to determine the length of time the said machine was used by defendant, and such inability could have been obviated by an examination of defendant’s books, and plaintiff neglected to obtain an order compelling their production after defendant refused to produce them, the case will not be sent back to the master for review.</p>

<p>Patents eor Inventions— Improvements in Soldering Tool — Patent No. 115,760 Void.</p> <p>As the improvement claimed in patent No. 115,760, granted to McMurray and Hollingsworth, June 6, 1871, for an improvement in soldering tools, is merely the result of mechanical shill and not invention, and the improved device is substantially identical with that for which patent No. 104,412 was granted to J. A. Bostwick, June 21, 1870, the patent granted to McMurray and Hollings-worth is void.</p>

<p>In Equity.</p> <p>Five bills were filed in this court by five cities of New Hampshire, to restrain as many actions at law pending against them in the circuit court for the district of New Hampshire, in which the defendants here, Norton and others, owners of the patent No. 42,920, granted in 1864 to Knibbs & Norton, for an improvement in steam fire-engines, were plaintiffs. The cases were heard together, upon motions for a preliminary injunction, and the facts in one case will serve for all. The bill brought by the city of Dover alleges that the action sought to be enjoined was brought in 1882, after the patent had expired; that it lays the damages at $50,000 for the use of the patented improvement in certan engines owned and used by the city during substantially the whole term of the patent; that in 1859, long before the supposed invention of Knibbs, the Amoskeag Company of Manchester, New Hampshire, made steam fire-engines embodying tho same invention, and sold them for public use; that in June, 1864, the patentees notified the Amoskeag Company of their patent, and offered to sell it, or a right under it, to said company. That the company answered that they had used the same thing before 1860, and referred the pat-entees to certain engines in Boston, which they had so made; that the said Norton, for himself and Knibbs, replied that they did not believe this statement, and that if the company did not come to terms with them within 80 days they would give them an opportunity to defend themselves at law; that the company rejoined that they had no objection, and awaited their summons; that no action was ever brought against the Amoskeag Company, and that company continued to make engines containing the improvement until 1877, when they gave up the business of making steam fire-engines; that in this time they made 400 engines containing the improvement, and among them those now belonging to the plaintiff city; that the city bought its engines in good faith and had no notice of any patent; that the patentees had notice of the acts of the Amoskeag Company. An injunction is thereupon prayed for as upon an equitable estoppel.</p> <p>The answer admits many of the facts, dates, etc., of the bill, and the correspondence. It denies that the improvement had been anticipated, and, on th'e contrary, avers that the patent has been sustained, after full investigation of this defense, in a suit against the city of New York, decided in the southern district of New York in November, 1881. Campbell v. Mayor, etc., of New York, 9 Fed. Bep. 500. That the said Knibbs & Norton brought an action in the northern district of New York late in 1864, or early in 1865, against Lysander Button, a manufacturer of steam fire-engines, for infringement of the patent, which was discontinued by reason of the absence of a material witness; that in 1874, they brought a suit in equity against said Button and his son, which is still pending. That in 1873 they proceeded by petition to the common council of the city of Troy, for damages or compensation for an infringement, which resulted in a settlement in writing, which is referred to as part of the answer. That in 1877 they brought a suit against the city of New York, which resulted in the decree in favor of the patentees, as already stated; and they then proceeded against the present plaintiff and others. They allege that the Amoskeag Company had knowledge of all these actions and suits, and deny that they ever acquiesced in the infringements by that company.</p>

Hearing on Libels and Answers. These were two libels by John P. Virden, a pilot licensed under an act of the state of Delaware, approved April 5, 1881, claiming the fees prescribed by that act for his services as a pilot tendered to and declined by the schooner Agnes E. Bacon and the brig Charles A. Sparks, on their way from a foreign port to the port of Philadelphia, Pennsylvania.

<p>1. Vessel — Proceeds of Sale — Lien, when Lost.</p> <p>Where a vessel is sold and the proceeds paid into the registry, the shares of the different owners of the surplus are equitably liable pro rata for the payment of any additional liens upon it.</p> <p>2. Same — Equitable Release.</p> <p>Where a person, having such liens, purposely delays filing his claim against the remnants until the shares of some of the owners have been drawn out, and then files it in order to charge the whole upon the remaining shares, held, that such withholding is equivalent to a release of the shares withdrawn and a discharge of the Hen pro tanto; the remaining shares are only chargeable with their due proportion of the claim filed.</p> <p>3. Same — Costs—How Charged.</p> <p>The costs of the prevailing party are ordinarily treated as a legal incident of the debt, and, like the debt, paid out of the fund, though subsequent lienors may be prejudiced thereby; but where the action is unreasonably defended, costs in admiralty, as in equity, may, in the discretion of the court, be imposed personally on the litigating parties.</p> <p>4. Same — Part Owners.</p> <p>Part owners of vessels have a right to litigate a doubtful claim against the vessel. When the defense is reasonable, bona fide, and in part successful, the libelant’s costs should be imposed, not upon those defending personally, but upon the proceeds of the vessel.</p>

<p>1. Salvaos Service — Babe Loaded with Naphtha — Fire.</p> <p>Where the hark C., being loaded with naphtha in her hold, took fire at night while lying at the oil docks and was towed out into the stream and the fire extinguished by two tugs, at some personal hazard of the crews, held,, the service was one of salvage, and that the vessel should pay 15 per cent, and the naphtha 25 per cent, of its value, in consideration of the extra hazard in the salvage service occasioned by the naphtha.</p> <p>2. Same— Tug AssisTnm</p> <p>The sum of $35 was also awarded to another tug for a short service in assisting to extricate her.</p> <p>3. Same — Personal Injury to Salvor — Compensation.</p> <p>One of numerous salvors who suffers a special loss through a hazard to which all are exposed, may be compensated for this special loss, as for personal injuries in falling down an open hatch while carrying the hose on board the vessel.</p>

<p>1. Salvage — Reasonable Apprehension op Immediate Danger.</p> <p>A reasonable apprehension oí immediate danger is a sufficient basis for an award of salvage compensation for rescuing vessels from fire.</p> <p>2. Suit against United States — In Personam.</p> <p>No suit can be maintained against the government in personam; and the same immunity is extended by comity to foreign sovereigns with whom this country is at peace, and no attachment, or garnishee process can he sustained at common law, whereby the public property of a foreign government can be attached.</p> <p>3. Same — In Rem.</p> <p>No suit in rem, in admiralty can he sustained, or seizure made by the marshal, under process against property of the government devoted to public uses, and m possession of an officer of the government.</p> <p>4. Foreign Governments — Immunity from Suit.</p> <p>The same immunity from seizure is by comity extended to the property of a foreign government in the public service and in possession of its officers.</p> <p>5. Same — Attachments in Rem.</p> <p>Attachments in rem may, however, be enforced by seizure in admiralty against property of the government, if it bo not at the time of the seizure in the public service, or in the possession of any officer of the government, but in the hands of a private bailee, for transportation merely. No greater exemption can he claimed in behalf of the property of a foreign government.</p> <p>6. Same — Salvage—Burden of Proof.</p> <p>In claiming exemption from seizure upon a lien forsalvage services, the burden of proof is upon those claiming the exemption, and it should appear clearly that the property had become the property of the government, and in possession of some person proved to be its officer or representative.</p> <p>7. Same — Immunity—By Whom Claimed.</p> <p>Immunity from seizure can only he claimed by the government itself, or by. some proved or recognized officer or agent intervening in its behalf. Intervention by a private citizen merely describing himself as agent, without proof, should not he deemed sufficient.</p> <p>8. Case Stated.</p> <p>Where two steam-cutters, the P. and tlie T., designed for the public service of Mexico, were constructed in New York, under a contract with one O., describing himself as agent of the Mexican government, and after completion were delivered to O. at New York, by whom they were turned over to Capts. H. and JD., to be taken by them to Vera Cruz, for the sum of $300 each, and there delivered to the Mexican authorities; and on the following day, after being placed in charge of Capts. H. and D., were rescued by the steam-tug J. from a fire which broke out near the wharf where they were lying, and the actual authority of O., or his relations to the Mexican government, or his contract with them, if any, did not appear, — held., that the two cutters were subject to a lien for salvage, and that the libel against them should be sustained, as it did not appear clearly that the property in the vessels had passed to the Mexican government; and because, if it had passed, they were not at the time of the libel in the public service of that government, nor in possession of any officer thereof.</p>

<p>1. Security for Claim — Rule 53 in Admiralty.</p> <p>Under rule 53 the respondents in a c.ross-libel should he required to give security where the vessel in the original libel is in custody, as well as where she has been released on bond or stipulation.</p> <p>2. Same — Stay of Proceedings — Discharge of Yessel.</p> <p>Where, under rule 53, the respondent is ordered to give security, if he is able to do so, he will not be allowed at hiá own mere option to submit to a stay of proceeding merely, and at the same time hold the libelant’s vessel in custody indefinitely under the original libel. If the refusal to give security is willful, the court, after a reasonable time, may discharge the vessel upon the claimants’ own stipulation, if it be clearly shown that the claimants are unable to give security to release her, but not otherwise; or it may order her to be sold.</p>

<p>VXHTHSTON — RtJIjM OB' DAMAGES.</p> <p>A German bark, hailing from Pillau, laden with a cargo of petroleum and staves, while on a voyage from New Tork to Rotterdam, on September 6,1878, came into collision with a steam-ship on the Grand Banks, in the Atlantic ocean, and the bark and cargo sank, and became a total loss. Held, that the rule of damage as to the loss of the bark was her market value at the time and place of her loss; that the market value of the bark at the date of her loss, at the port of New York, the port of her departure on the voyage in question, must bo accepted as the proper valuation of the bark, as no evidence of her value, either market or otherwise, at Rotterdam, her port of destination, had been presented ; that it was not imperative to adopt the judgment or opinion of any one or more of the witnesses, but, weighing the whole testimony, in all its parts, the commissioner was justified in reaching a conclusion as to such value that a jury would entertain after hearing all the facts and circumstances. Held, also, that the bark was entitled to recover net freight only, (The Bark Heroine., 1 Ben. 226 ;) that there must be deducted from the gross freight the expenses the bark would have incurred after the date of her loss if the voyage had been successfully performed, and which would have diminished by so much the gross freight; that the lost outfits of officers and crew were a proper item of damage.</p>

<p>Criminal Information in District Court — Bey. St. § 1037 — Remitter to Circuit Court.</p> <p>A criminal proceeding by information filed in the district court cannot be remitted to the circuit court under the provisions of section 1037 of the Revised Statutes.</p>

<p>1. Enforcing Lien for Purchase Money — Vacating Transfer.</p> <p>Equity will enforce a lien for purchase money, but it will not vacate a transfer because the purchase money has not been paid. The action to enforce the lien is in affirmance of the transfer, and the decree in such an action orders the property to be sold, or so much of it as may be necessary to discharge the lien.</p> <p>2. Agreement in Contract to Arbitrate — When a Bar to Suit on the Contract.</p> <p>A simple agreement inserted in a contract that the parties will refer any dispute arising- thereunder to abritration, will not bar a suit at law by either party upon tlie contract before an offer to arbitrate; but where the contract stipulates that the arbitration is to be a condition precedent to the right to sue upon the contract, or this may be inferred upon construction, no suit can be maintained unless the plaintiff has made all reasonable effort to comply with the condition.</p> <p>3. Contract Fixing Mode of Ascertaining Price — BuiT to Enforce.</p> <p>Where parties in a contract fix on a certain mode by which the amount to be paid for property, which it is agreed one of the parties may have the privilege of purchasing, shall be ascertained, the party that seeks the enforcement of the agreement must show that he has done everything on his part to carry the agreement into effect. The cause of action is not perfect unless the prescribed mode of determining the extent of the liability has been pursued or has been dispensed with.</p>

<p>1. Factor—Right of Sale for Advances.</p> <p>A factor who has made advances on the credit of the goods consigned to him for sale, has a right to sell enough to reimburse his advances, unless restrained by some agreement with his consignor.</p> <p>2. Same—Agreement to Hoed for Certain Time.</p> <p>If a cotton factor for a sufficient consideration agrees to hold the cotton of a consignor until the opening of the market the next year, he is bound to do so; and if he sells the cotton before that time without the consent of the consignor, he is liable for the difference between the price at the time he sold and the price at the time he was authorized to sell.</p> <p>3. Same—Fraud or Gross Negligence of.</p> <p>A factor or other agent, who is guilty of fraud or gross negligence in the conduct of-his principal’s business, forfeits all claim to commission or other compensation for his services.</p> <p>4. Same—False Account of Sales.</p> <p>Where a factor knowingly transmits to his consignor a grossly false and fraudulent account of sales, and does not enter the sales on his books until months after they were made, and then enters them falsely, no credit will be given to the factor or his books.</p>

<p>1. Equity — Remedy at Law — Enjoining Action at Law.</p> <p>Where the facts relied upon by complainants in their hill to enjoin a proceeding at law can be aYailed of as fully and effectually as a defense in the suit at law as they could upon the equity side of the court, the bill will be dismissed.</p> <p>2. Same — Estoppel in Pais as Defense.</p> <p>The doctrine of equitable estoppel, or estoppel in pais, is now enforced as liberally in courts of law as in courts of equity,</p> <p>3. Same — Prayer for Relief.</p> <p>Complainants cannot, by the frame of their prayer for relief, preclude the court from treating their bill as one to stay an action at law, in which they can fully avail themselves of the facts as a defense.</p>

<p>Action to Condemn Private Property to Public Use.</p>

<p>1. Municipal Bonds — Execution by Agents.</p> <p>Purchaser^ of municipal bonds executed by agents must ascertain at tlieir peril that the delegated authority assumed has been conferred.</p> <p>2. Same — Powers of Majority of Tax-Payees.</p> <p>The authority of a majority of the tax-payers of a town to incumber the property of a minority against-their will in aid of a railroad or other corporation, receives no countenance from the principles of the common law. Every step, therefore, required by the statute authorizing shell aid must be in strict conformity therewith.</p> <p>3. Same — Exeeoise by Coubt or Officer of Special Statutory Power.</p> <p>When a court or judicial officer exercises a special statutory power outside the scope of the usual jurisdiction of courts of general powers, the record of the proceedings must show that the statutory authority has been pursued.</p> <p>4. Same — Bonds of Town of Caneadea Void.</p> <p>• As in this case the proceedings were instituted, conducted, and completed according to the provisions of the original act of 1869, c. 917, and in disregard of the essential modifications introduced by chapter 925 of the amending act of 1871, the appointment by the county judge of the commissioners who issued the bonds in suit was a nullity, and such bonds are void.</p> <p>5. Same — Payment of Interest — When a Ratification.</p> <p>The rule that where bonds have been irregularity issued by the agents of a municipal corporation the payment of interest on them for several years will amount to a ratification by the muncipality, although the interest was raised by taxation, has no application to cases where there is a total want of authority on the part of the municipality to issue the obligations.</p>

<p>Service of Summons — Action against City — Rev. St. Wis. § 2637, subd. 3.</p> <p>Service oí the summons in an action against a city in the state of Wisconsin, hy delivering copies thereof to the city clerk, and the last-elected chairman of the board of street commissioners of such city, at a time when the office of mayor is vacant and there is no president or presiding officer of the common council, is a sufficient service under the provisions of subdivision 3 of section 2637 of the Revised Statutes of Wisconsin.</p>

<p>Contempt — Refusal of Bankrupt to Obey Order of Court — Commitment till Further Order.</p> <p>A bankrupt, for non-compliance with, an order of the court directing him to-pay over to the assignee certain funds fraudulently retained by him, was committed to jail for contempt until he complied with such order. He never did comply with the order, but was admitted to bail for his remaining within the district subject to the order of the court and recommitment. For his continuing contempt in not complying with the order he was recommitted, and again released on his own recognizance not to depart out of the district, and to submit himself to all orders in the premises. He left the district to reside, and a Warrant was issued for his arrest and commitment until compliance or further order, on which he was a third time arrested, and released on bail until hearing could be had. Held, that as the court had power to commit until further order, the arrest was legal and the bail valid. .</p>

<p>Patents fob Inventions — Infkingkment.</p> <p>Where the patent granted to plaintiff is limited by the description and claim to a hand mirror or toilet glass, in which an elastic cushion or packing is interposed between the glass and the back of the frame, the office of the cushion being to press the glass against the beveled rim of the frame, defendant cannot escape liability for infringement when he appropriates the complainant’s invention, although by the location of the packing outside the periphery his packing performs an additional office, and may involve sufficient invention to sustain his patent.</p>

In Equity. Hearing on bill, answer, and proofs. Bill to restrain an alleged infringement of patent, reissue No. 6,321, dated March 9, 1875, granted to James G. Pickles and James P. Hayes, for improvement in car springs, assigned to complainants, in which the claim was: (1) A coiled, edge-rolled spring, the inner edge of which is of greater vertical thickness than the outer edge, substantially as set forth.

Dr. William A. Graham, who died in 1857, was the inventor or discoverer of a method of extinguishing fires by means of throwing upon burning substances a stream of liquid combined of carbonic acid gas and water, highly condensed. He made reapplication for a patent for this discovery at the patent-office of the United States, in Washington, in November, 1837. His invention is now conceded to have been original, novel, and valuable.

<p>Patents—Infringement — Labor and Time-Satino System of Register cng Bones—Estimation oe Profits.</p> <p>■ When the only profits that could have been derived by tlie defendant in using the system of registering bonds and>coupons patented by complainant are the saving in time in the use of complainant’s system, the inquiry to be determined by the master is not what profits defendants could have obtained by using such system in the most advantageous way, or under ordinary circumstances, but •' what they did actually derive by its use as they used it; and where the only evidence before the master is the opinion of a witness as to the value of the ■ -time that might be saved under supposed circumstances by the use of such system, the report of the master cannot be sustained.</p>

<p>1. Patents for Inventions — Priority—Interference Proceeding.</p> <p>Where the question of priority of an inventor has been determined in interference proceeding before the patent-office, it is res adjudicata as between the parties to that proceeding.</p> <p>2. Same — Anticipation—Patentability.</p> <p>Neither the leather tip nor the vulcanized rubber tip used on shoe soles was an anticipation of the tip of musliu or other textile material stiffened with shellac, invented by complainant; and as it was not obvious that when muslin coated with shellac might be pressed by dies into the form of a shoe tip, the beveled configuration could be dispensed with and that thus a serviceable article could be produced, the invention of complainant was patentable, although there was nothing new in pressing, by heated dies, muslin or other similar textile material, coated with shellac, into any desirable form or shape,</p>

<p>Patents for Inventions — Resssue Invalid — Improvement in Filters.</p> <p>The reissued letters patent granted to complainant as assignee of Louis Raecke, September 16, 1879, for an improvement in filters, expand the claims of the original, granted to said Raecke' January 17, 1871, and are invalid.</p>

Exceptions to Commissioner’s Report assessing damages at $30,-328.63. On Wednesday, December 27,1876, at about 12 h., the ship Shand, on her voyage from Manilla to New York, arrived at her dock at Martin’s stores, at this port, in a sinking condition, having 10 feet of water in her hold.

<p>1. Bmt. ov Lading Construed.</p> <p>Where a bill of lading recites the receipt of goods in good order, and has a clause at the close, “ Not accountable for weight, contents, packing, marks, and damage,” held, the word “damage” has reference to damage of the goods at the time of their receipt, and not to injuries to them arising subsequently on the voyage.</p> <p>2. Damage to Cargo — Fah.ii Construction ov Bin — Liabimty.</p> <p>Where a cargo of old iron was stowed on the bark T., in a trunk or bin made of boards, running along the center of the ship, with bales of rags on each side, and the hin between decks extended several feet higher Ilian the adjoining bales, and during a long and rough passage the bin was broken down and the iron scattered over the bales, tearing them open, and the rust from the iron also sifting down upon the bales below, held, upon the evidence, that the bin was not securely constructed, and the vessel was liable for the damage done to the rags by the iron and rust.</p> <p>,3. Same — Contact with Sea-Water.</p> <p>Where bales in the lower hold were injured by sea-water and rotting, and it appeared that dunnage of fire-wood along the sides had to a considerable extent fallen down, and no evidence appearing of its being fastened to prevent falling, held, the vessel was liable for the contact with sea-water from this cause. Held, also, that the vessel was not liable for injuries from sea-water taken in through the water-way seams upon a long and tempestuous voyage.</p>

<p>1. Postal Laws — Private Postal Routes — Prohibited by Section 3982, Rev. St.</p> <p>“No person shall establish any private express for the conveyance of letters or packets, or in any maimer cause or provide for the conveyance of the same, by regular trips or at stated periods, over any post-route which is or may bo established by law, or from any city, town, or place to any other city, town, or place between which the mail is carried.”</p> <p>2. Same — Letter-,Carriers’ Routes — Post-Routes within Contemplation oe Statute — Act oe March 3, 1851, § 10.</p> <p>Upon reference to pro-existing legislation it is made clear that letter-carriers’ routes are to bo considered post-routes within the moaning of the statute. By the act of March 3, 1861, § 10, ¡9 St. at Large 591',) the postmaster general was empowered to establish post-routes within cities and towns for receiving, conveying, and delivering of letters by carriers to be appointed by him.</p> <p>3. Same — Right op Search and Seizure op Mailable Matter Transported in Violation op Law.</p> <p>Sections 4026 and 3990, Rov. ok, authorize the postmaster general to empower any special agent or other oilicer of his department to make searches for mailable matter transported in violation of law, not being in a dwelling-house, and authorizes any special agent, collector, or other customs officer, or United States marshal, or his deputy, to seize all letters and bags, packets, or parcels containing- letters which are being carried contrary to law, and detain the same until two months after the final determination of all suits and proceedings which may at any time, within six months after such seizure, bo brought against any person for sending or carrying such letters.</p>

In Equity. Demurrer to amended cross-bill. A demurrer Having been sustained to the original cross-bill herein, (see 16 Fed. Rep. 35,) on the ground that it did not contain adequate averments to show title in the defendants, an amended cross-bill was filed in which the proper averments were made. Thereupon the plaintiff demurred to the amended cross-bill on the following grounds, viz.: “■First.

In Equity. Motion to vacate order sustaining a demurrer to the bill.

<p>1. INJUNCTION — JURISDICTION TO ENJOIN BOARD OB' SUPERVISORS FROM PASSING an Ordinance.</p> <p>The courts have jurisdiction to enjoin the board of supervisors of a municipal corporation from passing an ordinance which is not within the scope of their powers, where the passage of such ordinance would work an irreparable injury; and, where a proper bill is presented, the circuit court of the United States, or a judge thereof, is authorized-by statute to issue a restraining order to preserve the rights of the parties in statu quo until the question as to the right of the complainant to an injunction can bo fully heard and determined.</p> <p>2. Ordinance Yoid on its Pace.</p> <p>Where an ordinance would be void on its face by reason of its unconstitutionality, and no irreparable injury could result from its mere passage, there being an adequate remedy at law against any attempt to enforce it after its passage, a court of equity will not enjoin its passage.</p> <p>3. Yoid Ordinance — Irreparable Injury.</p> <p>But where an ordinance would be void for want of authority to pass it, yet if irreparable injury would result from its mere passage, or where there is the physical power to execute the void ordinance, notwithstanding its invalidity, by means of the instrumentalities provided, and the only adequate remedy against an irreparable injury arising from its actual enforcement after its passage is an injunction, the court may enjoin the passage of the ordinance. There appears to bo no sound reason why the court should not interfere at one stage of the proceeding as well as at another.</p> <p>4. Unconstitutional Ordinance.</p> <p>An ordinance which appears upon its face to violate the fourteenth amendment to the constitution of the United States is void, and it can cast no legal cloud upon the rights of the parties apparently affected by it. All parties are legally presumed to know its invalidity.</p> <p>5. Impairing Obligation of Contract, etc.</p> <p>The corporation known as the Spring Valley Water-works was organized under the statute of 1838, which provided that the price of the water furnished to San Francisco and its citizens should bo fixed annually by two persons appointed by the city, — two by the corporation, and one to be chosen by the other four; and in case the four could no't agree, the other to be appointed by the sheriff of the county. The fourteenth article of the constitution of California, afterwards adopted, changed this mode without the consent of the corporation, and provided that the price of the water should be fixed annually by the board of supervisors of the city and county alone, giving the corporation no voice in .the matter. Held, (1) upon the authority of the Elevator and Grander Oases, in ■ the supreme court of the United States, that said article of the state constitution is not void, as taking private property for public or private use without compensation, or without due process of law, or as conferring the sole power to fix the price upon the purchaser ; (2) that, under the decision in the Sm7c-ing-fund Oases, it does not impair the obligation of a contract, within the meaning of tfie several provisions of the constitution of the United States relating to those subjects.</p> <p>6. DISQUALIFICATION BY REASON OF PLEDGES OF CANDIDATES FOR OFFICE.</p> <p>Assuming- that the citizens of Ban Francisco are authorized through their representatives, constituting the board of supervisors, to lawfully fix the price of the water furnished by the Spring Yalley Water-works to and purchased by the city and its inhabitants, the fact that candidates for the offices of supervisors pledged themselves -to the people, in accordance with the requirements of the resolutions of the public meeting nominating them before the election, does not disqualify the supervisors elected upon such pledges from acting in fixing the price of water.</p>

<p>Corporations—Stockholders—Double-Liability Clause — Judgment Obtained by Collusion.</p> <p>Where A., a stockholder in an insolvent bank, became liable in the sum of $1,200, under a double-liability law, to the creditors of the bank, and was sued for that amount by B., an admitted creditor; and A. a few days thereafter, and before judgment could be had in the ordinary course, agreed with C. that if the latter would buy up claims against the bank to the amount of his liability he would confess judgment in his favor, and C. accordingly bought up claims to that amount at a large discount, from a stockholder in said bank, and A. confessed judgment in his favor for the full amount of the claims, and paid the same, held, that such judgment and satisfaction could not be pleaded in bar to the suit brought by B.</p>

<p>1. Contract — By Correspondence — Rule of Law Governing.</p> <p>It is an undoubted rule of law that before an agreement can be gathered from a correspondence it must appear by the correspondence that what has been proposed on the one side has been definitely agreed to upon the other, so that a olear and complete contract can be derived from the letters.</p> <p>2. Same — Application of Rule.</p> <p>Applying this rule, a contract cannot be coii’sidered as made until the latest proposition on the part of the one is assented to by the ■'other of the parties.</p> <p>3. Same.</p> <p>The contract should be deemed complete the moment the letter assenting to the proposed terms is mailed.</p> <p>4. Same — Broker Acting as Principal.</p> <p>Where, in all the correspondence preliminary to a contract for the sale and purchase of rails, the proposed purchaser, a broker, was treated with as principal, and where, finally, in the bought and sold notes, exchanged by the parties, the broker was named as purchaser, the court held that he should be regarded as a principal, and that the contract contemplated by the parties was clearly one in which the broker was to be a principal.</p> <p>5. Same — Exchange of “Bought and Sold Notes.”</p> <p>In a case where bought and sold notes were to be exchanged by the parties to a contract, and in the same letter in which plaintiff had mailed the notes for signing he asked the defendant to “cable confirmation of the contract,” held, that the confirmation was to be signified by the cablegram, and that the exchange of the bought and sold notes could not be considered as the preliminary to a contract, but as evidence of a contract already concluded.</p>

Action upon a policy of life insurance for $2,000, insuring the life of W. D. Dunn “for the benefit of William Sides,” who is the plaintiff. The life-assured was, under his father’s will, the owner of certain real property in Memphis to the extent, however, of only a life estate, .the remainder interest belonging to his children.

<p>amendment — Laches—Rule 69 in Equity.</p> <p>Leave to amend a bill of complaint in bankruptcy should not be granted in case of great laches where the application is made several years after knowledge of the facts, and after the testimony has been closed</p>

Information against J. A. Minges for harboring and secreting for six days two seamen belonging to the bark Dagmal, knowing them to belong thereto, in violation of section 4601, Rev. St. Demurrer because the bark Dagmal is not alleged to be an American vessel. The bark Dagmal is a Norwegian vessel. There is a treaty between the United States and Sweden and Norway for imprisonment and return of deserting seamen. Public Treaties, 740.

<p>1. Patents—Rotary Coulters for Plows—Pfeil Patent, Ho. 4,533.</p> <p>At the date of tlie Pfeil patent and its reissue, the mere change of form or posi- . tion in a collar and spindle connected with a standard from a plow-beam, the rotar}' motion of which was limited by a pin through a slot at one or other foot of the collar and spindle, was not a patentable device, whether the pin was inserted at the lower end of the spindle with or without a slot, or inserted through the collar and spindle with a slot, or inserted through the spindle above or below the collar with or without lugs, or whether the pin was used to strike the arms of the coulter or not, and the Pfeil patents upon said devices are invalid for want of novelty.</p> <p>2. Same—Sherman Patent, No. 67.222—Infringement.</p> <p>The invention covered by the Sherman patent for an improvement in rolling coulters consists in a combination in which the cutting wheel is hung in a triangular frame separate from the standard, but attached thereto by means of sockets, or a socket through which the standard passes, and which from their form allow the frame to-have a lateral play, while the standard is clamped fast to the plow-beam. Held, in a suit for an alleged infringement of said patent, that it was' not infringed by a device in wliich the cutting blade is hung in a yoke differing from the Sherman yoke in shape, and the upper end of which is perforated so as to allow the lower end of the standard to fit into it, and also differing from the Sherman patent in being provided on the under side with a peculiar projection against which a pin at the lower end of the spindle strikes and regulates the vibration.</p>

Motions for Preliminary Injunctions. ■Washburn & Moen Manufacturing- Co. and Isaac L. El-wood v. Henry Euohs. Ho. 2,081. This case rests on the validity of the Gliddon reissued patent, Ho. 6,913, and alleged infringement thereof by the defendant. Washburn & Moen Manufacturing- Co. (sole plaintiff) v. Simmons Hardware Co. et al. Ho. 2,100. This suit is for an alleged infringement of the Kelly reissued patent, Ho. 6,902, February 8, 1876.

Motions for Preliminary Injunction. These are suits to recover for the alleged infringement of patent No. 253,781, granted to Sidney M. Stevens, February 14, 1882; patents No. 214,706, granted to Noble G. and Thomas D. Boss, April 22, 1879; patent No. 233,116, granted same parties, October 12, 1880; and patent No. 207,710, issued to Jacob Brotherton, September 3, 1878,—all of which are held by plaintiff as assignee.

<p>1. PATENTS FOR INTENTIONS — DIVERSITY IN INVENTIONS.</p> <p>Where a greater number of persons have to be employed in the operat'on of a machine formerly in use than in a patented machine, this tends to prove that the machines are not alike.</p> <p>2. Baaie — Omission of Some Elements and Addition of Others,</p> <p>Where, by the omission of some of the elements of such former machine, and the addition of other elements not useful in the old machine, an improvement results, such improvement may he patentable.</p> <p>3. Same — Infringement.</p> <p>Infringement of a claim is not escaped by the employment in a combination of a movable board, which only affects two-thirds of a certain result, when it depends on the thickness and stability of the board whether the whole operation is or is not copied.</p> <p>4. Same — Patentability.</p> <p>A machine need not he automatic to he patentable. Improvements in any tool or implement used by hand in an art or industry are patentable.</p>

<p>1. Patents for Inventions—Action for Infringement—Nomunal Damages.</p> <p>‘ The recovery of nominal damages in an action for infringement of a patent, and the tender of such sum by the maker of "the machine so infringing, do not operate as a license to the maker or his vendees as to existing infringing machines so made, nor as a bar to a recovery in another action against a subsequent user of the same machine.</p> <p>2. Same—Effect of Stipulation in Former Suit as to Damages.</p> <p>In the former action against the maker of the infringing machine, there was a stipulation “ that the amount of recovery to be adjudged against the defendants in case of a decree for complainant shall be fixed and determined upon the evidence in the case submitted at final hearing, and both parties request the court, in case of a decision against the defendant, to fix, as the amount of recovery, such amount of damages as is proved by such testimony. ” Held, that the court, by giving nominal damages in the absence of proof, did not thereby adjudge in that case that one dollar was the value of the invention.</p> <p>3. Same—Measure of Damages.</p> <p>The amount of damages to be recovered against the user of the infringing machine was the profit which the plaintiff ordinarily received on the sale of a machine of the same size, using the\patent so infringed ; and whore the profit to the defendant, arising out of the use of the infringing machine, could not be determined by the proofs, the plaintiff was not allowed to recover such profits as damages.</p>

<p>Exceptions to Report of Master.</p>

<p>1. Principal and Agent — Agent Exceeding Authority — Liability.</p> <p>It does not follow, merely because an agent exceeds his authority, that he is personally liable in an action on the contract made by him.</p> <p>2. Same — Agent Signing Instrument in Name of Another.</p> <p>The party who executes an instrument in the name of another, whose name-he puts to the instrument, and adds his own name only as agent for that other, cannot be treated as a party to that instrument and be sued upon it, unless it be shown that he was the real principal.</p> <p>3. Same — Contracts of Public Agent in Excess of Authority — Knowledge of Contracting Party.</p> <p>Where a contract is made with a public agent, which the contracting party knows is made by the agent in excess of his authority, and outside of the business of the principal, but not made upon the personal credit of the agent, and where the co-contractor intentionally requires that the contract should be made in the name of the state as principal, and did not intend to look to the agent for personal liability, the agent cannot be held as principal.</p> <p>4. Same — Election as to Who shall be Charged — Discharge of Others.</p> <p>Where a third party, having all the circumstances fairly before him, makes his election as to whom he will charge, the other is discharged, and he cannot turn around and sue the party discharged.</p>

<p>1. Public Agent — Liability—Evidence.</p> <p>A public agent who does not interpose his own credit is not liable on a contract executed by him on behalf of the state, even m cases where he might . have been liable had he represented a private party; and where it is sought to •charge him with a personal responsibility, the facts and circumstances ought to be such.as to show clearly that both parties acted upon the assumption that a personal liability was intended.</p> <p>2. Same — Knowledge oe Want oe Authority.</p> <p>Nor is he liable personally upon a contract made by him ostensibly icr ids principal, when he had no authority to make the contract, if his want of authority was known to the other party; and where his authority depends upon statute, all who contract with him are conclusively presumed to know its extent and limitations. '</p> <p>3. Same — Acting as Agent oe Other Parties Also.</p> <p>But where a public officer executes a contract ostensibty in behalf of the state, and it is known both as matter of law and fact that he had no authority to enter into such a contract in behalf of the state, if, at the time of the execution of the contract, he was also the representative of and acting for a party of excursionists, and had a fund upon which he could rely for the payment of their expenses, and this was known to the other contracting party, he will be considered the real principal, and cannot escape liability merely because he assumed to contract as a public agent.</p> <p>4. Same — Charging Beal Principal — Evidence.</p> <p>In order to .charge the real principal it is alwaj^s competent, in whatever form a parol written contract is executed by an agent, to ascertain by evidence de-hors the instrument who is the principal; whether it purports to be the con- ■ tract-of an agent, or is made in the name of the agent as principal.</p> <p>fi SamEj — Presumptions—Intention.</p> <p>It is always presumed that persons intend effectually to do that which they ■ ' contract, and when there is a conflict of circumstances the parties are pre- . sumed to adopt the construction most favorable to the performance of their engagements. Therefore, when the only way of enforcing a contract entered into by an agent, public or private, is by making him liable, his liability will be assumed provided it does not appear that it was intended in the transaction that he should not be liable.</p> <p>6. Same — Case.</p> <p>As the facts and circumstances of this case show that the defendant was the real principal who contracted with the complainant, that effect can be given to the charter-party only by treating it as his personal contract, and that there was no election on the part of the libelant to absolve him from liability, he must be held liable lor the payment of the stipulated sum, with interest and costs.</p>

<p>1. Lienor nr Possession — Part Owners.</p> <p>Where a groundless libel is filed by part owners, and seizure of the vessel is procured to be made for the purpose of wresting her from the possession of a shipwright having a possessory lien for repairs, and there is no other bona fide defendant, the lienor should bo permitted to defend to procure a dismissal of the fraudulent proceedings, and the restitution of the vessel to his possession.</p> <p>2. Shipwright — Lien nor Repairs — Common Law.</p> <p>A common-law possessory lien may be acquired Cor repairs where the vessel is lawfully delivered into the possession of the shipwright by part owners having the lawful custody and control of her, though such repairs, if beyond what is necessary, are not binding upon the interests of non-assenting part owners.</p> <p>3. Same — State Statutes.</p> <p>A shipwright may acquire a possessory lien co-oxtensive with the rights of the part owners who had possession and ordered the repairs, and under the state statute authorizing a judicial sale to enforce such liens, the shares of the part owners ordering the repairs may bo sold by proceedings in admiralty. Semble otherwise as to more maritime liens.</p> <p>4. Practice — Delivery oe Vessel — Bond.</p> <p>The vessel having been delivered during the pendency of the action to one of the owners under a bond for her return in the sum of $7,000, and the vessel meantime being lost, on dismissal of the libel a reference was ordered to ascertain the amount due the lienor, that the same might be ordered paid to him under the bond.</p>

In Admiralty. This was an action brought by Cohn, Lazarus & Co., of New York, against the steam-ship Polynesia, to recover damages alleged to have been caused to a cask of hair-bristles, shipped on said steam-ship at Hamburg, Germany, and transported to New York, arising from bad stowage and want of proper care on the part of those in charge of the steam-ship.

<p>Loss oe Boats in Tow in a Squall—Master’s Previous Error oe Judgment as to Weather.</p> <p>A tug was held not liable for the loss of boats in its tow in a squall, where the evidence failed to prove the slate of the weather a short time before, the time the master determined to proceed on the voyage, to have been such as to make such determination an omission to exercise due care in the management of the tow, instead of an error of judgment.</p>

<p>Removal of Cause — Separable Conthoveiiby — Citizenship.</p> <p>Where an action of trespass is brought in a state court against several defendants, and one of them is a citizen of a different stat e from that of the plaintiff and the others are not, the citizen of a different state can remove the case to the United States court, on the ground that the controversy is solely between him and the plaintiff, and can be fully determined as between them.</p>

<p>Removal of Cause — Case Arising under Constitution of United States-— Aot 1875, § 2.</p> <p>Where a railroad corporation sets up as a defense that its charter was a grant by the state, giving to the railroad company, without any qualification,the right to prescribe upon what terms and at what rates freight should be transported on the road, and that this grant was protected by the constitution of the United States, and that a subsequent statute of the state upon the subject impairs the validity of such grant in violation of the constitution, such defense involves a question arising under the constitution of the United States, and the case is removable from a state court under the second section of the act of 1875.</p>

<p>1. Citizenship — Plea in Abatement — Finding—Bar to Second Action.</p> <p>A citizen of Michigan, having suffered injuries through a defect in the sidewalk of a city, brought suit in the federal court to recover damages, claiming citizenship in Indiana by removal subsequent to the injury; and on plea in abatement was found by the jury to be still a citizen of Michigan. Held, no bar to a subsequent suit brought for the same injury by plaintiff, claiming citizenship in Wisconsin.</p> <p>2. Amendment — Judgment Entry.</p> <p>A judgment entry may be amended at any time to make it correspond with the judgment rendered.</p> <p>3. Citizenship — Plea in Abatement — Burden of Proof.</p> <p>Where the declaration alleges such citizenship of parties as gives the court jurisdiction, and defendant asserts want of jurisdiction by plea in abatement, the burden is on him to show that the residence of parties is such as to defeat the court’s jurisdiction.</p> <p>4. Vekdiot — Setting Aside.</p> <p>A verdict will not be set aside because of a difference of opinion between the trial judge and the jury upon the merits of the case, unless the court can clearly say that the jury were not justified in their finding.</p>

<p>1. Pleadings — Answer by Corporation, by Whom should be Made, and What Contain.</p> <p>In a suit against a corporation the answer should he made by the principal officer of the corporation, who should be able to admit or deny the facts cnarged and interrogated about, or to state want of knowledge clearly and July as a reason for not doing either.</p> <p>y Same — Case Stated.</p> <p>The answer stated a belief or the secretary, making answer, that a cerfain pamphlet or leaflet like'that described in the bill was delivered to agents, hut does not directly admit or deny the furnishing of such to its agent who insured tke orator, and stated no want of knowledge of the other officers of the company as to these facts. Held, insufficient answer, on the ground that it should have distinctly stated one way or the other, ‘according to the facts.</p>

<p>1. Insurance—Construction of Policy.</p> <p>Insurance policies are to be construed most strictly against tlie companies.</p> <p>2. Same—Stipulation.</p> <p>In a stipulation in a policy that tlie policy shall determine if the premium he not paid “ on or before the day ” fixed, time is of the essence of the contract, and the policy determines if the premium be not paid on or before the day.</p> <p>3. Same—Paid-up Policy.</p> <p>But where the company, by a separate instrument, afterwards agreed, after the payment of three annual premiums, to issue a paid-up policy for a proportionate amount, on the surrender of the policy to the company “ on or before it shall expire by the non-payment of the fourth or any subsequent annual premium,” the time of the surrender is not of the essence of the contract, and specific performance will be decreed if the surrender is made in a reasonable time.</p>

Suit in equity by certain judgment creditors of an insolvent corporation and the receiver of said corporation, appointed by the superior court of Cook county, Illinois, against the stockholders of said corporation residing in Iowa, to compel payment by them of the unpaid stock due to the corporation from each of them, in so far as necessary to satisfy the debts due by the corporation to the complainants, and such other creditors as may become parties to the suit, with…

<p>Substituted Service — New Parties — ORDER, Vacated.</p> <p>A receiver, appointed in a suit to wind up a partnership, filed a bill to set aside certain mortgages upon tlie partnership property as fraudulent, and obtained an order for substituted service upon the attorney in fact of the mortgagees. Held, that as this suit included new parties, not connected in any waf with the plaintiff in the original suit, they could not be brought into court in this way, and the order for substituted service must bo vacated.</p>

<p>Demurrer to Amended Bill. I</p>

<p>Suit to Enforce the Lien of a Mortgage.</p>

This is a suit for §12,153.68, alleged to be due plaintiffs for goods sold and delivered to defendants. The plaintiffs are partners doing business under the firm name of the Trenton Eubber Works, and are manufacturers of rubber goods.

<p>This is a motion for a new trial. The action was brought to recover damages for the infringement of a patent for coffee-scouring machines. It was tried at the April circuit, in New York, and the plaintiff had a verdict. The defendants contended that they did not infringe, because one of the elements of plaintiff’s combination — the ribs — was omitted in their machine. The plaintiff’s experts testified that the machines operated precisely alike, and that the coffee and other substances accumulating in the space left by the defendants between the spikes in the outer cylinder operated to form a rib, which was a mechanical equivalent for the plaintiff’s device. The defendants’ experts denied this. The question was left to the jury.</p>

<p>Promissory Note — Execution by Vestrymen oe Church: — Religious Corporation-Liability.</p> <p>Where a negotiable promissory note upon its face does not purport that the parties who signed the note as wardens and vestrymen of a church were directed to execute such note by any vote or order or direction of the church or congregation, as required by section 43 of chapter 32 of the Revised Statutes of Illinois, and the evidence fails to establish any such direction or order, or any ratification by the church or congregation, a Iona fide holder thereof cannot recover in an action on the note against the corporation.</p>

<p>1. Poweb ob Municipal Cobpoeations to Issue Commebcial Secueities.</p> <p>A municipal corporation lias no power to issue commercial securities coupon bonds, payable to bearer, in payments of subscriptions to the capital stock of a railroad company, unless by legislative authority, either express or necessarily implied.</p> <p>2. Chabteb op the City ob' Abebdben—Amendment op Novembeb 15, 1858.</p> <p>The amendment of November 15,1858, to the charter of the city of Aberdeen, authorizing a subscription to the capital stock of the New Orleans, Jackson & Great Northern Bailroad Company, or any other railroad company, contains no authority, express or implied, to the city council to issue bonds to pay the subscription.</p> <p>3. CONSTBUCTION OP ENABLING STATUTES.</p> <p>The history and public policy of the state may be considered in arriving at a proper construction of statutes of this character.</p> <p>4. Cubative Act oe 1872—Its Extent and Oeebation.</p> <p>The construction of the supreme court of Mississippi that the fourth section of the act of 1872, known as the curative act, was intended only to apply to subscriptions made after the adoption of the constitution of 1869, in pursuance of laws enacted under It, is binding upon this court, and will be adopted by it.</p>

This is a suit brought by the widow of Walter G. Madeira to recover insurance upon her husband’s life, alleged to be due from the defendant, a corporation organized under the laws of Missouri, of which Mr. Madeira is alleged to have been a member at the time of his death. The by-laws of the association provide that any member who shall fail to pay his dues within 30 days after the publication of a notice of an assessment shall forfeit his membership.

<p>1. Promissohy Notes — Law Governing — Legislative Enactments — How Construed.</p> <p>Wliei'o, by two several acts of the legislature of Alabama, — the one of 1867, the other of 1873, — bills of exchange and promissory notes, payable at a bank or private banking-house, were declared to be governed by the commercial law, and Dy the other and later enactment bills of exchange and promissory notes, payable at a bank or banking-house, or a certain place of payment therein designated, were declared to be so governed; and where both these provisions were brought forward in the Code of 1876 of said state, — the one under section 2100, the other under section 2094 thereof, — held, that the insertion of the provision of 1867 in the Code must he considered as an oversight on the part of the codifiers, and that the act of 1873 repealed the act of 1867, so far as there was any conflict between them.</p> <p>2. Same — Legislative Intent.</p> <p>The supreme court of Alabama, in cases like the above, has decided that, in determining the legislative intent, the dates of the enactment will be looked to, and the one last in lime will be held as the law.</p>

<p>On Review from District Court.</p>

<p>1. Bankruptcy — Bike Insurance — Loss—Fraudulent Purchase of Claims.</p> <p>Where a party whose estate will pay 50 cents on the dollar, intending to go into bankruptcy, gets a friend to buy up all or a part of his indebtedness at 10 cents on the dollar, upon false statements of fact as to the amount of dividend his estate will pay, no court in bankruptcy would hold that an indebtedness thus obliterated by fraud could not be proven against the bankrupt’s estate.</p> <p>2. Same — Adjustment'of Claim — Waiver.</p> <p>In this case, the adjustment of the claim against the insurance company, made with the party who had fraudulently procured its assignment, must be held a waiver of the clause in the policy requiring suit for a loss to be brought within one year after the loss occurred, and such waiver will inure to the real owner of the claim.</p>

<p>In Bankruptcy.</p>

Indictment for depositing for mailing a notice of -where an article to prevent conception, could be obtained. The notice was not set out in the indictment, and no excuse for the failure to set it forth was given. It was mailed in response to a decoy letter written by a «detective, and was addressed to a fictitious person, in whose name the decoy letter was written. It was taken from the mail by the detective at the place to which it was addressed.

<p>1. Motion to Quash Indictment.</p> <p>Tlie courts do not favor motions to quash indictments, and will not, as a rule, allow them, where they are made upon some matter which might have been presented by demurrer, or by motion in arrest of judgment, or which might be made available by way of defense in trial before a jury.</p> <p>2. Same — An best op Judgment — when Allowed.</p> <p>Judgments can only be arrested for matter appearing in the record, or for some matter which ought to appear and docs not appear therein.</p> <p>3. Same — Demurrer, when Allowed.</p> <p>A demurrer can only be used to object to an indictment as insufficient in law because detective in substance or form.</p> <p>4. Same — Grounds por Quashing.</p> <p>If a bill of indictment be found without evidence, or upon illegal evidence, or for any improper conduct of the jury, or for any improper influence brought to bear upon the jury, such matters may be pleaded in abatement, or may be grounds for quashing an indictment, but cannot be availed of by motion in arrest of judgment.</p> <p>5. Grand Juries — Their Powers, Etc.</p> <p>A grand jury is a component part of the court, and is under its general supervision and control. Grand jurors may be punished for contempt, for any willful misconduct or neglect of duty, but they are independent in their actions in ■ determining (questions of fact, and no investigation can ever bo made as to how a grand juror voted, or wliat opinions he expressed on matters before him.</p> <p>6. Same — Evidence.</p> <p>Investigations before grand juries must be made in accordance with the well-established rules of evidence, and they must hear the best legal proofs of which the case admits. JSTo evidence should be received by a grand jury which would not be admissible in a court upon the trial of a cause. Hearsay evidence upon questions before a grand jury is no more admissible than before the court.</p> <p>7. Same — Expert Testimony.</p> <p>Whether a witness is or is not an expert as to any particular science or art is to be determined by the court before he can be admitted to testify before a grand jury.</p> <p>8. Same — Evidence of Confessions.</p> <p>Evidence of confessions should never be admitted before a grand jury, except under tlie direction of the court, or unless the prosecuting officer of the state is present and can make tlie full preliminary inquiries necessary to render tiie evidence admissible.</p> <p>9. Same — General Rule as to Evidence.</p> <p>As a general rule, a grand jury should hear no other evidence than that adduced by the prosecution, but they are sworn “ to inquire and true presentment make,” and if, in course of their inquiries, they have reason to believe that there is other evidence not presented, and within reach, which would qualify or explain away the charge under investigation, it would be their duty to order such evidence to be produced.</p> <p>10. Same — Witnesses before Grand Juries.</p> <p>A witness before a grand jury has no privilege to have his testimony treated as a confidential communication, but he ought to be considered as deposing under all the obligations of an oath in a judicial proceeding.</p> <p>11. Same — Volunteer Witnessed</p> <p>It has been held a misdemeanor and high contempt of court in any individual acting as a volunteer to approach or communicate with a grand jury in reference to any matter which either is or may come before them. No person has a right to communicate private information to a grand jury for the purpose of obtaining a presentment.</p> <p>12. Same — Two Methods by which an Offender mat be Prosecuted.</p> <p>There are two methods allowed by which a person may prosecute an offender ; .he may give information to the solicitor of the state and have a bill of indictment prepared and sent to the grand jury, or he may make a written complaint on oath before an examining and committing magistrate, and obtain a warrant of arrest, and have a preliminary investigation of the accusations made.</p> <p>13. Same — With Whom Grand Juries may Advise.</p> <p>The court is the only proper source from which a grand jury may obtain advice as to questions of law. No other person has a right to give a grand jury an opinion on questions of law which affect the rights of individuals or society.</p> <p>14. Same — The District Attorney.</p> <p>Courts sometimes give permission to the district attorney, or his regular assistant, to go before the grand jury wlru requested by the foreman, or when it seems necessary he should attend for a speedy and proper administration of justice. These officers, when before a grand jury, may properly assist in examining witnesses ; may advise in matters of procedure, according to the well-settled course and practice of the courts; may read statutes upon which bills of indictment are founded; but they cannot give opinions on questions of law in the case, or as to the weight and sufficiency of evidence.</p> <p>15. Same.</p> <p>A district attorney may, under certain circumstances, send in a bill to a grand jury without a prior arrest and binding over.</p> <p>16. Same — Jurisdiction of Pedebal Courts.</p> <p>In matters which relate to the qualifications and exemptions of jurors, the federal courts must be governed by the laws of the states in which such courts are held; but in designating, summoning, forming, and impaneling juries they have a large discretion. There is no statute expressly requiring federal courts to conform their practice, pleadings, and modes of procedure in criminal trials to the laws of the state in which they are held. Federal courts derive their criminal jurisdiction from congressional statutes, but in exercising their functions they are guided by the rules of the common law when there is no statute regulating their action.</p>

<p>Constitutional Law-^Infamous Crime — Prosecution by information.</p> <p>Passing counterfeit money of the United States is not an infamous crime, within the meaning of the fifth amendment to the constitution, and may he prosecuted by information.</p>

In the Matter of the Application of John JVL. ¡Stowell for an injunction to restrain Edward P. Allis from prosecuting certain suits for infringement of the Beckwith patent, in Iowa, Illinois, and Michigan.

<p>1. Costs in Patent Cases—Discx,aimek—■Section 973, Rkv. St.</p> <p>Costs cannot be recovered, upon a judgment for an infringement of a patent containing several' claims, some of which had been abandoned at the trial, unless a disclaimer has been filed before suit brought, in accordance with section 973, Eev. St.</p> <p>2. Same — Amendment of Judgment — Patent No. 21,026.</p> <p>In an action at law for an infringement of letters patent No. 21,026, (re-poi ted in 4 Bed. Rep. 415,) containing two claims, after tlie evidence was in,, plaintiff abandoned tlie first claim and a verdict was rendered for tlie plaintiff for six cents damages and costs, and .judgment entered tliereon. It appearing tliat no disclaimer of tlie first claim of the patent had been filed, the court, upon motion, amended the judgment by striking therefrom the words “ with costs.”</p>

<p>1. Collision — Brie Canal — Stopping.</p> <p>In á collision on the Erie canal between the steam-boat V. and the canal-boat M., which was the third boat in a tow on a hawser from a steam-cable tug-boat, where the Y. claimed to have rubbed along the port quarter of the boat ahead of the M. through want of room to avoid her, and the V.’s bows wore drawn by the suction of that boat under her stern, so as to throw her in the way of the M., held, upon the facts, that there was sufficient room for the V.' to avoid the middle boat of the tow, and that she was also in fault for not stopping, if there was in fact any danger of collision with the tow. _</p> <p>-2. Same — Motion oe Stern.</p> <p>In heavily-laden boats, under a change-of wheel, the motion of the stem in the direction of the wheel held slight and immaterial.</p> <p>3. Same — Liaiumty.</p> <p>Also held, on tlio facts, that the rubbing of the V. against the middle boat was intentional, and that the V. was responsible for not taking due care to avoid the JVL, which followed.</p>

<p>1. Priority os' Liens—Seamen’s Wages—Lien nor Damages—Distribution on , Fund.</p> <p>A claim against a tug for damage to a brig cause d lier by being run against a pier while in tow of the tug, through negligence of the tug, is not entitled to priority of payment out of the proceeds of the sale of the tug over the claims of the crew of the tug for wages earned prior to the accident.</p> <p>2. Same—Material-Men’s Liens.</p> <p>Claims of material-men for repairs and coal, which were subsisting liens upon the tug at the time of the accident referred to, are superior in rank to a claim for damage arising out of the accident.</p> <p>3. Same—Priority in Piling Libel.</p> <p>This conclusion was not affected by the fact that the libel for damages was filed before the libels of the material-men, the processes in all the cases having been served at the same time.</p> <p>4. Demurrage—Interest.</p> <p>Interest on demurrage is not allowed. The decision in the case of The Maria and Eliaabeth, 12 Fed. Rep. 627, disapproved.</p>

In Admiralty. Exceptions to commissioner’s report. The special commissioner appointed by the court to ascertain and report the damages which libelants had suffered by reason of the collision mentioned in the libel in this case,† filed a report allowing the libelants, among other things, a commission of 2J per cent, on sales which they had made of goods damaged by the collision, and abandoned to them by the owners.

<p>1. Limitations tn Bankjruftoy — Rey. St. § 5057 — Suit to Annul Judgment.</p> <p>Section 5057 oí tlie Revised Statutes is not confined to contests involving the title to or ownership oí the bankrupt’s property, but, in explicit terms, it comprehends all claims of adverse interests which touch or relate to any property or rights oí property transferable to or vested in the assignee; and a suit in equity by an assignee, to annul a judgment confessed by a bankrupt under circumstances that make it a preference in fraud of the bankrupt law, will be barred by this section, “unless brought within two years from the time when the cause of action accrued.”</p> <p>2. Same — Suit, when Begun — Proceedings before Register.</p> <p>The antecedent proceedings before the register, in which he unwarrantably assumed to decide that the judgment was fraudulent, cannot be considered as a part of this suit; and as, until the bill was filed, no suit was begun, and the bill was not filed until more than two years after the cause of action stated in it accrued to complainant, the suit is barred.</p>

<p>1. Railroad Bonds— Validity — Issue by, Trustee — Purohaser Put on Inquiry.</p> <p>Where the bonds of a railroad corporation, secured by mortgage, are signed and issued by a trustee, whose duty, it usually would be considered, was to act for the bondholder? in enforcing payments to them, and to bring suit against the corporation for covenants broken, and not necessarily to include the power to place upon the market the bonds for sale, and the bonds are sold for a very small per cent, of the face value, the purchaser is put upon inquiry in regard to the regularity or validity of their issue.</p> <p>2. Same — Suppression oe Evidence — Effect of.</p> <p>Where a minute-book, offered in evidence to prove the due organization of a corporation, and the regularity of an issue of its bonds, has been traced into the hands of its alleged officers, and its whereabouts thereafter unexplained, its suppression leads to a grave suspicion that it has been concealed on account of the evidence which its contents revealed of the legality of the organization and the validity of the bonds.</p> <p>3. Same — Bill Dismissed.</p> <p>As the evidence does not establish satisfactorily the organization of the railroad corporation at the time of the issuance of the bonds, or the existence of the mortgage securing the same, prayed to be made a prior lien in this case on the property of tho corporation, the relief asked must be denied.</p>

Prior to the fourteenth of October, 1882, the defendants, Max Herman and Solomon Herman, composing the firm of Herman Bros.,were merchants doing business at Leadville and at Boulder, in this state, and also having a branch store at Loveland. They had a stock of goods at Leadville valued at about $20,000, one at Boulder valued at about the same, and one at Loveland valued at about $3,000.

<p>1. Ejectment — Rip aman Rights — Dedication of Streets—Right of the State in Lands Lying below High-Water Mark.</p> <p>Where a proprietor of land bordering upon a navigable river dedicated a portion of such lands to a town for the purposes of public highways, and the same was delineated on a map as extending to the high-water mark of the river, as it existed at the time of the grant, held, that no part of the land or water adjoining said lands, and lying below high-water mark, as it then existed, passed to the town or was made subject to any easement bj' any such dedication or grant, since all such land lying below high-water mark belongs to the state, and could only be dedicated or subjected to an easement by the state or its grantees.</p> <p>2. Same—Alluvion on Accretion—Land Redeemed by “Filling in.”</p> <p>Soil acquired and redeemed from the water by filling in is in no sense allu-vion or accretion which would become the property of the shore-owner, but is the property of the state or its grantees, in whom the title to the land between high and low water mark is; and no right exists in the shore-owner, who has dedicated to the public streets to the iimit of his ownershin, to charge such newly-made land with the burden of an easement over it.</p>

<p>1. Ejectment — Patents nob Lands upon STattoabi,k Waters.</p> <p>Patents, by the general government, of public lands bordeiing on navigable lakes are not limited by the meander lines. The purchaser of lands from the United States, when, the plats and field-notes show that it is bounded on one side by a navigable lake, takes to the low-water mark of such lake.</p> <p>2. Same — Land between Hioii and Low Wateb Line.</p> <p>The commissioners of the general land-office are not justified in surveying-land which lies between high and low water mark upon the margin of a navigable lake, and allowing the same to be entered as unsurveyed and unsold lands; and a patent issued to a purchaser for such land is void, as against the holder of the original title bounded upon the water-line. But where, by the proof, it appears that at the time of the original survey there was a wide bolt of substantially dry land running through the entire tract surveyed, and lying beyond the low-water line of such lake, and separating such lake from another body of water, held, that as to suc-h land the government had a right to-survey and issue patents which would vest a good title thereto.</p>

<p>MUNICIPAL CORPORATION — SALE OP SECURITIES — MANDAMUS.</p> <p>As an examination of the evidence in tills case shows that there was no collusion in the sale at- auction of the securities given as collateral security for the note executed by the defendant corporation, and that tho plaintiff, in the acts com-jilainod of, was prompted solely by tho desire to do the best he could for tho parties interested, tho corporation is hound by the result of the sale, and plaintiff is entitled to the ■mandamus prayed for in his petition, to compel a levy and assessment of the amount still due and unpaid on liis judgment.</p>

<p>Information for an Alternative Writ of Mandamus.</p> <p>On the seventh of April, 1881, John T. Hill, the relator herein., obtained a judgment against Cape Girardeau county for $6,659.80, and on May 3, 1882, the Ninth National Bank of New York city and Elisha Foote each obtained a judgment against the same party for $4,609.28 and $2,070.72, respectively. All of the judgments wore upon coupons detached from county bonds of said county, and all of the judgment creditors wore represented by the same attorney. At the time the judgments were obtained there was a fund in the county treasury of Capo Girardeau county sufficient to pay about 64 percent. on them, if applied, pro rata. The fund had been collected for the purpose of paying said coupons. The county court having refused to pay any part of said judgments, an information for an alternative writ of mandamus -was filed in each of the cases, alleging the existence of said fund in tho treasury of said county, and asking for orders to compel the county court to pay said fund to said judgment creditors, and to levy a tax sufficient to pay any balance remaining due upon their judgments after said fund had been applied upon them. The county court did not pay said fund to said creditors, nor did they levy any tax, but filed returns giving reasons why they should not be compelled to do so. These returns were demurred to, and the demurrers were sustained. Thereupon said judgment creditors moved the court to issue peremptory writs of mandamus in said cases, and on the fourteenth of November, 1882, peremptory writs were issued, by which said county court was “commanded forthwith to cause to be paid to said relators, or to John B. Henderson, their attorney of record, whatever amount of money may now be and remaining in the treasury of [your] said county to the credit of said township of Cape Girardeau applicable to the payment of the judgments heretofore recorded herein; said amount being whatever sum has not been heretofore paid on judgments and writs thereunder, pro rata, rendered upon coupons for which taxes have been collected for tho coupons duo, of the same year, wdiich said judgments and writs, if any, other than the relator’s herein, unless of equal date herewith, are to be excluded in said pro rata computation. ” An appeal was taken to the supreme court of the United States from the order of tho court granting a mandamus in the case of tho relator, and an appeal bond in the sum of $1,000 having been filed, a supersedeas was granted by the court staying all further proceedings under said writ in the case of said Hill. The peremptory writ -was duly served and a return made, which need not bo here set forth. Subsequently, this information was filed by the relator herein. The information entirely ignores all previous mandamus proceedings in the case; states the Amount of the relator’s judgment; that it remains unpaid; that there is $5,000 in the county treasury of Cape Girardeau county, collected for the purpose of paying the coupons sued on, and asks for a mandamus directed to the county court of Cape Girardeau county and to the justices thereof, commanding them to pay the plaintiff, or his attorney of record, the said sum to the credit of said judgment, or as much of said sum as remains in the treasury; and if any balance remain due and unpaid on said judgment, interest, and costs, after the payment of said sum, he asks that the said court be ordered to levy a tax for the purpose of paying such balance. The amount alleged to be in the treasury by this information differs from the amount mentioned by the previous information. The respondents objected to an alternative writ being granted, on the ground that all further proceedings had been stayed by said appeal and supersedeas.</p>

<p>1. Promissory Note — Notice of Dishonor — Pleading.</p> <p>Where the indorser of a promissory note in her answer denies that she “ received due notice of non-payment ” and knowledge of protest, this is a sufficient denial of the constructive notice arising from the due sending, as well as the actual notice arising from the receipt, of a notice.</p> <p>2. Same — Diligence—Notice of Photest.</p> <p>Where a married woman indorses her husband’s note in a form that would indicate she was his wife, and there are three persons of the same name as her husband, whose names and residences appear in the city directory, and her own name is not in the directory, a notice of the protest of such note by mail, simply addressed to her by her name at the city where her husband is engaged in business, without any inquiry being made to ascertain her residence, is not sufficient to charge her as an indorser.</p> <p>3. Same — Puucuaskb fob Value without Notice op Defects.</p> <p>Where a party having no notice that a negotiable promissory note is without consideration, takes it in good faith before it is due, in payment of two notes against members of a firm of which ho had it, and gives his own negotiable note, payable on time, but long overdue and unpaid at the time of trial, for the balance, without a showing on the part of defendant that his note had not been negotiated, but remained where he could set up the infirmitv of the note he bought as a defense, he is entitled to be considered a holder for full value, and lie will be entitled to recover the full amount of the note purchased.</p> <p>4. Pbaotige — Vkhdiot against Two Defendants — New Thial — Discontinuance.</p> <p>Where a verdict against two defendants should bo set aside as to one of them, it must be set aside as to both, and a new trial will bo granted as to both, unless the plaintiff discontinue as to tiie one entitled to a new trial, and leaves the verdict to stand as to the other.</p>

For a full statement of facts, and a report of the first trial, see 13 Fed. Rep. 833. The'case was tried before a jury. The charge of the court was as follows: Treat, J., (orally.) Gentlemen of the Jury: The case that is before you for consideration is one, the like of which often occurs in the administration of justice.

<p>Contempt in United States Court.</p> <p>Tbe power oí the United States court in matters of contempt is limited, by Ilov. St. § 725, to punishment by ñne and imprisonment. It has no power to impose any punishment by way of damages or compensation to the plaintiff in the original action.</p>

Hearing on Bill, Answer, and Proofs. Bill in equity by Charles and Frederick Siemens against William Sellers, Edward W. Clark, John Sellers, Jr., Joseph E. Tobias, and James A. Wright, praying an injunction and an account for an alleged infringement of reissued letters patent No. 3,265, dated January 12, 1869, granted to complainants for an improved regenerator furnace for metallurgists and others.

<p>1. Defects ih CoRststtction of Vessel— Liability of Owneií.</p> <p>The steam-ship H. having water-tanks for ballast in the bottom of her hold, and the plates forming them being insufficiently braced in the original construction, and the rivet-heads in some of the top plates being off, allowing the plates to move up and down, so that in the ordinary course of navigation and motion of the vessel water spurted through the opening seams, injuring the goods aboard, held, that the damage arose from defects in the construction and repair of the ship, for which the owners of the vessel were responsible, as for negligence in her proper equipment and' repair.</p> <p>2. Bill of Ladestg — “ Risk ob' Ciíaft ok Hulk.”</p> <p>A clause in the bill of lading excepting “risk of craft or hulk or transhipment,” etc., held, not to refer to any risk of the hull of the H., but to small craft used in transhipment of the goods from, the ship to shore.</p> <p>3. Same — Damage—insuhakce.</p> <p>A clause in the bill of lading providing that “ no damage that can bo insured against will be paid for,” held, not to exempt the ship from liability for defects in her construction or equipment, or from negligence of the owners in these respects.</p> <p>4. Same — Benefit of Insueance.</p> <p>Also held, that said clause did not prevent an insurance company which had paid the shipper’s loss pending the suit being subrogated to his rights, nor from continuing the suit for the company’s benefit; the clause in question not being equivalent to a contract that the carrier should have the benefit of any insurance on the.goods.</p>

<p>1. SALVAGE — AWARDS FOR PROMPT AND ABLE SERVICE.</p> <p>It is the growing policy of the admiralty, and especially where the salved vessel is derelict, to make liberal awards for prompt and gallant service; amounting, in many instances, to more than half of the net value of the property saved.</p> <p>2. Same — Adjustment of Claims Other than Those of the Libelant.</p> <p>In an action for salvage, where there are other claims than those of the libelant growing out of the same occurrence, and where if is obviously for the advantage of all concerned, admiralty courts, in granting an award, will extend it so'as to adjust and settle all such other claims bv one and the same ■suit.</p>

<p>1. Contract op Affreightment — Carriage of Goods.</p> <p>Upon an ordinary contract- of affreightment a vessel is hound to carry goods under deck, and is responsible for any loss of goods carried on deck without the owner’s consent. -</p> <p>2. Same — “ On Deck.”</p> <p>Upon such a contract, where a bill oi lading was given with the words “on deck ” written in red ink by the agents of the vessel, and the goods were carried on deck, and necessarily jettisoned on the voyage, held, upon conflicting testimony, that the words “ on dock ” were written in after the hills of lading-had been submitted to the libelant’s correspondents in New York, who attended to the shipping of the goods, and without their assent or the assent of the libelant; and that the vessel was liable for the loss.</p> <p>3. Same — Modification.</p> <p>Held, also, that the libelant’s correspondents in New York, who shipped the goods, had no authority, or apparent authority, to modify the contract of af-freightment so as to permit carriage of the goods on deck.</p> <p>4. Same — Custom.</p> <p>It being claimed that by custom the owners of the vessel had a right, under such a contract, to carry the goods on deck by submitting to a charge for the extra insurance, and giving a rebate for difference of freight, held, that the custom was not sufficiently established by proof, and if proved would be invalid and illegal, as unreasonable and in conflict with the terms of the contract.</p>

<p>1. Wharfage — Municipal Corporation — Legislative Grant:</p> <p>A municipal corporation claiming tlie right to exact wharfage for the use of a public wharf must show a plain legislative grant of the franchise; and such authority cannot be deduced from the powers to lay out, regulate, and exercise all needful jurisdiction over roads, streets, lanes, and alleys, and to make laws, ordinances, by-laws, and regulations for the good order and government of the municipality not repugnant to, or inconsistent with, the laws of the commonwealth.</p> <p>2. Same — Claim Denied.</p> <p>The borough of Elizabeth has no such riparian proprietorship in the wharf at the foot of Market street as will sustain its claim to wharfage.</p>

In Admiralty. Libel in personam. The libelants state in their libel that the libelee agreed with them that its steam-boat Dora should tow a barge which had been chartered by libelants, and loaded with wheat, from the Illinois river to St. Louis, Missouri; that said steam-boat took the barge in tow and proceeded on its way down the river, but before reaching its destination, and while nearly a half a mile outside of the main channel of the Mississippi, and while attempting to…

Hearing on Libel, Answer, and Depositions. This was a libel for 9 days’ demurrage, at $89.60 per day. The charter contained no express stipulation for demurrage, but provided that the vessel should be discharged of her cargo of iron in 2 days of 24 hours each, (Sundays and holidays excepted,) by cranes and winches and necessary power to be furnished by the vessel.

In Equity. This information in chancery was filed March 1, 1883, in the circuit court of Cook county, by the attorney general of the state, in behalf of the people of Illinois, against the Illinois Central Railroad Company, the city of Chicago, and the United States of America. On the tenth day of April, 1883, the railroad company, having previously answered, filed in the state court its petition, accompanied by the required bond, for the removal of the cause into this court.

<p>Removal of Cause — Act' of March 3, 1875, § 2 — Corporation Created by Act OF CONGRESS — SUIT ARISING UNDER LAWS OF UNITED STATES.</p> <p>A suit by or against a corporation created by an act oí congress, is a suit arising under the laws of tbe United States, within the meaning of section 2 of the removal act of 1875, and may be removed from a state court.</p>

<p>1. Jurisdiction of Circuit Court—Citizenship—Act of 1875.</p> <p>Where all of tlie defendants are citizens of tlie state where suit is brought, and of the complainants some are citizens of that state and some are citizens of other states, the jurisdiction of the circuit court over the case cannot rest upon the citizenship of the parties.</p> <p>2. Constitutional Law—Wharfage—Tonnage.</p> <p>The exaction of wharfage is not the laying of a duty of tonnage, and where an ordinance requires steam-boats and other water-craft to pay for the use of the wharfs, and no demand is made for entering, loading, or lying in the harbor or port, such charges will not be considered as a duty of tonnage, but as wharfage.</p> <p>3. Same—Regulation of Commerce—Power of States.</p> <p>State action upon such subjects as are not national, but local, and limited in their nature, such as harbor pilotage, beacons, buoys, etc., can constitute no interference with the commercial power of congress, for when congress acts the state authority is suspended. Inaction of congress upon subjects of a local nature or operation is not to be taken as a declaration that nothing should be done with respect to them, but is rather to be deemed a declaration that, for the time being, until it sees fit to act, they may be regulated by state authority,</p> <p>4. Same — Whaufage—Reasonableness of Chabge.</p> <p>No subject can be more properly classified as local in'its nature, and as requiring the application of town regulations, than that of wharfs and whaífage ; and as no act of congress has been passed for the regulation of wharfage, and there is nothing in the constitution to prevent the states from regulating it, so long as congress sees fit to abstain from action on the subject, it is entirely within the domain and subject to the operation of state laws, and the reasonableness of the charge must be determined by the local law'.</p>

<p>In Chancery.</p> <p>Complainants had a judgment, and execution returned nulla bona, on the law side of the court, against Lisso & Scheen, and filed a creditors’ bill on the equity side against Lisso, Scheen, Bertha M. Lisso, Jerry H. Beaird, and others, alleging, among oilier matters, that Lisso & Scheen had a judgment in the state district court of Caddo parish against Beaird, which was claimed by Bertha M. Lisso as transferee thereof, which claim they denied, and alleged to be fraudulent and void. They prayed that this judgment and other assets might be subjected to their claims as complainants, with usual prayers for injunction and receiver. The injunction, by restraining order, was granted, and was never dissolved. In the progress of the cause a motion for a receiver was denied; for what reason does not appear. Process was served on all defendants in April, 1880, and in May, 1880, Lisso & Scheen went into insolvency in the state court, and Christopher Chaffe was appointed “syndic,” with rights and duties resembling those of an assignee in bankruptcy. By direction of the court Challe was made a party, and filed a cross-bill claiming the property covered by the bill.</p>

<p>1. Bilí, op Review.</p> <p>The bill, answer, replication, and proceedings m original cause, are proper subject-matter for revision in a bill of review; but proceedings to be reviewed do not include the evidence.</p> <p>Whitney v. Bank TJ. S. 13 Pet. 6.</p> <p>2. Bankruptcy Jurisdiction—Rev. St. § 4979.</p> <p>Under section 4979 of the Revised Statutes, the circuit courts of the United States have concurrent jurisdiction with the district courts of all suits at law or in equity brought by an assignee in bankruptcy against any person claiming an adverse interest, or by any such person against an assignee touching any property or rights of the bankrupt transferable to or vested in such assignee.</p> <p>3..Same—Act op June 22,1874.</p> <p>The act, of June 22, 1874, does not affect the jurisdiction of the circuit courts of the United States, said act being directed against the jurisdiction of the state courts in matters affecting the bankrupt, or his estate.</p> <p>4. Amendments—Twenty-Ninth Equity Rule.</p> <p>Whether it was proper to allow, after replication and decree, under the twenty-ninth equity rule, on five days’ notice, an amendment claiming rents and profits on another tract of land than that embraced in the original bill, doubted. ,</p> <p>5. Bill op Review.</p> <p>No party to a decree can, by the general principles of equity, claim the reversal of a decree upon a bill of review, unless he has been aggrieved by it, whatever may have been his rights to insist upon the error at the original • hearing or on an appeal.</p>

<p>In Equity. Demurrer to petition filed after final decree.</p>

<p>This suit is brought on three promissory notes purporting to have been given by the city of Tusoumbia, and signed by J. J. Davis, mayor, and J. H. Simpson, secretary, with the seal of the city attached; all dated August 28, 1877, each for $750, with 6 per cent, interest from date, payable, respectively, in 18, 30, and 42 months after date, for a No. 3 chemical fire-extinguisher engine. The defense is — (1) Non est factum; (2) that the city of Tuscumbia never purchased the engine for which the notes purport to have been given; (3) that the consideration of the said notes failed, the said engine being worthless as a fire extinguisher.</p> <p>The evidence shows that one Fitch, agent for the Babcock Manufacturing Company, on or about July 9, 1877, called on the mayor of the city of Tuscumbia and proposed to sell the city an engine for the extinguishment of fires, and asked that a meeting of the mayor and board of aldermen should be convened to consider the proposition. A meeting was called on the ninth of July, at which were present, according to minutes of the board, the mayor, Davis, and Aldermen Aydlett, Reedy, and Patterson, three of the four aldermen of which the board was composed. At this meeting Fitch made his propo,-sition in writing, which was, in effect, to sell the city a No. 3 Champion chemical engine, as per printed descriptions, for §2,250, payable in three equal payments, at .18, 30, and 42 months, with 6 per cent, interest; the engine to be delivered at Louisville within 60 days, the city to pay freight. This proposition was not finally acted upon at this meeting, it being suggested that the sense of the tax-payers should be taken by petition before final action.</p> <p>It was then agreed by Fitch, in the presence of the aldermen, that he would give the mayor §25 for the time and trouble required if he (the mayor) would circulate the petition. Accordingly, the mayor, Davis, circulated a petition and obtained many names of tax-payers thereto, making no secret of, but rather publishing, the fact that he was to bo paid therefor. On the tenth of July, as appears by the evidence of the mayor, and Aldermen Patterson and Aydlett, and Secretary Simpson, but of which the minutes of the board make no mention, a meeting of the board was had, and the petition of the taxpayers having been presented, the proposition of Fitch was accepted. Fitch having left town in the mean time, his written proposition was indorsed: “Accepted July 10, 1877.” “Signed, Job J. Davis, Mayor of Tuscumbia. J. H. Simpson, Sec.;” with the seal of the city attached; and the same was forwarded by mail to Fitch, at Louisville, Kentucky. Thereafter, about August 28, 1877, the engine and appurtenances, as per proposition, were delivered at Tuscumbia, the city treasurer paying the freight thereon. A trial of the engine was then had, in the presence of the mayor and other dignitaries, and a number of the citizens of the town, which trial was satisfactory; and thereupon the engine was accepted and the notes in suit given; As appears by the minutes of the board on the fourteenth of August, 1877, the mayor and marshal were appointed a committee to have an engine-house and stable erected, and on the eighth of October following, the mayor’s account for building the engine-house was allowed, and steps were taken towards selecting a fire company.</p> <p>The engine remained in the custody of the city authorities, occupying the engine-house so built, and was subsequently, at Christmas, 1877, and again in 1878, (date not fixed,) employed at fires, but at neither time did it render satisfactory service. The testimony of several experts, notably the chief of the Louisville fire department, has been given as to the value of such engines for the extinguishment of fires, and the defense has offered the opinions and experiences of several persons who are not experts on the same subject. No complaint appears to have been made by the city authorities of the inefficiency of the engine until payment was demanded of the notes;' and the engine is now, and has been continuously since the purchase, in the possession and control of the city, without tender to plaintiff.</p>

<p>1. Execution—Sheriff.</p> <p>An execution delivered to the sheriff: of one county, and by him acted under, is invalid in the hands of the sheriff of any other county. It is the imperative duty of the first sheriff to return it into court, and it ceases to have force or effect.</p> <p>2. Sheriff’s Deed.</p> <p>A. sheriff’s deed cannot be impeached collaterally.</p>

<p>Patents for Inventions — Want of Novelty.</p> <p>There is no patentable novelty in the subject-matter of a patent for a metallic roofing or covering made oí a series of corrugated shingles, to be secured to the roof by nails, as are ordinary -wooden shingles, one shingle overlapping another, so as to cover the nail holes in the lower shingle.</p>

<p>1. Seaworthy.</p> <p>Seaworthy, in the sense used, means in such a condition of strength and soundness as to resist the ordinary action of the sea, wind, and waves during the contemplated voyage. A ship is seaworthy, in this sense, when her hull, tackle, apparel, and furniture are in such a condition of soundness and strength as to withstand the ordinary action of the sea and weather.</p> <p>2. Same—Burden oe Proof.</p> <p>Where it was established that the vessel was sound and seaworthy for two years previous to her loss, and that she was wrecked in a cyclone, the burden of proof is upon the insurers to establish, satisfactorily, the alleged unseaworthiness.</p> <p>8. Atlantic Ocean.</p> <p>The loss of a vessel wrecked in the Gulf of Mexico is covered by a policy of insurance containing a special clause by which the ship is limited “ to navigate the Atlantic ocean between Europe and Americathe Gulf of Mexico being a part of the Atlantic ocean.</p>

<p>In Admiralty. Libel for forfeiture. Petition of J. P. Williams for delivery of perishable cargo.</p>

Admiralty Appeal. On the fifteenth day of December, 1881, the British steamer Clin-tonia,''while proceeding down the Mississippi river in front of New Orleans, took a sheer and collided with the Yallette dry-dock, moored on the right bank of the river, breaking a large hole in the side of the dock, which at once began to leak, whereupon two or more tugboats went to its assistance, pumped it out, and prevented it from sinking, and then libeled it for salvage.

<p>Towage Contract—Measure op Damages.</p> <p>The rule for tlie measure of damages for tlie violation of a towage contract is tlie contract price, less the expense necessary to complete the contract; and where the master of the vessel to he towed refuses to state what he paid to other -tow-boats for the same labor, the court will award the contract price as damages.'</p>

In Admiralty. On appeal from the clerk’s taxation of costs. The original libel was filed in “a case of negligent towage and collision.” It set up a contract of towage, and averred that, while in the performance of said contract, the barge McDougall, by the mismanagement or fault of the tug W. B. Castle, was brought into collision with the schooner Foster, and suffered damages, which libelant sought to recover.