Volume 17 — Federal Reporter

In Equity. Motion to retax costs. This is a motion to retax the costs on execution in six casos of the plaintiffs against the several defendants, the objection in all being the charge of f>20 for a docket fee to defendant’s solicitor. They were bills In equity for an account of profits, injunction, etc., for the infringement of a patent. The objection urged on this motion was that there was no “final hearing,” as required by the statute, to entitle the solicitor to the fee.

<p>1. Equity Jurisdiction.</p> <p>A bill for a discovery lies, even when the action to be supported sounds in tort.</p> <p>2. Same—Accounting—Rents and Profits of Real Estate.</p> <p>In a suit for an accounting as to the rents and profits of real property for a period of 45 years, which must be taken according to the laws of Louisiana, and wherein the defendant must be charged with the rents and profits which have been, or ought to have been, annually received, and credited with the yearly expenditures for reclamations, improvements, and taxes; and when such an account has reference to hundreds of lots of ground,—it is of a most complex and involved character, which could not be dealt with upon a trial at law at nisi prius, and the complexity of the account is, therefore, a ground of equity jurisprudence.</p> <p>3. Same.</p> <p>In a case where the complainant has recovered judgment against several hundred actual tenants for rents and profits for varying portions of a long period, and those tenants are insolvent, and the defendant is the warrantor of all those tenants, and whatever they owe the complainant the defendant owes to them; and when the defendant is not only a warrantor, but a warrantor in bad faith, who has enriched herself by purchasing in bad faith the complainant’s property and selling it at a large profit,—the complainant, having no remedy at law upon this warranty for want of privity, has a right of action in equity.</p> <p>Biddle v. Mandeville, 5 Cranch, 322.</p> <p>4. Same. ■ .</p> <p>Equity will not allow a party, ultimately liable, to keep, for his own advantage, an intermediate and insolvont party in possession, who is, in return, responsible to the lawful owner, and thereby enrich himself out of the property of that owner thus dispossessed, and escape liability to him for want of a mode of action.</p> <p>5. Rents and Profits. t,</p> <p>According to all the authorities, both under the common law and the law of Louisiana, a suit for rents and profits could not have been brought until the complainant had recovered possession.</p> <p>Gaines v. New Orleans, 15 Wall. 633.</p> <p>6. Ejectment—Trust.</p> <p>In an ejectment bill against a party holding by an adverse title, there could be no trust raised up as to the price received by him in case of sale.</p> <p>'7. Possessor in Bad Faith.</p> <p>The possessor in bad faith is bound to surrender the thing immediately; and the seller and warrantor, who took and conveyed in bad.faith, is bound forthwith to restore the price to his vendee, and to acquit, i.-e., discharge, for him his liability to the owner for fruits, without suit or condemnation.</p> <p>8. Same.</p> <p>He who, with a motive to deprive another of that which he knows is justly that other’s, employs the process and machinery of the courts, is under obligation to satisfy all damages which that other thereby suffers. The damages springing from the legitimate exercise of legal rights, even when there is an absence of malice, and there is good faith, must, according to the settled law of Louisiana, at least place the injured party in the situation in which he would have been if the disturbance had not taken place.</p> <p>9. Warranty and Warrantor.</p> <p>The warrantor is, by the settled jurisprudence of Louisiana, the real defendant. The judgment is binding upon the warrantor if he has been called in warranty, or he is apprised of suit having been brought.</p> <p>10. Same—Bad Faitii.</p> <p>Where a party had, in had faith, entered, upon the property of another and for an enormous price ($500,000) sold and conveyed it with warranty, and to avoid his liability as vendor and warrantor, i. e., to escape being compelled to return to his vendee the price, and repay the fruits which the evicted vendee would be required to pay to the owner, in had faith, hinders the restitution of the land and its fruits to the owner, and keeps the owner from recovering possession for a period of 50 years, the owner can recover for the rents and profits from the party hindering as a constructive possessor.</p> <p>11. Rents and Piiobits.</p> <p>In aseen aining the rents and profits of real estate, where the disseizin and possession have been in bad faith, the account must include not only the rents, revenues, and values for use actually received, but also those which the evidence shows would have been received with ordinary good management. Since the law requires the court in such a case to decide from evidence extrinsic to the actual receipts, satisfactory evidence may be found in the rents for the very period in question actually derived from numerous other lots, adjacent, similarly situated, and no bettor capacitated, and from ground rents during and for the same period.</p> <p>Pontchanirain R. R. v. Carrollton R. R. 11 La. Ann. 258, 259.</p> <p>McGary v. City of Lafayette, 12 Rob. (La.) 668 ; 4 La. Ann. 440.</p> <p>12. Same.</p> <p>The burden which bad faith places upon the defendant, according to the civil law and the jurisprudence of Louisiana, while it should lead to the assessment of no damages or compensation beyond those actually suffered, requires the court to adopt conclusions fully warranted by evidence, though, through the fault of the defendant, it he derived in part from the rents and profits of other property adjacent and similarly situated, and no better capacitated.</p> <p>13. Same.</p> <p>An account for rents and profits should be taken and stated as follows: The rent or income should be ascertained for each year separately, and upon the amount, so ascertained for each year interest should ho computed down to the time when the account, closes, so that there may he interest upon each yearly sum falling due, but no interest upon interest.</p> <p>Gaines v. New Orleans, 15 Wall. 634.</p>

<p>1. Injunction.</p> <p>It is neither regular nor proper to issue a perpetual injunction, at the first hearing of a cause, where no evidence was taken or cous'owed, and an injunction so issued will he considered as temporary only.</p> <p>2. Jurisdiction in Bankruptcy.</p> <p>After the property of a bankrupt has been sold and the proceeds received, and neither the court, nor the assignee, nor the creditors have any further interest in it, the court will not interfere, at the instance of the purchaser, to prevent, by injunction, parties from asserting any claims they may have, or pretend to have, against the property in any of the courts of the several states; and this, notwithstanding no final distribution has been made in the bankruptcy. The bankrupt court will not interfere where no advantage can result to the bankrupt’s estate.</p> <p>Hewitt v. Norton, 1 Woods, 71, distinguished.</p>

<p>1. Officers of a Corporation Dealing with Themselves—Contract Voidable.</p> <p>Officers of a corporation are but agents, and cannot, as such officers, while acting for the corporation, deal with themselves, to the detriment of the corporation for whom they are acting. All such contracts, if not void, are voidable at the option of the corporation.</p> <p>2. Same—Effect of Stockholders’ Meeting.</p> <p>Nor can the holders of a majority of the capital stock of a corporation, by their notec in a stockholders’ meeting, lawfully authorize its officers to lease its property to themselves, or to another corporation formed -for the purpose and exclusively owned by them, unless such lease is made in good faith, and is supported by an adequate consideration; and in a suit, properly prosecuted, to set aside such a contract, the burden of proof, showing fairness and adequacy, is upon the party or parties claiming thereunder. All doubts will be solved in favor of the corporation for whom such stockholders assumed to act.</p> <p>3. Same—Power of Majority.</p> <p>The holders of a majority of the stock of a corporation may legally control the company’s business, prescribe its general policy, make themselves its agents, and take reasonable compensation for their services. But, in thus assuming the control, they also take upon themselves the correlative duty of diligence and good faith. They cannot lawfully manipulate the company’s business in their own interests, to the injury of other stockholders.</p> <p>4. Costs—Counsel Pees.</p> <p>An owner of capital stock in a corporation, who sues for himself and all other shareholders, and successfully prosecutes the action, for a wrong done to the corporation, is entitled to be reimbursed his actual and necessary expenditures, including attorney’s fees, out of the corporate funds.</p> <p>0. Same—Case Stated—Relief Granted.</p> <p>The four brothers S. leased the mine of the W. Iron Co. for five years, at a royalty of 50 cents per ton of ole mined, they to furnish the requisite machin- ■ ery, which was to be purchased b3r the lessor upon the expiration of the lease. They incorporated the W. Hematite Co. to operate the mine, they being the sole owners of its stock. Shortly before the expiration of their lease, being unable to obtain a renewal of it, they purchased a majority of the st^ck of the W. Iron Co., and called a meeting of its stockholders, but at which no other stockholder attended. That meeting ordered an expenditure of $50,000 of the company’s capital in sinking.a shaft in the mine to facilitate its operation; directed a lease for 18 years of tile mine, machinery, and all of the company’s other property to the W. Hematite Co. at a royalty of 25 cents per ton of, ore mined, with certain oilier advantages to the lessee; voted one of the brothers a salary of $3,000 a year as president; and in pursuance of said action such a lease was executed by two of tho brothers, acting as president and secretary of the W. Iron Uo., and by the other two acting as secretary and superintendent of the W. Hematite Co. Upon a bill filed by stockholders in behalf of themselves and all other stockholders, held, that such a lease was inequitable, and a fraud upon the rights of stockholders not concurring therein.</p>

This case was submitted on the following agreed statement of facts, after the filing of the opinion, reported in 1 Fed.

<p>1. Res Judicata.</p> <p>The decree of a competent court in a suit to enforce the right of the grantee against the grantors in an instrument admitted by both the plaintiff and defendants to have been intended to operate as a mortgage, determines the rights of the parties thereto and thereunder, so that either they or their privies, as against each other, are estopped to say or allege aught to the contrary.</p> <p>2. Pinal Decree—Modification of.</p> <p>During the term the court may modify, supplement, or supersede a final decree in any case; and while it is more orderly and convenient to state in the second decree how far or in what respect it is intended to affect the first one, still this is not actually necessary ; and it will be presumed that in giving the_ second decree the court intended to modify the first one, in so far as they differ, unless the circumstances plainly indicate the contrary.</p> <p>3. Decree and Execution Thereon.</p> <p>An execution directing the sale of mortgaged premises to satisfy the debt of the mortgagee must be based upon a decree which is sufficiently indicated therein ; but, although there is a variance between the latter and the former as to the date of the decree, the execution and sale thereon is valid, in favor of any person claiming thereunder, if it plainly appears to the court, upon a view of all the facts, that the execution was in fact issued upon the decree in question, and for its enforcement.</p> <p>4. Two Bimilak Decrees in a Case.</p> <p>Two decrees, purporting to be final, were given in £. v. 5., within throe days of each other, directing the sale of mortgaged premises, and differing only in the mode of describing the same,—the first one describing them by parcels, and the second one by the same parcels, and as a whole. Held, that said decrees were, in legal effect and operation, identical, and an execution might properly issue upon either of them.</p>

<p>1. Fire Insurance—Bole Ownership of Property—Outstanding Interest —Bond for Conveyance.</p> <p>A policy of fire insurance described the property insured as “his two-story dwelling-house,” etc., and it appeared that he had purchased the fee and taken a bond for a conveyance, bid that the vendor had only a life estate in the property, with a remainder in six-sevenths thereof; that a suit had been instituted to perfect the title, to which the insured was a party; and that there was an outstanding purchase note, which he owned at the time of the insurance and the loss, held, that tito outstanding note, and the fact that, the insured only held under a title bond, was not material to the risk, and that the fact of the outstanding seventh interest or remainder did not prevent him from being “ the sole and unconditional owner,” within the meaning of the policy.</p> <p>2. Same—Materiality of Defect in Tiii.e—Question for Jury.</p> <p>In such a case the question whether the delect in the title or interest of the insured was material to the risk should have been submitted to the jury, and the peremptory instruction to the jury to find ior him was error.</p>

<p>In Bankruptcy. On application for discharge.</p>

Motion to Quash Indictment on the ground that it does not set out any offense under the statute.

Information for disposing of spirituous liquor to an Indian.

<p>1. Patents—Combination of Old Elements.</p> <p>To constitute a valid combination, whore the elements are old, all the component parts thereof must so enter into the combination that each qualifies the other, and a new result is produced by the combined action of all the component parts.</p> <p>2. Same—Invention of New Place for Old Thing not Patentable.</p> <p>To authorize a patent the law requires the invention of a new thing. It is not satisfied by inventing a new place for an old thing without change of result.</p> <p>3. Same—Public Use.</p> <p>Proof of but one instance of public use more than two years prior to the application for a patent is sufficient to defeat it.</p> <p>4. Same—Letters Patent Invalid.</p> <p>Letters patent issued to John Clark on the sixth day of February, 1877, for an alleged improvement in cheese-formers for cider-presses are invalid, as the combination, if a valid combination, was not patentable, and was in public use more than two years before the application.</p>

<p>1. Patents fob Inventions—Pkiok Fobeign Patent as Evidence— Foketgn Use.</p> <p>An inventor can obtain a patent in this country by proving that he is the origT inal and flrst inventor in this country, and complying with the laws of this country in making his application for it; and foreign use would have no effect upon it at all, and a prior foreign patent would have no effect but to limit the term from the date.</p> <p>2. Same—Acts of 1836, 1839, and 1861.</p> <p>Under section 8 of the act of 1836, the inventor was not entitled to a patent here if the invention had been patented in a foreign county more than six months next preceding the filing of the application; but this restriction was removed by section 6 of the act of 1839, provided the invention should not have been introduced into public and common use in the United States prior to the application, and that, the patent should be limited to 14 yrears from the date or publication of the foreign patent; and by section 7 the public use to defeat a patent was required to extend to two years before the application; and finally, by section 16 of tbe act of 1861, tbe term was extended to 17 years, and extensions prohibited.</p>

<p>Patents fob Inventions—Anticipation—Inbbingement—Patent Ho. 145,726 Valid.</p> <p>Patent Ho. 145,726, lor an improvement in pressure-gages, granted to George II. Crosby, December 23, 1873, was not anticipated by patent 23,032, known as tlie Lane patent, granted in 1859, and is infringed by defendant’s gage, wliicli unites tlie ends of a Bourdon tube by a piece of metal, which, as to its operative parts, is the solid V-link of patent .No. 145,726.</p>

In Admiralty. This was a suit to recover damages arising from a collision of the barge Harvest with libelants’ vessel, the schooner Minnie Davis, while the barge was being towed by the tug Tuthill. On trial the tug and barge were found to be equally in fault, and a decree rendered accordingly. The cause was referred to Earl Bill, a circuit court commissioner, to take testimony and report to the court the damages of libelants arising from the collision.

<p>1. Supplies.</p> <p>The master of a vessel is not authorized to purchase supplies or incur indebtedness on the credit of the ship, or owner, in a foreign port, where the owner is represented by a known agent, unless under circumstances where the conduct of the owner or agent may fairly be construed as giving such authority.</p> <p>2. Stipulation by Claimant for tub Discharge of a Vessel.</p> <p>The clerk is not authorized to take a stipulation for the discharge of a vessel, hut tlie same must be done in court or at chambers, or before a commissioner; and in the former case notice thereof is given to the marshal by a writ of supersedeas issued by the clerk, and in the latter case by an order to the same effect issued by the commissioner; and in neither case is the marshal entitled to any fee .or mileage for “ serving ” such writ or order, but he may charge any necessary expense incurred by him in consequence of such writ or order, as a part of the expense incurred under the process for the arrest and custody of the vessel.</p>

<p>1. Collision—Anchoring Vessel in River—Precautions.</p> <p>Although anchoring in a river in the nig'lit-time or day is not necessarily . improper or dangerous, and although it may be customary to do so during stress of weather, yet, when so doing in the night,, great, care must be used to make ample room and space in the channel for passing vessels, and to so locate the anchorage as to avoid possible danger.</p> <p>2. Same—jüvídenue of Fault.</p> <p>In the absence of a proper watch and proper lights on hoard the anchored vessel, in this case, she must he held in fault and negligent.</p>

<p>Libel por Wages op Master.</p> <p>The master of a vessel has no lien cn the cargo of the vessel for his wages beyond the amount of the freight thereof, and where, for any reason, he does not unload the cargo, he is only entitled to a lion upon such of the freight as tiie vessel has actually earned, that being the freight less what it costs to unload.</p>

<p>Personal Injuries to Seaman.</p> <p>A seaman cannot recover for injuries resulting from his own carelessness in executing a proper order of the master.</p>

<p>Removal op Cause—Local Prejudice A.ct—Oitizekship.</p> <p>Under subdivision 3 of section (¡39 of tlie Revised Statutes it is not necessary, in order to the removal of a cause, that, it should appear from the record that tho parties were citizens of different states at the time the suit was commenced.</p>

<p>1. Constitutional Law—Taking Private Property for Public Use.</p> <p>The plaintiff, owner of riparian property, whose lands adjacent to the Mississippi river are alleged to have been taken and damaged for pahlic-leme purposes by the defendant, a parochial corporation, held to have a right of action for Ihc recovery of just and adequate compensation therefor.</p> <p>2. Same—Indemnity.</p> <p>Private property can only bo taken, appropriated, or damaged for public use through the exercise of the single principle of eminent domain, which in all cases carries with it the right of just indemnity.</p> <p>3. Same—Police Power of State—Levee.</p> <p>Under the exercise of its general police power, which extends onlylo the regulation of the owner’s use and dominion of private property, the state of Louisiana cannot, for levee or other public purposes, take, appropriate, or damage private property so as to deprive the owner of its dominion, use, control, and profits, and especially without due compensation first being paid,—Louisiana state jurisprudence, as contained in the case of Bass v. ¡State, 34 La. Ann. 494, and other oases, to the contrary.</p> <p>4. Decision of State Courts—When Followed by Federal Courts.</p> <p>.National courts are required to follow decisions of state courts when they engage in giving effect to, or the interpretation or construction of, state statutes or local laws, hut not when employed in giving effect to general principles of law. So, when a decision of the supreme court of Louisiana declares the right in the legislature to authorize private property to be taken or damaged, or its use appropriated, without compensation, for public purposes, under the general police power, or other implied powers of government, it is a dealing with general principles of law, and places no restraint on the federal court.</p>

<p>1. Falsa Demonstkatio.</p> <p>Where the description in a deed appears to he true in part and false in part, and it can he ascertained from references in the deed to other contemporary documents, and extrinsic attending facts, which part is false, so much of the description as is false must he rejected.</p> <p>2. Construction bt Acts of Parties.</p> <p>Where the parties to a deed, by their subsequent acts, have given a practical construction to a deed, having in some particulars a false or indefinite description, such practical construction by the parties themselves will be con-, sidered by the court in construing the doubtful clause.</p> <p>3. Case in Judgment.</p> <p>A conveyance described the land conveyed by reference to a deed, bearing a particular date, recorded on a particular page of a public record. TJpon reference to the page of tho record, a deed between tho parties was found, hut bearing a different date from the one described; so that either the date, or the page of the record, was false. On the preceding page, facing the page mentioned in the description, was found tho record of a deed between the same parties for the proper amount of land, bearing the proper date, and in all other particulars correct; and by reference to the deed bearing the proper date, and to other transactions surrounding the one in question, referred to in the deed to be construed, it appeared that the false particular in the deed was the number of the page of the record referred to. Held, that the page mentioned in the description should be rejected as false, and the premises conveyed ascertained from the remaining portions of the description.</p>

<p>1. Fire Insurance Pouicy—Store Fixtures Construed.</p> <p>When a fire insurance policy contains clauses excepting from the insurance “store fixtures,” and “store and other fixtures,” the words “store fixtures” mean store fittings or fixed furniture, which are peculiarly adapted to make a room, a store rather than something else.</p> <p>2. Same—Store—Factory .</p> <p>Store being the American word for shop or warehouse, is never applied to a factory; and fixtures in a shoe factory are not covered by the term “ store fixtures,” in a policy of insurance</p>

<p>Railroad—Code, Iowa, § 1289—Fencing—Injury to Guild.</p> <p>Section 1289 of the Iowa Gode of 1873, providing that “any corporation operating- a railway, that fails to fence the same against live-stock running ht large, at all points where such right to fence exists, shall be liable- to the owner of any stock injured or killed by reason of the want of such fence, or for the value of the property or damage caused, unless the same was occasioned by the willful act of the owner or agent,” does not impose on'such railroad corporation the absolute duty of fencing, and it will not be liable for an injury caused to a child by reason of the absence of a fence alone, no other fault or negligence being charged.</p>

<p>Forfeiture for Undervaluation of Imports—Exceptions to Commissioner’s Report—Act June 22, 1874, 17 and 18.</p> <p>Exceptions t.o tlie report of a United States commissioner, to whom a case lias been referred for summary investigation under tlie provisions of sections 17 and 18 of tlie act of congress of June 22, 1874, to ascertain tlie amount of freight due the owners of a vessel on importations forfeited byreason of undervaluation, should not lie passed upon by the court, but go with the report to the secretary of tlie treasury, and be considered by him in making up his judgment in the case ; and an expression of tlie commissioner as to the law of tlie case should be stricken from'the report as not coming within the reference.</p>

<p>Shipping Commissioner of Port of New York—Salaries of Deputies — Reference to Master.</p> <p>While, on the facts before the court, it cannot assume that the salaries of $3,648, paid by the shipping commissioner of the port of New York to his three sons, whom he has appointed as his deputies, are excessive and should not be allowed, it is ordered that the accounts be referred to the master to take proof and report explicity upon the reasonableness of the salaries paid by the shipping commissioner to his deputies, upon notice to the United States attorney, and with leave to the United States attorney to introduce testimony.</p>

This was an indictment against Augustus O. Eand and Thomas Pender, the' captain and mate of the steamer Tropic, for the violation of section 5286 of the Eevised Statutes, relating to military expeditions against people at peace with the United States. The facts are set forth in the charge of the court.

<p>1. Conspiracy—Common Law.</p> <p>By tlie common law a conspiracy is an agreement, between two or more persons to do some unlawful act, or to do a lawful act in an unlawful manner. The agreement itself constitutes tlie offense, whether an act is done in furtherance of the object or not.</p> <p>2. Same—Acts op Congress.</p> <p>By acts of congress the conspiracy to do numerous acts stated m the different sections of the Revised Statutes and acts of congress are made offenses, and in which the agreement to do the forbidden act constitutes the offense, whether any act is done in furtherance of the object or not.</p> <p>3. Same—Rev. St. § 5440.</p> <p>To constitute a good information or indictment under section 5440 of the Revised Statutes, it must charge that the conspiracy was to do some act made a crime by tlie laws of tlie United Stales, and must state with sufficient certainty tlie offense intended to be committed, and must then state some act done by one of the conspirators towards effecting the object of the conspiracy.</p> <p>4. Pleading—Setting out Written Document.</p> <p>By all rules of pleading, criminal as lvell as civil, when a written document is relied on to sustain the prosecution or plaintiff’s case, it must be set out either verbatim, or in substance, and not a statement of the opinion of the pleader as to the effect it was intended to or might produce; and a criminal information that does not give the substance of a document relied on, but only its effect, is not sufficient.</p> <p>5. Same—Criminal Information—Motion to Quash Granted.</p> <p>As the information in this case does not contain a sufficient averment of any act done by any one of the conspirators to- effect and carry out the object and purpose of the alleged conspiracy, it must be quashed.</p>

<p>Information for the Violation of section 5398, Eev. St.</p>

<p>1. Patents for Inventions—Reissued Patent Invadid.</p> <p>Reissued letters patent No. 7,286, granted to J. White, August 29,1876, for a globe-holder, are invalid.</p> <p>Gleason Manuf’g Co. v. White, 8 Fed. Rep. 917, affirmed.</p> <p>2. Same—Office of Disclaimer.</p> <p>A disclaimer can add nothing to a patent. It can take away from that which has "been described as tiie invention and claimed as such, so as to he covered by the grant of the patent, but it has no office to make the patent cover anything, however clearly shown in the patent, not described and claimed as a part of the invention.</p>

<p>1. EeiiovaTj of Oases.</p> <p>Tlie petition for removal must aver that the parties are citizens of another state; an averment that they are residents of another state is not sufficient.</p> <p>2. Jurisdiction.</p> <p>As the jurisdiction of the state court has never been lawfully divested, it follows that this court has never acquired jurisdiction. The case has never been removed from the state court to this court. It cannot, therefore, be remanded, but all proceedings in this court will be dismissed.</p>

<p>1. District and Circuit Court—Rules as to Taking Testimony.</p> <p>Congress has not conferred power upon the district and circuit courts of the United States to make rules touching the mode of taking testimony.</p> <p>2. Same—Depositions Taken According to State Law.</p> <p>Depositions taken according to the mode prescribed by the statutes of a state, for the taking of depositions are not admissible in evidence, in a circuit court of the United States, when the state law governing the same conflicts with the provisions of the act of congress in relation thereto.</p>

<p>1. United States Courts—Attachment Prooekdingis—Rev. St. § 915—Pri-ority.</p> <p>Under the provision of section 915 of the Revised Statutes of the United States, a circuit court administers the law of the state in which such court is held regarding attachments; and when property has been attached in a suit in the United States court by the marshal, and the sheriff has levied an attachment issued from a state court on the, goods in the hands of the marshal, the priority of the lion of the attaching creditors is to be determined by the state law.</p> <p>2 Same—-Property in Hands of Marshal—Attachment from State Courts.</p> <p>When writs issue from state and federal courts against, the same property, the officer first obtaining possession, on being notified that a state court officer has a writ against the same property, should be offered all reasonable facilities to make a full return, and the officer holding the property should show in his return whatever was done hy such state officer.</p> <p>3. Federal Courts and State Courts not Foreign Courts, or in Hostility.</p> <p>Federal courts and state courts are not foreign courts, or in hostility to each other, in administering justice between litigants. The citizen of the state in tlie federal court cannot be deprived of any right he has in a federal court, and the citizen of another state has the same claim to a debtor’s property in the state where he resides as a resident, but no more.</p>

In Equity. On motion for a preliminary injunction. The railroad which reaches from the border of Virginia beyond Winchester to Staunton is owned by four several companies, but it is operated by the Baltimore & Ohio Railroad Company, the complainant in this cause.

<p>1. Separate Property of Wife Used by Husband.</p> <p>Where moneys of a married woman are habitually collected and used in liis’ business by the husband for a series or years, and mixed with his property, without any account thereof being kept, thus giving him credit in his business, and there is no specific agreement with his wife for repayment, or that the property purchased with it shall be hers, the moneys so used, and the goods or property so purchased, become his for the purpose of paying his debts.</p> <p>2. Mortgage to Secure Money of Wtfe—Fraud on Creditors.</p> <p>A mortgage by the husband to secure moneys of the wife so collected and used, kept from the record till after the purchase and receipt of a large amount of goods by the husband and his son, they being at the time largely insolvent, held to be fraudulent as to the parties selling the goods.</p> <p>3. Fraud—Question of Fact.</p> <p>Fraud is generally a question of fact, to be determined by all the circumstances of the case.</p> <p>4. Wife’s Separate Property.</p> <p>. A wife, desiring to preserve her rights in her separate property, should take reasonable care to keep it distinct from her husband’s business, so that it shall not become the means of practicing fraud upon others.</p>

<p>1. Lease—Forfeiture—Re-entry.</p> <p>The right oí a lessor to determine, without recourse to the courts, a lease of real estate as forfeited, and re-enter upon the premises, is a harsh power, and it is the duty of the court to restrain it to the most technical limits of the terms and conditions upon which the light is to be exercised, and a court of equity, when necessary, when this power has been exercised, will come in and afford relief.</p> <p>2. Same—Condition Precedent—Taxes and Bents.</p> <p>Where a lease provides for re-entry upon failure to pay taxes and rents, a demand for the payment of such taxes and rents is necessary as a condition precedent to the right of re-entry.</p> <p>8. Same—Sublease.</p> <p>Where a lease contains a provision that the lessee shall “ not sublet, nor assign or transfer this agreement, without the,written consent thereto of the superintendent ” of the lessor, the lessee may either sublet or -assign, with the assent of the officer named; and where, during two or three months of the term, the property was turned over to another without the assent of the lessor, by acquiescing, and failing to object for a considerable period of time, the breach of the agreement will be considered as waived by him.</p> <p>4. Same—Beoeiver— Superintendent.</p> <p>Under such a lease, the superintendent appointed by the receiver, into whose hands the railroad company, the lessor, has passed, is to be regarded as the superintendent, and his assent to a sublease will be sufficient.</p> <p>5. Same—Pooling Arrangements.</p> <p>When a party seeks to declare a contract forfeited by an act of his own, he must point out specifically some clear act, in violation of the terms thereof, which authorize said forfeiture, and in this cáse the alleged pooling arrangements on the part of the lessees are not sufficient to constitute a breach of the agreement that it “ will use the premises for no other purpose than a legitimate business,” and will charge only reasonable and compensatory commissions.</p>

<p>Suit in Equity for Injunction.</p>

<p>1. Carrier op Passengers— Liability foe Merchandise Carried as Baggage.</p> <p>A carrier of passengers is liable as a common carrier for tlie ordinary baggage oí passengers upon its trains, but it is not liable for loss or injury to packages of merchandise, passed as baggage, unless its a,gent having control of the receipt of the baggage was informed or know wliat was contained therein, and no misrepresentation was made by tlie owner to the agent having chame of the business of checking the baggage.</p> <p>2. Same—Ijiabiuity for Extra Baggage—Delivery.</p> <p>A railroad company is liable as a common carrier to the owners of exlra baggage1, where it is shown that the baggage-master accepted it with the knowledge, and with the understanding and arrangement between the passenger and himself, us the agent of the company, that extra pay should be made for the transportation thereof, and if ho receive tlie extra baggage, gives his checks therefor, upon payment of the extra charge, the company will be liable as a common carrier to deliver the trunks at the place designated by the chocks or contract, of carriage, and is responsible for any injury occurring to the baggage in its transportation, and before its delivery at tlie place where it was to be delivered.</p> <p>3. Same — Imputed Authority of Baggage-Master— Act of God — Loss of Bvggagr.</p> <p>Where a railroad company place a baggage-master in its baggage-room it holds out to the public that he lias authority to make arrangements as to what sort of baggage shall be carried by the company, and a contract to carry extra baggage upon the payment of an extra charge made by him will bo binding on the company, and it can only be excused from the safe delivery of such baggage by showing" that it was lost by some act of God, or 1lie public enemy, which could not be prevented by tlie exercise of proper care on its part.'</p> <p>4. Same—Sudden Ebood—Question for Jury.</p> <p>A sudden and extraordinary flood in a river is to be regarded as the act of God; and in an action by tlie owner of baggage for damage caused thereby, the jury are to determine, from all the circumstances of the case, whether, after the baggage- master of the railroad company received and checked such baggage the flood carne so suddenly that, under the circumstances, the injury could not have reasonably been prevented by the company or its agents by the use of all possible means ; and if they find that it could have been done with the exercise of reasonable and proper and all possible means that could be exercised and used by its agents, it was bound to place such baggage in a place of safety and prevent damage to the goods, and tlio owner is entitled to recover.</p> <p>5. Same—Preservation of Goods after Deuvery to Carrier.</p> <p>After goods are delivered to a carrier to be transported to a particular place, they are’in the custody of the carrier, and it is the duty of the carrier to preserve them from damage by reason of a sudden flood, as far as is in his power, and not the duty of the owner thereof.</p> <p>6. Same—Measure of Damages.</p> <p>The measure of damages in sncliacase is the loss which tlie owner of the goods lias sustained by the breach of the contract. The jury are to judge of 1 he value of the goods, and where a part of them have been sold, whatever was realized from such sale is to be deducted from the general value thereof, and the balance would be the measure of damages.</p>

<p>Tried to the court and finding for the plaintiff, and motion for new trial.</p>

<p>1. General Rule of Damages.</p> <p>The general rule is that no damages can be recovered until they shall have actually accrued; and that an action cannot be maintained on a mere liability to a third party to -which a plaintiff has been subjected by the act of the defendant. The plaintiff, in such a case, must allege and prove that he has incurred actual damage, by showing the payment or other satisfaction of such liability.</p> <p>2. Liability of Stranger Committing Waste.</p> <p>A stranger committing waste upon premises leased, or held by a particular estate', is liable to the tenant for the injury to the possession, and to the landlord, or reversioner, for the injury to the freehold' or inheritance. The right of each is distinct from that of the other, and satisfaction made to the one is no bar to an action brought by the other.</p> <p>3. Liability of Tenant for Waste, and his Rights against Trespasser.</p> <p>The tenant is answerable to the landlord, or reversioner, for waste done by a-stranger. He has his remedy over against the stranger, but the tenant’s recovery against the stranger for injuries to the freehold, or reversion, is dependent on his first having satisfied tjie landlord’s claim by payment, or repair of the . injured premises; and, ip. such case, the stranger is liable only for the payment, or expense necessarily incurred. ' ' '</p> <p>Wood v. Griffin, 46 N. H. 231, approved and followed.</p> <p>4. Effect of Express upon Implied Covenants in a Lease.</p> <p>Where the parties to a lease of real property have expressly covenanted to repair, it seems that the express covenant takes Hie place of the implied covenant, and becomes the measure of the tenant’s liability.</p> <p>C. Eight of Tenant against Trespasser where Tenant has Covenanted to Repair.</p> <p>It being admitted that in a case in which the tenant has expressly covenanted to repair, such tenant has a right to maintain an action against a stranger committing waste, for injuries done to the freehold, held, that such right of action does not accrue in favor of a tenant until he has paid or satisfied his landlord, or repaired the premises.</p> <p>8. Complaint Failing to State Satisfaction or Repairs Made, is Demurrable.</p> <p>A complaint setting forth the fact of a lease containing a covenant by the tenant to repair, and an injury to the freehold by a trespasser, (defendant in the action,) and further alleging that, by reason of the tortious act of the trespasser, the tenant (plaintiff in the action) lias become, and is, absolutely liable and indebted to the landlord for the damages resulting from the trespass, viz., tlio necessary cost of repair, but which fails to aver that, the landlord’s claim has been satisfied, or that any expenditures in i;epair have been made by the tenant, does not state facts sufficient to constitute a cause of action.</p>

<p>1. Customs Duties—Erroneous Classification of Importations—Action to Recover Excess.</p> <p>In an action to recover the excess of duty charged for the importation of certain iron which was classified by the collector bf the port of importation as “ axles,” instead of “ hammered iron,” whether such-classified iron was proper is a question of fact, to be tried by a jury, and if the jury have any doubts as to whether or not such iron was properly classified and charged for as 11 axles,” they should give the plaintiff the benefit of such doubt, and find a verdict for him.</p> <p>2. Same—Burden of Proof—Plaintiff to have Benefit of Doubt.</p> <p>In such a case, as in all other civil cases, the case is to be decided by a preponderance of proof. The burden of proof to show that the articles were dutiable is on llie government,; and the government, by a fair preponderance of proof, must establish what they claim in that regard.</p> <p>3. Same—Degree of Proof.</p> <p>If the articles wore in fact “ axles,” such as named in the statute, less prooi would l>e reqirml to show that they were understood to be so in commercial transactions; but if they were not in fact “ axles,” greater evidence would be required to show that they were understood to he axles in the commerce and trade of tho country, and so recognized.</p> <p>4. Bamf.—Names of Importations in Tariff Laws—Construction.</p> <p>Tho names given to the different articles in the tariff laws are to bo understood and construed to mean what they were understood to moan in the commerce and trade of the country, and among those engaged in trade and commerce at the time of the passage of the acts, and as recognized by the customs department at the same time, and not at periods since the passage of the law.</p> <p>5. Same—How Kkoognized in Commerce.</p> <p>The commercial character of importations does not depend upon the mere fact that they were or were not finished axles, but whether they were undersi ood and recognized in commerce and the business of trade as axles, by those engaged in such trade, at the time of the passage of the law.</p> <p>6. Same—.Measure of Damages.</p> <p>If the jury find for the plaintiff they should render a verdict in his favor for ilie difference between the rates of duty charged and the proper charge, with interest from the time tho sum of money was paid until the first day of the term at which the case is tried.</p>

<p>On Writ of Error.</p> <p>This was an action of debt in the district court, on five warehouse bonds, for the balance of duties alleged to be due the United States on tobacco imported by defendants. On two of the bonds there is no contest.</p> <p>(L) On the eighth of October, 1877, 589 bales of tobacco wore imported and entered for warehouse, the tobacco weighed, and bond No. 399 executed. Withdrawals of bales of tobacco covered by this bond were made in October, November, December, 1877; January, February, March, June, and July, 1878; and the duties paid on each withdrawal according to weights ascertained OctoSer 8, 1877, the date of bond.</p> <p>(2) On the twentieth of October, 1877, 184 bales were imported and entered for warehouse, and on the twenty-seventh of October, 1877, the tobacco was weighed and bond 402 executed. Withdrawals were made in October and November, 1877, and January, February, March, May, June, July, October, and December, 1878, and the duties paid on each withdrawal, according to weights, October 22,1877.</p> <p>(3) On the twenty-ninth of October, 1877, 71 bales of tobacco were imported and entered for warehouse, the tobacco was weighed, bond 403 executed, withdrawals were made October and November, 1877, January, March, May, June, and July, 1878, and the duties paid on each withdrawal according to weights ascertained October 29, 1877.</p> <p>On the fourth day of May, 1878, there being in the bonded warehouse 34 bales covered by bond 399, 24 bales covered by bond 402, and 16 bales covered by bond 403, certain inspectors, the collector of customs, and the regular weighers, reweighed 19 bales—10 of. 399, 3 of 402, and 6 of 403—of this tobacco, and found there was a difference in favor of the government, and estimated that on the whole of the tobacco covered by three bonds, between the tare originally allowed (at the date of entry for warehouse) and that found on reweighing, May 4, 1878, there was a difference of 1,812 pounds in favor of the government, the duties on which amounted to'$634.20. No record was made. Subsequently the remainder of the tobacco was all withdrawn, and the duties paid according to first weights, and the collector made no demand for the additional duties until a reliquidation was ordered by the secretary of the treasury, January 9,1879, and on the twelfth of April, 1879, this suit was brought to recover, the amount claimed.</p> <p>The defendants pleaded payment of duties on original weights and delivery, and that no demand had been made for additional duties within one year from the date of entry.</p> <p>On the trial of the case the following charges to the jury were requested :</p> <p>(1) If the jury find from the evidence that if, at the time the balance of duties was found to be due the United States as alleged, all the merchandise covered-by the bonds sued on had not been delivered to the agent, owner, or consignee, and all the duties had not been paid, they must find for the plaintiff ; (2) that if the collector failed to properly enter up the duties, as found due May 4, 1878, the plaintiff should not he prejudiced thereby, for the government is not responsible for the laches of its officers; (3) that if the jury find from the evidence that the amounts claimed have not been paid, they must find for the plaintiff in the full amount claimed on each bond, with interest at 6 per cent, from May 4,1878.</p> <p>Which said instructions were refused by the court, and the following instruction was'given:</p> <p>“The only question is whether one year had elapsed from the date of entry contemplated by section 21, act of June 22, 1874, and the time of the final determination or liquidation of duties upon which this suit is brought; ami if whether, within that year, all the goods entered under bonds 399, 402, and 403 had been delivered to the importer, and the duties determined within that year had been paid.</p> <p>“I instruct you that the dates of the entries contemplated in this case were the dates of original entry for warehousing, and the date of such subsequent liquidation, upon which this suit is brought, was the date of reliquidation by the collector, January 16,1879. The time elapsing had been more than a year, and the goods had all been delivered, and the duties determined at that time paid.</p> <p>“ You will, therefore, not find for the plaintiff on the first three bonds; but as to the amounts due on the other two bonds;' viz., 422 and 424, there has been no contest. You arc, therefore, instructed to find for the plaintiff in the amount of §477.05, claimed to be due on bonds 422 and 424, with interest at 6 per cent, per annum 1'rom January 16, 1879.”</p> <p>To which refusals to instruct, and to the instruction as given, exceptions were taken, and the case comes up on the correctness of the court’s rulings.</p>

<p>1. Duties—Shrinkage in Weight.</p> <p>Wlioro a cargo of coke, imported from Wales, by reason of evaporation of the moisture contained in it during the voyage, weighed several tons less than when shipped, held, that duties could only bo legally collected on the actual weight at the time of the importation, and not on the weight shown by the invoice.</p> <p>2. ItF.GUI.ATEON OF THE SECRETARY OF TIEB TREASURY.</p> <p>A regulation of tlie secretary of the treasury, that dtities shall be collected according to the invoice, unless the importer accounts, by proofs, for the discrepancy between the amount shown by the invoice and the actual weight at the timé of importation, is no defense to an action to recover the duties exacted from the importer on the difference between the amount acttially imported and the amount shown by the invoice to have been shipped.</p>

<p>1. Patent Telegraphic Printing Instruments—Infringement.</p> <p>The third claim of the reissued patent, No. 3,810, granted to plaintiff, as assignee of Edward A. Calahan, January 25, 1870, for an improvement in telegraphic printing instruments particularly designed for registering the prices of stocks, is infringed by machines made under the Wiley patent, No. 227,868, but those machines are not an infringement of the original patent granted to Henry Van Hoevenbergh, April 21, 1868.</p> <p>2. Same—Beissue—Jurisdiction of Commissioner of Patents.</p> <p>Power is conferred upon the commissioner of patents to cause the specification of a patent to be amended, on application for reissue, so as to fully describe and claim the very invention attempted to be secured by the original patent, ■ and which was not fully secured thereby in consequence of inadvertence, accident, or mistake.</p> <p>3. Same—Borm of Petition.</p> <p>It is not indispensable that the petitioner, in his application for a reissue, should use the exact phraseology of the statute, if he employs language which actually convejrs its legal meaning.</p>

<p>1. Patents for Inventions—Injunction Pendente Lite—Infringement.</p> <p>An injunction pendente lite, to restrain a defendant from the infringement Of a patent, will not be granted when the validity of such patent has never been judicially determined and is in doubt.</p> <p>■2. Same.</p> <p>The questions in regard to the validity of the plaintiff’s patent, and which prevent a preliminary injunction, stated.</p>

<p>Patents fob Inventions—Public Use.</p> <p>Public use of an invention, unless by the patentee himself, for profit, or by his consent or allowance, will not work a forfeiture of his title, as forfeiture is not favored unless it clearly appears that the use was solely for profit, and not with a view of further improvements or of ascertaining its defects, or for any other purpose of experiment in reducing the invention to Dractice.</p>

<p>1. Patents for Inventions—Reissued Patent No. 4,3G4 Sustained—SchilliNger Pavement.</p> <p>Reissued letters patent No. 4,364, granted to Jolni J. Schillinger, May 2, 1871, for an “Improvement in Concrete Pavements,” compared with British patents No. 7,489, of 1837, to Claridge, No. 330, of 1852, to Oliesneau ; No. 2,659, of 1855, to Coignet; No. 771, of 1856, to Be La Haichois; No. 7,991, of 1839, to B’l-Iarcourt; No. 9,737, of 1843, to Austin; and United States patents No. 56,503, July 24, 1866, to Huestis; and No. 5,475, March 14,1848, to Russ,—and sustained as a patentable invention, not anticipated by said patents.</p> <p>2. Same—Ine’ringement.</p> <p>The Schillinger patent was infringed by the pavement of defendant, and an injunction, and an account of profits and damages, should be decreed.</p> <p>3. Same—Invalid Claim in Reissue.</p> <p>The invalidity of a claim in a reissue does not impair the validity of a claim in the original patent which is repeated and separately stated in the reissue.</p>

<p>1. Patents for Invention—Use in Foreign Country.</p> <p>A simple use of an invention in a foreign country, if not patented or described in any printed publication, is not a bar to the obtaining of a valid patent in this country.</p> <p>2. Same—Combination—Anticipation.</p> <p>Wliere the claim of a patent is a combination claim, consisting of several elements that co-operate together to produce the device claimed, such device can only be anticipated by a prior device, having identically the same elements, or the mechanical equivalents, of those that are not used. It will not do to find a portion of these elements in one machine, and a portion in a second, and a third, and so on, and then say that the device is anticipated.</p> <p>3. Same—Patent No. 108,898, and Reissues Nos. 8,025 and 8,'026, Sustained.</p> <p>Letters patent No. 108,898, granted to Herman Fischer, November 1,1870, for improvements in apparatus for pumping fluid from vessels; was not anticipated by letters patent No. 106,008, of August 2, 1870, granted Abel A. Webster, and the reissues Nos. 8,025 and 8,026 of said original'patent are valid, under Miller v. Brass Co. 104 U. S. 350, and reissue No. 8,026 is infringed by the device used by defendants, and its use should be enjoined.</p>

<p>1. Collision™Steamer Too Near Wharf—Fault.-</p> <p>A small stern-1wheeler, after giving tlie usual preliminary signal, a long whistle, was moving slowiv and carefully out from her slip, about 2 o’clock in the day, when her stern came into collision, about 90 feet from the wharf, with a steamer that was proceeding at a moderate rate of speed, but within 100 feet of the wharf, llcul, that 1ho steamer was in fault in proceeding so near to the wharf, ami in not noticing the signal of the stern-wheeler ami avoiding the collision.</p> <p>2. Same—Failure of Small Stern-Wiieiglkr to Have Lookout at Stern —Damages.</p> <p>It was not a fault on the part of the stern-wheeler not to have a lookout at her stern, and, as no othe.r fault is alleged, the whole damage for the collision must be borne by the steamer.</p>

<p>1. Tug and Tow—Negligence—Unseaworthy Boats.</p> <p>Where boats in a tow, by their condition, and their loading, arc obviously unfit to encounter the perils oí a proposed trip, the owners of the tow and of the tug, both concurring in tlte trip, should be held liable in case of loss or damage.</p> <p>2. Same—Tinrs or Extba Hazard.</p> <p>The above rule does not necessarily apply to all trips, about New York bay, of open-dock coal-barges, but only to trips under circumstances of evident hazard.</p> <p>3. Same—Owneb of Goods Chargeable with Knowledge.</p> <p>The owner of goods is legally chargeable with knowledge of the obvious gen eral character and description of the vessel in which his goods are shipped; and if he employ a boat obviously unlit for the trip, and loss happen thereby, as against third persons also chargeable with negligence, he can recover hut half his damages.</p> <p>4. Same.—Shipper oe Coal.</p> <p>An owner of coal, shipping it on board an open Boat, has a right to assume that necessary care and caution will be exercised, both by her owner and by the tug, in not going out in hazardous weather; and if the latter do so, and the owner of the coal is not privy nor consenting thereto, he may recover of either his whole damage.</p> <p>5. Same—Rhodian Law.</p> <p>Though under the Rhodian law the shipper put goods on an old vessel at his own peril, by modern law he is protected by an implied warranty of seaworthiness; and, as against, third persons, he can recover his full loss, unless her unfitness were actually known to him, or was a matter of such general .notoriety that his knowledge or negligence is presumed.</p> <p>6. Same—Action fob Damages—Dormer Suit a Bar.</p> <p>The owner of a vessel, in case of injury to the vessel and cargo, may maintain an action for damage to both against another vessel causing the injury; and after the latter has been once arrested, and given bail for the whole damage, if the owner of the cargo afterwards cause all claim on his account to be withdrawn from the suit, he cannot, ordinarily, again maintain an action against the same vessel inrem, and arrest her a second time for the same damage.</p> <p>7. Same—Agbeement not to Sue—Second Suit in Rem.</p> <p>But where an agreement was made with the owner of the cargo that he would not bring suit, but that his claim should be settled according to the event of a suit of the owner of the vessel injured, and pursuant thereto he withdrew his claim as soon as lie discovered that it was embraced in the other suit, held, that he might afterwards maintain a second suit im rem pursuant to the agreement.</p>

Admiralty Appeal. The libelant, a pilot, was taken on board the steam-ship at the mouth of the Mississippi river, and while on the voyage up the river to New Orleans ho was very seriously bitten by a dog, which had been brought from Europe for sale in this country, and which was, kept in the cabin, chained under the table. This suit was brought against the vessel in rein for damages suffered thereby by the libelant.

<p>1. Duty op Ship to Bind Berth.</p> <p>In the absence of any agreement or contrary usage, it is the duty of a general ship to find a bertli where she can discharge on the wharf.</p> <p>2. Same—Bill op Lading.</p> <p>On a bill of lading providing that iron rails should be discharged “ at the same place as the other cargo—onlyone place,” held, the duty of the ship to go to a berth where the rails could be discharged on the wharf.</p> <p>3. Same—Detention—Demurrage.</p> <p>Where the bark A., while discharging petroleum barrels before reaching her berth, gave notice of readiness to discharge the iron rails, and was at a dock where the privilege of landing the rails was refused, even for the necessary purpose of weighing them in the course of discharge, and negotiations in respect to the discharge from the vessel upon lighters were not completed through the mate’s not giving unqualified permission to weigh the iron on the ship’s deck, held,, that the defendant was not legally in default, and was not liable for demurrage for the vessel’s delay at the dock where she was not allowed to land the rails.</p>

<p>1. Coujsion— Oanaa-Babge.</p> <p>If a canal-boat, after being assigned a bortli -within the slip, is moved so as to project beyond the pier, and there left with no one on hoard, it is at her own risk of collision with other vessels making a landing.</p> <p>2. Same—Damages.</p> <p>The- steamer C., in making a landing at the pier below, having struck the bows of the canal-boat in rounding about, held, she was also chargeable with fault, as there was room for her to land without coming up so far as the canal-boat ; and the damages of the collision were divided.</p> <p>3. Same—Set-gee.</p> <p>Where the owner of the cargo recovers his whole damage from one of twi vessels in fault, the vessel sued may set-off in another suit between the owners of the two vessels, tried at the same time, the one-half of the damage to tin cargo which ought to he paid by the other vessel.</p>

<p>1. Removal of Cause—Rev. St. $ 639—Act of March 3,1875, § 6.</p> <p>Tlie act of March 3, 1875, § 6, refers to the stage of tlio proceedings in the suit at which the proceedings in the circuit court are to commence, rather than to the form, force, or eifect of the pleadings in the cause previously had, leaving the provisions of Rev. St. § 639, in force as to them; and if the pleadings are in form, and verified, so as to be regular and valid in the state courts, the intention and effect of the statute and rules would seem to be that they are to be taken to be so on reaching the federal courts in cases of removal.</p> <p>2. Suit by Stockholder—Equity Rule 94.</p> <p>Equity rule 94 applies only to bills brought by a stockholder against a corporation and others, “ founded on rights which may properly bo asserted by the corporation,” and does not apply to a suit brought by a stockholder, not “founded on such rights,” against a corporation to restrain corporate action, and against the president for discovery merely.</p> <p>3. Motrin fob Injunction-Affidavits.</p> <p>On motion for a preliminary injunction, the case, with ils grounds for relief, must bo made by the bill itself, and the scope of the bill cannot be enlarged by affidavits filed.</p> <p>4. Corporation—Power to Pledge Securities for Debt.</p> <p>The power of a corporation to pledge securities owned by it for the payment of its debts is included in the power to sell such securities for that purpose.</p> <p>5. Injunction Denied.</p> <p>In this case the averments of the bill are too indefinite to entitle complainant to a preliminary injunction as moved, and the motion is accordingly denied.</p>

On the twenty-second of April, 1882, a contract was entered into between the plaintiff railway company and Eust & Ooolidge, the defendants, for building a railroad bridge across the Arkansas river.

<p>Towns op Waldwick and Moscow, Wisconsin—Liability for Railroad Aid Bonds—Division op Old Town.</p> <p>As the evidence in this case shows conclusively that the people of both of the present towns of Waldwick and Moscow, formed by the division of the old town of Waldwick, in Iowa county, Wisconsin, considered and believed, at the time of the division of the old town of Waldwick, that each town was liable for its just- proportion of the aid voted to' the Mineral Point Railroad Company, represented by the bonds of the old town of Waldwick, for aid voted thereto, and the division was voted on that understanding, and would not have been voted except for such understanding, and the construction of the order of the supervisors of the original town making the division, and the liability of both towns for their respective portions of the debt, have been repeatedly recognized by the people and officers of said towns, and acted upon accordingly for a period of 20 years or more, although the order of the board of supervisors was somewhat equivocal, it is held that the town of Moscow should be held liable for the proportion of said debt then assumed by it, although there majr be doubt as to the legal effect of the action dividing the two towns, and that the town of Waldwick should pay the balance.</p>

<p>1. Fraudulent Conveyance.</p> <p>Upon examination of the evidence in this case, it appears that the deed sought to bo set aside was intended as a fraud on the creditors of the grantor, and the prayer of the bill that it be so declared is granted.</p> <p>2. Same—Knowledge of Grantee.</p> <p>Whore the grantee in a deed made to defraud the creditors of the grantor knows of the fraudulent intent of the grantor, or has knowledge of facts sufficient to excite the suspicions of a prudent man and put him on inquiry, he makes himself a party to the fraud.</p> <p>3. Same—Inadequacy of Consideration.</p> <p>Where the consideration expressed in a deed of land is far below tbe value of the land as known to grantor and grantee, this Inadequacy of price is a strong circumstance in the case tending to show a fraud on creditors and a secret trust.</p> <p>4. Limitation in Bankruptcy—Rev. St. § 5057.</p> <p>Section 5057 of the Revised Statutes is in effect a statute of limitations, but, like any other statute of limitations, must be taken advantage of either by demurrer or answer, or it will be waived.</p> <p>5. Same—Plea aster Answer to Merits.</p> <p>Although a court may in its discretion allow the plea of statute of limitations to bo put in after an answer on the merits, in an equity case, under the circumstances of this case such plea cannot be allowed at that stage of the case.</p> <p>6. Same—Discovery of Fraud—Laches.</p> <p>Where a party injured by a fraud remains in ignorance of it, without any fault or want of negligence or care on his part, the bar of the statute of limitations does not begin to run until the fraud is discovered, though there are no special circumstances or efforts on the part of the party committing the fraud to conceal it from the knowledge of the other party; and as, in this case, the suit was instituted promptly after the discovery of the fraud, the statute is not a bar to the action, nor can complainant be held to have been guilty of laches in not sooner instituting suit.</p> <p>7. Discharge of Bankrupt—Bar to Suit against Grantee.</p> <p>The decision and order of a bankruptcy court granting a discharge of a bankrupt, on an issue made by a creditor of the bankrupt, objecting to such discharge, cannot be considered a bar to a subsequent suit by such creditor, as the purchaser of land sold by the assignee of the bankrupt, aguinst a grantee of such land in a conveyance that is a fraud on the creditors of the bankrupt.</p> <p>8. Inadequacy of Consideration.</p> <p>The fraudulent grantee of the bankrupt, in such case, cannot set up as a defense that the creditor purchased said land for less than it was really worth.</p>

<p>1. Vendor’s Lien—Equitable Owner.</p> <p>Although tlio general rule is that a vendor’s lien on real estate for the purchase money is given to the person who owns the title and conveys, it is not indispensable that the legal title should have been vested in the party who claims the lien, nor that the deed or conveyance should have been actually executed by him. If he is the owner of the land in equity, and controls the legal title, and causes the conveyance to be made by the holder of the legal title to a third party, and is entitled to the purchase money, he is entitled to a vend- or’s lien therefor.</p> <p>2. Same—Collateral Security—Waiver.</p> <p>A vendor’s lien is defeated by any act upon the part of the vendor manifesting an intention not to rely upon the land for security; as, for example, taking a distinct, separate security, as a mortgage or a bond, or note, with security; but the mere acceptance of the vendee’s draft, not as security, lmt as payment of the purchase money, when such draft is not paid by the drawee, will not he considered a waiver of the lien.</p> <p>3. Same—Mortgage on A etkr-Acquired Property op Vendee.</p> <p>Where land is conveyed to a railroad company, which has given a mortgage covering after-acquired property, such mortgage does not become a first lien on the land, but is subject to the vendor’s lien for unpaid purchase money, and, as t.o such land, the mortgagee is not a purchaser for value.</p> <p>4. Same—Lis Pendens—Bona Bide Purchaser.</p> <p>Where one of the defendants, in a proceeding to Foreclose a railroad mortgage in a circuit court of the United States, by leave of the court, proceeded in the state court to establish a vendor’s lien on the road, a purchaser of the property at the foreclosure sale is chargeable with notice of the proceedings in tiie state and United States courts, and he is put upon inquiry as to the alleged vendor’s lien.</p>

<p>1. National Banks—Individual Liability of Stockholders — Act of June 30, 1876.</p> <p>Tlie bill contemplated Dy tlie second section of tlie act of June 30, 1876, to enforce tlie individual liability of stockholders in a national banking association that has gone into liquidation, need not purport expressly on its face to be filed by the complainant on behalf of himself and all other creditors, for the law would give it that effect and the court would so treat it; but, if this was necessary, the bill might be amended in that respect by leave of the court.</p> <p>2. Same—Creditor’s Bill—Obtaining Priority.</p> <p>The manifest intention of the national banking act is a distribution of its assets, in case a bank becomes insolvent, equally among all the unsecured creditors ; and the diligence of a creditor who files a creditor’s bill can give him no greater rights than are given any other creditor to share in the distribution of the assets. and a prayer in the bill that such creditor be given priority over other creditors will not be granted.</p> <p>3. Same—Amended Bill—Multifariousness.</p> <p>Where the original bill filed before the passage of the act of June 30, 1876, was amended after the passage of that act so as to make the individual shareholders defendants, and subject them to liability, such bill will not be considered on that account multifarious.</p> <p>4. Same—Effect of Act of June 30,1876.</p> <p>The act of June 30, 1876, did not create any new liability on the part of the stockholders, or provide for enforcing such liability against them under circumstances where U could have not been enforced before that act was passed. This act is not retroactive, and does not create rights which did not exist prior toils passage, as against existing stockholders, though it may be construed as limiting the tribunal in which proceedings are to be instituted for enforcing the stockholder’s liability to a United ¡States court, instead of allowing creditors to resort to any competent tribunal with equity power.</p> <p>5. Bame—Order Confessing Plea of Bankruptcy.</p> <p>Entering an order that “the complainants confessing the pleas of bankruptcy of defendants, it is ordered 1 liat this case be stayed as to them,” does not amount to a final decree, but simply confesses the fact's set up in tho_ plea, leaving the court to adjudge the law upon such facts whenever the main cause is heard.</p> <p>6. Same—Bankruptcy of Stockholder a Bar.</p> <p>Where the original bill was filed February 3, 1875, before the passage ol the act of Juno 30, 1876, and a receiver was appointed February 26, 1875, thereunder, and an amended bill, making the individual stockholders defendants, was iiied October 5, 1876, and after the filing of the amended bill certain of the defendants were adjudged bankrupts, tbeir pleas of bankruptcy will constitute a sufficient bar iii their behalf.</p> <p>7. Same—Evidence of ¡Number of Shares Owned.</p> <p>Where it is admitted by the defendants that they were shareholders in a national bank, but the number of shares respectively held by them is not admitted, the names of the shareholders and the number of shares held by each, as shown by the stock ledger, and stubs of the stock certificates, and the dividend sheets of the bank on which they respectively drew the last dividends, will be prima fade, proof of the number of shares held, and, unless rebutted, sufficient.</p> <p>8. Same—Transfer of Shares after Failure of Bank.</p> <p>After a national bank has become insolvent and has closed its doors for business, its shareholders’ liability to creditors is so far fixed that any transfer of tlieir shares must be held fraudulent and inoperative as against the credil ors of the bank.</p>

<p>Municipal Corporations—Obtaining Property without Authority—Restitution or Compensation.</p> <p>The obligation to do justice rests upon all persons, natural and artificial, and if a municipality obtains money or property without authority, the law, independent of 'any statute, will compel restitution or compensation.</p>

<p>1. Deed of Gift from Testator to Devisee— Valuable Consideration.</p> <p>A devisee, prior to the testator’s death, has no present estate or recognizable legal interest in the property devised; and a deed from the testator to the devisee, which is a charge against his future expected interest only, cannot be deemed given or received upon any valuable or adequate consideration.</p> <p>2. Same—Advancement—Succession Tax—Act of June 30, 1864, § 132.</p> <p>A deed of gift to a son, though made as an advancement, and, as such, chargeable against the son’s ultimate share of the father’s estate under a will existing at the time of the deed, is a “succession,” under section 132 of the act of June 30,1864, as a conveyance without “ valuable and adequate consideration,” _and is chargeable with a tax of 1 per cent, on the value of the property conveyed.</p>

Exceptions to Register’s Report. The subscription list or articles of association of the Glen Iron Works, a corporation, provided, inter alia, for a capital of $140,000, and the subscribers agreed to give their notes therefor without interest; not to be liable at any time to an assessment of more than 50 per centum of their face, nor to an assessment of moro than 20 per centum within 18 months after organization.

<p>1. Bankruptcy—Assignee’s Account for. Attorney’s Charges.</p> <p>An assignee’s account for moneys paid to an attorney for services not authorized by the court cannot.be allowed beyond what the evidence shows to be reasonable, having reference to the amount and circumstances of the estate.</p> <p>2. Same—Concealment of Bankrupt’s .Estate.</p> <p>It is the business of the assignee to make reasonable preliminary inquiries as regards the facts of alleged concealment of the bankrupt’s property</p> <p>3. Same—Assignee Claiming for Services as Attorney.</p> <p>An attorney, in performing the ordinary duties of the assignee, cannot claim from the estate compensation as for professional services.</p> <p>4. Same—Expense in Searching for Property.</p> <p>An assignee cannot be permitted to expend the chief part of the moneys collected by him in the employment of an attorney to find additional property, which results in nothing.</p> <p>5. Same—Allowance for Attorney’s Pees.</p> <p>Where in 1874 an assignee received $1,250 upon sale of the bankrupt’s book-accounts about two months after the adjudication, and in 1883 presented his account, in which $171.20 was charged for his disbursements and $1,068.36 for moneys paid to his attorney for alleged services, none of which was over authorized by the court, and the attorney being dead and no bill of items being produced, and the testimony as to services being vague and general, held, that $300 only should be allowed for the attorney, and that’the assignee should account for the residue, with interest,—the money having been used by his own business firm.</p>

<p>1, Bankruptcy—Kquitatshr Dower.</p> <p>Under tlie Revised Statutes of Now York a widow is not entitled to equitable dower except in lands of which the husband was equitably seized at the time of his death, and has no interest in contracts of purchase which the husband aliened in his life-time ; nor has she any inchoate dower unless the husband have a valid and recognizable equitable estate.</p> <p>2. Same—Partnership Property—Tithe in Name oe Partner—Trust.</p> <p>Wh, re four out of six members of the firm of W. A. R. & Co. contributed the consideration for the purchase of valuable real estate which was afterwards used in the firm business, and the title, by the arrangement and concurrence of the four associates, was taken for convenience in the name of W. A. R. only, and the rents for many years were divided ratably among the four, according to their contributions of the purchase money, until the bankruptcy of all of them, when the property was transferred, first to a voluntary assignee and afterwards to the assignee in bankruptcy, held that, under the New York Revised Statutes, the other three associates had no recognizable equitable (¡state in the property, and that their wives had' no inchoate right of dower therein. Held, also, that if the associates were regarded as partners in a particular purchase, still the property would be treated as personalty not subject to dower.</p>

<p>Patents for Inventions—Letters Patent Nos. 178,869 and 209,826 Considered.</p> <p>' Claims 5 and 6, in letters patent No. 178,869, dated June 20,1876, for an improved process for shaping a heel counter or stiffener for boots and shoes, and for improvements in machinery for the manufacture of counters, and claims 1, 3, and 4, in letters patent No. 209,826, dated November 12, 1878, for improved machinery for the same object, issued to John II. Moffitt, held valid, and the unauthorized use of the improvements therein described by defendant restrained, and an account of urofits ordered.</p>

<p>Patents foe Inventions—Electeo-Defosition oj? Nickel—Patents Nos. 93,-157 and 102,748 Sustained—Infeing-embnt. ''</p> <p>Letters patent No. 93,157, granted to Isaac Adams, Jr., August 3, 1869, for an “ improvement in tlie electro-deposition of nickel,” and letters patent No. 102,748, granted to Isaac Adams, Jr., May 10,1870, for an “ improvement in the electro-deposition of nickel,” sustained; and the first and fourth claims of patent No. 93,157, and both of the claims of patent No. 102,748, held infringed by the solutions used by defendant, and a decree to that effect entered.</p>

<p>1. Parents for Inventions—Reissued Patents Nos. 8,826, 8,443. and 9,493— Infringement.'</p> <p>Reissued patent No. 8,826, granted to the Eclipse Windmill Company, July 29,1879, as assignee of original patent, granted to L. II. Wheeler, September 10, 1867, and reissued patent No. 8,443, granted to Palmer C. Perkins, October 8, 1878, the original of which was issued August 18, 1869, held, not to be infringed by the “ improved May windmill,” manufactured by the defendant. Held, further, that the “improved May windmill ’’’does infringe the third and •fourth claims of reissued patent No. 9,493, issued to the Eclipse "Windmill Company, December 7, 1880, as assignee of the original patent, granted to William H. Wheeler, dated October 20, 1874. ,</p> <p>2. Same—Reissued Patent No. 8,443.</p> <p>Whether the reissued Perkins patent is valid, qumre.</p>

<p>1. Patents for Inventions—Infringement—Hoveltt.</p> <p>The pocket device shown in the sixth claim of reissued patent Ho. 5,590, dated October 7,1873, granted to Isaac Hyde, assignor of O. J. Backus, for an “improvement in combined water-wheels and sewing-machines,” (original patent having been issued September 24, 1872, Ho. 131,616,) is void for want of novelty, having been clearly shown in the provisional specifications of James Pilbrow for English letters patent in 1857.</p> <p>2. Same—Water Motors.</p> <p>The first claim in letters patent Ho. 146,120, dated January 6, 1874, issued to O. J. Backus for an “ improvement in water motors,” is void for want of novelty, and the second therein made is not infringed by the Tuerk water motors, claimed to he an infringement of the Baokus patents.</p>

In Admiralty. The brig Mary E. Dana, from St. Simon’s Mills, Georgia, bound for Now York, loaded with 100,000 feet of lumber, when about 50 miles E.. N. E. off Gapo Lookout, sprang a leak in a gale of wind, and,at 9 p. m. of Tuesday night, the seventeenth of January, 1882, was leaking so badly that her master, Capt. Benson, found it necessary to make for land. The gale abated on Wednesday morning, and on-Thursday morning, the 19th, the brig had anchored off Ocracoke inlet.

In Admiralty. STATEMENT OP PACTS PREPARED BY THE JUDGE. The British steam-ship Egypt, of Liverpool, England, Robert Reavely, master, went ashore off Paramore’s island, Yirginia, at about noon on Thursday, the eleventh of January, 1883. She was a vessel of 1,550 tons burden, with iron compartments and water-ballast tanks; of great length, and proportionally narrow beam, and difficult of management when aground.

<p>1. Stranding of Vessel—Jurisdiction—Common Carries—Exemption in Bill of Lading from Liability for Negligence.</p> <p>The British steam-ship M. was stranded in Church h&y, on tho coast of Wales, while on a voyage from New York to Liverpool. Insurers, who had paid losses on goods which were on board, filed libels against the owners of the steam-ship in personam, to recover the amount so paid by them, averring that the steamer was stranded by negligence of the master of the steamer. The bills of lading contained a clause exempting tlie owners of tho steamer from a loss by stranding, even though caused by negligence of the master. Held, that the liability of tlie respondents must 'be determin'ed by tlie law of the United States: (that, under the case of Railroad Co. v. Lockwood, 17 Wall. 357, in the supreme court of the United States, as well as other cases in tlie circuit and district courts, the provision in the bills of lading exempting the ship-owners from the consequences of the negligence of the master was null and void; that tlie libelants were entitled by subrogation to tlie rights of tlie owners of the goods; and that tlie case, therefore, must be determined by the question whether there was negligence which caused tlie stranding.</p> <p>2. Same—Negligence in Navigation—Burden of Proof—Subrogation of Insurers.</p> <p>The facts on which the question of negligence turned were substantially as follows : The steamer went ashore about 2:45 a. m. in a dense fog, and the shore was not seen in time 1 o stop the vessel. The master and his officers, who were on the bridge1, averred that the fog was a fog on the land only, and that, till within a few minutes before tlie vessel struck, it bad been a fine, clear night, and they bad no idea of there being a fog. The master claimed that he had passed Tuskar light, on tho coast of Ireland, the evening before, about four miles off, as usual, with a, flood tide ; that the vessel was kept on the usual course of ÍT. 42 dog. E. up tho channel; that he next made South Arklow light, on tho coast of Ireland, which showed him that the flood tide was carrying his vessel more than usual over towards the Lrish coast; that tho next light to be made was tlie South Stack light, on the coast of Wales ; that instead of making that light bearing, E. N. E., lie made it S. E. by E., a point forward of his vessel’s beam; that ho judged the flood tide had carried her so far over towards the Irish coast that she was 15 miles from that light; that ho had that light in sight an hour, and then lost sight of it a point oil liis vessel’s beam; that as the light on the Skerries (which is a light about 8 miles N. 42 dog. E. from tho South Stack) was not then visible, lie changed his course to E. % 8., and ran on that course for live minutes, when he heard a gun, which lie knew to be the fog-gun on the North Stack, about two miles from the South Stack, and bo thought it sounded from four to six points abaft his starboard beam, whereupon lie resumed his original course of N. 42 deg. E., and 15 minutes thereafter the vessel went ashore. Held—</p> <p>That, inasmuch as the bills of lading contained an exemption from loss caused by stranding, the burden was on the libelants to prove that the stranding was caused by negligence of the master.</p> <p>That although doubt was thrown upon the master’s evidence that ho liad no suspicion of fog, by the fact proved that the lookouts on his vessel were doubled and tho whistle blown ; also upon his statement that ho ran his vessel at half speed, by the evidence of tho engineer in charge that the engines were run at full speed until just as the steamer struck,—still the case would be determined on the story told by the master himself.</p> <p>That from tlie place where tho steamer struck it was manifest that tho steamer could not liave been run upon her course of E. % S. for only five minutes, as the master said, for in order to do that she would have had to run over the land; that if the master did not note the time of his running on that course, directly towards a dangerous coast, under the circumstances he was guilty of gross negligence, and if he did note it, it was incumbent on him to have stated it correctly.</p> <p>That the result showed that the vessel, instead of being 15 miles off the South Stack light, passed it close at hand, and the master conceded that he must have done so ; that his story, therefore, of having had that light in sight an hour, and changing its bearing only two points while running at the rate of 14 miles an hour, could not be true.</p> <p>That at the point whore the master said he supposed he waswhen he lost the South Stack light, the light on the Skerries would have been visible, as was shown by the chart, and that the fact that he did not see the light on the Skerries should have told him that there was a fog; and that this fact should have raised a doubt in his mind as to the correctness of his opinion that his vessel had been carried over towards the Irish coast, and he should have heaved the lead, which would have told him where he was.</p> <p>That when the master heard the gun on the North Stack he was, as the result shows, east of it and in Holyhead bay, and if he knew that he was so, it was gross negligence' to take a course N. 42 deg. E.; and that he did know it, ' was fixed by his own repeated statement that, with his vessel heading E. % S., he heard the gun abaft the beam, and knew it was the gun on the North Stack.</p> <p>That the stranding was, therefore, due to a want of reasonable care and skill in the navigation of the ship by the master, and the libelants must have a decree for the damages by them sustained.</p>

In Admiralty. This is a proceeding in rem. The defendant steamer was libeled for an alleged marin’e tort, to the damage of the plaintiff’s property.

<p>1. Admiralty—Seamen—Personal Injuries—Maritime Law.</p> <p>A claim by a seamau to recover damages for personal injuries from a fall on board ship upon the high seas, through the negligence of others of the ship’s company, is governed by the rules of the maritime law, rather than of the municipal law, and the analogies of the latter are not necessarily applicable to the former.</p> <p>2. Same—Navigation of Ship.</p> <p>The navigation of a ship constitutes one common employment, for which all the ship’s company are employed. Neither the vessel nor her owners, therefore, would be liable, according to the principles of the municipal law, for injuries happening to a seaman through the negligence of any of his associates in the performance of their ordinary duties.</p> <p>8. Same—Ship Liable por Expense oe Nursing and Medical Attendance.</p> <p>By the maritime law, ancient and modern, a seaman, in case of any accident received in the service of the ship, is entitled to medical care, nursing, and attendance, and to cure, so far as cure is possible, at the expense of the ship,«and to wages to the end of the voyage, and no more.</p> <p>4 Same—Effect of Negligence.</p> <p>This right of the seaman is without reference to any question of ordinary negligence of himself or his associates, and is neither increased nor diminished by the one or the other.</p> <p>6. Same—Gross Misconduct.</p> <p>The only qualification arises from the willful and gross misconduct of himself or associates, in which case the expense may be charged against the wages of the wrong-doer.</p> <p>6. Same—Consequential Injuries.</p> <p>If after the seamau is wounded the officers of the vessel neglect to furnish proper treatment, semble, the vessel may be held for consequential injuries.</p> <p>7. Same—Claim of Excessive Damages—Libel Dismissed.</p> <p>Where the libelant, the cook, went down the fore hatch in the morning before light, by the direction of the steward, and was not sufficiently notified of the half-open hatch below, and in consequence fell through and was injured, and was subsequently treated and cared for at the ship’s expense, and received his wages to the end of the voyage, and thereafter filed this libel to recover $10,000 for permanent injuries, held, that the libel should be dismissed.</p>

<p>1. Collision—Fifth Situation—Section 4233—Rules 19, 22, 23.</p> <p>Where the steam-tug E. B., having two large ballast logs in tow, lashed to her side, was proceeding from Jersey City to Brooklyn, and the steamer B. was following her astern and somewhat to the eastward, and their courses converged by an angle of about two points, the steam-tug being on the starboard bow of the B., and the latter ran over and sank the tug, the tug having kept her course, held, that the situation was either that of an overtaking vessel, or the fifth situation in the Inspector’s Rules, and in either view by rules 19 and 22 of section 4233 of the Revised Statutes the steamer was bound to keep out of the way, and that the collision was wholly the fault of the latter.</p> <p>2. Same—Want of Lookout—Fault.</p> <p>Though the tug had no proper lookout, held, on the facts, that this fault in no way contributed to the collision, and therefore was insufficient to charge the tug with half the loss.</p>

The defendant, S. B. Packard, when United States marshal of the then district of Louisiana, seized the steam-boat Flavilla under an admiralty warrant issued by the district court. In the admiralty action, in due timo, a default was entered, and thereupon a decree condemning the vessel for a number of claims, aggregating more than her value.

<p>1. Conveyance to Husband and Wife.</p> <p>At the common law a conveyance to husband and wife, as such, made them tenants by entirety, and neither could dispose of the estate tints conveyed without the consent, of the other; but upon the death of either, the survivor was the sole owner of it.</p> <p>2. Same.</p> <p>Prior to June, 1863, if then, or even since, this common-law rule was not changed or modified in Oregon.</p> <p>3. Law of the State.</p> <p>The common and statute law of the slate, as expounded by the settled decission of its highest court, furnish the rules that govern the descent and alienation of real property therein, and the effect and construction to be given to conveyances thereof.</p> <p>4. Quitclaim, on Deed of Bargain and Sam.</p> <p>A quitclaim, or deed of bargain and sale, by an occupant of the public land in Oregon before lie became a settler tliereon under the donation act, passed only the possession, and does not affect an after-acquired estate in the same premises under the donation act or otherwise.</p> <p>5. Purchase of Adverse Tithe by Co-Tenant.</p> <p>In the case of a co-tenancy arising by descent, devise, or one conveyance, the purchase of an adverse title by one of the co-tenants will generally inure 1o the benefit of the other tenants; but in the case of a mere tenancy in common, this depends upon the circumstances of the case, as that the co-tenant used the co-tenancy, or 1he title, right, or claim under which it exists, or is claimed to exist, to acquire such adverse title.</p> <p>6. Same—By Tenant for Life.</p> <p>A purchase by a tenant for life of an adverse title will inure to the benefit ox the remainder-man.</p>

<p>1. Trust—Expenses op Executing—Deed Construed. •</p> <p>Where a large body of land is convej’-ed to trustees to secure the payment of the principal and interest of a great number of railroad bonds, which have a long time to run before maturity, and the grantor, the railroad company, in the trust deed reserves the right to sell the lands and pay the proceeds of the sales thereof to the trustee, after deducting expenses incurred in executing the trust, it may retain the proper amount for expenses in making the sales, and ' may also pay the taxes out of the proceeds thereof.</p> <p>2. Contract—Construction Adopted ry Parties to.</p> <p>Where the meaning oi' a contract is doubtful, the fact that the parties thereto at once adopted a particular construction, and for many years acquiesced in and acted upon it, should lead a court without hesitation to adopt that construction as the proper one.</p>

<p>Marine Insurance—Representations—Repairs to Vessel—Seaworthiness-Burden Off Proof.</p> <p>Where a vessel had put, into Shelburne, Nova Scotia, leaking and in distress, and repairs were recommended after a survey, and the vessel sailed for Yarmouth for repairs, and a memorandum of insurance was effected upon the cargo before her arrival at Yarmouth, the application for the insurance containing a statement that the vessel was to bo repaired at Yarmouth, held, in an action on the contract of insurance, that the requirement was only that such repairs as were necessary should be made, and if none were necessary none need be made; and that, although in ordinary cases the burden of proof in cases of defense of unseaworthiness of the vessel rests upon the defendant, in this case, with the statement that the vessel was to be repaired at Yarmouth, in the application, the burden rested upon the plaintiff</p> <p>Lunt v. Boston Marine Ins. Co. 6“ Fed. Rep. 562, followed.</p>

<p>1. Suit by Assignee—Foreign Judgment—Action on Original Debt—Pleading—Evidence—Bill oe Particulars.</p> <p>Where, a plaintiff is assignee of the original cause of action, such transfer to him is one of the facts constituting the cause of action, and should be properly-alleged in the pleadings; but where a judgment has been obtained in a foreign court., and the action is brought on the original debt and not on the judgment, and defendant has been fully advised by a bill of particulars of the nature of plaintiff’s claim, the court, on motion for new trial, may allow the pleadings to be amended nunc pro tunc, so as to render admissible the testimony showing the transfer or assignment of the claim to plaintiff offered on the trial.</p> <p>2. Same—Foreign Judgment—Merger of Original Debt.</p> <p>As the original debt is not merged in a judgment rendered in a foreign court, a certified copy of such judgment may be used as evidence by either party, in a suit on the original cause of action, without a formal allegation in the pleadings ; and if it settles the whole controversy between the parties it ought to be held conclusive.</p> <p>3. Domestic Judgments—Foreign Judgments—Effect.</p> <p>The authoritative character of a domestic judgment is founded,-among other reasons, on the constitutional provision which guaranties full faith and credit to the records and judicial proceedings of every state, while the rule as to foreign judgments rests upon considerations of comity; and though they are treated by the courts, in respect to their conclusiveness, as entitled to the same weight as domestic judgments, they do not, to the same extent as a domestie judgment, extinguish the Original contract debt.</p>

<p>1. St. Louis Boom & Improvement Company — Act op 1872 op Minnesota— Right to Compensation.</p> <p>The act of tho legislature of Minnesota, of February 24, 1872, relating to the Knife Falls Boom Corporation, authorizes the St. Louis Rivor Boom Company to receive, control, scale, deliver, and to take charge of all loose logs coming down the river within townships Nos. 49 and 50,—in fact, makes them bailees of such logs, with certain duties to perform in regard thereto; and the owners of such logs, whether they have requested the services or duties to be performed or not, are bound to compensate the company therefor.</p> <p>2. Same—Constitutionality op Such Act.</p> <p>Such an act of the legislature is not unconstitutional.</p> <p>3. NavigaiujE Streams—State Laws.</p> <p>Statutes passed by the states for their own uses,'declaring small streams navigable, do not make them so within the meaning of any constitutional provision, treaty, or ordinance of the United States.</p> <p>4. North-Western Territory — Original Act — Effect of Admission op State. ”</p> <p>The original ordinance concerning tho north-western territory ceased tó he of any force when congress, and a state organized out of such territory, chose to organize and admit such state into the Union.</p>

<p>1. Parol Evidence—To Explain Written Contract.</p> <p>While parol evidence is not admissible to vary or change the terms of a written contract, it is frequently admissible for the purpose of ascertaining what was the intention of the parties, or the meaning which they intended to attach to the expressions used in the contract.</p> <p>2. Same—Contract to Deliver Pig-Iron—Breach.</p> <p>-The contract in this case, claimed to have been broken by defendant, construed, and held that there was nothing to justify defendant in claiming that under said contract the whole amount of pig-iron to be delivered by plaintiffs to them was to be delivered before the end of the year, but that defendant must be held to have known of the capacity of the mill from which the iron was to be produced, and that its refusal to receive the iron after the close of the year was a breach of its contract with plaintiff, and that plaintiffs were entitled to damages therefor.</p> <p>3. Same—Measure of Damages.</p> <p>Ordinarily, the measure of damages for a breach of a contract of sale is the difference between the price which defendant, by the contract, agreed to pay, and the market value of the property at the time he refused to perform the contract.</p> <p>4. Same—Notice of Refusal to Accept Property—Tender.</p> <p>Where, however, defendant notifies plaintiff that no more of the property will be received after a date specified, and after such notice plaintiff tenders the balance ot the propoifiy under the contract, if the price of the property has advanced between the time of such notification and the date of the tender, so as to make less difference between the contract price and the market price, tho difference between the market price and the contract price at the time of the tender would be the measure of damages.</p>

<p>1. Excessive See in Pension Case—Indictment.</p> <p>Section 31 oí tlic act of March 3,1873, declared—First, that no agent, attorney, or other person should receive as a fee in any pension case any greater compensation than might be allowed by the commissioner of pensions, not exceeding $25; and, secondly, prescribed the punishment for so doing. The first part of the act was made section 4785 of the Revised Statutes, and the second part, section 5485. By act of Juno 20, 3878. congress expressly repealed Rev. St. § 4785, and limited the fee in all cases to $10; but left Rev. St. \ 5485, prescribing the penalty, still in force. On March 3,1881, congress enacted tliat the provisions of Rev. St. } 5185, should be applicable to any person who should violate the provisions of the act of June 20, 1878. Held, that there was no statute in force during the period between June 20, 1878, when Rev. St. $ 4785, was repealed, and March 3,1881, on which the penalty prescribed by Rev St. § 5485, could operate, and an indictment charging an oll'ense in receiving a greater fee than allowed by the title of tho Revised Statutes relating to pensions, during such period, could not be sustained.</p> <p>2. Penal Statutes—Construction.</p> <p>It is a fundamental rule in the administration of criminal law that penal statutes arc to be construed strictly, and that cases within the like mischief are not to 1)e drawn, within a clause imposing a forfeiture or a penalty, unless the words clearly comprehend the case.</p> <p>3. Same—Public Mischief to be Suppressed.</p> <p>In construing a statute the court should look at the public mischiefs which are sought to be suppressed, as well as the obvious object and intent of the legislature in enacting it; and in doubtful cases these have great influence on the judgment in arriving at its moaning; but where the law-making power distinctly states its design, no place is left for construction.</p>

<p>Motion to Quash Indictment.</p>

<p>1. Patents eob Inventions—Reissue Invadtd.</p> <p>Reissued letters patent dated October 18, 1881, granted lo Ilobart B. Ives, as assignee of Frank Davis, for an improvement in door-bolts, held invalid by reason of the laches of the plaintiff in not promptly applying to the patent-office to remedy the error claimed to have been made in the original application for the patent.</p> <p>2. Same—Laches, when Render Reissue Invadid.</p> <p>The right to have a mistake in a patent corrected when the mistake is plain and forthwith discernible, and improperly narrows the claim, must be speedily exercised, and such right will necessarily he abandoned and lost by unreasonable delay. It is not merely a question as to what information respecting then-rights parties actually obtain, but as to what information they might have obtained had they used Die means and opportunities at their command.</p>

<p>L Patents for Inventions—Trunk Fastenings—Taylor Patents—Infringement—Semple and Locke Reissues.</p> <p>Reissued letters patent, dated December 10,1878, issued to John J. Cowell, as assignee of Edward Semple, and reissued letters patent, dated December 10, 1878, issued to John J. Cowell, as assignee of John C. Locke, relating to trunk fastenings or catches, compared with the Taylor patents, issued July 9, 1872, and February 18, 1878, and held, that the original Semple and Locke patents were not infringed by the Taylor patents, but that the claims in the Semple reissue, and the first and second claims in the Locke reissue, were infringed thereby; but that, as the claims in the reissue unduly expanded the original patents, they were void, and the bill should be dismissed as to them.</p> <p>2. Same—Rice Patent.</p> <p>Letters patent issued to Eliakim Rice, dated March 27,1877, for an improvement in trunk fastenings, held, not to be infringed by the Taylor patent of September 21, 1880, which is upon a different principle from the Taylor invention of 1872 and 1878.</p>

<p>1. Proof of Infringement before Bill Filed.</p> <p>An infringement must be sliown to have taken place either by making, selling, or using the article patented, before the filing of the bill, or there can be no recovery.</p> <p>2. Answer to Bill under-Oath.</p> <p>Where the complainant does not waive an answer to the bill under oath, the answer, distinctly denying the material matters alleged, not only makes an issue, but proves it; so that it will require the evidence of two witnesses, or of one witness, and other circumstances equivalent to a second, to overthrow the answer.</p> <p>3. Waiving Answer under Oath.</p> <p>The great advantage to complainant, in many cases under the present rules relating to the competency of witnesses of waiving an answer under oath, pointed out.</p>

Admiralty Appeal. S. C. 16 Fed. Bep. 255, reversed. This suit was brought by Christina Carlsdotter, widow of Carl P. Peterson; John S. Jonsson and his wife, Charlotta J. Jonsson, father and mother of Gustaf L. Jonsson, and Ulrika B. Holm, mother of Eva M. Holm, sister of Eriek A. Holm, for the recovery of damages suffered by them through the death of said Carl P. Peterson, Gustaf L. Jonsson, and Eriek A. ITohn, and also for the recovery of the value of certain personal…

Hearing on libel, answer, and testimony. Libel by the I. P. Morris Company against the Count De Lesseps, for labor and materials, consisting of a derrick, buckets, and other dredging machinery, furnished at Philadelphia after the vessel had been towed from New Jersey, where she had been built, to fit out the vessel for an intended voyage to Panama.

<p>Shipping—Accepting Pier—Discharging Cargo in Port—Injury from Exposure-Liability of Vessel.</p> <p>A steam-ship having accepted a pier on the East river, New York, as a suitable pier designated by the owners of the majority of the cargo for discharging, is in fault in leaving the pier with part of the cargo on board, and going to a pier in Brooklyn and there discharging the balance; and where the cargo discharged in Brooklyn is injured by exposure to the sun on an unsheltered pier, the ship will be liable.</p> <p>Measure of damage discussed.</p>

<p>Circuit Court—Jurisdiction—Partition in Equity—Citizensiiip—Property Taken by Railroad—Compensation.</p> <p>A. owned a life interest in one undivided half of a water lot, and defendant corporation acquired by virtue of its charter the other half of the lot and the interest of A., and laid its tracks across, and took possession of, and used for railroad purposes, the whole lot. By contract with the railroad company, and in pursuance of a statute of the state, D. erected and occupied a dock along the front of the lot. No effort was made to acquire title to the remainder. The state law provided that in every case where a railroad company had entered upon and taken possession of land fox its road, and had not paid the owner therefor, nor, ■within two years from entry thereon, had the damages appraised by commissioners, and an award made and delivered, the ordinary courts of law should have jurisdiction thereof, and that a justification under the act of incorporation shoxxld not bar the suit; and the sxxproine court of the state had held that under this statute the complainants in this case could not maintain ejectment for this lot until the expiration of two years from the time when their right accrued. A. having died, her heirs, and tlxo administrator of a deceased heir, whose heirs were minors, and citizens of another state, filed a hill in equity in the circxxit court for a partition of said lot. Held that, notwithstanding the language of the state statute, the remedy was not at law only, as claimed by defendant, but that a bill in equity for a partition waS maintainable, the requisite citizenship existing; and that as complainant had never received compensation for the taking of the interest by the defendants, and they would have been entitled to a partition of the lot, which was not possible without disproportionate damage to defendant, owing to tixe dock and improvements placed 'thereon by them, complainants were entitled to a decree for the payment to them of the value of their interest in the land and dock, to be ascertained by commissioners, upon conveying to defendants their interest therein.</p>

<p>Revenue Law—Ascertainment of Informer’s Fees after Case is Disposed of—Act June 22, 1874—Jurisdiction.</p> <p>Whore, after a final decree had boon made in a smuggling case, and executed by paying a fine imposed into the United States Treasury, a petition was filed in the court which had made the decree, by a party claiming to be the original informer in said ease, praying for a certificate from the court as to the value of his services, for the information of the secretary of the treasury, held, that the court had no jurisdiction.</p>

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

<p>1. Attorney Lien for Fees—Judgment—Laches.</p> <p>Where an attorney at law has obtained a judgment for liis client, on which he is entitled by law to a lien for his fees, and has perfected his lien in accordance with the provisions of the law, he may enforce it, notwithstanding a compromise and settlement made by his client with the other party, although he has not made himself a party to the record.</p> <p>2. Same—Attorney Intervening.</p> <p>Where it is necessary, in a suit to set aside such a judgment, to protect the attorney’s lien, that he be made a party to the (suit, the court will allow him to intervene therein.</p>

In Equity. The Babbage Transportation Company, a corporation doing business as common carrier on the Mississippi, and also engaged in towing barges for hire, contracted to transport a large amount of wheat, insured by plaintiff, from St. Louis to New Orleans,—“the dangers of the river, fire, and collision excepted.” The wheat was loaded for transportation upon said company’s barge, the Sallie Pearce.

<p>Railroad Bonds—Consolidation op Railroad Companies—Bill to Enporce Lien.</p> <p>Tlie holder of the bonds of a railroad and telegraph company payable to bearer, with interest semi-annually, secured on the income from the sale of its land, and the operation of its road and line, which have passed by consolidation to another railroad company, is a creditor having a specific lien upon the income of the property which has gone from his debtor into the hands of the other company, and lie may file a bill in equity to enforce such lien after default in payment of the principal of such bonds, and interest'according to the terms thereof.</p>

Tills is a suit by John Milne against John M. Douglas, receiver of the Ohio & Mississippi Bailway Company, the New York, Pennsylvania & Ohio Bailway Company, the New York, Lake Erie & Western Bailway Company, and the Bed Cross Line of steam-ships.

<p>Application for Mandamusi</p>

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

<p>Action on Promissory Notes.</p>

<p>1. District Court—-Judgment Affirmed—Rev. St. § 636,</p> <p>Wlien a judgment of the district court is affirmed in the circuit court, the judgment does not remain in the district court as the judgment of that court, to he enforced by its process, but becomes the judgment, of the circuit court.</p> <p>2. Same—Execution against Bodies of Defendants—Code Civil Proc. (1ST. S.) § 549.</p> <p>An action of debt for the value or merchandise forfeited for entry by means of false and fraudulent, practices and appliances, under section 2864 of the Revised Statutes of the United States, is not an action “ to recover a fine or penalty,” or “an action upon contract, express or implied,” within the meaning of section 549 of the Code of Civil Procedure of the state of New York, and consequently an execution against the bodies of the defendant cannot be issued out of a circuit court of the United States in that state for damages and costs.</p>

<p>1. Insurance Policy—A Contract of Indemnity.</p> <p>An insurance policy is a contract of indemnity, and in tlie absence of anything to the contrary in tlie contract, or in tlie course of dealing between the parties, covers the entire proprietary interest of the assured.</p> <p>2. Same—Policy on Whisky in Bond.</p> <p>A policy upon whisky in bond, without reference to the government tax, entitles the assured to include the tax in his recovery, in case of loss, if the assured is liable for the tax.</p> <p>3. Government Lien for Tax.</p> <p>The lien of the government for its tax, and its possession by a store-keeper, is not a proprietary right. \</p> <p>Sections 3221-3223, Rev. St., construed.</p>

<p>Demurrers to Complaints. Fifteen cases.</p>

<p>1. Receivers op National Banks—Appointment.</p> <p>Appointments of receivers of national banks, made by the comptroller of the currency as provided by law, are to be presumed to be made with the concurrence or approval of the secretary of the treasury, and are made by the head of a department, within the meaning of section 2 of article 2 of the constitution of the United States.</p> <p>2. Same—Suit by—Jurisdiction op Circuit Court—Amount.</p> <p>A receiver of a national bank, being appointed pursuant to an act of congress to execute duties prescribed by that act, is in the execution of those duties an agent and officer of the United States, and actions brought by him to recover assessments duly laid upon stockholders, and necessary to provide for the payment of the debts of the bank, are suits at common law, brought by an officer of the United States, under the authority of an act of congress, of which the circuit court has concurrent jurisdiction with the district court, without regard to the amount sued for. Rev. St. § 629, cl. 3; § 563, cl. 4.</p> <p>3. Same—Act op 1875—Purpose op.</p> <p>The act of 1875 was intended to define the jurisdiction of the circuit courts, as between them and the courts of the states; not to alter the distribution of jurisdiction, as between the circuit court and the district court, of cases which, by reason of their subject-matter, have been committed by congress to the deiermination of the federal courts; nor to repeal the special provisions of former laws conferring on the circuit and districts courts jurisdiction of such cases, without regard to the amount in dispute.</p> <p>4. Same—Act op 1882, a. 290, § 4.</p> <p>The only subject to which the proviso in the act of 1882, c. 290, § 4, relates, is the jurisdiction of suits brought by or against national banks, and its purpose is to leave such suits, (I except suits between them and the United States, or its officers and agents,” to the jurisdiction of the state courts, unless the domicile of the parties is such as to give the federal courts jurisdiction.</p> <p>5. Same—Suits by Receiver op National Bank.</p> <p>Suits brought against private persons after a national bank has been’ found to be insolvent, and for the exclusive benefit of its creditors, by a receiver, in whom its whole pi'operty has been vested by operation of law, do not come within the letter or the reason of this proviso.</p>

<p>In Bankruptcy.</p>

<p>1. -Verification of Summary Complaint for Offense on High Seas— Notary Public.</p> <p>In case of a summary complaint for an ofEense on the high seas the oath must he taken before the court or judge, or clerk of court, or some commissioner, who, in the absence of the judge, may be applied to for a warrant or summons ; and an affidavit taken before a deputy clerk, acting not as clerk, but as a notary public, is not sufficient.</p> <p>2. Same—Motion in Abkest oe Judgment.</p> <p>Such summary proceedings are put by the statute substantially on the footing of civil cases, and it seems that the want of due verification of the complaint is waived by the voluntary appearance of the accused. At any rate the error is amendable, and cannot bo urged for the first time in arrest of iudgment.</p>

<p>Patents for Inventions—Letters Patent No. 150,305 Sustained.</p> <p>Letters patent No. 150,305, issued to J. Wesley Dodge, February 28,1874, for an improvement in tools tor finishing the edges of soles of boots and shoes, are valid; and the fourth and fifth claims of said patent are not void for want of novelty, or by reason of being anticipated by tlie Hodges patents, Nos. 117,287 and 129,825, and the AckJy patent, No. 142,756, as claimed.</p>

<p>1. Reissued Patent.</p> <p>The specifications for the reissue of a patent may be amended by the model deposited in the patent-office, as well as by the drawings.</p> <p>2. Specifications Amended by Model.</p> <p>Where the original specifications and drawings do not show whether or not the machine patented embraced a feature claimed in the reissued patent, the court cannot say, from a comparison of the original and reissued patents alone, whether the reissue embraces a feature not indicated in the machine as first patented, without an inspection of the original model deposited in the patent-office.</p>

<p>1. Patent — Beissue Invalid — Improvement in Machine for Mailing Shoe and Boot Soles.</p> <p>Beissue, granted March 28, 1876, ot the original patent granted to Gordon McKay, as assignee of himself and Hadley P. Pairfield, on October 13, 1874, for improvements in machines for nailing the soles of boots and shoes, was not intended to supply an omission or correct a mistake in the original patent, but is a deliberate attempt by the inventors to contradict the leading assertion most positively and unequivocally made by them in their first specification, and to enlarge their claim so as to cover a combination which omits the most ingenious and distinctive element of the combination originally patented, and the first, second, and third claims of such reissue cannot be upheld.</p> <p>2. Same—Infringement.</p> <p>The fourth claim of the reissue is not infringed by the machine of defendant, in which the selection of the nails to be driven is not made.automatically according to the thickness of sole to be nailed, but is controlled by the direct intervening action of an attendant, interrupting the automatic action at such times as he chooses.</p>

The contract construed is as follows: “Whereas, Mr. P. Kelly, of the city and county of San Francisco, and state of California, has applied for and is now endeavoring to obtain from the United States government a patent on or for the inserting of an elastic behind the ankle of short-legged bootees or gaiter boots, of which said Kelly claims to be the originator and inventor, together with all his style and cut, as in his plans and specifications accompanying said application…

<p>1. Patents fob Inventions—Description.</p> <p>All that the law requires of an inventor of a machine is that ho shall describe the manner of making, constructing, and using it in such full, clear, concise, and exact terms as will enable any one skilled in the art to which it appertains to make, use, and construct the same, and shall explain the principle thereof, and the best mode in which he contemplated applying that principle, so as to distinguish it from other inventions,</p> <p>2. Same—Modifications—Specifications.</p> <p>A patentee is not generally limited by the literal import of his description of liis invention, but may, in construction, make such modifications of it as do not involve a departure from its principle, or a material change in its mode of operation.</p> <p>3. Same—Infringement.</p> <p>It is generally true that when a patentee describes a machine and then claims it as described, he is understood to intend to claim, and by law does actually cover, not only the precise forms he has described, but all other forms which embody his invention ; and to copy a principle or mode of operation described is an infringement, although such copy is totally unlike the original in form or proportions.</p>

<p>1. Combination Patent—Infringement.</p> <p>A patent for a combination of several elements is not infringed by a machine which does not embrace all the elements employed to make up the combination as claimed.</p> <p>2. Anticipation.</p> <p>A plow standard, with a lug on the upper end, hy means of which it is fastened to the plow-beam by three bolts and nuts, not in line, but arranged in the form of a triangle, is anticipated by a cultivator standard fastened to the beam, or bar, by three bolts, arranged in the form of a triangle, although the head of the standard is square, instead of having a lug; and a standard having a bolt and nut with two dowel pins, similarly arranged, is also an anticipation.</p>

<p>Patents eor Inventions—Inerincement—Preliminary Injunction.</p> <p>"Where it appears that defendant has been doing for seven .years what plaintiff complains of, and that in 1880 he sued defendant at law in a circuit court of the United States for the infringement of the patent now sued on, and that such suit at law, after proceeding to a declaration, has been allowed by plaintiff to remain unprosecuted, and that defendant is pecuniarily responsible, a preliminary injunction will not be granted.</p>

<p>Patents for Inventions—Infringement.</p> <p>Tlie sixth claim oí the Henry A. Wells “hat-body patent” held to have been infringed by the manner in which defendant’s intestate removed the bat from the revolving cone in the manufacture of hats, and a decree for an accounting granted.</p>

<p>Patent—Betssues Nos. 7,947 and 8,550.</p> <p>Claim 3 of reissued patent No. 7,947, granted to James bargent, and all of the claims except claims 1 and 7 in reissued patent No. 8,550, granted to Samuel A. Little for “ improvements in locks for safes and vaults,” held void.</p>

<p>1. Patents eor Inventions—Contract Construed—Injunction.</p> <p>• In a suit to enjoin defendants from the use of seven machines containing; certain patents owned by complainant, defendant set up in defense a contract as follows:</p> <p>“In consideration of the receipt in full of all bills and demands held against the Cook & Porter Needle Company by the National Needle Company, I do hereby agree to allow the National Needle Company the free use of the seven patent reducing, belting, and pointing machines now in their possession, from July 2, 1877, until April 1,1878, and the further use of said machines at a royalty of one-quarter the saving made by the above-named machinery over the-same class of work done by hand from April 1, 1878, to July 1, 1880,</p> <p>“ The said seven machines are valued at eight hundred dollars, the receipt of which is acknowledged, and are exchangeable, either separately or together, for other machines made under the same letters patent, at the same pro rata valuation; the difference in price of machine, if any, to be paid by the said National Needle Company.</p> <p>“ I grant the above right to use said patented machines by virtue of my ownership of [mentioning several patents,] and the National Needle Company is to have the right to use, without extra royaffy, any improvement made, ox-caused to be made, by me on said machines, during the time of this agreement..</p> <p>“Newton, September 12, 1877.”</p> <p>. Meld, that defendants took, in part payment of their debt, the seven machines at their cost, and could use them without royalty until April 1, 1878, and on payment of the stipulated royalty from that time to July 1, 1880, but that no arrangement was made for the remainder of the term; that it was not intended that defendant should thereafter use the machines without payment of royalty unless some new bargain should be made ; that this limitation was not i-epugnant to the grant; and that defendants should be enjoined from the further use-of the machines.</p> <p>2. Same—Sale oe Patented Machine—Right oe Use.</p> <p>An absolute and unqualified sale of a patented machine carries with it the right of use, but the courts will permit a severance of ownership and right of use where the patentee has chosen to dissever them, and his intention to do so. is not doubtful.</p>

<p>Patents for Inventions—Preliminary Injunction—Infringement.</p> <p>A preliminary injunction is only granted to restrain injury in its nature irreparable.</p>

<p>Patents for Inventions—Amendments.</p> <p>' Motion for an amendment to answer, and commission to take testimony in a foreign country to prove wlio is the original inventor of a patent, will not be allowed wlien the affidavits filed by plaintiff show that there is no evidence to sustain the amendment.</p>

<p>Patents—Infringement—Master’s Pees—Accounting.</p> <p>Where defendants have been adjudged to be infringers, and decreed to account for the gains and profits and damages of their infringement, they must go forward in the accounting and bear the necessary expenses of so doing, including the master’s fee.</p>

<p>1. Shipping—Loss op Cargo op Cattle—Storm at Sea—Burden op Proop— Suitableness op Vessel.</p> <p>Where respondents prove that a steam-ship, on which a lot of cattle were-shipped by the libelant, encountered a storm of unusual severity, and show the character of the damage sustained by their vessel and by other steam-ships carrying cattle Which encountered the same hurricane; the burden is put upon the libelant of proving that the losses sued for were occasioned bj' the want of due care in providing a proper ship, and suitable stalls and other fittings, for carrying the cattle.</p> <p>2. Same—Evidence.</p> <p>Upon the whole testimony, considering the contrivances then in use for carrying cattle, and the known risks and uncertainties of the business, and the character of vessels customarily used, it does not appear that -the steam-ship in this case would have been considered unsuitable for the business at th,e time-she was so used, or that the fittings were improperly constructed, and no damage can be recovered on that account.</p> <p>3. Same—Delay in Coming to Port por Cargo—Damages.</p> <p>Where a vessel is to arrive at a port and receive a cargo of cattle by a certain day specified, and she does not arrive for several weeks after the appointed time, the only damages that can be recovered on account of the delay, when the vessel is accepted and the cattlo shipped, is such expense as may have been incurred for keeping the cattle during the period of delay, and the additional insurance the shipper may have had to pay by reason of the increased risk, caused thereby.</p> <p>4. Same—Damages a Lien on Vessel.</p> <p>Where the cattle were actually laden on board under the contract, and reference being specially made to it in the libel, and the ship has obtained the benefit of the contract, it seems that the shipper would have a lien on the vessel for such damages.</p>

<p>1. “Unavoidable Dangers of Navigation”—Loss by Striking Bridge Piers.</p> <p>The exception, “unavoidable dangers of navigation,” as used in a bill of lading for transportation of goods by river, includes unavoidable dangers of navigation which may arise from bridges across the rivers to be navigated. Under the circnnisianees of Ihis case, the goods being lost by the boat striking a bridge pier, and the court finding that the boat was properly navigated, held, that the loss ivas within the exception.</p> <p>2. Detention op Goods until General Average Paid.</p> <p>IVhere there ivas a privilege of resliipping, and the goods were damaged while in the possession of one of the connecting lines, making a general average necessary, such connecting carrier can hold, the goods until the average contribution is paid or secured.</p> <p>3. Same—Proximate Cause of Loss.</p> <p>Where a detention takes place by reason of the adjustment of such general average contribution, one boat in the connecting line leaving port in the mean time, and the goods go forward on the succeeding boat of the line and are lost by the boat striking a bridge pier, held, that such detention was too remote, and not the proximate cause of the loss of the goods.</p>

<p>In Admiralty. Libel in rem.</p>

<p>Salvage Sek vtce—To wage— Compensation .</p> <p>A steamer, disabled by the breaking of her propeller shaft, made signals of distress, which wore observed by another steamer, which took her in tow, and, after towing her 12 hours, voluntarily cast oil the hawser, without communication with her and under no stress of weather, and left her in no better position in any respect than when she found her.</p> <p>Hdd, not to be a salvage sei-vice, and not to bo a towage service, for which any compensation should be made</p>

<p>1. Collision—Steamer—Moderate Speed in Fog.</p> <p>Fifteen miles an hour in a dense fog, in Long Island sound, is not a moderate speed in a steamer; and where, by moderate speed, a collision would have been avoided, the steamer held liable.</p> <p>2. Same—Sailing Vessels.</p> <p>Although no express statute then required sailing vessels to slacken sail and go at a moderate speed in a fog, in a thoroughfare where other vessels must be expected to be met, such was, nevertheless, the duty of sailing vessels in the exercise of ordinary prudence in navigation. The new regulations require this.</p> <p>3. Same—Speed at Nigi-it.</p> <p>A rate of speed at night and in a dense fog which is immoderate and excessive for a steamer, is less justifiable in a sailing vessel under the same circumstances, as she has less facilities for quickly stopping and changing her movements.</p> <p>4. Same—Schooner.</p> <p>A speed of seven miles an hour having been repeatedly held excessive in steamers in a dense fog, held, therefore, excessive in a schooner, and careless navigation, for which the schooner should be held in fault.</p> <p>5. Same—Rule 20.</p> <p>Rule 20, requiring steamers to keep out of the way of sailing vessels, cannot be construed to justify in sailing ves íels a speed which would be deemed excessive as regards their duty to other sailing vessels which they are bound to avoid.</p> <p>6. Same—Amendment op Pleadings.</p> <p>Where the libel did not expressly charge excessive rate of speed in the schooner, but the facts appeared in the schooner’s testimony, and there being no dispute about them, held, the pleadings should be deemed amended accordingly.</p> <p>7. Same—Mutual Fault.</p> <p>Where a collision took place between the steamer R. I. and the schooner E. F., about 8p. M.,in a dense fog, in Long Island sound, at the commencement of the pilotage ground, where numerous other steamers and vessels should be expected to be met, and the steamer was going at the rate of 15 miles per hour, and the schooner sailing before the wind 7 miles per hour, and the collision would have been avoided had either been going at a more moderate speed, held, both were in fault.</p> <p>8. Flash- Light.</p> <p>Whistles being heard on the schooner during 15 minutes preceding the collision, held, that the latter should have exhibited a torch-light.</p>

<p>1. Jurisdiction—Fraud. '</p> <p>The United States courts have jurisdiction to vacate a patgnt to lands, in a proper case, on the ground of fraud.</p> <p>2. Fraud in Procurins Patent.</p> <p>The frauds for which courts will set aside a patent, granted by the United States in the regular course of proceedings in tiie land-office, are frauds extrinsic or collateral to the matter tried and determined, upon which the patent issued, and not fraud consisting of perjury in the matter on which the determination was made.</p> <p>3. Perjury and False Testimony.</p> <p>■ Perjury and false testimony in the proceeding, by means of whim a patent is secured by fraud, is not fraud extrinsic,or collateral to the matter tried and determined in the land-office, within the meaning of the rule, and a patent will not be set aside on that ground alone.</p> <p>4. Perjury—Injury.</p> <p>Where no pecuniary injury to the United States is shown by the bill, and it does not appear that there is any other right in the land against the government, whether a court of equity should set aside a patent obtained on false testimony, if otherwise proper, qu&re.</p> <p>5. Return oe Purchase Money.</p> <p>Where the United States flies a bill to set aside a patent, on the ground that it was obtained upon faise testimony, it should at least offer to return the purchase money paid by the patentee for the land.</p> <p>6. "Equity.</p> <p>When the United States comes into a court of equity asking equity like a private person, it- should do equity.</p> <p>7. Same—Forfeiture.</p> <p>Courts of equity never enforce penalties or forfeitures.</p> <p>8. Forfeitures.</p> <p>If the United States desires to enforce the penalties and forfeitures imposed hjr section 2262 of the Revised Statutes, for obtaining a patent to land upon false affidavits, it must do so by a proper proceeding at- law, where the party charged will be entitled to a trial of the charge by a jury.</p>

<p>1. Bill of Review—Time of Riling.</p> <p>A bill of review for errors apparent upon the face of the record will not lie after the time within which a writ of error could be brought.</p> <p>2. Same—Injunction Refused.</p> <p>Where it is not made to appear that complainant was prejudiced by a supplemental decree, relief by injunction cannot be granted because of matters contained in such decree.</p> <p>3. Same—Parties Bound by Record.</p> <p>The parties to a suit in equity are bound by matters of record, and cannot be heard to complain that they were not advised of the contents of a decree passed in such suit, in time to appeal therefrom or take other steps to have such decree set aside or reversed.</p>

<p>Suit in Equity to Beform a Policy of Insurance.</p>

<p>1. Internal-Revenue Stamps— Commissions on Sales—Rev. St. $ 3425.</p> <p>Commissions to purchasers of internal-revenue stamps, under Rev. St. $ 3425, must be paid in cash, whether the stamps purchased are paid for in cash, or the purchaser obtains a credit of 60 days, and gives bond as provided by such section. v</p> <p>2. Same—Payment in Stamps.</p> <p>The practice of the internal revenue department of paying such commissions in stamps instead of money,’ is not authorized by the statute.</p>

<p>1. Negotiable Paper—Transfer without Indorsement.</p> <p>By the rules of the law-merchant, the purchaser of negotiable paper, payable to order, unless it bo indorsed by the payee, takes subject to any defense which the payor has against the payee. He becomes, in such case, only the equitable owner of the debt or claim evidenced by the seourily.</p> <p>2. Same—Indorsement on Security.</p> <p>As a general rule the legal title to negotiable paper, payable to order, passes only by the payee’s indorsement on the security itself, or on a piece of paper so attached to the original instrument as, in effect, to become a part of it, or incorporated into it.</p> <p>3. Same—Assignment by Words in Separate Instrument.</p> <p>Words of assignment and transfer, contained in a separate instrument, executed for a wholly different and distinct purpose, are not equivalent to an indorsement, within the settled rules of the law-merchant.</p> <p>4. Same—Subsequent Indorsement—Notice of Defense.</p> <p>A subsequent indorsement made after notice of the payor’s defense, although the paper was purchased without notice of defense, will not relate back to the time of purchase, so as to cut off the equities of the payor against the payee.</p>

<p>At Law. Action on official bond.</p>

<p>■1. Agency—Promise of Compensation—Moral Obligation.</p> <p>Where the owner of property is induced to believe that another, who has been trying to sell such property on speculation for his own benefit alone, was clearly acting as his agent in the matter, and that he is under a moral obligation to compensate him for his trouble, promises to do so, such promise is without color of consideration and void.</p> <p>2. Instruction to Find for Defendant.</p> <p>Where, if the case had been left to the jury and a verdict had been found for the plaintiff, it would have been the duty of the court to set it aside as contrary to the evidence, it was correct to instruct them to find for the defendant.</p>

<p>Ejectment—Title of Plaintiff—Land Contbact.</p> <p>A party who has paid part oi' the purchase money for land, and has made a contract with the owner that he may go into possession and cultivate the land and build thereon, and receive a deed therefor when the balance of the purchase money is paid, has sufficient title to maintain an action of ejectment.</p>

<p>1. Contract to Sell and Deliver Steel Rails—Breach.</p> <p>As, construing tlie contract, tlie breach of which is alleged in this case, in the light of the parol testimony, it appears that the giving of directions by defendant, as to how the steel rails which plaintiff was to deliver to him should be drilled, was a condition precedent to be performed by him before plaintiff could proceed with the proper execution of its contract, the neglect and final refusal of defendant to give such directions wa3 of itself a breach of the contract, which excused plaintiff from the actual manufacture of the rails, and an actual tender of them t.o defendant, and fm- anoh hreacli of contract it is entitled to damages.</p> <p>2. Samts—Measure of Damages—Profit.</p> <p>Tüo rulo in awarding damages in sucli a case for a breach oí contract is to make the plaintiff as nearly whole as lie can be made in money damages; or, in oilier words, to leave him as nearly as possible as well off as he would have been if defendant had performed his coni raet: and he is entitled to recover the actual profit that he would have made had the contract been performed.</p>

Motion to Quash a Writ of scire facias against the legal representatives of the defendant, who died after issue joined, but before trial. This was a qui tain action pursuant to section 4985, liev.

This was an action at law for the violation of the plaintiff’s copyright of a photograph of Oscar Wilde, which the defendant had copied by the process known as chromo-lithography. It was admitted on the trial that the plaintiff had taken all the -steps required by law to secure the copyright except to insert his Christian name in the notice, and there was no dispute as to the number of copies printed by the defendant, the value thereof, or the number on hand.

This was a qui tarn action, pursuant to section 4965, Rev. St., brought by Francis Schreiber and others, suing as well for the United States as for themselves, against Edward’ B. Thornton, to recover a statutory penalty for the copying, printing, publishing, selling, and exposing to sale by the defendant of a photograph, copyrighted by plaintiffs.

<p>Patents for Inventions—Bell Telephone.</p> <p>Tiie Beil telephone is not anticipated by the Reis instrument, and is infringed by the Dolbear apparatus, in which a part of Bell’s process is employed. American Bell Telephone Co. v. Dolbear, 15 Fed. Rep. 448, affirmed.</p>

<p>Collision—Steamer,—Schooner—Torch—Damages Divided.</p> <p>The evidence in this case held to sustain the judgment of t-Iie district court as to the fault of the steamer in not avoiding the schooner with which she collided, but that the failure of the schooner to exhibit a torch, as required by Rev. St. § 4234, “ on the approach of a steam-vessel during the night-time,” rendered her also in fault, and that the damages should be divided between the two vessels.</p>

<p>1. Collision—Evidence—Fault.</p> <p>The evidence in this case, upon examination, appears to sustain the judgment of the district court, and it is accordingly affirmed.</p> <p>The Blenheim, 14 Fed. Rep. 797, affirmed. -</p> <p>2. Same—Valuation oe Vessel—Tout—Time and Place.</p> <p>The maxim that damages for a tort are to be assessed as of the time and place at which the tort is committed, must be taken with a good deal of allowance, so far as the place is concerned. If a foreign ship is destroyed in American waters, and if in such a place her market value is low by reason of our navigation laws, the measure of damages for her loss would be her value in the home port.</p>

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

<p>Suit in Equity to prevent a cloud on title.</p>

<p>1. Name of New & rticle—Right to Use of.</p> <p>When a new article is made d name must be given to it, and this name becomes, by common acceptation, the appropriate descriptive term by which it is known, and therefore becomes public property, so that all who have the right to manufacture and sell the preparation have the right to designate and sell it by the name by which alone it is known, provided care is observed to sell the preparation as the manufacture of the seller, and not the preparation made by another.</p> <p>2. Trade-Mark—Defemtiost.</p> <p>A trade-mark consists of a word, mark, or device adopted by a manufacturer oi vendor to distinguish his 'production from other productions of the same article.</p> <p>S. Same—Name Indicating Kind on Description on Thing.</p> <p>A name alone is not a trade-mark when it is understood to signify, not tlio particular manufacturo of a certain proprietor, but the kind or description of thing which is manufactured.</p> <p>4. Same—Injunction IIeeused.</p> <p>Complainants claimed the right to use the name “ Dr. J. Hostetler’s Stomach Bitters” in connection with certain labels, bottles, and other devices which designated the preparation, as of their own manufacture and indicated its origin. and in their bill they averred that defendants were selling' to tho trade an extract out of which it was claimed Host otter’s Bitters could bo made, with directions how to make such bitters, and that the retail dealers were making these bitters and refilling complainant’s bottles, with their labels and devices thereon, and thus selling them. Held, that defendants had the right to sell 1 heir extract as charged, as no purchaser could suppose that he was purchasing Die preparation made by complainants; that they could not bo held responsible for the acts of third parlies; and that an injunction would not bci granted.</p>

<p>1. Trade-Mark—Form: or Shape of Patented Machine — Expiration op Patent.</p> <p>While no one has the right to make and soil his own wares as the wares oí another, every one has the right to make and sell any wares not protected by patents ; and a manufacturer of a patented article, after the expiration of the patent, has a right to represent that it was made according to the patent, and to use the name of the patentee for that purpose.</p> <p>2. Same—Right to Use Eorm or Shape op Machine.</p> <p>Where frames for sewing-machines in the form of the letter G have been so extensively manufactured and sold by the inventor, during the time they were protected by patents, that the machines containing this feature come to he known in the trade thereby, after the expiration of the patents, the patentee cannot, by claiming such form or shape of frame as a trade-mark, prevent others from using such frames in sewing-machines manufactured and sold by them.</p> <p>3. Same—Mark Descriptive op Quality or Style.</p> <p>Anything descriptive of the properties, style, or quality of an article merely, is open to all.</p>

<p>Fibe Inscrance—Evidence oe Contract.</p> <p>An oral agreement by an insurance agent to take $5,000 upon mill property is not a completed contract of insurance, if there was to be an apportionment between real and personal estate, and none had been made when the property was destroyed by fire.</p> <p>Whether a contract for insurance made at a quarter before 6 o’clock' in the evening dates back to noon of the same dav, is not decided.</p>

Plaintiff brought this action to recover the amount of insurance on bis stock of groceries in store No. 44. Market street, Portsmouth, dostroyed by fire November 28, 1882, entered in this court at the May term. The insurance companies filed a plea in abatement, on th6 ground that the amount in their hands had been attached by trustee processes, by various creditors of Lynch.

<p>1. Insurance—Authority of Agent.</p> <p>An agent to procure insurance is not, from that engagement alone, authorized to cancel the policy.</p> <p>2. Same—Construction of Policy.</p> <p>A policy of fire insurance contained provisions that “ if any broker or other person than the insured had procured the policy, or any renewal thereof, or any indorsement thereon, he shall be deemed to be the agent of assured, and not of the company, in any transaction relating to the insuranceand that “ the insurance could be terminated at any time by request of the assured, or by the company, on giving notice to that effect.” Held, that a notice of cancellation given to the agent who had procured the insurance, and not communicated to the assured, was not sufficient, and that such agent was not authorized to receive notice of cancellation for the assured.</p> <p>3. Same—Usage among Brokers—Evidence.</p> <p>Evidence that it is customary for the agent who procures a policy of insurance on the one side, and the local agent who grants it, to receive notice of the cancellation of, policies, and notify each other in regard thereto, is admissible, but such usage must be proved by the most clear and unequivocal evidence, and be brought home to the actual knowledge of the party who is to be bound by it.</p>

<p>“Chinese Laborers”—Act oe Mat 6, 1882.</p> <p>The term “ Chinese laborers,” as used in the act of congress of May 6, 1882, “to execute the treaty stipulations relating to the-Ohinese” contained in the treaty of 1868, as modified by the treaty of 1880, must have the same signification as when used in the treaty, and must be held to mean the subjects of the government of China to which the provisions of the treaty relate; and the inhibitions of the act cannot be construed to exclude from our shores laborers who are Chinese by race and language, but who are not, and never were, subjects of the emperor of China., or resident within his dominions.</p>

<p>Information for Beturning to the Siletz Beservation, contrary to section 2148 of the Bevised Statutes.</p>

<p>1. Patents—Licensee not Heading License.</p> <p>Where a parly signs a license to use a patented machine without, reading it, he is bound by the terms thereof, unless he lacks capacity to comprehend properly what he is doing. .</p> <p>2. Same—Kenewal of License—Duress—Injunction.</p> <p>Where a party is enjoined from infringing a patent, and instead of contesting the validity'of the'patent and moving for a dissolution of the injunction, renews a license to use the said patent, which had been canceled by reason of a breach thereof, such renewal will not be considered as made under duress, and will be binding on him.</p> <p>3. Same—Recovery of Royalties—Eviction.</p> <p>Unless there has been an eviction, or its equivalent, the royalties agreed to De paid by a licensee for the use of a patent must be paid.</p> <p>4. Same—Jurisdiction of Uircuit Court—Rev. St. § 968—Costs.</p> <p>Where a patentee cancels a license because of a breach of its conditions, and proceeds against the licensee as an infringer, and the license is renewed after the institution of suit in a circuit court of the United States, and the citizenship of the parties gives the court jurisdiction, but the amount of royalty actually due to plaintiff is less than $5(30, a' decree may be entered for the amount due, but neither party will be allowed costs.</p>

<p>1. Patents for 1stvbntions—Horse Rares—Ooxstrtjction.</p> <p>Letters patent No. 65,573, granted J. M. Wanzer, assignee of James Hollíngsworth, June 11,1867, for an improvement in horse rakes, held invalid for want of novelty as to the first claim, and not infrinyed as to the second, third, and fou/rth claims.</p> <p>2. Same—Devices Distinguished.</p> <p>Complainant’s mechanism consisting of tubular oscillating rake-teeth bearings, with three passages at right angles, formed to abut directly against each other; bearings for supporting the front ends of the teeth, having sliding pins with eyes, sustained upon springs and playing in guides above and below said eyes, and combinations of these tubular and eye-bearings, with rake teeth of a double-curved form, rocking-frame and arms of a horse rake, in view of the state of the art, held, not infringed by defendant’s rake, in which the tubular bearings do not abut directly against each other, but are spaced by rings or washers, where,the front end of the teeth are supported in tubular guides, sustained by springs, and play freely through slots in such guides, and having combinations of these tubular bearings and guides, rak< teeth of the double-curved form, and rooking-frame.</p> <p>3. Same—Tubular Bearings or Form: to Abut Anticipated by Bearings oe Same Form though not Abutting.</p> <p>The first claim for tubular bearings of a form to abut against each other, held, anticipated by tubular bearings, which, though they are not shown nor described as so abutting, might, without any change of construction, have been made to abut against each other.</p>

<p>1. Patents eon Inventions—Reissue.</p> <p>Reissued letters patent No. 9,368, dated August 31, 1880, for an improved coal cart with a sliding extension chute, held valid.</p> <p>2. Same—Patentability oe Combination oe Old Elements.</p> <p>A mere aggregation of old things is not patentable, and, in the sense of the patent law, is not a combination. In a combination the elementary parts must be so united that they will dependently co-operate and produce some new and useful result, and such result must be a product of the combination and not a mere aggregate of several results, each the complete product of the combined elements.</p> <p>3. Same—Novelty—Result.</p> <p>The subject-matter of a supposed invention is new, in the sense of the patent law, when it is substantially different from, what has gone before it, and this is determined by the character of the result, and not the amount of skill, ingenuity, or thought exercised; and If the result has been substantially different from what had been effected .before, the invention is patentable.</p> <p>4. Same—Mechanical Skill.</p> <p>When the results are produced by mere mechanical skill, or where the change is only in degree and not new, the improvement is not patentable.</p> <p>5. Same—Reissue—Void Claim.</p> <p>An entire reissue will not be avoided on account of the existence of one void claim.</p>

<p>Coixtstons—Priority op Liens.</p> <p>Where several collisions aro caused by the negligence of a tow in fulfilling a contract of towage, and each claimant- for damages arrests the vessel at the same time to '•espond, there is no principle of the maritime law, and no interest, of commerce or navigation, which requires that the elder lienor, not guilty of laches, and not having committed any waiver or abandonment, should have his claim postponed to that of the younger lienor.</p>

<p>1. Mexican Grant—Legal and Equitable Title.</p> <p>Tlie holder of a Mexican grant containing a quicksilver mine conveyed the mine, together with 1,000 acres of laud surrounding the mine, to A., who went into possession, and he and his grantees continued in possession, working the mine for 25 years. After such conveyance the holder of the grant executed a second conveyance to B., also embracing the mine and the land before conveyed to A. Tlie grantees of B. presented the grant for confirmation, which was duly confirmed, and a patent in due form was issued to the confirmees. Held, that the legal title derived under the patent would bo controlled for the benefit of the grantees of A., who held the better title under the first conveyance.</p> <p>2. Location oe Land Indefinitely Described.</p> <p>Where a mine, together with 1,000 acres of land, “ around, circumjacent, and adjoining said mine,” is conveyed by the owner of a larger tract, the land will be located as nearly as practicable in a square form around the mine, taking the mine as the center of the location, and the grantor, by subsequent, conveyances of the larger tract in two parts to other parties, cannot affect this rigid of location by the prior grantee.</p> <p>3. Mining Partners—-Tenants in Common.</p> <p>Where a mine, together with the surrounding lands, is convoyed to, ana the mine is worked by, an unincorporated association of individuals in the usual mode, as in the case of mining partnerships in California, the members of the association are tenants'in common of the mine and the land so held.</p> <p>4. Sale under Decree of Property of Mining Partnership.</p> <p>Where a hill is filed by a member of a mining partnership to wind up the affairs of the association, some of the members being omitted from the bill because of the impracticability of bringing them all before the court, and a decree is made dissolving the association, directing the mines and lands of the company to be sold, tlie debts to bo paid, etc., and a sale of the mines and lands of the association is made in pursuance of the decree, the title to the undivided interests in the mine and lands of those not parties to the suit will not be affected by the decree and sale.</p>

<p>Note of decision holding agreement to pay attorney’s fees in mortgage foreclosure valid.</p> <p>These cases came up for hearing before Justice Miller, of the supreme court of the United States, on motions to strike from the decrees the amounts allowed by the courts as attorney’s fees.</p>

<p>1. Bank—Insolvency.</p> <p>A bank is solvent, within the meaning of tne constitution and statutes of Missouri, when it possesses sufficient assets to pay, within a reasonable time, all its liabilities through its own agencies; and is insolvent when, from the uncertainty of being able to realize on its assets in a reasonable time a sufficient amount to meet its liabilities, it makes an assignment, by which the control of its affairs and property passes out of its hands.</p> <p>2. Same—“In Failing Circumstances.”</p> <p>The phrase “ in failing circumstances,” used in the constitution and statutes, when applied to a bank, must be taken to mean a state of uncertainty whether the bank will be able to sustain itself, depending on favorable cr unfavorable contingencies, which in the course of business may occur, and over which its officers have no control.</p> <p>3. Same—Receiving Deposits—Knowledge oe Cashier—Burden oe Prooe.</p> <p>In an action against the president, directors, cashier, or agent oil a bank, under the act of April 23, 1877, for receiving a deposit knowing that the bank was insolvent or in failing circumstances, the plaintiff is only bound to prove to the satisfaction of the jury that the bank was insolvent. Upon this showing, the officers of the bank, to escape liability, must prove that they did not have the knowledge the law imputes to them, and thus overcome the law, which says they did know. The burden of proof of the want of knowledge of insolvency is on the officer sued.</p>

<p>Practice—Setting Aside Judgment—Absence oe Counsel.</p> <p>The general rule is that parties and counsel will be required to attend to their cases, and be prepared when they are reached on the docket; but cases may occur when, through the absence of counsel, if injustice is done to one party or the other, it can be afterwards corrected; and if a judgment is obtained through the absence of counsel, the judgment may be set aside upon terms.</p>

<p>Compromise as Consideration for Deed—Suit for Breach of Contract— Evidence.</p> <p>A..engages in option deals with B., and loses a certain sum of money therein. A. refuses to pay B., alleging it to be a gambling contract. Suit is brought thereon by B., and the jury find a verdict in favor of A. B. then takes the necessary steps to appeal the case to the United States supreme court. Pending such appeal, A. oilers to settle the case and to give B. a certain quantity of land, on condition that no further steps are taken to appeal the case. A. thereupon deeds to B. certain land, making certain representations as to its quality, and B., without seeing the land, gives to A. an instrument'settling the case and agreeing to proceed no further therewith. B. afterwards, on seeing the land, declares the same to be worthless, sues A. for breach of contract, and ré- ' covers a verdict. Held, that evidence as to the consideration of the indebtedness upon which the first suit was brought is inadmissible, and that the settlement or compromise of the litigated question is a valid consideration for the conveyance of the iand.</p>

<p>At Law. Motion for new trial.</p>

<p>In Bankruptcy.</p>

<p>1. Common Carrier—Warehouseman—Delivery—Perishable Cargo.</p> <p>The steamer W. arrived at New York on Friday, December 30, 1881, having on board various consignments of fruit, which, on the following day, were discharged on a covered pier, except part of the defendant’s consignment, and were all removed on that day, except the defendant’s consignment. Sunday being the first of January, and Monday kept as a holiday, it remained in the custody of the steamer till Tuesday, when the fruit which had remained on 1,he pier during Sunday and Monday was found to be injured by frost, owing to the severity of the weather, although the steamer had covered it up and protected it against frost as well as could be reasonably expected. In an action against the consignees to recover the freight on the fruit, the defendants set up byway of recoupment the damage to the fruit caused by frost. The evidence showed that on tile arrival of fruit cargoes, it was usual for consignees to sell the same at auction at 12 o’clock on the day of its discharge before it was removed from the pier, and by a certain firm of auctioneers ; that such a sale took place of nearly all the fruit brought by the W. on December 30th, at which all was sold except that in question; and that all that arrived by 1he W. was removed from the pier on that day, except, the defendants’ consignment, which was not removed because the defendants did not learn that their fruit was in the W. till too late to get it advertised for the sale of that day. Held, that the contention of the defendants that they were not bound to receive their fruit on Saturday, because the weather on that day was so cold as to render it an unsuitable day, was untenable, because oilier fruit was discharged and removed on that day without being injured by frost,; that, even if the defendants learned of the arrival too late to' put their fruit into that day’s sale, still that fact did not give them the rigid, to compel the ship-owner to relain the fruit in his custody as common carrier over ills; two ensuing holidays, and that the ship-owner’s responsibility as common carrier terminated when the fruit was discharged, with nolice to the consignee in time to remove if on that day ; and that in the absence of proof allowing neglect on the part of the ship-owner as warehouseman, he could not bo hold liable for the damage by frost.</p> <p>2. Same—Usage.</p> <p>A usage in respect to cargoes of fruit to delay the delivery until a day when the consignee should he able to have it sold on the pier, by a certain single firm of auctioneers, could not bo upheld, even if shown to exist, it being unreasonable and contrary to public policy to permit the time of a vessel’s discharging her cargo to depend upon the ability of a single auction house, in the accumulation of business and other engagements, to effect a sale of such cargo.</p>

<p>1. Bilh of Ladino — Common 'Carrier — Warehouseman —Destruction of Goods by Fire.</p> <p>Where goods were shipped to New York under a hill of lading containing a clause, “goods to he taken from along-side by the consignee immediately the vessel is ready to discharge, or otherwise they will he landed by the master and deposited at the expense of the consignee, and at his risk of fire, loss, or injury, in the warehouse provided for that purpose, or sent to the public store, as the collector of the district shall direct,” and the vessel arrived on a Wednesday morning, and on Thursday the merchandise was landed in good order, ana placed by itself at an accessible part of the pier, the arrival of the vessel being known to the consignees on Thursday, who, on that day, had the bill of lading stamped by the ship as'proof that the goods had arrived, and also entered the goods at the custom-house and procured a permit to land them, but made no attempt to remove the goods till late on the following Saturday afternoon, when one truck-load was taken away, and on Sunday a fire broke out on the pier and the goods were destroyed, held, that when the goods were burned, the relation of the ship-owners to them as common carriers had been terminated, and they were in the custody of the ship-owners as warehousemen.</p> <p>2,. Same—Burden ojí Proof—NkoiíTciknoe.</p> <p>The burden of proof was upon the libelants to show that tho fire was_ caused by the negligence of the defendants, acting as warehousemen, or their servants, and in the absence of proof of such negligence tho libel was dismissed.</p>

<p>Common Carrier—-Ware houseman—Destruction oe Goods by Ftrb—Negligence—Burden oe Proof.</p> <p>In an action brought to recover the value of goods destroyed under cb eumstances similar to those described in De Grnti v. Wilson, ante, 698, except that on the Briday before the fire the libelants’ truckman went to the pier, but did not lake the goods because he was told by the delivery clerk that the whole cargo was not then discharged, but would bo during the day, and no effort was made to remove the goods on that day or the next, although'they were then on the pier ready to be removed, and could have been removed, held, that at the time of the destruction of the goods they were in the possession of the defendants as warehousemen and not as common carriers, and that, in the absence of proof that the fire was caused by the negligence of the defendants or their servants, the liability of the defendants had not been made to appear, and the libel was dismissed.</p>

<p>Seamen’s Wages—Suit in Admiralty—Attachment mom State Court.</p> <p>The right of a seaman to sue in admiralty in personam for his wages is not taken away or suspended by an attachment of his wages by trustee process from a state court in an act ion at. law. liossv. Bourne, 14 Ted. Hep. 858, affirmed.</p>

<p>Admiralty—Wreckage—Private Bale without Notice or Appraisement.</p> <p>Where a boiler removed from the wreck of a vessel injured by collision was sold at private sale without the knowledge of those sought to be charged with its value, and without appraisement, the commissioner appointed to fix the amount of the damages credited the libelant with the full value of the boiler, as proved on the reference, instead of the price so realized; and, on excejfiions to the commissioner’s report, his finding was sustained.</p>

<p>1. Removal of Causes.</p> <p>The second clause of section 639 of the Revised Statutes was repealed by the act of congress of March 3, 1875.</p>

<p>a. an solvency—Obtaining Credit—Promise to Secure Creditor.</p> <p>The mere fact that a borrower, at the time of procuring a loan or credit, makes an oral statement or promise that if he should become insolvent he will secure or prefer the one who gives such credit over others, will not disqualny him from giving, and the creditor from receiving, the promised favor; and a transfer of property made in pursuance of such promise will not bo set aside as fraudulent, at the instance of the other creditors, except when a fraud was intended, or the circumstances within the knowledge of the creditor preferred were such that lie must have known that injury to others would probably result.</p> <p>2. Same—Employer of Insolvent to Manage Property.</p> <p>Nor will the fact that the insolvent, in the writing by which the agreement was effected, was employed to manage the property conveyed, in the absence of proof of fraud, be sufficient to avoid such transfer.</p>

Demurrer to Bill in Equity. This is a bill in equity, filed by complainant on his own behalf, and on behalf of all other stockholders of a New York corporation who may come in and join in the expense, against a California corporation, Donohoe, and other natural persons.

<p>1. Damages for the Detention of Certificate of Deposit.</p> <p>Tlie defendants unlawfully detained a certificate of deposit of the value of $2,000 from the plaintiff. Held, that the plaintiff was entitled to recover damages for such detention equal to legal interest on the value of the certificate from the date of the demand therefor and refusal, to the recovery; and this, without any evidence that the plaintiff would have converted said certificate into money and put it to use, other than his right to do so and the defendants’ illegal prevention of the exercise of such right.</p>

On Motion for a New Trial. This was an action upon a contract to run a steam-boat.. Defendants were the owners of a line of steamers running from Bay City to .Alpena, upon Lake Huron. Plaintiff was the charterer of a rival x steamer, know as the Gazelle, running from the Duck islands upon the Canadian shore of Lake Huron, where plaintiff was largely interested in fishing, by the way of Alpena to Bay City and back.

<p>Practice—Continuance—Absence oe Material Witness.</p> <p>Where a defendant, having good reason to believe that his co-defendant, who is a resident of Canada and has not been served, will be present at the trial as he has promised, in reliance on such promise has failed to take his testimony by deposition, and the testimony of the co-defendant is material, a continuance of the case may be granted to allow such testimony to be taken.</p>

<p>1. Railroads—’Taxation of Undivided Profits—Act of 1866—Act of July 14,1870.</p> <p>The undivided profits of a railroad corporation in 1871, carried to an account m the books of the company, known as “ unexpended earnings,” and used for construction, are liable to taxation under the act of congress amending the act of 1866, passed July 14,1870, which provides that there “shall be collected for and during the year 1871 a tax of two and one-half per centum * * * on all undivided profits of such corporation which shall have accrued and been earned and added to any surplus, contingent, or other fund.”</p> <p>2. Same—Intent of Act of 1870.</p> <p>The statute of 1870 was intended to reduce the taxon profits from five to two and one-half per cent., but was not intended to remove from such reduced tax any part of the profits.</p> <p>3. Same—Failure to Make Returns—Lapse of Time.</p> <p>As it was made the duty of the railroad company, under the acts of 1866 and 1870, 1o make returns to the proper internal revenue officer of the amount of income, profits, and taxes, when no returns have been made by the company, a failure on the part of the United States to demand such tax, or to institute proceedings to recover the same until J881, cannot constitute a bar to an action to recover such tax when it, does not appear that the delay has prejudiced the company by the disappearance or loss of evidence essential to its defense.</p> <p>4. Same—Shortening Track—Improvements—Construction.</p> <p>The amount expended by the railroad company in this case for a piece of new line for the purpose of shortening its tracks properly belonged with expenditures for improvements, and having been paid from the earnings, the amount so expended should be deducted from the amount subject to the tax.</p>

<p>1. Court Martial—Jurisdiction.</p> <p>A court martial has exclusive jurisdiction to try a party duly enlisted in the army for the military offense of desertion.</p> <p>2. Desertion—Statute or Limitations.</p> <p>The limitation prescribed for the trial and punishment of the offense of desertion by the 103d article of war is matter of defense, and the tribunal having jurisdiction to try the charge of desertion, is the tribunal having jurisdiction 'to determine whether the bar of the statute has attached or not.</p> <p>3. Same—Intereeheno® or Civil Courts.</p> <p>Civil courts have no jurisdiction to interfere with the military tribunals, while proceeding regularly in the exercise of their jurisdiction to try parties accused of desertion from the army.</p>

<p>Demurrer to Complaint. The facts sufficiently appear in the opinion of the court.</p>

<p>On Motion for Discharge of Defendant.</p>

<p>Note of Decision.</p> <p>Information for carrying on the business of a retail liquor dealer without the payment of the special tax.</p>

In this case, after a line of blocks had been formed and become solidified, a new block, from 12 to 20 feet by 2 or 2£ feet wide, was formed between scantlings and the block or blocks before formed, without interposing anything whatever between the new and the old blocks.

In Equity. On exceptions to master’s report. This was a bill to recover damages for the infringement of plaintiff’s patent, No. 72,988, for an improvement in trunks. The invention consisted “in covering the frame of the trunk with narrow strips of wood, laid in close proximity to each other all around its top and sides.” Plaintiff obtained an interlocutory decree, with reference to a master to compute the damages.

<p>- 1. Collision—Mutual Fault—Division op Damages.</p> <p>As the evidence in this case shows that the collision was occasioned, by the fault of both vessels,—the schooner in negligently entering the piers of the harbor, and the barge in occupying an improper position, in view of the time and the condition of the elements, and in maintaining such position, even if origiginally a proper one, after it became evident that disaster could only be averted by a change,—the aggregate of the damages' to the vessels caused by the collision should be divided between the two vessels.</p> <p>2. Same—Moving and Stationary Vessels—Presumption.</p> <p>Where a moving vessel collides with a stationary one, it is presumed that the former is in fault.</p>

1. On the morning of September 15, 1878, the side-wheel steamship Ancon, on a voyage from Portland, Oregon, to San Francisco, California, came in collision with the schooner' Phil. Sheridan, whereby the latter was wholly lost. The collision occurred between 20 minutes and 15 mimutes before 5 o’clock in the morning of that day 2.

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

In Equity. A. McKay and James Nolan recovered judgments for injuries received by them as employes of the receiver of the Central Railroad Company of Iowa. They each filed their petition of intervention in the original foreclosure proceeding in which the receiver was appointed, asking that their judgments be made liens upon the railway. Both cases were by agreement submitted and argued together.

<p>1. Married Women—Estoppel—Contract.</p> <p>A married woman may be bound by an estoppel, even where she has no power to bind herself by a contract, but a married woman, who is under a disability to contract, cannot be estopped by anything in the nature of a contract. To. estop a married woman from alleging a claim to land, there must be some positive act of fraud, or something done upon which a person dealing with her, in a matter affecting her rights, might reasonably rely, and upon which ho did rely, and was injured.</p> <p>2. Same—Acquiescence.</p> <p>Acquiescence or assent is tantamount to an agreement or implied contract, and requires for its validity the power to contract; and where a married woman could not make a-valid contract, in regard to her property, acquiescence cannot affect her rights therein.</p> <p>3. Same—Disposition of Property—Husband’s Consent.</p> <p>In North Carolina a married woman’s disability to dispose of her property without her husband’s written consent, extends to indirectly disposing of it by binding it by her contract.</p> <p>4. Same—Management of Property—Costs.</p> <p>But a married woman may manage and control her property under the laws of North Carolina without making her husband her bailiff, and may, in doing so, incur and render her separate estate liable to such charges as are proper to its management, and may sue by herself with respect to her separate estate, and control such suit, or enter into a valid compromise or settlement of her claim therein involved.</p> <p>5. Contract—Ability of Party—Dorm of Contract—What Law Governs.</p> <p>The ability of a party to contract depends upon the law of the domicile, when the question is one of personal ability or disability; as to the form of entering into the contract, the law of the place whore" the contract is made must control.</p> <p>6. Married Women—Contract—Law of New York.</p> <p>In New York there is no statute requiring the written consent of the husband to contracts to charge the wife’s separate property, and a married woman can bind her separate property either by making a contract for its benefit, or by expressly charging it in the contract.</p> <p>7. Stock—Ownership by Another Corporation—Law of North Carolina.</p> <p>In North Carolina, by statute, any railroad company within the state may own and vote upon stock in any other railroad company in the state.</p> <p>3. Repeal—Question of Intention.</p> <p>Whether a statute has been repealed is a question of intention. Where a legislature held a summer session, adjourned sine die, and the same legislature was convened again in the winter of the same year, the laws of the two sessions being published in separate volumes, and always referred to as acts of different sessions, it is clear that, by an act of the next legislature repealing ail ads of the “ last session ” upon a certain subject, there is no intention to repeal any act of the first session, (known as the summer session.)</p> <p>9. Equity—Removal of Trustees.</p> <p>To justify the removal of trustees for a breach of duty, their acts must be such as to endanger the trust property, or to show a want of honesty, or capacity; and where the failure in duty, as the evidence would seem to show in this ease, has proceeded from a misunderstanding, the court will refuse to discharge them.</p> <p>10. Evidence Reviewed—Agency not Shown—Prayer Refused.</p> <p>As the preponderance of testimony is very strong against the claim made by plaintiff that she is the owner of the railroad bonds, either in law or equity, the prayer of the bill that the holders of such bonds bo declared trustees, as having purchased the same as her agents, is denied</p>

The plaintiff B. E. Mitchell was the payee and owner of two negotiable promissory notes executed by one A. H. Blythe, each for the sum of $1,000, which he indorsed and delivered to the Commercial Bank of Texarkana for collection.

<p>1. Unrecorded Deed—Attaching Creditor—Connecticut Statute.</p> <p>By the law of Connecticut an unrecorded deed is ineffectual, as against attaching creditors of the grantor, unless they had notice of such conveyance.</p> <p>2. Same—Possession of Grantee—Notice.</p> <p>As a general rule, open, notorious, and exclusive possession by the grantee, under an unrecorded deed, is sufficient to raise a legal presumption of notice, to an attaching creditor of the grantor, of the existence of such conveyance; hut the testimony in regard to the notorious possession must be clear and certain, and such as to make the inference of notice to the creditor beyond serious question.</p> <p>3. Same—Notice of Tenancy.</p> <p>In such a case notice of a tenancy will not, it seems, amount to constructive notice of the lessor’s title.</p> <p>4. Deed for Benefit of Creditor—Description of Property.</p> <p>By the law of Connecticut, where the only description of property conveyed by a deed of mortgage is all the property of the grantors, real and personal, in certain towns in that state, named in such conveyance, the description is; insufficient, and the deed conveys no title to the Connecticut lands.</p> <p>5. Same—Trustee to Carry on Business—Non-Assenting Creditors—Fraud.</p> <p>By the law of Connecticut, where assignments, intended for the benefit of all the creditors, place the entire estate of the debtor .beyond the reach of non-assenting creditors, in the hands of a trustee, who is empowered and directed to carry on an extensive and hazardous manufacturing business for an indefinite period, and thus subject the property of the non-assenting creditors to the hazards and uncertainties of such business, the conveyances will be held fraudulent in law, so far as they attempt to convey lands in Connecticut as against non-assenting creditors.</p>

The indictment in this case was based upon sections 5438 and 4746 of the Bevised Statutes of the United States.

<p>Patents for Inventions—Inerin&ejient.</p> <p>Claims 1, 2, and 3 of patent No. 184,281, granted to Henry Dunham, August 18, 1874, for an improvement in machines for driving nails in boots and shoes, are infringed by the nailing machine made by J. E. Kimball, but the fourth claim in said patent is not infringed by said machine.</p>

<p>Patents for Inventions—Claim in Reissue Repeating Claim in Origínal Patent.</p> <p>Where the claim in a reissue, while differing verbally from the claim in the original patent, is substantially and in legal effect a mere repetition of that claim, the claim in the reissue may be sustained.</p> <p>Gage v. Herring 2 Sup. Ct. Rep. 819; Schillinger v. Greenway Brewing Co. 17 Fed. Rep. 244, followed.</p>

<p>1. Neutrality Laws—Forfeiture of Vessel—Admiralty Rule 11.</p> <p>Tlie eleven tlirule in admiralty, authorizing the bonding oí vessels arrested, is not imperative in all cases; it is designed to apply in, suits to recover pecuniary demands, and should not be applied where it would defeat the object of the suit.</p> <p>2. Same—Rev. St. $$ 5283, 4189—Bonding Vessel.</p> <p>Section 5283 of the Revised Statutes is designed to prevent hostile expeditions altogether by the seizure and forfeiture of the vessel engaged in them; not to :et a price, hv releasing the vessel on bond, upon the violation of international obligations: and no interpretation of the admiralty rules should be permitted which would admit of that result.</p> <p>3. Same—Cask Stated.</p> <p>Where tlie steam-tug JVI. N. Hi. was seized for forfeiture under sections 5283 and 4189, on a libel charging, upon responsible authority, that she had been fitted out for, and was about to depart upon, a hostile expedition against Hayli, and was registered under a false certificate of ownership, and application was made by lite alleged own ;r. under rulo 11, for appointment of appraisers ior the purpose of bonding the vessel, held, that rule 11 was not designed for such a case, and that the vessel should not bo released on bond, and the application for appraisers was denied.</p>

<p>1. Admiralty—JjIen—Supplies—Presumption.</p> <p>Necessary supplies furnished to a vessel in a foreign port are presumptively furnished upon the'credit of the vessel as well as of her owners, and a lien on the vessel therefor will be sustained,- unless the evidence is sufficient to rebut this presumption. ...</p> <p>2. Same—Owner’s Agreement.</p> <p>The lien will not be-affected by an agreement between the owners and the captain that the latter should find the crew and provisions, where the seller had no knowledge or notice of the agreement. ■ •</p>

<p>Jubisdictton—Lease ok Heat, Estate to Confer—Title to Water Eront.</p> <p>The owner of certain dock property, who derived his title from tlie British crown through a grant of land hounded by the “ water side,” in anticipation of the action of the defendants, leased the same to plaintiff, who was a citizen of another state. Defendants, who derived their title also from the crown, attempted, under authority of the laws of the state of New York, to till into the water, and build a new water front before the landing place, and cut it off from the water, lie),A that, as defendants were grantees of the crown, they were limited as if they had made the grant the crown had made, and conld not, grant land bounded on a way, and afterwards remove the way without compensating the parties injured. Held, further, that, although the principal motive ”i making the lease was to enable the plaintiff to sue in the circuit court of the United States, as it did not appear that the lease was not real and effectual to pass the title of the term to plaintiff, the suit involved a controversy properly within the jurisdiction of the court.</p>

In Equity. On demurrer to bill. This was a bill in equity on behalf of complainant, and all other creditors who might come in and contribute to the expense of her suit, against the heirs of Peter Desnoyer, to charge his estate with the payment of a balance remaining due upon a mortgage after sale of the property. The bill set forth that Desnoyer and wife in 1875 mortgaged to complainant certain lands in Sandwich, in the province of Ontario, to secure the payment of $4,000.

<p>Grain Gambling—Commission— Rtght of Telegraph Company to Remote “Ticker” prom a “Bucket-Shop.”</p> <p>The complainants were dealers in grain and produce. They never bought or sold lor present deliver}, but always dealt in futures and upon margins. Whenever the required margin was placed in their hands, they would buy or sell, for customers desiring them so to do, grain and produce at the last quotation of the Chicago Board of Trade. Such purchases or sales were always for the next or succeeding month’s delivery, and the deal was taken by the complainants themselves. The customer was always required to keep his margin good, and that without notice; and if, at any time before the date fixed for delivery, the market in Chicago went against the customer to the extent of his margin, the trade was closed, the complainants taking the margin and the customer not being held personally liable, the extent of his loss being his margin. If, however, the market went, in favor of the customer, ho could call for a, seillement any time and without regard to the maturity of his contract, and ho was then paid the difference between the then, market price and the price at which he bought or sold, less a sum wlncn was called by the complainants “ commission,” which sum was one-fourth cent per bushel of grain alleged to be bought or sold. Held—</p> <p>(1) That this was gambling of a most pernicious and demoralizing species, which a court, of equity would not protect by enforcing contracts or otherwise.</p> <p>(2) That the alleged commission was not commission at all, but was really the odds which the customer gave Iho complainant* in the wager on the future of the market; because the complainants always took the deal themselves, and •did not pretend to buy or sell to others for the account of the customer.</p> <p>(3) Complainants being in the business of gambling, equity -will not compel a telegraph company to furnish to them, by means of a telegraph machine known as a “ticker,” quotations of prices ruling upon the Chicago Board of Trade, and this even though complainants were members of that board.</p>

<p>Bamkbuptcy—Dismissal ob1 Appeal—Costs.</p> <p>Where an appeal from the disallowance of a claim by the district court is dismissed for want of jurisdiction, docket fees or other costs are not taxable.</p>

<p>Indictment under Bev. St. § 3891.</p>

<p>1. Patents for Inventions—Act of 1870—Foreign Patents—Expiration.</p> <p>Under the act of 1870 a patent takes effect from the time when it is granted, and cannot he antedated. The meaning of section 25 of the act is, that a United States patent shall expire at the same time with the foreign patent having the shortest time to run, which was granted before the United States patent was granted, and not mat it shall expire at the same time with the foreign patent having the shortest time to run, which was granted before the time when the application for the United States patent was made.</p> <p>2. Same—Duration—Expiration.</p> <p>A capacity of being prolonged so as to have a duration of 15 years is not equivalent to having a term of 15 years, when the patent is granted for one year, and then is prolonged so as to expire at the end of 10 years.</p> <p>3. Same—Secret Austrian Patent.</p> <p>The question of secrecy or publicity in an Austrian patent cannot, under section 25 of the act of 1870, affect the question of the duration of the foreign patent in this country.</p> <p>4. Same—Expiration of Patent No. 120,057—Magneto-Electric Machine.</p> <p>As the foreign patent has expired in this case, patent No. 120,057, granted to Zenobe Theophile Gramme and Bardley Louis Charles D’lvernois, October 17, 1871, for an improvement in magneto-electric machines no longer continues to exist.</p>

<p>1. Patents for Inventions—Assignment by Married Woman or Infant-States Laws.</p> <p>A married woman, an infant, or a person under guardianship, may ho an inventor oi the assignee of an inventor, and when such, the right to the patent would vest in them, and when so vested as patentee or assignee, all that the act of congress requires is that if they assign the patent such assignment shall' be in writing, so as. to be recorded; but the ability to make the instrument must be found in the laws of the states, where all such rights are regulated.</p> <p>2. Same—Law of New York.</p> <p>In New York a married woman may take by assignment, and by writing ■ assign a patent, and may sue in her own name for an infringement of her rights.</p> <p>3. Same—Claims in Reissue.</p> <p>The invalidity of a claim in a reissue does not impair the validity of a clain* in the original patent, which is repeated and separately stated in 'the reissue</p> <p>4. Same—Infringement—Part of Invention.</p> <p>It is not necessary to take the whole invention to constitute an infringement.</p> <p>8. Same—License.</p> <p>Where an infringer is not acting under a license, but in defiance of the patent and outside of the license, it will not protect him.</p> <p>6. Same—Patent No. 110,839—Reissue 8,121.</p> <p>Reissued letters patent No. 8,121, dated March 12,1878, granted to David Fetter, assignor, for an improvement in drive screws, the original of which was No. 110,839, dated January.10,1871, held valid as to the first claim, and infringed by defendant.</p>

<p>Patents for Inventions—Infringement—Costs.</p> <p>Where, in an accounting for profits and damages for infringement of a patent, the orator has recovered on the merits, and the defendant has not prevailed upon any issue upon any distinct item in the case, the costs will not be apportioned, but defendant held liable for the whole amount.</p>

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

<p>1. Admiralty— Collision—Rule 21—Moderate Breed—Fog.</p> <p>The moderate speed required of steamers in a fog by rule 21, is something materially less than the vessel’s ordinary full speed; it has reference to all the circumstances affecting the steamer’s ability to keep out of the way, including her own power in backing, and requires a reduction of speed according to the density of the fog. Whenever the fog is sufficient to increase materially the dangers of navigation, a given speed may be moderate for a swift vessel, which would be excessive for a slow one having less power to stop and back quickly.</p> <p>2. Bame—Prompt Backing.</p> <p>Where there is danger of collision, prompt backing, as well as stopping the engines, is incumbent on the steamer, and any delay in ordering the engines reversed is at her risk.</p> <p>3. Same—Mistake oe Sails—Error oe Judgment.</p> <p>An erroneous order to change the helm, owing to the lookout’s mistaking the main try-sail for the head-sails when first dimly seen through the fog, the mistake being corrected as soon as it could be perceived, held, error of judgment and not a fault,</p> <p>4. Same—Overtaking Yessel.</p> <p>An overtaking vessel is one coming up astern of the proper range of the leading vessel’s colored side-lights; i. e., more than two points aft of abeam.</p> <p>5. Same—Flash-Light—Rev. St. § 4234.</p> <p>The American law (section 4234, Rev. St.) requiring a flash-light to be exhibited to an overtaking vessel is not applicable, as the law of the forum, to a collision between vessels belonging to two different foreign nationalities, neither of which requires such a light, according to its own maritime law.</p> <p>6. Same—Light—English Law.</p> <p>No stern-light or flash-light was formerly required by the English regulations; and the maritime law, as construed by the English courts previous to the new rules of 1880, did not make the exhibition of sucli a light indispensable, hut only one of various signals which might he adopted by the leading vessel to warn an overtaking vessel of her whereabouts. BemMe, the French law is similar.</p> <p>7. Same—Signals by Horns Sufficient.</p> <p>Where a fog was such that a steamer used her fog-whistles, and a brig her fog-horn, held, the latter’s blowing three fog-horns continuously from the time the steamer was observed, was a sufficient compliance with the former English and French maritime law as a signal to an overtaking steamer, if the latter were in fact astern of the range of the brig’s lights.</p> <p>8. Same—Change of Course in Extremis.</p> <p>Where a brig luffed less than half a minute before a collision, which seemed to be instantly impending amidships, in order to save her small boats, held, a change in extremis, and not a fault, though the change was useless and erroneous.</p> <p>9. Same—Evidence—Credibility of Witness.</p> <p>Where the great preponderance of testimony showed the mode and'conditions of the collision to be such that the steamer could not have been astern of the range of the brig’s red light, if properly set and burning, and no red light was seen by an alert lookout on the steamer, or by her officers, who were all watching the brig, and a change of helm was made by the steamer upon a mistake of the brig’s course, which mistake could not have been made had the red light been seen, and the evidence being also unsatisfactory as to the trimming and proper adjustment of the brig’s colored lights, no screens being used, but the poop-rail used instead, held, that though most of the brig’s witnesses testified that the red light was burning brightly, superior credit should be given to tlie steamer's witnesses that no rod light was visible, and the brig was held in fault.</p> <p>10. Same— Oase Stated.</p> <p>Where a collision occurred between the English steamer State of A. and the Erench brig M. & G., on the high seas, about 30 miles east of the Grand Bank, on a night which was foggy or hazy below, and bright moonlight above, and the steamer was previously going W. S. w., about eight and one-half knots, her ordinary full speed, and the brig about one or one and one-half knots, on a course from S. to S. W. , close-hauled and by the wind, which was variable, both vessels previously using their fog signals; and the brig, on discovering the steamer’s white and green lights somewhat aft of abeam, about three or four minutes before the collison, set three horns a blowing and rang the bell, but .showed no stern or flash light; and the steamer,.from two to three minutes before the collision, having observed the dark loom of the brig nearly ahead on her starboard bow, but seeing no light, at once ordered her helm hard a-port and engines stopped, and afterwards, when the brig’s sails first became indistinctly visible, about one-half or three-fourths of a minute before collision, or- • dered her helm to starboard, through the brig’s main try-sail being mistaken for , the head-sails, but corrected the error by the time the helm had run amidships, and again put the helm hard a-port, and at the same time ordered her engines full speed astern, and the brig luffed at about the same time, changing two points to westward, and the collision happened about a half minute after, by the steamer’s striking the brig nearly at right angles, about nine feet from her stern, and the brig was sunk,—held, that the steamer was in fault for not having reduced her running speed in the fog, and also for not more promptly reversing her engines after the brig was discovered. Held, also,-that the brig necessarily bore .at least 'one and one-half points off the steamer’s starboard bow when discovered, and could not have been sailing further west than S. by W. or S. S. W., and that her red light ought to have been seen on the steamer; that it was not seen through no fault on the steamer’s part, but because it was either dim or improperly set; and that for this fault of the brig she could recover but half her damages.</p>

Demurrer to Replication. This is a case removed to this court from the circuit court of the city of St. Louis, at the instance of tho defendant, who is a citizen of the state of Tennessee.

Bill in Equity. The complainant, Isaac S. Hartley, is the owner of the record title of certain glands in O’Brien county, Iowa, which were sold at tax sale in 1874 for certain taxes as assessed thereon in 1873. Tax deeds to H. Greve were executed on the third day of January, 1878, by the treasurer of O’Brien county. At the September term, 1879, of the circuit court of O’Brien county, IT.

<p>Common Carrier—Purchaser of Railroad Ticket Bound to Comply with its Conditions—Authority of Conductor.</p> <p>Where A., a railway company, sold a ticket to B., good for a trip from 0. to D. over A.’s road and B.’s road, with which A.’s connected, and also good for a return trip on condition that B. should, within a specified time, identify himself to E.’s authorized agent at D., and have his ticket dated and signed in ink and stamped by such agent, and B., in a suit against A. for damages, set forth said facts in his petition, and alleged that within the specified time he presented himself and said ticket “ at the business office and depot ” of E. at D., before the time of departure of E.’s train for 0. which he desired to take, and offered ‘to identify himself and have said ticket stamped, etc., “ and in all manner fully complied with the terms of said contract on his part,” but that the defendant and E. failed to have an agent present then and there at said office for that purpose at any time between the time the plaintiff so presented himself and his ticket and the arrival of the train for 0.; that B. proceeded on said train, however, and explained the said circumstances to the conductor, who agreed to permit him to ride as far as X., an intermediate point, but subsequently, instead of so doing, ejected him from the train,—held, on demurrer, that no sufficient excuse for B.’s non-compliance with the conditions of his ticket was given; that said conductor had no power to pass upon B.’s excuses; and that, therefore, the petition did not state a cause of action</p>

At Law. This is an action brought by Mrs. Mary Cunningham to recover the sum of $5,000 damages for the death of Thomas McCarthy, the son of this plaintiff; which was caused by his being run over by a switch-engine, while he was in the employ of this defendant as such yardman. Defendant sets up contributory negligence as a defense.

<p>1. Homestead Act of ííevada Construed.</p> <p>A party claiming the benefit of the homestead act must record his written claim or declaration of homestead in the manner in the act prescribed.</p> <p>2. When Declaration Takes Effect.</p> <p>When such declai'ation is duly made and recorded, the property, from that instant, becomes exempt from forced sale, except for the debts and liabilities mentioned in the constitution and statute of the state.</p> <p>3. Same—Sale Void.</p> <p>Where declaration of homestead was duly made and recorded Jive days prior to advertised sale of premises, held, that such declaration was made and recorded within time; that the premises could not be legally sold; and that a forced sale thereof was void, the debt upon which the homestead was sold not being one of the class of debts enumerated and excepted in the constitution of the state.</p> <p>4. Dedication—When Rights Attach.</p> <p>Homestead rights attach whenever the property is dedicated to such use in the manner by law provided; and if such dedication is made at any time before forced sale, the property becomes exempt and cannot be legally sold.</p>

<p>Action for Debt. Decision of the court on the law and facts.</p>

<p>1. Common Carrier—Contractings for Exemption from Negligence.</p> <p>A common currier cannot lawfully stipulate for exemption from responsibility for the negligence of himself or his servants.</p> <p>2. Same—Presumption of Want of Care.</p> <p>When a thing is shown to be under the management of the defendant or his servants, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence'., in the absence of explanation by the defendants, fhat the accident arose from want of care.</p> <p>3. Same—Bill of 1 jabino—Benefit of Insurance.</p> <p>A clause in a bill of lading which provides that the carrier who is legally liable for any damage shall have the benefit of any insurance that may have been effected upon the damaged goods, is not an unreasonable and unúwt. exemption from liability for negligence, and may be enforced.</p>

On Demurrer to Petition. This is a suit brought to recover judgment upon bonds issued by the. defendant under the provisions of certain statutes mentioned in the opinion, authorizing the county to issue such obligations to facilitate the reclamation of swamp lands, and to be known as “land improvement bonds.”

This is an action brought by plaintiff to recover from defendant the sum.of |20,000 damages alleged to have been sustained by plaintiff by reason of an assault and battery committed by defendant upon plaintiff, on or about the thirtieth day of March, A. D. 1881, at the town of Beno, county of Washoe, state of Nevada. The cause was duly tried in this court at the November term thereof, 1882; Hon. Lorenzo Sawyer, circuit judge, and Hon. G. M. Sabin, district judge, presiding.

Admiralty Appeal from District Court.1 The libelants are insurance companies, and as such insured certain goods shipped from St. Louis to New Orleans upon the boats of defendant, and the said goods having been lost in part, and in part damaged by a collision, they paid the losses to the shippers, and sued the defendant in admiralty. Decree below for libelants, and defendant appeals.. The other facts sufficiently appear in the opinion.

<p>1. Collision—Damages—Demurrage.</p> <p>In collision cases, damages in the nature of demurrage for detention of th* vessel while repairing, wlíich are plainly out of all proportion to the value of the vessel, should be disallowed. Only the market value for chartering, or fair net earnings as ordinarily employed, over all expenses, should be awarded for den--u’rage.</p> <p>2. Same—Depreciation—Repairs.</p> <p>Nothing should be allowed for permanent depreciation of the vessel repaired, when, after being repaired, the vessel is, on the whole, worth as much as before the injury.</p>

<p>Exceptions to Commissioner’s Iteport.</p>