Volume 18 — Federal Reporter

<p>Removal op Causes — Failure to Fix,® Copy op Record prom State Court ■within Required Time.</p> <p>Suits pending in the slate courts can only be transferred into the federal courts by autliorily of tlie laws of congress; and where parties seek to avail themselves of the provisions of such acts tney must comply with all the terms and conditions imposed in them. The requirement of the act of 1875, that a copy of the record of the proceedings in tlie si ate court shall be filed in ihc circuit court on the first day of tlie next session thereof following tlie filing of the petition for removal, is manda lory, and an order extending the time within which tlie copy of the record shall be filed, can only be allowed in cases where it is impossible for tlio party removing the cause to obtain the required copy.</p> <p>See Glover v. Shepperd, 15 Fed. Rep. 833; Hall v. Brooks, 14 Fed. Rep. 113.</p>

<p>1. Removal of Cause — The Ruling in Bakney ». Latham.</p> <p>Barney v. Latham, 103 U. S. 205, followed, whore it is held that under the second clause of the second section of the act of March 3, 1875, e. 137, (18 St. pt. 3, p. 470,) when in any suit mentioned therein there is a controversy wholly between citizens of different states, which can be fully determined as between them, then either one or more of the plaintiff's or the defendants actually interested in such controversy may, on complying with the requirements of the statute, remove the entire suit.</p> <p>2. Same.</p> <p>The right to remove depends upon the case as disclosed by the pleadings when the petition for removal is filed, and is not affected by the fact that a defendant who is a citizen of the same state with one of the plaintiff's may be a proper, but not an indispensable, party to such a controversy.</p> <p>See City of Chicago v. Hutchinson, 15 Fed. Rep. 129.</p>

<p>1. RkmoyaT) — Act of 1875, § 2 — Severable Conthoversy — Mining Corporation’ — Fraudulent Organization.</p> <p>An action against several defendants may he removed to the circuit court by one o£ them, against, whom alone there is a separable controversy, which can be fully determined without the presence of the oilier defendants, no matter what additional controversies or grounds of action the complaint may contain.</p> <p>2. Samp, — Mining Corporation — Frauddubnt Organization — IujEGAu Issue op Stock.</p> <p>Where the trustees of a mining company, with @10,000,000 nominal capital, at its organization issued all its stock as full-paid, in the purchase of certain mining property worth less than §100,000, and then, m pursuance of a previous agreement, with the grantor of the land, took back an assignment of all the stock to themselves, and paid to the seller of the property less than §100,000, and then put the stock on the market as full-paid stock, and sold it for their individual account, some of which the plaintiff purchased, held, in an action brought by the plaintiff to compel the trustees individually to “ account ” for §10.000,000, and also that each of them severally account for their profits on such sales of stock, that the complaint charged no joint account or community of interest in such sales or profits on stock sold, and that in respect thereto tho controversy was severable, as neither, if accountable at all, could be held for the profits of tho others, and the profits of each could be determined without the presence of the other defendants, and that the cause was, therefore, removable.</p>

<p>Interstate Commerce — Power of the State to Regulate.</p> <p>The state board of railroad commissioners has no power to regulate or interfere with the transportation of persons or merchandise, by a steam-ship company, between ports within the state, if they be in transit to or from other states, or when in navigating the ocean the vessel goes beyond a marine league from the shore. This power has been conferred upon congress, and is exclusive.</p> <p>See Memphis & L. R. R. Co. v. Nolan, 14 Fed. Rep. 532, and. note, 534.</p>

<p>1. Insurance— Mutual Association Policy — How Enforced — Practice.</p> <p>Where a policy of insurance issued by a mutual association does not fix upon the association an absolute liability to pay any particular sum, but only a liability to pay the proceeds of a particular assessment to be levied in a particular way, not to exceed a certain sum, and further provides that the association shall only be liable in a proceeding to compel it to make the assessment, an action at law to recover the maximum amount named in the policy cannot be maintained.</p> <p>2. Same.</p> <p>The only remedy in case of the assured’s death is by a proceeding in chancery to compel a specific performance.</p>

<p>Motion for judgment upon a verdict directed in favor of the plaintiff, subject to the opinion of the court. The action was brought to recover an alleged balance of duties due to the government upon three importations by the defendant, in 1880, of “iron tank-plates, punched and cut ready for use.” The three entries were made, respectively’, January 30th, February 16th, and April 10th. The goods were entered by the defendant as “manufactures of iron not otherwise provided for,” and subject to estimated duties amounting, respectively, to $1,927.45, $1,348.55, and $1,835.05, which sums were paid to the collector for duties on the day of entry in each case; and the goods were at the same time delivered to the importer. The collector, in his first liquidation of the duties upon these importations, assessed them as “boiler or other plate iron,” which is subject to a higher rate of duty. Upon due protest and appeal by the defendant, the secretary of the • treasury, by order of November 23, 1880, reversed-the classification and assessment of the collector, and sustained the position of the.importer; and, in accordance with this decision and order, the duties were reliquidated by the collector in Jan-nary, 1881, at the amounts deposited and paid by the importer upon the original entries, with the exception of $11.90, which it is claimed was immediately paid by the importer. Thereafter, on the twenty-fourth of February, 1881, the secretary made a further order, contrary, to his previous decision in favor of the importer, and directed another reliquklaiion in accordance with the collector’s original assessment and liquidation; and under this last order the duties were again liquidated by tlié collector on the third of March, 1881, amounting to $4,015.83 in excess of the amount previously liquidated and paid, to recover which this suit was brought, with interest to the time of trial, amounting to $301.17; and a verdict was thereupon directed for the aggregate sum of $1,317, subject to the opinion of the court, with leave to either party to file a hill of exceptions, to which direction the defendant excepted.</p>

<p> Habeas Corpus. </p>

<p>1. Treaties and Laws — Conflicting Provisions.</p> <p>An act of congress upon a subject within its legislative power is as binding upon the courts as a treaty on the same subject. Both are binding, except as the latter one conflicts or interferes with the former. Whether a treaty has been violated by our legislation so as to be the proper occasion of complaint by a foreign government, is not a judicial question. To the courts, it is simply the case of conflicting laws, the last modifying or superseding the earlier.</p> <p>2. Chinese Immigration — British Subjects.</p> <p>A Chinese laborer, born on the Island of Iiong Kong after its cession to Great Britain, is within the provisions of the act of congress of May 6,1882, restricting the immigration of Chinese laborers to the United States. The purpose of the act was to exclude laborers coming from China subject to the stipulations of the treaty of 1880 with that country, and to exclude laborers of the Chinese race coming from any other part of the world.</p>

This was an application for a writ of habeas corpus to release a prisoner confuted in tho Detroit House of Correction, under sentence from the district court for the eastern district of Arkansas.

<p>PATENTS ROB INVENTIONS-INDIA-RUBBEB ERASERS-LOCKWOOD AND HOLTON Patents, Nos. 167,445 and 233,511.</p> <p>As, upon examination of the evidence of priority in this case, it appears that Rhodes Lockwood was the original and first inventor or discoverer of the improvement in India-rubber erasers, as described in patent No. 167,445, granted to him September 7, 1875, and that Francis Henry Holton was also the original, but not the first, inventor or discoverer of such improvement, and that said Holton was guilty of laches in not filing his application for patent until two years after the invention had been in public use and on sale, patent No. 167,143 is sustained, and the Holton patent, No. 233,511, issued to Orestes Cleveland, as assignee, October 19, 1880, declared void.</p>

<p>L Patent Law — Infmng-ement.</p> <p>Where a combination is claimed by a patentee, it is a familiar principle that all tbe parts of tbe combination must be used by tbe defendant in order to constitute an infringement.</p> <p>2. Same.</p> <p>' Following tbe above-stated principle, it was beld tbat tbe reissue of letters patent No. 9,942, dated November 22,1881, for a new device for packing stick-candy in packages, was not infringed by tbe defendants, since they did not use part of the combination of tbe patentee, which figures in all of bis claims as an essential element of tbe patent.</p>

<p>PATENTS FOR INVENTIONS — REISSUE No. 10,162 — HOTCHKISS CLOCK — LANE CLOCK.</p> <p>The first eight claims of reissued patent No. 10,162, issued March 14,1882, to Arthur 33. Hotchkiss, for improvements in clock movements, and which describes an invention of which no trace is to be found in the original specification, and manifestly other and different from that which was the subject of the original patent, are void.</p>

<p>ADMIRALTY PRACTICE — AFFIRMANCE OF DECREE OF DISTRICT COURT — ALLOWANCE of Interest.</p> <p>Ordinarily, when an admiralty decree of the district court, which includes interest, is affirmed by the circuit court, interest will be allowed on the full ' amount of the decree below.</p>

<p>Removal oe Cause h’rom one United States Circuit Court to Another.</p> <p>Section 615 oi‘ tlie Revised Statutes, authorizing a cause to he transferred from one circuit “into the circuit court of the next adjoining stale, or the next adjoining circuit court,” must ho construed as giving all the powers necessary to the court in order to carry the litigation between the parties into judgment or decree.</p>

<p>1. Eailtjoads — Suits Against — When CHARTERED in Several States — Jurisdiction op Federal Courts.</p> <p>The supreme court lias decided tliat when the same corporation owning a road which runs through several states is chartered by each of them, it is, by a useful fiction, to be considered for purposes of jurisdiction a citizen of each of the states; and where such a corporation is sued in one of the states in which it holds a charter, as a citizen of that state, it cannot set up that it is likewise a citizen of another.</p> <p>2. Same.</p> <p>The fiction that makes two or three corporations out of what is in fact one, is established for the purpose of giving each state its legitimate control over the charters which it grants; but the acts and neglects of the corporation are done by it as a whole.</p>

<p>1. Municipal Bonds — Omission of Certain Allegations nsr a Petition of Tax-Payers.</p> <p>An act providing for the issue of bonds, and stating that certain parties shall be deemed tax-payers and others shall not, does not make two classes of taxpayers, — it makes one; and a petition alleging that the signers are a majority of the tax-payers of the town is not invalidated by the omission to state the words “ not including those taxed for dogs or highway tax only,” notwithstanding such negative clause was used in the act providing for the issue of bonds, and for the reason that, in defining the word “tax-payer,” the act expressly excludes persons so taxed.</p> <p>2. Same — Enforcement of Municipal Bonds by the Federal Courts.</p> <p>In proceedings for the enforcement of payment of municipal bonds, the policy of the. federal courts is to sustain, if possible, the validity of the bonds, and they will refuse to invalidate the same, except for grave and serious infirmities. Even where the question which arises is a doubtful one, a construction should be given to the statute which upholds the bonds, rather than one which invalb dates them in the hands of a bona Jide holder.</p>

<p>Motion to Recall Execution.</p>

<p>1. Habeas Corpus — Power oe Federal Courts — State Criminal Statute.</p> <p>The circuit court of the United States may issue the writ of habeas corpus upon the application of any person who is imprisoned in violation of the constitution, or of any law or treaty of the United States ; ánd if a person he imprisoned under a state statute which is in conflict with either, that court has power'to discharge him.</p> <p>3.State Statute Held not in Violation oe tbe Constitution oe the’ United States.</p> <p>The statute of Missouri providing for the punishment by fine and imprisonment of any person who shall manufacture, “ out of any oleaginous substance, or any compounds of the same, other than that produced from unadulterated milk, or cream from the same, any article designed to take the place of butter or cheese produced from pure unadulterated milk, or cream of the same,” or who shall sell or offer for sale the same as an article of food, is not in violation of any provision of the constitution of the United States.</p> <p>3. Patent Laws — Rights oe Patentee.</p> <p>The sole object and purpose of the patent laws is to give to the inventor a monopoly of what he has discovered. What is granted to him is the exclusive right, not the abstract right; but the right in him to the exclusion of everybody else. He is not authorized by the patent laws to manufacture and sell the patented article in violation of the laws of the state. His enjoyment of the right may be modified by the exigencies of the community to which he belongs, and-regulated bylaws which render it subservient to the general welfare, if held subject to state control.</p> <p>4. Patent — In what Sense a Contract.</p> <p>A patent is a contract only as between the parties to it, namely, the United States on one side and the patentee on the other, and the rights conferred thereby can extend no further than the right granted to the patentee under the patent laws.</p> <p>5. Regulation oe Commerce-.</p> <p>The statute above mentioned is not a regulation of commerce among the several states.</p> <p>6. Deprivation oe Liberty or Property — Fourteenth Amendment to the Constitution.</p> <p>The statute above named does not deprive any person of- liberty or property without due process of law, within the meaning of the fourteenth amendment to the constitution.</p> <p>7. Habeas Corpus — Jurisdiction.</p> <p>The federal courts have no jurisdiction to discharge a prisoner held under, a state statute, upon the ground that such statute is in violation of the constitution of the state, or in excess of the powers which the people of the state have conferred on their legislature. If it does not violate the federal constitution, the question is for the state courts.</p>

<p>1. Habeas Corpus — Power and Authority of Courts to Modify, Amend, or Set Aside Judgments, Etc. — Adjourned Sittings.</p> <p>A court has ample authority to set aside, modify, or amend its judgments, orders, and decrees at the term at which they are rendered.</p> <p>2. Same — Case Stated.</p> <p>The petitioner, after being convicted and sentenced by the court, and after stay allowed for an appeal, was a second time brought before the same judge, on an adjourned day of the same term of court, and the first judgment having been set aside, received the same sentence from the court, except that there was a substitution of penitentiaries. Held, that the court had full power to set aside or amend its judgment, which was rendered on a previous day of the same term, and that no injury had been done the petitioner, and none of his rights invaded.</p>

<p>1. WrraEss — Examination—Pkiviuege—Incriminating One’s Seuf.</p> <p>To justify a witness in refusing to testify on the ground that his evidence may incriminate him, reasonable ground must appear to the court to apprehend some proceedings against the witness upon a criminal charge, and some danger 1 o the witness in answering.</p> <p>2. Same — Rev. St. § 860.</p> <p>Jn the United States courts, since the passage of the act of February 25, 1868, (section 860, Rev. St.,) preventing any such evidence being used against the witness or his property, the reason of the former rule having ceased, the rule should no longer be upheld, hor the privilege of the witness on this ground be sustained.</p> <p>3. Same — United States Constitution — Fifth Amendment.</p> <p>The constitutional provision (article 5, Amendment) that “ no person shall be compelled in any criminal action to be a witness against himself,” applies only to evidence in suits or proceedings instituted against the witness himself.</p>

<p>1. Patents for Inventions — Inventor’s Oath on Application for Patent or Reissue.</p> <p>Objection being taken by tbe defendants that the oath of the plaintiff to his application for a reissue is irregular and insufficient, in stating that the original letters patent are not “fully operative ” instead of “inoperative,” held, that the words “inoperative or invalid,” in the statute authorizing reissues, mean inoperative or invalid in whole or in part, and that consequently the words “ not fully inoperative ” conform to the true intent of the law,.if the law required an oath, which it does not. The statutory requirement of an affidavit by an applicant for an original patent is directory merely; and, if it is irregular or omitted altogether, the patent is not thereby vitiated. In the matter of reissues there is no law requiring the applicant to take any oath on the subject of the invalidity of his original patent.</p> <p>2. Same — Laches.</p> <p>Reissue No. 2,756, dated August 27, 1867, of letters patent No. 44,624, dated October 11,1864, held void on account of failure to make application to amend within the required time. But such failure and long delay in the reissue of October 31,1876, of original letters patentNo. 69,176, dated September 24,1867, held not void, on the ground that the circumstances of the delay in this case were such that it could not be accounted laches on the part of the plaintiff, and was one from which no innocent person could have suffered.</p>

<p>Patents foe Invention's.</p> <p>Tlie patent of Erskine F. Bickford, No. 196,788, for rubber boot-straps, not sustained for lack of novelty.</p>

<p>Suit to Becover Demurrage, and for Breach of Contract of Affreight- ' MENT.</p> <p>Libelants were not permitted to recover in a suit for demurrage and damages by reason of a breach of contract to carry freight, the facts showing that the failure on the part of the defendants to fulfill their contract was caused in a measure by the acts of the libelants, and in part by circumstances over which defendants had no control, and with which they could not be fairly charged, and where, under the contract, there appeared to be no agreement to pay de-murrage except in the case of unreasonable delay, and there was no evidence of such unreasonable delay.</p>

<p>Bemovat, of Cause — Citizenship.</p> <p>In order to remove a case into the federal courts the necessary citizenship must have existed at the time the suit was brought.</p>

On Motion to Discharge Garnishee. This action was originally begun in the circuit court for the county of Monroe by a writ of attachment against the property of the defendant, Carrington, who resides in New York city. Upon the same day a writ of garnishment was issued, pursuant to Comp.

<p>United States Circuit Court Commissioner — Fees for Keeping- Docket— Refusal to Exhibit Same for Inspection upon Disallowance of Fees for Keeping.</p> <p>The -order of the circuit court of the United States to commissioners in the first judicial circuit, providing for the keeping of a docket by each commissioner of that court, nowhere imposes upon a commissioner the duty of exhibiting his docket for inspection by the agent of the department of justice ; and, in lieu of any specific provision for fees to the commissioner for keeping such docket, he is not bound to allow such inspection, his fees for keeping the docket having been disallowed by the comptroller of the treasury. The files of the original documents kept by the commissioner, with his mem-oranda upon them, together with the quarterly accounts and reports which he is bound by law to make to the court, are sufficient checks upon his conduct, and afford all the necessary evidence of the correctness of his accounts.</p>

<p>Peacttce — ÍTok-EesideNts—Security eob Costs — Time withes which Demasíe» Must be Made.</p> <p>Tho time within which a defendant shall make his demand for security for costs, from a non-resident plaintiff, is not confined to the time before issue is joined, but the defendant may require the security to be filed at any stage of the litigation, provided lie is not guilty of lachos or bad faith. Sections 3268 and 3278 of Á. Y. Code of Procedure adopted by this court.</p>

<p>1. Verification.of Bill in Equity.</p> <p>A bill in equity, even for an injunction, need not be verified unless it is intended to be used as evidenee on an application for a provisional injunction.</p> <p>2. Jurisdiction under a Law of the United States.</p> <p>A suit arises under a law of the United States when the controversy involved therein turns upon the existence, effect, or operation of such a law, and therefore a suit by a riparian owner to enjoin the construction of a bridge contiguous and injurious to his property, upon the ground that the.defendant is not authorized to build 'the same by9 a certain act of congress, as it pretends and claims, arises under said act, and is within the jurisdiction of the proper circuit court. 1</p> <p>3. In what Courts the Northern Pacific may Sue or be Sued — Citizenship of.</p> <p>Semble, that the Northern Pacific Railway Company, being created by an act of congress, may sue or be sued in the proper circuit court of the United States in all cases; and, quasre, of what state, if any, is it a citizen, for the purpose of jurisdiction in such courts 1</p> <p>4. Act Incorporating the Northern Pacific — Construction of.</p> <p>The act of July 2, 1864, (13 St. 365,) incorporating the Northern Pacific Railway Company, and the acts amendatory thereof, are a grant by the public to a private corporation, and must therefore be construed most strictly against the latter, so that no authority, right, or privilege can be held to pass thereby unless the same is therein plainly expressed or clearly implied.</p> <p>5. Northern Pacific Authorized to Bridge a Navigable Water on the Line of its Road.</p> <p>The Northern Pacific Railway Company was authorized by said acts “ to lay out, locate, construct, furnish, maintain, and enjoy a continuous railway” from Lake Superior to Portland, Oregon, “with all the powers, privileges, and immunities necessary to carry into effect the purpose” of said acts; the same “ to be constructed in a substantial and workmanlike manner, with all the necessary draws, * * * bridges, etc., * * * equal in all respects to railways of the first class and it is necessary to cross the Wallamet river with such road in order to reach Portland from the eastward. Held, that the right of-the Northern Pacific Railway Company to build and maintain a draw-bridge across said river, or other navigable water on the line of its road to Portland, without causing any unnecessary injury or obstruction to the usefulness thereof, is clearly implied in said acts; but that congress not having prescribed the exact location or particular character of said bridge, the right of the corporation to construct it is subject to the judgment of the proper court as to whether it is being constructed without unnecessary'injury to the navigability of such water, upon the complaint of any one specially injured thereby, or likely to be.</p> <p>6. FORFEITURE OF CORPORATE lllflUTS.</p> <p>Tlie legislature may provide that a corporation shall cease to exist, or forfeit a particular right or privilege, unless it docs certain things within a given timo, and in case of such failure the prescribed consequence will follow of course, without the intervention of a court, or any proceeding to declare or establish the same; but the provisions in the acts aforesaid, to the effect that the grants thereby made to the Northern Pacific Railway Company are made upon the condition that the road will lie completed within a certain time, have no such effect, but are simply conditions subsequent, without any special consequence prescribed for a breach of them, and therefore no one can complain of any such breach, or take advantage of it, except the government of the United States; and it only, as declared in the act, for the purpose of securing “ a speedy completion of the said road."</p>

In Equity. This was a bill in equity to compel specific performance of an agreement to purchase certain lands. The date on which the title was to be passed was November 25, 1881. The complainant admitted that on that date he was not able to give a perfect title, but alleged various extensions of the agreement, and alleged a tender of the title on February 25,1882, and again in July, 1882. The defendant admitted one extension of 80 days, but denied any further extensions.

<p>1. FRAUD— CONVERSION OB’ TRUST PROPERTY — EFFECT OF CHANGE OF FORM.</p> <p>It is a genera) proposition, both at law and in equity, that if the property of a party has boon wrongfully converted into another species of property, if its identity can be traced, it will be held in its now form liable to the rights of the original owner or cestui que trust. No change of the slate or form of trust property can divest it of such trust, or give the agent or trustee converting it, or those who represent him in right, (not being bona fide purchasers for valuable consideration without notice,) any more valid claim in respect to it than they had before such change. This doctrine is applied to implied trusts as well as express, and to personal as well as real property held in trust.</p> <p>2. Same — Equitable Relief — Jurisdiction of Equity Courts.</p> <p>The statutory provision (section 723, Rev. St.) that suits in equity shall not be sustained in either of the courts of the United States in any case where there is a plain, adequate, and complete remedy at law, is declaratory, and does not exclude the courts from any part of the field of equitable remedies; and while it is the duty of a court of equity not to attempt to draw within its cognizance a case where the remedy at law is plain and adequate, yet to apply such rule it must appear that the remedy at. law is as complete and efficacious as in equity.</p>

<p>1. Guaranty — What Constitutes.</p> <p>The defendant is agent of the plaintiff to sell machines. The contract entered into by the parties provides, among other things, that in case the machines are not paid for wholly in cash, the note of the purchaser for the unpaid balance shall be given, payable to the order of the plaintiff, “ and shall be indorsed, and the collection thereof guarantied, by the ‘defendant,’ waiving demand, protest, and notice of non-payment.” The defendant is sued as guarantor of certain notes. The court, in charging the jury, held that the defendant, by indorsing a note in compliance with the terms of the contract, became a guarantor.</p> <p>2. Same — Usual Bulb as to Liability oe Guarantor.</p> <p>Ordinarily, to render a guarantor liable, tht execution against the principal debtor must have been returned nulla bona.</p> <p>3. Same — Prima Facie Diligence — Judgiment in Justice’s Court — Rule.</p> <p>A judgment obtained against the principal debtor in a justice court, although not recorded so as to become a lien on real estate, is prima facie evidence of duo diligence. When the debt itself can only be collected in the justice court, a creditor is only bound to proceed by suit, obtain judgment, and issue execution. Such evidence will be overthrown by showing that the principal debtor had real estate which might have been secured by recording the justice court judgment.</p> <p>4. Same — Rule as to Solvency.</p> <p>To be solvent, one must have property out of which his debts can be collected. A guarantor cannot require that suit be first brought against the principal debtor, if the latter is insolvent.</p> <p>5. Same — Chattel Mortgage — Subrogation oe Guarantor.</p> <p>A'creditor is not required to resort to a chattel mortgage given by the principal debtor before suing the guarantor of the debt. Should the guarantor pay the debt, he would he entitled to be subrogated to the rights of the creditor against the debtor.</p> <p>6 Attorney's Fees in Note.</p> <p>To entitle the holder of a note to the attorney’s fees stipulated therein, suit must first be commenced against the maker of tlie note.</p>

On Motion for New Trial. 'This was an action of trespass on the case, against the marshal and his deputy, to recover the value of certain goods seized upon execution in favor of creditors of one Gladwin, formerly a boot and shoe dealer in this city. Plaintiff claimed title by virtue of a bill of sale and possession taken thereunder at a time when Gladwin had become wholly insolvent.

<p>1. Constitutional Law— Iíkgulatton of Commence — License Tax on Vessels Bringing Alien Passengers — Act of August 3, 1882.</p> <p>The act of congress of August 3, 1882, (22 bt. at Large, 214,) entitled “An act to regulate immigration,” which levies a duty of 50 cents for every passenger not a citizen of the United States who shall come hy steam or sail vessel from a foreign port to any port within the United States, to be paid to the collector of customs of the port to which such passenger shall come, hy the master. owner, agent, or consignee of every such vessel, is a regulation of commerce with foreign nations, within the provisions of article 1, § 8, of the constitution of the United States.</p> <p>2. Same — Capitation Tax.</p> <p>Tile duty thus levied is not within the provision of article 1, § 9, of the constitution, that “no capitation or other direct tax shall be laid, unless in proportion to the census.” The act is an act regulating commerce, and authorizing the commerce in question on conditions to be observed, and the duty is a license fee, measured by ihe number of passengers. It is not a capitation tax, bul a tax on the owner of the vessel, and on the business of bringing in alien passengers.</p> <p>3. Same — Unifobmity of Taxation — Genebal Welfabe.</p> <p>The act is not in violation of article 1, § 8, of the constitution, providing that “ congress shall have power to lay and collect taxes, duties, imposts, and excises, to pay the debts and provide for the common defense and general welfare of the United States; but all duties, imposts, and excises shall be uniform throughout the United States.” It is not, passed in the exercise of the power of laying taxes, but of regulating commerce. The tax being a license tax, the ruló of uniformity is sufficiently observed, inasmuch as the tax extends to all persons of the class selected by congress; that is, to all steam and sail vessels coining to all ports in the United States, from all foreign ports, with all alien passengers. And the case is not one where a court can say that the tax is not laid for the general welfare of the United States.</p> <p>4. Same — Conflict with Pbiob Tbeaties.</p> <p>The act in question is riot in violation of treaties in existence before the act was passed, between the United States and the various foreign countries of which the owners of the vessels bringing the passengers were citizens or subjects, which provided for freedom of commei’ce or navigation, since it applies to citizens of the United States and tlieir vessels as well. ¡Semble, that even if the act were in conflict with the prior treaties, it would supersede them, under article 6 of the constitution, providing that all laws and all treaties shall be the supreme law of the land in equal degree.</p> <p>5. Same — Passengers under OJte Year of Age.</p> <p>Under the provisions of the act, each child under one year of age is to be counted as a passenger.</p> <p>Henderson v. Mayor, 92 U. S. 259, cited; People v. Comp. Gen. Trans. Cir. Ct., 10 Ped. Rep. 357; Sup. Ct., 107 U. S. 59, [S. C 2. Sup. Ct. Rep. 87,J cited.</p>

<p>1. Forfeiture — Rev. St. § 3397 — Act March 1, 1879, § 36 —Cigars —False Bn AND.</p> <p>Section 3397, Rev. St., as amended by section 16 of the act of March 3, 1879, requires that each of the items mentioned must be branded or impressed upon boxes of cigars before removal from the factory, and for the omission of either item required cigars are forfeited and may be seized in the hands of bona Jim purchasers.</p> <p>2. Same — Number of Factory.</p> <p>Where boxes of cigars had impressed upon them all the items required, but tlie number of the factory was false, held, that the section required the factory number to be truly stated, and for not complying ther^witu the eigare became forfeited.</p> <p>3. SAME — AMENDMENT OF 1879.</p> <p>The amendment of 1879 for the first time required the statement of the factory number, and the omission of a correct statement of the factory number became, by the amendment, a new ground of forfeiture. Held, therefore, condemnation could not be had upon this ground, upon an information based upon section 3397 only.</p> <p>4. Same — Amendment.</p> <p>A jury having been waived, and the case tried by consent before the court, and no further evidence being desired to be put in by the claimant, held, that the plaintiff’s application to amend the information in substance by inserting a count upon the omission of the factory number under the act of 1879, should be allowed upon terms. \</p>

At Law. The plaintiff, Gould, was ejected from the cars of defendant’s railway at Union Park, a regular passenger station between Minneapolis and St. Paul. He claimed that he purchased a ticket and boarded the train at the passenger depot in Minneapolis, and, on request, surrendered his ticket to the conductor, who subsequently demanded bis fare, and on refusal of payment put him off. The testimony was contradictory upon all the material facts.

This action was tried at the last January circuit, and resulted in a verdict of $5,500 for the plaintiff. The plaintiff was a deck passenger on one of the defendant’s boats from Albany to New York. Ho was asleep on the freight, abaft the shaft, at a point where the rules did not permit him to be. He was pulled from this position by the company’s watchman, and in falling received very serious injuries.

<p>1. Bankruptcy — Assignee’s Accounts — Book-Keeper.</p> <p>On an assignee’s accounting in bankruptcy, charges for the employment of a book-keeper will not be passed beyond what is proved to have been necessary in the administration of the estate, nor for a longer period than the exi-' gencies required.</p> <p>2. Same — Rent.</p> <p>Where charges are made for a book-keeper employed partly in the personal business of the assignee and partly for the estate, no apportionment of charges by the assignee will be approved, except upon proof of the services rendered, their necessity, and reasonable value. And the same rule applies to rent for offices used for both purposes.</p> <p>3. Same — Quantum Meruit.</p> <p>Where a separate office, or office privileges, aré proved to be necessary in the business of settling a bankrupt estate, and such office room is furnished in a building of which the assignee is landlord and owner, he maybe allowed, on a quantum meruit, the reasonable value of such room as is proved to have been necessary, for the necessary period, subject, however, to the jealous scrutiny and suspicion which attach to such a claim by the assignee in his own favor.</p> <p>4. Same — Remission Proceedings.</p> <p>It is not the duty of an assignee to litigate legal demands in the interest of one set of creditors against another; and where a legal preferred demand in favor of the United States against the bankrupts, as a forfeiture for the value of goods fraudulently imported by the bankrupts, has been allowed by the district and circuit courts, any application for remission should be at the expense of the general creditors interested.</p> <p>5. Same — Order oe Court.</p> <p>An order from the court for the payment of certain disbursements in such proceedings having been obtained, the disbursements made were passed in the assignee’s account.</p> <p>6. Same — Attorneys’ Charges.</p> <p>The attorneys having charge of the proceedings in behalf of the assignee were bound to take steps to procure indemnity from the general creditors, in whose interests the remission proceedings were instituted by them, before incurring large expenses therein; not having done so, and the proceedings being fruitless and without benefit to the estate, held, neither they nor the assignee had any claim for their services in the remission proceedings, as against the fund.</p>

<p>1. Insolvency — Deeds of Trust — When Deemed Fraudulent.</p> <p>Under the bankrupt law, as amended by the act of July, 1874, it was necessary that these things should concur in order to render a deed of trust invalid: It must have been executed within two months of the filing the petition in bankruptcy; the bankrupt must have been insolvent, or it must have been made in contemplation of insolvency; the deed of trust must have been made with a view to give a preference; the party to whom the trust deed was made must have had reasonable cause to believe that the bankrupt was insolv- • ent at the time, and must have known that the deed of trust was made in fraud of the bankrupt law.</p> <p>2. Same — Insolvency Defined.</p> <p>The general definition of insolvency in the bankrupt law, as stated by the courts, is an inability in the bankrupt to pay his debts as they mature in the usual course of business.</p> <p>3. Same — What Knowledge on the Part of the Preferred Creditor will be Sufficient to Invalidate the Deed.</p> <p>The supreme court of the United States makes a distinction, in considering cases of this kind, between reasonable cause to believe and reasonable cause to suspect that a person is insolvent; the creditor must have such a knowledge of facts as to induce a reasonable belief of his creditor’s insolvency; but from knowledge of certain facts on the part of the creditor, the law will imply knowledge of others.</p>

On Petition for Writ of Habeas Corpus. claimed that the petitioner, under the circumstances, was not taken by due process of law; that the treaty between the United States and Peru was the supremo law of the land, and that the petitioner could not be taken from Peru in any other mode than under the treaty, and consequently that the criminal court of Cook county never acquired jurisdiction of his person; that the act of eongress of 1867 expressly protected the petitioner by…

On Motion to Dissolve or Modify Injunction. The complainant is a corporation engaged in the manufacture of barbed wire under a license from the defendants, who are the owpers of certain letters patent covering not only the product itself, but also machines for manufacturing the same.

<p>PATENTS FOR INVENTIONS.</p> <p>Tlio defendants’ process "held an infringement of claim 5 of the reissued patent No. 8,460, granted to Hammerschlag for a process of making waxed paper by machinery. The court, in granting the injunction, follows the opinion in Hammerschlag v. Seamoni, 7 Fed. Kbp. 584, and Hume v. Garrett, 9 Fed. Hep. 43.</p>

<p>Patents for .Inventions — Demurrer—Multifarious Bill.</p> <p>Courts encourage single suits upon a number of patents to avoid multiplicity ' of actions ; but in such cases the bill of complaint, in order to be maintained", must allege, and the proofs must show, that the inventions embraced in the several patents are capable of conjoint use, and are so used by the defendants.</p>

<p>1. AdmiRalty Law — Towage—Liability op Tug.</p> <p>A tug-boat cannot be considered a common carrier, nor an insurer, and the highest possible degree of skill and care are not required of her; but reasonable skill and care she is bound to exercise, and the want of either is a fault, rendering the tug liable to the full measure of the damages so resulting.</p> <p>2. Same — Negligence.</p> <p>It was held negligence on the part of the captain or pilot of a tug to start on a trip with a tow, knowing that the tow was in a measure unseaworthy, that it steered poorly, that the lake was rough, the wind strong, and that night was fast approaching.</p> <p>3. Same — Contributory Negligence.</p> <p>Where the captain and owners of a canal-boat and cargo permitted her to be taken as a tow, without any light or other means of signaling the tug, they having knowledge of all the facts above stated, held contributory negligence, and the admiralty rule of dividing the loss, in cases of mutual fault, applied.</p> <p>4. Same — Towage Contracts — Liability bob Damages under.</p> <p>The duty of a tow-boat in respect to the vessel in tow, not to cause injury to the same, does not arise out of the towage contract, but is imposed bjr law; and an agreement that the boat shall be towed at her own risk will not exempt the tow-boat from liability for damages caused by her own negligence.</p>

<p>1. Collision — Wharf—Mooring Too Near — Lines Slipping — Passing Steamers.</p> <p>In a river where steamers are frequently passing it is negligence and carelessness in one vessel to moor unnecessarily at the end of a wharf or bulk-head, within two or three feet of another vessel, whereby they are liable to be brought into collision through the surging and swaying caused by the waves of passing steamers.</p> <p>2. Same — Case Stated.</p> <p>Where, under the above circumstances, a collision occurred in the East river, between the sterns of two vessels, and the evidence indicated that there was unnecessary slack line, or some slipping of the lines, held, both were chargeable with, fault. •</p>

<p>Bilí, on Lading — Master's Copy — Delivetiy.</p> <p>Wliero the master of a vessel executed hills of lading in quadruplicate, though there was no provision in the charter of the vessel for the execution of bills of lading, and delivered throe of them to the shipper, who hypothecated them to secure advances made him, and the master then carried the fourth copy, duly indorsed, to the consignee of the vessel at the end of the voyage, and afterwards delivered the cargo to him on presentation of this bill of lading, held, that the master had authority to sign bills of lading, and that the master’s copy was, m legal effect, a simple memorandum for his convenience, and not a contract bv which the goods were to be delivered, and that the vessel was liable to the holder of the hypothecated bills of lading for the amount of the advances.</p>

In Admiralty. These were eross-aetions arising out of a collision between the schooner Katie J. Hoyt and a tow composed of the tug Charles E. Stone and two oil-scows, which occurred in the East river, off Cor-lear’s TIook, in the afternoon of April 14, 1881. The schooner was coming down the river, and the low was proceeding up the river with the tide. The scows were both on the starboard side of the tug.

<p>SmppiNG — Oral Agreement — Recovery Back of Freight Money. Tlie decree of the district court in the same case (12 Fed. Hep. 77) affirmed.</p> <p>See the opinion of the district court in the same case, (reported as Mehr-» bach v. Liverpool & Gfreat Western Steam Co.,) 12 Fed. Rep. 77.</p>

<p>Common Carrier — Peril of the Seas — Damage by Swell of Passing Boats— Negligence. °</p> <p>The decree of the district court in the same case (S Fed, Rep. 634) affirmed.</p> <p>See the opinion of the district court in the same case, (reported under the name of Bell v. Pidgeon,) 5 Fed. Rep. 634.</p>

<p>1. PRACTICE — JURISDICTION—REMOVAL.</p> <p>A party who is not entitled to bring his suit in this court originally, cannot bring it here by removal from a state court.</p> <p>2. Saiie.</p> <p>Whore it is doubtful whether this court or a state court has jurisdiction over a case, the doubt should be resolved in favor of the state court.</p> <p>8. Sami-: — Removal Act oe 1S7o Construed — A Check not a “Bill oe Exchange.”</p> <p>A check is not a bill of exchange, within the meaning of the first section of the removal act of 1875, and a suit brought upon a check by an indorsee against the maker cannot be removed from a state court to a circuit court of the United Stales, where the maker and payee are citizens of the same state.</p> <p>4. Same — Pleading.</p> <p>Where the maker and payee are citizens of different states, a failure to allege that fact is fatal.</p>

<p>1. JURISDICTION of Federal Courts — Taxes and Assessments.</p> <p>It is the peculiar province of the state courts to construe and administer judicially the laws of the state, and to decide whether or not they sanction the action of the local authorities in levying taxes which are in dispute. When all the parties to the suit are citizens of the state where the same is brought, the federal courts will not have jurisdiction unless the suit is one arising under the constitution or laws of the United States, and within the meaning of the act of congress of March 3, 1875, which enlarged and defined the jurisdiction of the circuit courts ; or unless some federal question is necessarily involved in the decision of the controversy.</p> <p>2. Same — When Case Deemed to Arise under the Constitution or Laws of the United States.</p> <p>A case does not arise under the constitution or laws of the United States unless it cannot bo decided without deciding a federal question.</p> <p>3. Same Averments.</p> <p>Parties will not bo allowed to resort to the jurisdiction of the federal courts on'simple averments or‘allegations that the case is one involving a federal question, unless such clearly appears to be the case.</p>

<p>1. Suit against Administrator — Misjoinder.</p> <p>Oilier persons having assets of an estate cannot be joined with the administrator in an action against the latter, unless there be collusion between such persons and the administrator. And this is true in cases governed by the Public Statutes of fthodc Island.</p> <p>2. Same — Suit, when Barred.</p> <p>Under section 9, c. 205, Pnb. St. K. I., no suit can be commenced against an administrator, as such, after three years from the time he gave public notice of his appointment.</p>

This was a bill in equity to enforce the payment by the several defendant towns of a certain judgment entered in this court in favor of the complainants, in 1863, against the town of Dexter. Confessedly the hill set forth sufficient grounds for equitable relief, if a valid judgment was recovered. Whether or not such a judgment was recovered depended upon the sufficiency of the service of the summons in the action at law against the town of Dexter.

In Equity. Bill in equity, alleging, among other things, that articles of consolidation entered into between the railroad corporations on the twenty-fifth day of September, 1809, were fraudulent and void, and praying, with other relief, that tho same be set aside. The complainant was a stockholder in one of the constituent companies.

This was an action for libel, tried December 5, 1882, in the circuit court of the United States for the district of Maryland, before Hon. Thomas J. Morris, district judge, and a jury.

This was an action brought to recover damages for injuries received by plaintiff in a collision which occurred on the defendant’s road. There was no dispute as to the fact of the collision, nor that the plaintiff was injured thereby; but tbe conflict arose as to the amount of injury to tbe plaintiff for which the defendant was liable. The testimony upon that point was in conflict.

Action brought to recover damages under the following state of facts: The plaintiff, who was employed in excavating by the defendant, was sent with others to his work on an engine. The tender being full of wood, he, with one or two others, sat on the front beam of the engine with his feet oyer the pilot.

This is a suit to recover damages sustained through the alleged negligence of the defendant in coupling the car, in which it was transporting plaintiff, to another. It is alleged that the cars were brought together- with such violence as to throw the plaintiff, who was standing up at the time, down upon the floor, and injure him seriously. The case was tried before a jury. During the trial the plaintiff testified, on his own behalf, as follows: Question.

<p>1. Negligence op CO-EMPLOYES.</p> <p>The engineer in charge of a steam-shovel and a workman engaged with the said machine are co-employes, and if the latter is injured by reason of negligence or want of prudence on the part of the former, there can be no recovery.</p> <p>2. Same — Knowledge op Superior Officer.</p> <p>■Where it is claimed that an employe is injured by negligence or carelessness on the part of his superior officer, it must be shown affirmatively that the superior was in possession, or might by the exercise of ordinary care, prudence, or intelligence have been in possession, of knowledge as to the dangerous character of’t-lie work, which knowledge was unknown, and by the exercise of ordinary care, prudence, and intelligence on the part of the employe could not not have been known, to said employe.</p>

At Law. The case is fully set out in the opinion of the court. At tne conclusion of plaintiff’s testimony the defendant moved the court to instruct the jury to find a verdict for the defendant, on the ground that the plaintiff, on his own showing, contributed to the injury by his own negligence, and therefore cannot recover. Plaintiff’s counsel urged that he was entitled to recover on three grounds: 'First.

<p>Insurance— Corporations — Stockholders have Insurable Interest.</p> <p>A stockholder in a private corporation has an insurable interest in the corporate property.</p>

<p>Trover — CONVERSION Necessary to Sustain Action in Trespass — Sake by Judgment Creditor without JSTotioe to Debtor — Removal of Furniture —Demurrer.</p> <p>The defendant A., having as a judgment creditor sold the land and house of the plaintiff for debt, and having permitted the year of redemption to expire without actual notice to the judgment debtor, entered the house, which was vacant, and caused the plaintiff’s furniture to be removed by the defendants B. and 0. to the store-house of defendant D. The plaintiffs brought an action containing counts in trespass and trover for removing and storing the plain-tilt’s furniture without notice to her. The answer of the defendant A. sets up his legal rigid to enter and take possession, and the answers of B., 0., and 1). allege the proper performance of what they were employed to do. Held, on demurrer to the answer, that the counts in trover could not be sustained, there having been no conversion, but that trespass would lie, since the plaintiff, not having notice of the change of title by the judgment sale, could not be counted a trespasser by leaving her furniture in the house, and was entitled to notice before the same was removed, and had the right to say where it should be put and with whom. ,</p>

<p>1. Gaming — Act of 1876 Defining.</p> <p>Section 1 of the act of J876 (Soss. Laws, 39) includes not only the games therein enumerated, but also any game played for anything of value, with any device or means suitable and convenient for that purpose, and in which the game depends largely on chance, or more on chance than still.</p> <p>2. The Chinese Game oe“Tantan.”</p> <p>This is a game of pure chance, and whim played for anything of value constitutes gambling within the inhibition of said statute.</p> <p>3. Poweiís oe a Municipal Corporation.</p> <p>Apart from tlio few faculties incident to the existence of a municipal corporation, such as the capacity to sue and be sued, and have a common seal, it has no power to do any act except such as are essential to tlio plain purpose of its creation, or are authorized by the express provisions oí its charter, or a clear or necessary implication therefrom.</p> <p>4. Power to Suppress when not Power to Punish.</p> <p>A grant of power to a city “to suppress gaming and gambling houses,” includes the power to suppress “ gaminghut when tlio crime of gaming is defined, and the punishment therefor prescribed by the law of the state, the city is not authorized to suppress any game not prohibited by such law, nor to punish any person playing thereat; but it is confined to the use of such means as may be within its power to enforce the state law within its limits.</p> <p>5. Due Pkocess oe Law.</p> <p>A person arrested and imprisoned ’or the violation of a void ordinance of a municipal corporation is imprisoned by the state without due process of law, and therefore m violation of the fourteenth amendment, and may be discharged therefrom by the writ of habeas corpus issued from the proper court of the United States. ,</p> <p>See In re Brosnahan, ante, 63, and note, 68.</p>

In Equity. Demurrer to the bill. The bill prays for damages and an injunction. The-dife of the patent sued on has not expired. The remaining facts sufficiently appear from the opinion.

<p>Patent Law — Practice—Misjoinder of Causes of Action.</p>

<p>Patents for Inventions — Signification of the Word “ Jewelry ” — Infringement.</p> <p>Letters patent No. 10,239, dated November 14, 1882, for an improvement in ornamenting bracelets and other articles of jewelry, extended so as to cover buttons ornamented by tbe p'atented process of tlie plaintiffs.</p>

In Admiralty. Appeal from the district court. Decision there reported in The Guiding Star, 9 Fed. Eep. 521, where the facts are more fully stated.

<p>1. Collision — Tus- and Tow — Rule 19.</p> <p>A tug on rounding tlie Battery, having another tug on her own starboard hand, is bound to keep out of the way of the latter, under rule 19, and to go astern, where there is nothing else in the way, instead of keeping near the New York shore, and attempting to cross the bows of the other tug between the latter and a large tow ahead.</p> <p>2. Same — Hugging New York Shore — Rounding Battery.</p> <p>The practice of hugging the New York shore to keep in the eddy in rounding the Battery is dangerous, and at the peril of those adopting it.</p> <p>3. Same — Case Stated.</p> <p>Where the tug 0., having the D. in tow, permitted another canal-boat, the W., which had broken adrift from another tow, to fasten to the D., and about the same time, a collision being imminent with the Uncle A., the C. backed full speed, as she ought to have done, and the W.’slines were loosened, as not strong enough to bear the backward strain, and such loosening contributed to the collision, held, that the W., and not the C., was responsible therefor, and that the damages from the collision be divided between the W. and the Uncle A.</p>

<p>Statute of Limitations — New Promise.</p> <p>A credit entered upon a note by the holder thereof docs not revive a barred note, under the construction of the statute of limitations in Georgia, unless he be authorized in writing to enter such credit by the defendant.</p>

The Central Georgia Bank was served with summons of garnishment in this case at the instance of the plaintiff. The bank answered that it was not indebted to defendant; and had no effects of the defendant in its hands except certain negotiable notes of third persons, amounting to $2,000, which had been deposited by the defendant with it as collateral security for a loan of $1,500. The bank asked to be discharged as garnishee.

At Law. Plaintiff seeks to recover damages for an injury caused to him while in the employ of the defendant in coupling freight cars, on two grounds: First, that the draw-heads of the two cars that he was required to couple were of different makes and uneven as to height, which was unknown to this plaintiff, and which he was unable to see owing to the fact that the railroad iron with which one of said cars was loaded projected over the draw-bar so as to conceal the fact that…

<p>1. Estates oe Deceased Persons — Jurisdiction oe County Courts — NonResident Creditors.</p> <p>Notwithstanding tho statutes of a state provide that the county courts of such state shall have jurisdiction over the estates of deceased persons in that state, and limit the time within which claims against such estates must be Bled, and actions brought to recover thereon by creditors resident of that state, a citizen of another state, being' a creditor of the testator or intestate, cannot be acted upon by any proceedings under that statute, unless he shall have voluntarily made himself a party to them, so as to impair his constitutional and legal'rights to sue the executor or administrator in the circuit court of the United States. tiuydam v. Broadnax, 14 Pet. 67.</p> <p>2. Same — Jurisdiction oe Federal Courts.</p> <p>The circuit court for any district embracing a particular state will have jurisdiction of an equity proceeding- against an administrator, if, according to the received principles of equity, a case for equitable relief is stated, even though by a peculiar structure of the state probate system such a proceeding could not be maintained in any court of the state.</p> <p>3. Same — Action by Non-Resident Creditor.</p> <p>The circuit court of the United States has jurisdiction of an action Toy a nonresident creditor against a resident executor or administrator upon a debt -of his decedent.</p> <p>4. Same — Limitations.</p> <p>The limitation of time within which by the statute claims must be presented for allowance in the probate court, is inseparable from the peculiar procedure prescribed; it is a part of that procedure, and so not like a general statute of limitations, and can only be ajiplied to parties who are bound by such special mode of procedure.</p>

Tiie plaintiff, being a switchman employed by the defendant, was ordered by the yard-master to go with the switch locomotive to tlio transfer-boat and bring away the passengers, the engineer being present and the order given to both, or in the presence of both, there be-being conflict in the proof as to whether the switchman or the engineer was to be considered as in charge of the expedition. There was no conductor.

M. F. Kennedy was a cotton buyer who for a long time lived in Memphis. He made an arrangement with Meaeham & Co. to take his cotton for sale at 75 cents a bale, to cover all charges, and no interest to be eounte'd against him, according to his contention. This contract was made with the cotton salesman of the firm whose authority was disputed by the firm.

At Law. Suit for breach of contract to sell 392 shares of the common stock of the Louisiana & Missouri River Railway Company, at $26 per share. The contract of sale was made by telegraph. The case was tried by the court without a jury. At the trial copies of the following telegrams were introduced in evidence: “ St. Lotus, February 14th. “James I. Brooks, Boston: Will sell 392 shares L. & M. common at 26, St. Louis delivery.

At Law. This is a suit brought to cover the full value of certain goods which were lost by fire through the defendant’s negligence while being transported by it from New York to St. Louis. The plaintiffs shipped said goods under an oral agreement with the defendant by which the latter undertook to transport all such goods, regardless of their value, for a certain sum per hundred pounds.

<p>In Bankruptcy.</p>

<p>1. Patents for Designs — Want of jSTovelty.</p> <p>Letters patent issued on the fifteenth of February, 1876, to Charles W. Lewis, for a design for the dial of an annunciator, held invalid for want of novelty.</p> <p>2. Same — Law Governing.</p> <p>11 is now tolerably well settled that design patents stand on as high a plane as utility patents, and require as high a degree of exercise of the inventive or originative faculty. In patentable designs a person cannot be permitted to select an existing form, and simply put it to a new use, any more than he can be permitted to take a patent for a mere double use of a machine; but the selection and adaptation of an existing form may amount to patentable design, as the adaptation of an existing mechanical device may amount to patentable invention.</p>

In Equity. Suit fon an infringement of reissued letters patent No. 7,006, for an “improvement in pumps.” The original letters patent are numbered 90,143.

<p>1. Contract of Affreightment — Vessel Unskaworthy — Evidence.</p> <p>Upon examination oí the evidence in this case it appears that the vessel was not seaworthy at llie time of the disaster, and that libelants were entitled to recover.</p> <p>2. Same — Implied Warranty as to Seaworthiness of Vessel.</p> <p>There is an implied warranty in a contract for affreightment that the ship is sufficient for the voyage, and the owner, like a common carrier, is an insurer against everything but excepted perils.</p> <p>3. Same — Seaworthiness os' Hull.</p> <p>To constitute seaworthiness of the hull of a vessel in respect to cargo, the hull must be so tight, stanch, and strong as to he competent to resist all ordinary action of the sea, and to prosecute and complete the voyage without damage to the cargo.</p> <p>4. Same — Damages.</p> <p>The object of the law m actions of this character is 1.o make the parties to the contract as nearly whole as possible for the damages sustained bv reason of the breach of the contract.</p>

<p>3. Piveastitib Yachts — ■Shipping Articles.</p> <p>Seamen shipping on a pleasure yacht and signing shipping articles can only bo discharged m coniorniity with the ordinary maritime law, which does not justify a discharge for single acts of negligent disobedience.</p> <p>2. Sajii: — JTotick.</p> <p>Where shipping articles did not provide for any definite voyage, hut for service not exceeding six months, payable monthly, held, while the vessel was in her home port and no voyage determined on, the service was terminable by either party at the end of the month on reasonable notice.</p> <p>3. Same — Discharge —Wages.</p> <p>The chief engineer being discharged in the middle of 1 ho month, without, sufficient cause under the maritime law, would bo entitled to one month’s wages.</p> <p>4. Same — Disobedience.</p> <p>Where the first engineer, immediately upon his discharge, drew the fires of the engine on a cold winter’s day, thus imperiling the ship, contrary to the orders of the master and owner, and abetted all the rest of the engineer’s department in leaving the ship contrary to orders, held, that by these acts he forfeited all claim to the residue of the month’s wages which would otherwise have been awarded him.</p> <p>5. Same — Custom.</p> <p>An alleged custom for the rest- of the men in the engineer’s department to leave if the engineer is discharged, held illegal.</p>

<p>X. Collision — 'Vessels Rounding Bend.</p> <p>In rounding a bend neither of two approaching vessels has a right to assume that the other will hold her exact course by compass, but only her relative situation in the stream.</p> <p>2. Same — Signal.</p> <p>Neither should change their relative situation in the stream when they are approaching, so as to involve danger of collision, without timely notice to the other by signal whistles.</p> <p>3. Same — Case Stated.</p> <p>Where the tug T., having a tow on a hawser, was coming down the East river, with a strong ebb-tide, near the middle of the stream, and on approaching the Battery ran in towards the New York shore by a sheer, crossing the course of tlie tug B., which was rounding the Battery in the opposite direction, and the T. !s tow swerving with the tide against B. ’s tow, and neither tug gave any whistle, except one whistle hy the T. when too late to he of any use to the B., held, that both were in fault for not signaling in time.</p>

<p>Restovai. oe Causes.</p> <p>Tlie second clause, section 2, of the removal act of 1875, enacts that when in any suit pending in a state court there shall be a controversy which is wholly between citizens of different states, and which can be fully determined between them, then either one or more of the plaintiffs or defendants actually interested in such controversy may remove said suit to the circuit court of the United Stat es for the proper district. To enable a party to remove under this clause there must exist in the suit a separate and distinct cause of action, in respect to which all the necessary parties on one side are citizens of different states from those on the oilier.</p>

<p>Action to Appropriate Property.</p>

<p>1. State Bonds Issued in the Aid of Railroads — Action by Bona Fide Purchasers — Liability of Railroad Companies — Statutory Lien. •</p> <p>In pursuance of an act of tlie general assembly of the state of Arkansas, approved July 21, 1868, entitled “An act to aid in the construction of railroads,” the state of Arkansas issued certain bonds to the defendant railroad companies, the bonds were signed by the governor and countersigned by the treasurer of the state, and duly delivered to the companies and by them sold for value. On the failure of the state to pay the semi-annual interest, this action was brought against the railroad companies to enforce the payment of the same and interest. Reid, following Railroad Uos. v. Sehutte, 103 U. S. 118, and Ohamberlain v. St. Paul, etc., R. Oo. 92 U. S. 299, (1) that there was nothing in the bonds themselves, without indorsement, to bind the companies that received and sold them, to pay either the principal or interest; (2) that conceding the bonds to he invalid on account of the unconstitutionality of the statute under which they were issued, as claimed by the defendants, the holders of them were nevertheless entitled to such remedy as the statute gave against the railroad companies who had accepted and sold the bonds, and had thereby ratified the remedies provided by the statute; (3) that there was nothing contained in said act which would constitute a statutory lien for the benefit of the -plaintifi's, into whose hands the bonds had come, as against the property of the railroad companies.</p> <p>2. Same — Taxes not Liens.,</p> <p>It is well settled that a tax is not a lien unless it is expressly made so by the law or ordinance which imposes it.</p> <p>Heine y. Levee Oom/rs, 19 Wall. 659.</p>

<p>1. Judicial Sale — Fraud—Conspikacy.</p> <p>If there wore any fraud or conspiracy in the proceedings, of which there is. no proof, Wyley, the purchaser, was not a party to it, and knew nothing of it.</p> <p>2. Sa;me — Condition of Property.</p> <p>' Complainant’s losses, if any, are attributable to tbe indifferent management and neglect of tbe executor, ber husband, and to tbe physical and financial prostration of tbe country in that section of Louisiana, at tbe period when tbe sale was made, rather than to any acts of the defendants.</p> <p>3. Same — Presumption—Answer Pound on Piles.</p> <p>Tbe presumption “ omnia rite essa acta ” would justify tbe court in treating as genuine a paper purporting to be an answer, and found among the papers of the suit, although there is no indorsement of tbe filing thereof by tbe clerk, in the absence of proof to the contrary. But tbe testimony of one of tbe members'of tbe firm, whose signature is attached to tbe answer, shows he wrote the answer, and he thinks it was filed, and that the outside page of the double sheet was torn off.</p> <p>4. Same — Lapse of Time.</p> <p>Under the circumstances, and after the lapse of more than 10 years, a judgment rendered in the case by a court of competent jurisdiction will not be treated as a nullity.</p> <p>5. Same — Pleading!—Statute of Limitations.</p> <p>Under the rules of pleading or practice, in equity, it is necessary that the cause or reason which prevented the statutes of limitation or prescription from running in the particular case should be stated in the bill, in order to be permitted to offer evidence thereof. This has not been done by complainant.</p> <p>6. Same — Statute of Limitations a Bar.</p> <p>But disregarding this rule, and giving complainant the benefit of all her evidence, there is no good reason shown why the statutes of limitation or prescription should not apply in this case.</p> <p>7. Same — Purchaser at Judicial Sale — Collateral Attack.</p> <p>A purchaser at judicial sale, in Louisiana, need not look beyond the jurisdiction and decree of the court ordering the sale. The truth of the record concerning matters within its jurisdiction cannot he disputed in an action like this. 14 La. 146; 7 Rob. 66; 10 Rob. 396; 14 La. Ann. 154; 22 La. Ann. 175; 25 La. Ann. 55 ; 28 La. Ann. 755.</p>

<p>1. Deed ov Trust — Wife’s Signing — Acknowledgment—Homestead Exemption in Illinois.</p> <p>Where it appears that a wife has signed a deed of trust, and that the same was acknowledged before the proper officer and recorded in the proper office, thereby becoming an apparent muniment of title upon the property of which she was the owner, Held, as against a person who, in good faith, loaned money upon her title, she cannot, as against such person, claim that her husband deceived her as to the identity of the land named in the deed of trust which she signed, and thereby defeat the apparent title to the lot. And held, further, that, as between a person who, in good faith, loans money upon such title and the wife, the latter should be the one to suffer in consequence of the wrongful act of her husband.</p> <p>2. Same — Failure to Properly Acknowledge — Effect upon Homestead Interest.</p> <p>Under the above state of facts, and the deed of trust being of homestead property, held, that where such deed was not properly acknowledged it did not convey the homestead, but the title to the lot subject to the homestead. The homestead right is a statutory right, and can only be released as prescribed by the statute, which requires that such deed shall be acknowledged before the proper officer.</p>

<p>1. Habeas Ooiirus — Marine Coups — Naval Service — Enlistment oe Minors —Rev. St. §§ 1608, 1418.</p> <p>Tho mnrine corps (Rev. St. c. 9, tit. 15) is part of the United States naval service, in which minors over 18 years of age may he enlisted, under sections 1608 and 1418, without tho consent oi their parents or guardians.</p> <p>2. Same — Rlov. St. § 1117.</p> <p>The restrictions of section 1117 apply only to enlistments in “The Army,” under title 14.</p>

This is an action of trover for the conversion of timber owned the plaintiffs. by ADMITTED FACTS. In April, 1880, Hermann E. Robinson, the defendant’s vendor, settled upon the surveyed land upon which the timber was cut with a view of making it his homestead, and in October, 1881, he made his entry at the proper land-office.

<p>1. Person at, Injury — -Negligence—Burden of Proof.</p> <p>The la w does not presume or impute carelessness or negligence, but requires it to be shown by him who alleges it, and unless he does show it he cannot recover.</p> <p>2. Same — Carpenter?—Kress Attending the Trade.</p> <p>A carpenter engaging himself as such is bound to know, and he assumes, the ordinary dangers of his calling, and must exercise prudence and caution accord- . ingly.</p> <p>3. Same — Overseers—Care in Selecting.</p> <p>In employing overseers or superintendents ordinary care and prudence must be used in ascertaining their qualifications and fitness, but the law presumes that sell'-interost is a sufficient stimulant in the ascertainment of llio suitableness of an overseer, and therefore the burden of proof is with him who alleges the unfitness.</p> <p>4. Same — Settements of Chaims for Damages</p> <p>The law favors settlements between those claiming damages for personal injuries and those who maybe the cause of the same ; but if suoli settlements are induced b;r false representations, or when the injured party is not in possession of his proper senses, they must he regarded as a nullity.</p>

<p> {Note of Case.) </p> <p>1. JblNJlEIt OF OFFENSES.</p> <p>Counts in an indictment under sections 392¿ and 3924 of the Revised Statutes may be properly joined, under section 1024, although the former be a misdemeanor and the latter a felony.</p> <p>2. Idem SoNAns.</p> <p>Spintz and Sprinz are not idem nonane*</p>

<p>1. .Patents fob. Inventions — Infringement.</p> <p>A comparison of the defendant’s device with that made by the plaintiff under his letters patent No. 216,256, dated June 10, 1879, for an improvement in b’ox-loops for harnesses, shows a substantial identity of construction; the change of construction in the article made by defendant being immaterial. The evidence discloses that the article made by the defendant differs essentially from that described in his patent No. 260,074, dated June 27, 1882, for an improvement in box-loop and blind for harnesses. Injunction granted.</p> <p>2. Same — Immaterial Changes.</p> <p>It is well settled that immaterial changes, or the substitution of mechanical equivalents, will not relieve a party from the charge of infringement.</p>

<p>1. Snippnro — Seaworthiness.</p> <p>A ship must be fit and competent for the kind of cargo and particular service for which she has engaged.</p> <p>2. Same — Charter—Overloading Fruit Cargo.</p> <p>Where a vessel was chartered to take oranges from Valencia to New York, agreeing that “ the hatches should he taken off whenever practicable, as usual, for the ventilation of green fruits,” held, that it was a violation of the terms of the charter for the vessel to load so deeply with previous cai’go that she was unable to provide for the usual ventilation nooessary for such fruit, and that loading so as to leave from one to three feet less free-board than usual was evidence of such overloading.</p> <p>3. Same — Ventilation—Proximate Cause or Loss</p> <p>Where, in consequence of such overloading, the vessel was subjected to taking in more water on deck, so that, the hatches had to be kept closed more than usual, and the fruit was thereby deteriorated from want of ventilation, held, that the overloading was the proximate cause of the loss, for which the ship was liable.</p>

<p>1. Seamed — Debe riton — Forfeiture oe Wages. *</p> <p>Where seamen in the engineer’s department on a pleasure yacht, upon the discharge of the chief engineer, deliberately left 1he ship, with the intention not, to return, and contrary to the orders of the master and owner, and did not return, held, desertion under the maritime law, and their wages for 12 days, during which they had been on the yacht, were forfeited.</p> <p>.1. Same — Section 4597 — Entry in Log.</p> <p>Where desertion is made out according to the maritime law, — that is, with proof of intent not to return, — held, that an entry in the log under section 4597 is not a condition of forfeiture of wages.</p>

<p>For Taxes oí 1882.</p> <p>For Taxes oí 1882.</p> <p>For Taxes of 1881.</p> <p>For Taxes oí 1881.</p> <p>For Taxes of 1881.</p> <p>For Taxes of 1881.</p> <p>1. Taxation — Exemption from — Railroad Employed by United States.</p> <p>Tlie property and franchises of the Southern Pacific Railroad Company and oí tlie Central Pacific Railroad Company, corporations created under the laws of California, though the companies are employed by the general government ior postal and military purposes, and were aided by land grants and loans in tlie construction of their roads, are not, exempt from state taxation, in the absence of congressional legislation declaring such exemption. It is competent for congress to exempt any agencies it may employ for services to the general government from such taxation as will, in its judgment, impede or prevent their performance.</p> <p>2. Fourteenth Amendment to Constitution — Limitation upon States.</p> <p>The fourteenth amendment of the constitution, in declaring that no stale shall deny to any person within its jurisdiction the “equal protection of the laws,” imposes a limitation upon the exercise of all the powers of the state which can touch the individual or his property, including that of taxation.</p> <p>3. Same — Equal Protection of the Laws.</p> <p>The “equal protection of the laws” to anyone implies not only that the means for the security of his private rights shall be accessible to him on the same terms with others, but also that lie shall bo exempt from any greater Durdens or charges than such as are equally imposed upon all others under like circumstances. This equal protection forbids unequal exactions of any kind, and among them that of unequal taxation.</p> <p>4. Taxation — Uniformity in Mode of Assessment.</p> <p>Uniformity in taxation requires uniformity in the mode of assessment, as well as in the rate of percentage charged.</p> <p>5. Same — Article 13, Constitution of California.</p> <p>The thirteenth article of the constitution of California declares that “a mortgage, deed of trust, contract, or other obligation by which a debt is secured, shall,forthepurposcs of assessment, and taxation, be deemed and treated as an interest in thopropertyaifected thereby,” and that, “except as to railroad and other quasi public corporations,” the value of the property affected, less the value of the security, shall 'be assessed and taxed to its owner, and that the value of the security shall be assessed and taxed to its holder, and that the taxes so levied shall be a lien upon the property and security, and may bo paid by either party to the security; that if paid by the owner of the security, the tax levied upon the property affected thereby shall become a part of the debt secured; and if the owner of the property shall pay the tax levied on the security, it shall constitute a payment thereon, and to the extent of such payment a full, discharge thereof. In the assessment of property of the defendants — railroad companies — the mortgages thereon were not deducted, but the whole value of the property, notwithstanding the mortgages thereon, was assessed, and the property taxed according to such assessment, to those companies. IIeld, (1) treating the mortgages as transferring a taxable interest in the property, that in assessing against the company the interests with which they had at the time parted by their mortgages, and taxing them upon that assessment, was a proceeding to take the property of the companies without due process of law; and (2) treating the mortgages as a lien or incumbrance upon the property, that by not deducting their amount in the assessment of the value of the property of the railroad companies for taxation, as is done in the valuation of property of natural persons, when subject to a mortgage, there was a discrimination against the companies, which resulted in imposing a greater Imr-den upon their property than is imposed upon the property of natural persons.</p> <p>6. Fourteenth Amendment — Corporations.</p> <p>Persons do not lose their right to equal protection guarantied by the fourteenth amendment to the federal constitution when they form themselves into a corporation under the laws of California.</p> <p>7. Same — Protection op Property.</p> <p>Tb,e state possesses no power to withdraw corporations from the guaranties of the federal constitution. Whatever property a corporation lawfully acquires is held under the same guaranties which protect the property of natural persons from spoliation.</p> <p>8. Same — Power op State to Amend, Alter, or Repeal Charter.</p> <p>Under the reserved power to amend, alter, or repeal the laws under which private corporations are formed, the state cannot exercise any control over the property of a corporation, except such as may be exercised through control over its franchise, and over like property of natural persons engaged in similar business.</p> <p>9. Taxation — Assessment Proceedings Judicial in Character.</p> <p>The proceeding for the assessment of property — that is, the ascertainment of its value upon evidence taken — is judicial in its character, and to its validity the law authorizing it must provide some kind of notice, and an opportunity to be heard respecting it, before the proceeding becomes final, or it will want the essential ingredient of due process of law. The notice may be given by personal citation or by statute. It is usually given by a statute prescribing a time and place where parties maybe heard before boards appointed for the correction of errors in assessment.</p> <p>10. Constitution oe California, art. 4, § 15 — Passage of Law — Journals of Legislature as Evidence.</p> <p>The constitution of California, § 15, art. 4, provides that “ on the final passage of all bills they shall be read at length, and the vote shall be by yeas and nays upon each bilí separately, and shall be entered on the journal, and no bill shall become a law without the concurrence of a majority of the members elected to each house.” Under this provision, the court, to inform itself, will look to the journals of the legislature, and if it appears therefrom that the bill did not pass by the constitutional majority, then it will not be regarded as a law.</p> <p>11. Same — Act of March 14,1881.</p> <p>The journals of the legislature show that the act of March 14,1881, mentioned in the opinion, never became a law.</p> <p>12. Same — Written Journals to Correct Printed.</p> <p>Where the original written journals on file in the office of the secretary of state differ in any material particular from the printed journals, the orginal written journals are the authentic official records, and must control.</p>

<p>1. Admiralty — Partition—Judicial Bales — Auctioneer’s Fees.</p> <p>An auctioneer is not required by law to be employed by the marshal in sales under process or decree in admiralty; and if an auctioneer bo employed by him he is but the agent of the marshal, and can make no charge which the marshal could not lawfully make.</p> <p>2. Same — Marshal’s Fees.</p> <p>The marshal's fees and charges on sales are limited by sections 823 and 829, and as these do not include any charge for an auctioneer, a notice prior to a marshal's sale that §25 auctioneer’s fee would be required of the purchaser in addition to his bid, is an unlawful exaction.</p> <p>3. Same — Pubcitasee’s Eight to Deaw His Own Deed.</p> <p>A party purchasing has an option under section 829 to draw his own deed, and have it executed by the marshal at a charge of one dollar.</p> <p>4. Sake — Resale—DsmciENCY.</p> <p>Where a claimant was purchaser, and objected to paying $25 auctioneer’s foes,, and claimed to draw his own deed, both of which the auctioneer refused to yield, and the property was again put up and sold at $450 less price, held, that the first purchaser could not be held for the deficiency.</p> <p>5. Same — AccodNT—Jurisdiction.</p> <p>An action for an account of the receipts of a vessel’s earnings, against a former managing part owner, cannot be sustained in admiralty when unattended by any other ground of jurisdiction.</p> <p>6. Same — Part Owner — Vessel’s Earnings — Marshalling Liens.</p> <p>Such an account may, however, be taken as against a part owner who is a party and claimant in the cause, entitled to share in the proceeds of the vessel sold under a decree of the court, as an incident to the just distribution of the proceeds among the part owners entitled.</p>

<p>Bin. OP LADING — COMMON CARRIERS — PARTIAL LIMITATION OP LIABILITY — Value op Goods.</p> <p>A stipulation in a bill of lading that “ in case of loss, damage, or non-delivery tlie ship-owner shall not be liable i'ormorethan the invoice value of the goods,’’ is valid as a reasonable regulation providing a rule of damages in case of loss, competent to the parlies to adopt, and convenient and politic in practice, for the speedy settlement of losses and the suppression of litigation.</p>

<p>1. Towage — Tow-Boat Assuming Needless Hazard.</p> <p>A tow-boat which voluntarily assumes a needless hazard is responsible for a consequent injury to her tow.</p> <p>2. Same — Tow-Boat Held Answerable eor Injury to Tow.</p> <p>A tow-boat descending the Monongahela river, at a high stage of water, to avoid the delay of awaiting her turn through the locks at one of the dams, passed over the dam safely, but struck her tow against a bridge-pier a short distance below, and sunk one of her barges. Held, that the tow-boat was answerable.</p> <p>3. Same — Suit In Bem by Bailees.</p> <p>The bailees of a barge injured by the negligence of a tow-boat may sue the wrong-doing vessel in rem in admiralty, and recover the full damages for the injury.</p>

<p>1. REMOVAL — COUNTER-CLAIM— SEPARABLE CONTROVERSY.</p> <p>A counter-claim interposed by one of two defendants, in a suit in equity in the slate court, does not survive a removal of the cause to the federal court; and, no cross-bill having been iilod, such counter-claim cannot be recognized as presenting a separable controversy between two of tlio parties to the suit, authorizing a removal under the act of 1875.</p> <p>2. Same — Pi,fading—Gross-Bill.</p> <p>The rules of chancery practice in the federal courts do not recognize a counter-claim as a valid form of pleading. A controversy in an equity suit, which would be raised by a counter-claim in a state court, in a federal court must be presented by a cross-bill.</p>

<p>ACTION BY STOCKHOLDER TO 1ÍKSTRAIN FURTHER ISSUE OP BONDS.</p> <p>An action by a shareholder against a corporation, to restrain it from a contemplated transaction which is ultra viran, may be maintained, by the stockholder, and must, be sanctioned by the court, although all the other st ockliolders of the corporation are willing to assent to and affirm the proposed course of action ; but in a case of evident expediency, and where there is no attempt to go beyond the power conferred, a court of equity will not' be swift to grant the stringent relief of a preliminary injunction to a stockholder assailing transactions in the corporate affiairs of which the other stockholders do not complain, and to which they have given their consent.</p>

<p>Application for a mandamus to compel tlie respondents, the "Northern Pacific Bailroad Company, “ to exhibit to the relator the transfer-books of the preferred stock of said company, or other hooks containing the names and addresses of the holders of the preferred stock of said company; and to permit said relator, his attorney or clerks, to take therefrom the names and addresses of the registered holders of said preferred stock.”</p>

<p>INSURANCE — Subrogation—Bim, of Lading — Defeating Jnsuher’s Right of SUJillOGATION.</p> <p>Under an open policy of insurance on goods while in transit by railroad, it was stipulated that the insurance company should, in case of loss, be sub-rogated to all claims against the carrier. Certain goods covered by the policy were destroyed in a railroad collision, having been shipped under a hill of lading which provided that in case ofioss, by which the railroad company incurred any liability, the railroad company should have the benefit of any insurance wliicli miglit have been effected on the goods. Held, in an action by the insured against the insurance company, that he could not recover, having by the bill of lading defeated the right of subrogation against the carrier to which the insurance company was entitled.</p>

<p>1. Cutting Timber on the Public Lands.</p> <p>Section 4 of the act of June 3, 1878, (20 St. 89,) prohibits the cutting of any timber on the public lands with intent to dispose of the samo; but the proviso thereto permits a settler under the pre-emption and homestead acts to clear his claim as fast as the same is put under cultivation, and the timber cut in the course of such clearing may be disposed of by the settler to the best advantage.</p> <p>2. Same.</p> <p>But if such settler cuts timber on his claim with the intent to dispose of the same, and not merely as a means of preparing the land for tillage, ho is a willful trespasser, and is liable accordingly.</p> <p>3. Damages bob Cutting Timber.</p> <p>The measure of damages in an action for cutting timber on the public lands, in case the trespass is inadvertent and not willful, is the value of the timber in 1he tree; but where the trespass is willful, the value of the labor put upon it by the trespasser must be added to the value in the tree, with interest thereon in either case.</p> <p>4. Trespass by Mistare.</p> <p>The defendant claimed to have taken up a homestead on the north-west quarter of section 22, of township 19, and, while intending to cut saw-logs thereon, with intent to dispose of the same, did, by mistake, cut said logs on the north-east quarter of said section. Held, that if the defendant had cut the logs on the north-west quarter, as he intended, it would have been a willful trespass, and therefore his mistake was immaterial, and he was liable to the United States for the value of said logs as a willful trespasser.</p>

The defendant issued its bill of lading whereby it and its connecting lines undertook to carry two cars of mules from Nashville to Vicksburg; the shipper contracting to accompany the stock, and to feed and water them en route.

<p>Rescission of Contract — Rate of Payment During Negotiations.</p> <p>yi hen a railway company using the tracts of another company at an agreed rate of compensation refuses to accede to a demand of the owners for the payment of a higher rate on account of recent improvements, but whiie the matter is under consideration continues to use the tracks and to pay the original contract price, and-upon the final refusal of the owners of the tracks to prolong the previous arrangement abandons the use of the tracks altogether, the own- ■ ers can recover for the use of their property during the interval no more than the rate paid under the original agreement.</p>

<p>1. Parties — Mtpjotxder—Death op Party under Liability with Others.</p> <p>Where several persons have incurred a liability arising from the same transaction, the representatives of one of them who has died cannot, in an action at law, bo joined with the survivors. If the liability is merely joint, the survivors only remain liable at law; if several, as well as joint, the action, if prosecuted against both the representatives of the deceased person and the survivor, must proceed against them separately.</p> <p>2. Same — Order tor Severance.</p> <p>The court may grant an order for the severance of an action which should have been brought separately against defendants who have been improperly joined.</p>

A stipulation waiving a jury is filed, and tbe case is tried by the court. This suit is brought to recover damages for fraudulent representations, alleged to be made by the defendant’s agent to one of the plaintiffs, upon the sale of a certain tract of land called “E. Murphy’s reserved block, ” in the city of Minneapolis, owned by defendant, and sold for $15,000.

<p>1. Personal Injury — Defective Machinery — Responsibility.</p> <p>The plaintiff sues to recover for injuries received while working on the defendants’ elevator, and avers that certain portions of the elevator were defective. Held that, to render the defendant liable, it must be shown that the portions claimed to be defective were necessary for the safe operation of the elevator; that they caused or contributed to the injury received; and that they were not repaired within a reasonable time after being brought to the defendants’ notice.</p> <p>2. Same — Eellow-Servants—Master’s Responsibility — Common Employment.</p> <p>A master is not liable for an injury resulting to a servant through the negligence of a fellow-servant, not even though the fellow-servants are incompetent, unless such incompetency was known to the master, or might have been ascertained by the exercise of ordinary care; nor will the master be liable in any case, unless the incompetency caused, or contributed to, the injuries received. Common employment means work of the same general character.</p> <p>3. Same — Scope of Employment — Question for the Jury.</p> <p>A master is not liable for an injury sustained by a servant while performing work not in the line of his trade, and which he was not ordered to do. The question whether one is working in the line of his trade is for the jury.</p>

<p>1. Personal Injury —Nf.giagence —Contributory Negligence — Railroad Employes.</p> <p>In cases of unexpected and immediate danger, calculated to affect the judgment of liim who is to meet it, a mistake made in, his movements is not negligence.</p> <p>2. Same — Acts of Go-Servants.</p> <p>The acts of the plaintiff's co-servants held, for the purposes of this case, and to determine whether the plaintiff was guilty of contributory negligence, to be the acts of the plaintiff.</p>

This was an action of ejectment, to recover the possession of certain lands and water-power in the county of Fond du Lac, in this state.

<p>1. Habeas Corpus — Chinese Treaty of 1880 and the Act of 1882 — Certificate 1ÍEQDIRED FROM CHINESE ON LANDING — CONSTRUCTION.</p> <p>Before a court will impute to congress an intention to violate an important article of a treaty with a foreign power, that intention must be clearly and unequivocally manifested, and the language of the law which is supposed to constitute the violation must admit of no other reasonable construction.</p> <p>2. Construction of Act of 1882.</p> <p>The sections of the act.of congress of 1882, regulating the landing of Chinese in this country, and requiring the production of the certificate named in said act by Chinese seeking to land in this country, must be construed as referring to Chinese laborers who might leave the United States, and to Chinese persons who might leave China, after the law went into effect, and not to Chinese laborers who might leave this country before that period. The case of such laborers was not provided for, and was probably overlooked.</p>

<p>On Writ of Error.</p>

<p>1. Patents for Inventions — 'When Obtained through Fkaud — Right of Government to Vacate.</p> <p>There is no distinction between letters patent for an invention and for land, as regards the right’s and remedies lor vacating them, when obtained by fraud. The right is the samo as that which a state lias to annul the charter of a corporation created by its legislature if obtained by fraud.</p> <p>2. Same — Pkop.br Remedy.</p> <p>The appropriate remedy in behalf of the United States, when a patent for an invention has been obtained by fraud, is by a bill in equity.</p>

<p>Pbiyatb Corporations — Consolidation—Notice to Bondholders.</p> <p>Upon the consolidation of two incorporated companies, the holder of bonds of one company, containing a clause authorizing their conversion at any time before maturity into the capital stock of the company issuing them, at par, cannot be deprived of the privilege of such conversion, and relegated to the rights conferred upon him instead by the articles of consolidation, until he has had a fair opportunity, after notice of the contemplated change, to exercise his original rights, and has elected not to do so.</p>

<p>COMMON CARRIERS — DUTY OP RAILROADS TO PROVIDE FACILITIES TO EXPRESS Companies.</p> <p>The former decisions of the circuit court holding that railroads are bound to carry the express matter of regularly organized express companies, and to provide the necessary facilities therefor, followed in this case, ponding the final settlement of the question now before the supremo court.</p>

<p>'Demurrer to Complaint.</p>

<p> Habeas Corpus. </p>

<p>In Bankruptcy.</p>

<p>1. Hostile Expedition — Section' 52S3, Bev. St. — Neutrality—Seizure.</p> <p>An expedition organized and dispatched from our ports, in separate parts, to meet at a common rendezvous on the high seas, and tlienco proceed to acts of hostility against a friendly power, is within the prohibition of section S283 of the Revised Statutes.</p> <p>2. Same — Cash Stated.</p> <p>"Whore tlie tug M. N. H. was purchased in New York, by persons interested in tlie Haytian insurrection, and there fitted out for sea, though having no arms on board, and simultaneously a large quantity of arms and ammunition wore bought by the same persons and dispatched on board the schooner E., under instructions and preconcerted signals for transferring them, near Hampton roads, to a steamer which was to receive them there, held, upon the facts, that tlie steam-tug M. N. H. was fitted out with the intent and purpose of receiving these arms and ammunition at Hampton roads, and proceeding thence on a hostile expedition in aid of the insurgents in Hayti, and was therefore justly seized and forfeited to the government, under section 5283.</p>

<p>Suit in Equity for an Injunction and an Account.</p>

<p>1. ADMIRALTY Juhisdictios — CANALS.</p> <p>A canal used by vessels engaged in interstate traffic as a public water-way, though entirely within the limits of one state having exclusive control of it, with power insuch state to close it at anytime, is a part of the “navigable waters of the United States,” and subject to the jurisdiction of admiralty.</p> <p>2. COKTTUIiUTORY NEGLIGENCE.</p> <p>The master of a vessel who, seeing that a collision is imminent, fails to use every moans in his power to avert it, or abate the consequence, is guilty of contributory negligence, though the accident was caused by the negligence of another.</p> <p>3. Damages — Arno rtiokment.</p> <p>Damages on account of a loss occasioned by the negligence of both parties will be equally divided between them.</p>

This action was brought against the owners of the steamer Zodiac by the owners of the schooner William Wallace, to recover their damages sustained through a collision of the schooner with the steamer on the sixth of October, 1872. On October 11, 1872, a libel in rem was filed in this court against the steamer, and upon trial the steamer was held liable on June 29, 1877, and a final decree was rendered for the libelants on January 31, 1880, for $ 1,153.90 damages.

<p>Charter-Party — Demurrage—Heavy Cargo — Danger to Lighters — Liability for Delay.</p> <p>In an action on a charter-party to recover freight and demurrage, the charterer set up by way of recoupment a claim for damage to lighters employed to receive the cargo, and for detention of the lighters. It appears that there was six days’ demurrage, which was caused partly by the necessity to stop discharge ing on various occasions to permit canal-boats to pass the vessel from an elevator in the slip, and partly by the refusal of the lighters to permit the discharge of the cargo upon them by a chute, on account of the large size of some of the pieces of cliff-stone of which the cargo consisted, and partly by the failure of the lighters to be along-side and ready, and partly from rain.</p> <p>Meld, that the charterer, and not the ship, was responsible for the delay caused by the necessity of allowing the canal-boats to pass, as the place of discharging caused the delay and the charterer selected the place; that the duty of the ship was performed by discharging the stone as received, and there was no obligation on the ship to break the large pieces of stone, and it was not the ship’s duty to sheathe the lighters with boards to prevent damage to them from the large stones; and that, sis the stone could have been landed on a pier without injury to the pier, and the charterer chose to have it landed in lighters, he was bound to provide lighters capable of receiving it by tliejordi-nary method, and he was liable for the delay caused by the refusal of the lighters to receive it; that the ship was not bound to use a longer chut e than customary in order to avoid a danger caused by the charterer’s deciding to receive his cargo in lighters; that as it appeared that the ship was able and ready to discharge the amount specified in the charter per day, weather permitting, the charterer had no claim on the ship 'for delay or injury to lighters, but was himself liable for the six days’ demurrage, and also for the amount paid to a tug to change the berth of the ship at the request of the charterer.</p>

<p>Breach of Charter — Deviation—Damage to Cargo —Entry in Log — Evidence.</p> <p>Where the charter of a vessel which brought a cargo of green fruit from Messina to New York contained the clause that, “being essentially necessary for the good preservation of the cargo, it is especially agreed that the vessel, on leaving Gibraltar, shall go to the northward of the Western islands, and keep north of that latitude unless absolutely forced south by stress of weather, in which case the vessel’s log-book shall furnish evidence of that fact;” and it appeared in evidence that the vessel, after passing Gibraltar, kept the port tack on a course which would have taken her north of the Western islands, but afterwards changed her course to the starboard tack, and the entry in the log, made at the time, was, “ on account of high sea have taken starboard tack,” and she passed to the southward of the islands, and an action was brought against her for damages for breach of charter-party: held, that, as the vessel was close-hauled on both tacks, and the wind and sea continued the same, and therefore changing the tack brought no relief from the high sea, the entry in the log stated a motive other than the real one for the change of course, and showed no reason for changing the course; that even if the existence of a current setting the vessel to the eastward be conceded, it could.not be concluded that such current compelled the change of course, because the only reason stated in the log for the change of course was the high sea; that as it had not been proved that the master was forced by stress of weather to deviate from the voyage which he had contracted to make, the vessel'was liable for any damage to the cargo that was caused by the unjustified deviation.</p>

<p>1. COLLISION — OVERTAKING VESSEL — DUTY OF GIVING WAY.</p> <p>Where a collision look place in the Bast river between a steam ferry-boat and a steam lighter while the ferry-boat was overtaking and passing the lighter, the evidence as to the immediate cause of the collision being conflicting, held, that the primary cause of the collision was the fault of the ferry-boat in approaching the -lighter within less than 20 yards, in violation of the state statute which required her to keep at least that distance off.</p> <p>2. Same — Duty of Each Vessel.</p> <p>In admiralty each vessel is held bound to use all reasonable vigilance and skill to avoid collision, no matter what the prior fault of the other vessel.</p> <p>3. Same' — Rule 24.</p> <p>Rule 24 in effect, requires each vessel to give way in the presence of immediate danger, lleld, therefore, that the steam lighter in this case was also in fault for keeping straight on her course without giving way at all, as she might easily have done after the ferry-boat had approached within 15 or 20 feet, and was passing ahead, though somewhat crossing her bows; and, on this ground, held, that the lighter could recover but half his damages.</p>

<p>Removal of Cause — Delay in Moving to Remand.</p> <p>A delay of over a year, in tlio absence of explanation, held fatal to a motion to remand the case, on the ground that the petition for removal was not filed in time.</p>

<p>Trade-Mark — Kirm Name — Infringement.</p> <p>Prior to 1834, S. W. Collins, D. C. Collins, and another, copartners as Collins & Co., made odge-tools, using as a trade-mark “Collins & Co.” In 1834 they assigned to the Collins Manufacturing Company, a corporation, the right to such trade-mark. In 1843 the right to make all articles of metal was conferred on the corporation, and its name was changed to the Collins Company, the plaintiff. It always stamped “ Collins & Go.” on its productions. In 1856 the firm of Oliver Ames & Sons began to put the stamp and label “ Collins & Co.” on shovels made by it, and sent to Australia. The plaintiff had not up to that time made shovels, hut it had a market in Australia for the articles it made and stamped “ Collins & Co.” The object of Oliver Ames & Sons in putting the stamp “ Collins & Co.” on 1hc shovels, was to avail themselves of the credit and reputation and market which the plaintiff had established for itself for articles stamped “ Collins & Co. ” The plaintiff, at the time of bring, ing this suit, had not sent or sold any shovels to Australia. The defendant, in succession to Oliver Ames & Sons, continued to do what the latter so began to do in 1856. Held, that the acts of Oliver Ames & Sons, and of the defendant, were always unlawful. The plaintiff having had, from 1843, the right to make all articles of metal, and having gone on from that time, both before and after 1856, extending its manufacture beyond edge-tools into digging tools, such as picks and hoes, and having always put the mark “ Collins & Co.” on its best quality of articles, the fact that it did not, before 1856, make a digging tool such as the shovel on which, in 1856, Ames & Sons put the mark “ Collins & Co.,” does not warrant the conclusion that that mark was not, in 1856,.the mark of the plaintiff’s trade in respect to such shovels.</p>

In Chancery. Prior to the removal of this cause from the state court a receiver had been appointed and placed in charge of the railroad property and franchises of the defendant corporation. The case came before the court upon the application of Eobert K. Dow and John L. Farwell, stockholders of the defendant corporation, to be'made parties, and to be allowed to file answers and cross-bills, which are tendered.

The defendant mortgaged his homestead for a debt which matured in the year 1878. Suit was commenced to 'foreclose the mortgage in the year 1883. In the month of April a final decree was entered. The property has not been offered for sale, and now, on November 7, A. D. 1883, a motion is made by the mortgagee for a receiver of rents and income.

<p>Pledge — Priority or Lieu — -Equitable Interest — Attachment — Master’s Report.</p> <p>Former opinion in this case (13 Fed. Rep. 423) explained, and master’s report recommitted for correction.</p>

This was an action of ejectment, to recover possession of and determine the title to a lot of land in Ingham county. Plaintiffs’ chain of title was as follows: (1) The United States to Edward Mundy. Patent dated January 15, 1837, and proven by certified copy. (2) Edward Mundy to Clarkson Bunyon. Warranty deed, dated July 5, 1837, recorded July 31, 1877,40 years after its execution and delivery.

<p>1. Customs Duties — Rbv. St. § 2516 — Imported Hay.</p> <p>Hay is a raw or unmanufactured article, and subjeot to a duty of 10 per centum ad valorem, only.</p> <p>2. Same — Protest—Rbv. St. % 2931.</p> <p>When the collector has liquidated the duties on hay at 20 per cent., under Rev. St. § 2516, a protest “against any greater rate of duties being charged upon hay shipped, * * * than at the rate of 10 per centum ad valorem,, for the reason * * * that no higher rate than 10 per centum can lawfully be charged, or hay imported under the laws of the United States concerning duties on imports,” is sufficient under Rev. St. § 2931, (Act of June 30, 1864, c. 14.)</p>

<p>1. Jurisdiction — Costs on Dismissal.</p> <p>Tbe settled practice of tbe federal courts, upon dismissal for want of jurisdiction, bas been to disallow costs on tbe ground of want of power.</p> <p>2. Same — Rev. St. §§ 823, 983.</p> <p>Whether this rule is any longer applicable, and any want of power can be deemed to exist under tbe express provisions of sections 823, 983, of the Revised Statutes, qumre.</p> <p>3. Same — Civil Rights Act — Costs—Rev. St. § 975.</p> <p>Where an action was brought to recover a penalty under the civil rights act of March 1, 1875, and the same is discontinued, upon the recent decision of the supreme court holding the act unconstitutional, held, that the defendant was entitled to costs, under section 975. Held, also, that, independent of that section, costs could not be denied through any want of jurisdiction, since this court has jurisdiction of the subject-matter, and tbe determination of the question of the validity of the act.</p>

<p>1. Post-Routes — Letter Express — Section 3982, Rev. St. — Regular Trips.</p> <p>■ The streets oí New York city being post-routes, section 3982 of the Revised Statutes imposes a penalty upon persons making provision by express or otherwise for a delivery of letters by regular trips or at stated periods.</p> <p>2. Same — (Jase Stated.</p> <p>The defendant, the proprietor of Hussey’s Express, maintained a corps of messengers employed to collect letters daily from the offices of his customers, prepaid by private stamps sold beforehand for that purpose, to take the letters as collected to his central office, there sort over all letters received, make them up into packages, and dispatch them by messengers from once to thrice daily. Held, such deliveries were not by “ messenger employed for the particular occasion only,” but were deliveries “by regular trips, and at stated periods,” within the meaning of the statute, for which the defendant,was liable to the statutory penalty.</p>

<p>Copyright — Variance between Title op Book as Deposited and as Pub. lished — Rev: St. § 49S6.</p> <p>A firm deposited in the office of the librarian of congress the title of a book, in the following words: “Over’One Thousand Recipes. The Lake-Side Cook-Book; a Complete Manual of Practical, Economical, Palatable, and Healthful Cookery. Chicago: Donnelley, Loyd & Co.” The title with which the book was published was, “The Lake-Side Cook-Book, Ho. 1, a Complete Manual of Practical, Economical and Palatable and Healthful Cookery. By Ñ. A. D.,” — followed by the imprint of the place of publication and the name of the proprietor, and the notice of the copyright on the title-page. Reid, that the variance was not material, and the title published was deposited in compliance with Rev. 8t. § 4956. ■</p>

<p>Patents for Inventions — Reissue No. 8,962.</p> <p>There is nothing in the first claim in reissue No. 8,962, granted to John E. Hetherington, November 11, 1879, for an “improvement in artificial honeycomb foundations,” in view of the inventions already existing which can be considered patentable.</p>

<p>Patents for Inventions — Practice.</p> <p>A decree in this case, previously entered by consent against the defendants for nominal damages and costs and a perpetual injunction, held not to be such a general decree in favor of the plaintiff as will allow him to obtain an attachment for violation of the injunction upon motion. Where a patent has been fully discussed and understood in the trial of the case, and the case has not been closed, but an account is being taken, such a course may sometimes bo taken for convenience and the saving of expense, but when such is not the case a bill must be tiled and the issues made up in the usual way.</p>

<p>Patent — Infringement—Detached Piston-Rod.</p> <p>Where the specifications for a patent showed that one material part of the invention was the detachment of the piston from the piston-rod, held, that a steam bell-ringer not containing this contrivance did not infringe the patent, although the most important features of the bell-ringer were suggested by the invention of the patentee.</p>

<p>COLLISION — IDENTIT y OF COLLIDING VESSEL — PREPONDERANCE OF PROOF.</p> <p>The canal-boat B. P. W. being moored in the slip 100 feet inside of the end of the wharf, some other steam-tug in a high wind got wedged in and across the slip, and was for a few minutes thumping and pounding upon the stern quarter of the B. P. "W., from which four hours afterwards a leak was first discovered, and the City of Chester was afterwards libeled as the colliding vessel. She had been past the slip the same morning, but all her evidence was that she had not touched the wharf or entered the slip at all. Upon her testimony, her hourly log, and the libelants’ testimony as to the time of the occurrence, held, that the libelants had not established the identity of the City of Chester as the colliding vessel by any such preponderance of evidence as entitled them to recover, and the libels were dismissed.</p>

<p>In Admiralty. Action for seaman’s wages.</p>

<p>Taxation of Costs.</p>

<p>Suit to Compel a Patentee of Land to Convey the Same.</p>

<p>Federal Court — Injunction to State Court.</p> <p>Section 720 of the Revised Statutes of the United States, providing that the writ of injunction shall not be granted by any court of the United States, to stay proceeding's in any state court, except in cases of bankruptcy, prohibits the federal courts from enjoining a suit in a state court because of the unconstitutionally of a statute upon which that suit is founded. The proper remedy is by writ of error.</p>

Demurrer to Bill of Complaint. The relief prayed for is an accounting, and permission to redeem from a foreclosure of a mortgage on certain real estate. The bill alleges that the complainant is tlie widow of Robert TI„ Jones, who died in April, 1868, intestate, leaving surviving him the complainant, and Samuel J. Jones, his son, and only heir at law; and that at the time of his death the said Robert TI.

<p>1. Verification of Answer by Foreign Insurance Company.</p> <p>A foreign insurance company that has appointed an agent here upon whom process may be served for it, as provided in sections 7 and 8 of the foreign corporation act, (Or. .Laws, 617,) is not absent from the state, so that any agent or attorney thereof may verify its answer to a complaint; but such answer must be verified by the agent appointed under the statute to stand for the corporation, or by some other agent or attorney who has personal knowledge of the facts involved in the allegations therein.</p> <p>2. Verification, by an Agent Haying Knowledge of tiie Facts.</p> <p>:Whefe an agent verifies an answer on the ground that the allegations thereof are within his personal knowledge, for the purpose of this verification, the allegations in the answer are to be taken as part of his statement, and it must appear therefrom that the truth or falsity of such allegations are within his personal knowledge.</p> <p>3. Same.</p> <p>Where an answer controverts sundry allegations in the complaint by simply denying any knowledge or information thereof sufficient to form a belief, and such answer is verified by an agent of the defendant, who states in the verification that the facts contained in the answer are within his knowledge, it does not appear that such agent was authorized to verify the same because of his personal knowledge of the material allegations therein, but the contrary.</p> <p>4. Personal Knowledge of an Allegation.</p> <p>Personal knowledge of an allegation in an answer, within the purview of section 79, is a personal knowledge of its truth or falsity; and if the allegation is a negative one, this necessarily includes a knowledge of the truth or falsity of the allegation denied.</p>

<p>Action to Eeeover Damages for injury to the person.</p>

<p>Appeal from Decree of District Court.</p>

<p>1. Patents for Inventions — Abandonment by Patentee — Infringement, Etc.</p> <p>Questions in regard to the abandonment of a patent and in regard to equities in favor of an infringer which will prevent an injunction, considered.</p> <p>2. Same.</p> <p>Evidence of the abandonment of a part of a claim of a patent, taken in connection with the fact that the most important part of the claim, both in fact and as considered by the patentee, has not been abandoned, held not sufficient evidence to justify a finding of abandonment.</p> <p>3. Same — Claims for Profits or Damages Arising from Past Infringement in the Hands of an Assignee of the Patent.</p> <p>The claims for profits or damages arising from infringement prior to a purchase of the patent are choses in action, and the assignee takes the title subject to all the equities existing against the assignors. Such claims do not pass by a mere assignment of the patent. The assignee of a patent seeking to recover for infringements before the assignment must allege an assignment of the claims for past infringement.</p>

<p>PATENTS D'OB INVENTIONS — -REISSUE No. 6,531.</p> <p>Reissued patent !No. 6,531, granted to William C. Barker on the sixth day of July, 1875, for “ an improvement in buckets for chain-pumps,” held valid, and infringed hy buckets for chain-pumps constructed as described in letters patent No. 158,534, granted January 5, 1875.</p>

<p>PATENTS I’OR INVENTIONS — APPLICATIONS FOB THE SAME INVENTION.</p> <p>Tlie plaintiff adjudged to be the first inventor of an “ improvement in India-rubber erasers,” for which letters patent bio. 167,455, dated September 7,1875, were granted to him, as against letters patent for the same invention, No. 233,511, granted to one Holton, October 19, 1880.</p> <p>See Lockwood v. Cutter Tower Co. 11 Red. Rep. 724; Same v. Cleveland, 18 Red. Rep. 37.</p>

<p>Patents for Inventions.</p> <p>Patent No'. 276,430 sustained.</p>

<p>Action for Personal Injuries.</p>

<p>1. Removau oe Cause — Action on Nojs-Negotiabtjh Instrument — Diversity OR CITIZENSHIP.</p> <p>Where a cause ol action upon a contract not negotiable, between citizens of the same state, is assigned to a citizen of another state, who brings suit thereon in the state court, such suit cannot be removed into the circuit court of the United States.</p> <p>Bashnell v. Kennedy, 9 Wall. 392, and Giiy of Lexington v. Butler, 14 Wall. 2^2, distinguished; and Berger v. JUouglas Go. 5 Peo. Rep. 23, and Hardin v. Olson, 14 Fed. Rep. 705, followed.</p> <p>2. Same — Citizenship at Time oe Institution op Suit.</p> <p>The requisite citizenship of the parties must exist, under the act of 1875, both when the suit is begun and when the petition for removal is filed, to entitle a party to have the cause removed from the state court.</p>

<p>Exception to Jurisdiction on the ground that the matter in dispute does not exceed the sum of $500.</p>

<p>Motion to Suppress Testimony made by Complainant.</p>

<p>Taking Testimony in Foreign Country — Rev. St. § 863.</p> <p>Depositions of witnesses in a foreign country cannot be taken under Rev. St. . § 863.</p>

<p>1. Duty on Railway Company to Express Companies Doing Business on Its Road — Must Furnish Equal Facilities to All.</p> <p>The defendant was enjoined by this court to continue to furnish the plaintiff such express facilities on its road as it had been furnishing under an agreement between the parties, one provision of which is to the effect that the defendant will carry for 1lie plaintiff not exceeding 8,000pounds of “freight and express matter “over its road daily on a fast train for the sum of 01,000 per month, but the plaintiff must not deliver any such “ freight” or “ matter” at less than a stipulated price per pound. Thereafter the defendant commenced to furnish express facilities to the Northern Pacific Express Company upon the same terms and conditions, as it alleges, that it furnished them to the plaintiff, but allowed said IS or them Pacific Express to deliver freight at a lower rate than the plaintiff was permitted to do, and thereupon the latter commenced to deliver freight for the same rales as said Northern Pacific, whereupon the defendant, conceiving itself aggrieved therein, moved the court to modify the injunction so as to prevent tlufiplaintiff from carrying any freight or express matter at the reduced rates, or to permit the defendant, to increase the compensation to be paid it by the plaintiff so as to prevent the same. Relé, (1) that the defendant has no right to discriminate between the express companies, but must furnish equal facilities to both; (2) that although the plaintiff is in effect re quired by the decree to deliver this 8,000 pounds of matter, or any portion of it, at not less than the prescribed rate, still, if the defendant permits the Northern Pacific to deliver any portion of the like 8,000 pounds carried for it at less than such rates, this is necessarily a permission to the plaintiff to do the same; (3) semble, that it is the duty of the defendant to use reasonable diligence to ascertain if either company is violating the condition upon which the facilities were granted to it, to the prejudice of the other, and, if so, to exclude it from the same; and certainly, where the failure to keep such condition is brought to its knowledge by the injured company or otherwise, unless it does interfere effectively, it will be presumed, in favor of the latter, to have waived such condition as to both.</p> <p>2. Bxpkess Facilities.</p> <p>Ferriage on the railway ferry of the defendant, if not absolutely an express facility, to which the plaintiff is entitled, becomes so when furnished to the Northern Pacific by the defendant.</p>

<p>1. CONTRACT — IV"IIAT NECESSARY TO CONSTITUTE — RULES GOVERNING IN CERTAIN Cases.</p> <p>In order to constitute a contract, the minds of the parties must meet, and all the terms of the same be agreed to. If any part of a contract is not settled by the parties, or a mode agreed upon to settle it, as to that part there can be no contract.</p> <p>2. Sauk — Certain Rules.</p> <p>In determining- what a contract is, the rule is to consider the negotiations passing between tlic partios. Their conversation in relation to it before completed, if the same is understood by the parties, shall be incorporated in the contract, even though such negotiations are not repeated at the time of its completion, and such previous understanding will constitute a part of it, unless changed or excluded at the time it may lie so completed.</p> <p>3. Same-t-Pereormance oe a Contract — Where no Time is Fixed.</p> <p>Where no time is fixed for the performance of a contract, the law fixes a reasonable time in which it is to be performed; and so, where no agreement is made as to the manner of construction of an article contracted to he made, the law requires it to be made in a workmanlike manner, with good materials, and merchantable, and suitable for the purposes for which it was made.</p> <p>4. Same — Rescission oe Contract.</p> <p>A postal card from one party to a contract to the other, asking that nothing be done about building certain cars contracted to be built until further instructions, and setting the time within which such further instructions would be given, held, not to constitute a rescission of the contract, the same only amounting to a request to suspend the construction for the time named; and upon the failure of the first party, within the time named, to give further notice in a positive form not to construct, the second party had a right to go on with the work.</p> <p>See Austin v. Seligman, ante, 519, and note, 523.</p>

<p>1. PJjEDUE— SPECIAL PROPERTY — POWER—WAREHOUSE RECEIPT.</p> <p>A person to whom specified grain in an elevator is, by a warehouse receipt, pledged for the repayment of a loan of money, has such a special property in the grain as will support an action of trover for the conversón thereof.</p> <p>2. pRATTD — RESCISSION.</p> <p>A pledgee, who by fraudulent, misrepresentations has been induced to release his interest in the property under pledge, is entitled, upon discovering the fraud, to reassert his claim'to the property against any one privy to the fraud.</p> <p>3. Confusion of Goods — Grain in Elevator.</p> <p>The owner of specified grain in an elevator, which the proprietor mingles with grain of better quality, retains his property in the same number of bushels of the improved article as he originally owned of the inferior grade.</p> <p>4. Election — Requisite Information.</p> <p>A pledgee who has been induced by fraud to release the property pledged and to receive bills of exchange instead, will not be held to have elected to affirm the transaction, and to have waived his rigid to reclaim the goods, because, tie-fore obtaining information that would enable him to trace the goods, ho has brought suit upon the bills.</p> <p>o. Pledge — Severance between Debt and Security.</p> <p>There may be circumstances under which a pledge can he assigned without, the debt secured by it. Such a case may arise when (lie assignee takes only a nominal interest for the purposes of an action at law.</p>

<p>1. CRIMES — PENSION LAWS — DEMANDING- OR RECEIVING EOR SERVICES IN A PENSION Case a Greater Sum than Ten Dollars — Rev. St. § 5485; 1 Surf. Rev. St. pp. 386, 602.</p> <p>The penalties imposed by section 5485 apply to the demanding or receiving for services in a pension case a greater sum than $10.</p> <p>. 2, Same — Fraud and 'Extortion.</p> <p>Fraud and extortion constitute no part of the offense of demanding or receiving an illegal fee. The fact of its demand or receipt completes the ofíense.</p> <p>3. Same — What Advances mat be Reimbursed.</p> <p>The limitation is as to the compensation for services. Money advanced and actual expenses incurred in prosecuting the claim may be reimbursed.</p> <p>4. Same — Pensioner cannot Pay More than Ten Dollars for Feb.</p> <p>When a pensioner receives his money he has the right to do with it as he pleases, except that he cannot pay more than $10, either directly, or by any device of loan or gift, for services rendered in his pension case.</p>

<p>1. Vkhijb’ioatton OR PLEADINGS.</p> <p>Under section 914 oí tho Revised Statutes, the pleadings in. an action fi r the infringement oí' a patent ímiat be verified as provided in section 79 oí the Oregon Code of Civil Procedure.</p> <p>2. Doukle Plisas ok Defenses.</p> <p>Botli at common law and under tho Code special pleas or defenses may be pleaded with the general issue, or a denial of the allegations of the complaint.</p> <p>3. DEFENSES TO Alt ACTION FOR INFRINGEMENT.</p> <p>Tiie five matters which may be given in evidence upon notice under the general issue, as provided in section 4920 of the Revised Statutes, as defenses to an action for the infringement of a patent, maybe pleaded specially with the general issue!, and other defenses thereto may be pleaded specially, either with or without tiie general issue and such notice.</p> <p>4. Special Pleas OuiTrorsED.</p> <p>Quwre : Is it sufficient to allege in a special plea, that the thing; patented was not marked with the word “ patented,” without also alleging that the defendant was not otherwise notified of tiie infringement; and is not a plea that the thing patented was not an invention when produced by the patentee, a mere repel ition of the special matter, that said patentee was not tho original and first inventor thereof; but a defense that an invention is not useful must be specially pleaded.</p>

<p>1. Salvage.</p> <p>Where a vessel grounded in the Gulf of Mexico, near Galveston, and a tug came to her relief, and after pulling at her for part of a day refused, when requested, to take one of the ship’s anchors out to sea, so that the stranded vessel might use her own engines by pulling on it, because it was dangerous to try to do so; and it being proved that if that had been done the ship would have probably been able to pull' herself ofE two days sooner than she was relieved : held, that such refusal would justify a material reduction of the salvage award.</p> <p>2. Same — Award.</p> <p>The sum of $8,000 was awarded to two tugs and a schooner for pulling of£ the grounded vessel, where the labor was light; the promptitude, skill, and energy of the sailors not very apparent; where there was no impending peril nor risk incurred by the sailors; and the property salved was worth $100,000.</p> <p>See S. C. post, 696.</p>

<p>Admiralty Appeal.</p>

<p>ADMIRALTY BULE 38 — “ PROCEEDS OP PROPERTY ” THEREUNDER.</p> <p>A ship and cargo were saved from a common peril after a considerable jettison of the latter, and allowed by the salvors to proceed to their^destination, where the saved cargo was delivered, by the master or agent, to the consignees without contribution for salvage or jettison, but on the deposit by each consignee of a sum of money equal to 20 per centum of the value of the cargo delivered to him, “to cover general average,” and the execution of a bond for the payment of his proportion of the “losses and expenses ” consequent upon such peril. Held, (1) that the salvage service being for flic benefit of both ship and cargo, the expense thereof constituted a general average; and (2) that in a suit against the ship and cargo for salvage, the libelants might elect to treat such deposit as so far a substitute for the cargo delivered and require the agent of the vessel, under admiralty rule 38. to bring the same into court to answer the exigency of such suit.</p>

<p>ENGINEER on Steam-Tug — Term op Service — Discharge—Notice.</p> <p>An engineer was employed on a steam-tug used about a harbor, at a certain rate per month, but without any agreement as to the duration of his service. Held, in the absence of proof of any settled usage, tlxat he could be discharged at any time without previous notice, and could recover only for the time actually semi.</p>

On Motion to Bemand. Moyer Eosenblatt, a citizen of Missouri, brought suit against Mark Weiss and other citizens of Texas, composing the Eeliance Lumber Company, in the district court of Jefferson county, Texas, and alleged that the defendants were indebted to him in the sum of $5,376.64, being the amount of several bills of exchange drawn by defendants on one Samson Heidenheimer, a merchant doing business in Galveston, Texas, in favor of various persons, which said bills…

Motion to Dismiss and Demurrer by Peters and the Pratt Coal & Coke Company on the following grounds, in brief: (1) For want of party, Mrs. Brown; (2) misjoinder of Mrs. Brown’s husband ; (3) multifarious, on several grounds; (4) Tilomas Peters not a proper party; (5) amount involved not stated; (6) complainant does not offer to do equity; (7) there is an adequate remedy at law.

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

<p>1. Government Lands — How Titee to be Divested.</p> <p>There is no way for titles to land to be divested out of the United States except in strict pursuance of some law of the United States; and, as no statute of limitations runs against the United States, occupancy and possession alone, even for a great length of time, cannot ripen into title as against the United States.</p> <p>2. Same — Effect of Fraudulent Sale of Land not Subject to Entry.</p> <p>No sale of land, not subject to entry by the receiver at a land-office, can divest either the legal or equitable title out of the United States. The act of congress of June 15,1844, does not cure such sales, as that act was only intended to embrace such lands as were subject to entry.</p>

Exceptions to Master’s Report. This cause came before the court on exceptions filed by the defendants to the master’s report. The action was brought to restrain the defendants from the alleged infringement of the plaintiffs patent.

<p>Liability os Telegramt Companies for ERRORS in Transmission op Messages — Printed Conditions on Blanks.</p> <p>The printed conditions on the half-rate message blanks of the Western Union Telegraph Company are reasonable and valid, to the extent of protecting the company from damages for any error or mistake occurring in the transmission of a half-rate message, unless it is shown affirmatively that such error or mistake was the result of gross negligence or fraud; and mere proof of the fact that there is a mistake of a word or a figure in the message as delivered, is not in itself sufficient evidence of negligence or fraud to render the company liable beyond the amount stipulated for in the contract of the parties.</p>

<p>1. Musictpati Boots — Iiiregulartties—Bora ■ Kibe Holder.</p> <p>N bona fide holder of municipal bonds cannot be prejudiced by the fact that the merely formal requirements of tho statute authorizing their issue were not complied with.</p> <p>2. PURCHASER WITHOUT NOTICE — UNPAID COUPONS.</p> <p>Overdue and unpaid coupons attached to municipal bonds are not sufficient to put a purchaser upon inquiry, so as to charge him. with notice of defects of title.</p>

<p>Habeas Corpus — Commitment by United States Commissioner — Sufficiency of Evidence.</p> <p>Where there is evidence tending to show that a party who has been committed by a United States commissioner for an offense against the laws of the United States is guilty, the sufficiency of such evidence is not open to review on proceeding by habeas corpus; and while the relator is held according to his • judgment upon any competent evidence, he is not held in custody contrary to law. '</p>

<p>1. Collision — Burden op Proof — Tua and Tow.</p> <p>_ Where two steam-tugs, each with tows, have exchanged mutual assenting ■ signals as to the mode in which they will pass each other, and a collision after-wards ensues, the libelant’s tug having the other on her own starboard hand, the burden of' proof is upon the libelant to show by a reasonable preponderance of evidence that the respondent’s tug was in fault, and, failing to do this, the libel should be dismissed.</p> <p>2. Same — Case Stated.</p> <p>Where the tug E. H. W., as she was leaving her slip in Brooklyn to go down the East river, sighted the tug M., and each gave two whistles to the other, and the M. had the W. on her own starboard hand, and the question in dispute being whether the E. H. W. went beyond a reasonable distance away from the shore, near which by her signal she was bound to pass, held, on conflicting evidence, that it was not shown that the E. H. W. had gone out in the stream further than was reasonable, or so as to be in the way of the M., and the libel was therefore dismissed. The tow not having sued her own tug, the question of the latter’s fault not further considered.</p>

Admiralty Appeal. The libel demands judgment for services, under contract, of libel-ant’s tugs and barges in lightering over Galveston bar and to the wharves a part of the cargo of the Norwegian bark Nadia, consisting of 435 tons of railroad iron. A contract to perform such lighterage with the respondents, consignees of the cargo, at the rate of $1.96 per ton, is propounded.

<p>1. Shipping — Bills of Lading — Exceptions—Rust—Telegraph Wire.</p> <p>Where the whole or parts of seven sliipments of galvanized iron wire for telegraphic purposes, on board different, steamers on the Red Star Line,, from Antwerp to New York, were found damaged on arrival in three respects — First, crashing of the bundles; second, oxidation or corrosion of the zinc coating of the wire, forming a white powder; and, third, black damage, as if rolled through a black, pasty mass, and, the precise cause of the damage not appearing, held, the vessels were liable for (he first and third items of damage. All the bills of lading having expressly excepted "rust,” and on the last three shipments bills of lading containing a further written exception of liability for “rust or corrosion,” held, that the oxidation of the zinc coating constituted “rust ” within the exception of the bill of lading, and the libelants, not having proved any negligent acts on the part of the ship which caused the rust, held, that the ship was not liable for this item of damage.</p> <p>2. Same — Good Faith — Evidence.</p> <p>Good faith in Ihe prosecution of claims forbids that vague or loose estimates of damage should bo received where proper evidence lias been voluntarily parted with by the suitor. Estimates may be received, however, where the proper evidence has been parted with through misapprehension as to the extent of the suitor’s rights, though in such cases he should not recover beyond the lowest estimates of the most credible witnesses.</p>

<p>1. Commissioner's Report — Exceptions Sustained.</p> <p>Exceptions to a commissioner’s report awarding to the original libelants the proceeds from the sale of a vessel, and excluding other creditors whoso claims were of later origin, though of equal rank, sustained.</p> <p>2. Maritime Limns — Defined.</p> <p>A maritime lien is a jus in re; it accompanies the property into the hands of a bonnjide purchaser, and can be enforced, or divested only by a proceeding in rem-</p> <p>it. Same — In What Order Paid.</p> <p>All claims against a vessel should be paid in the inverse order of their origin; following the decision of this court, in the case of The Selkirk.</p> <p>4. Same — How Paid.</p> <p>All claims of equal rank against a vessel should be paid ratably in proportion to the amount of each claim, and unaffected by any priority of date in the commencement of legal proceedings; following Vandewater v. Mills, 19 How. 82.</p> <p>See The De Smet, 10 Fed. Rep. 483, and note, 489</p>

<p>1. Collision — Wharves and Piers — Projecting Boat — Negligence.</p> <p>The.canal-boat O., consigned to pier 37, East river, arrived there at 5 A. M. The slip being nearly full, she moored along the south side of the pier, with her bows projecting 20 feet beyond it, into the river. The end of the pier was a usual place of landing passengers in the dark. About 40 minutes before sunrise the steamer M. landed for passengers, as usual, at the end of the pier, and in doing so struck the O. and did some damage, though having perceived her in time to avoid her with due care. Held, in the absence of any rule or regulation, that the O. had a right, under the circumstances, to moor as she did; and that the M. was chargeable with negligence in striking her.</p> <p>2. Same — Custom—Light when Moored.</p> <p>It further appearing that it was the custom for a boat so moored, to exhibit a light at night, though no positive rule required it, held, that the custom should be enforced as obligatory under such circumstances of special exposure and danger, at a usual landing-place, as a rule of reasonable precaution, and that the O. was chargeable with negligence in omitting the light until sunrise, and the damages were divided.</p> <p>The cases of The Bridgeport, 14 Wall. 116, and Granite State, 3 Wall. 311, dis-inguished.</p>

<p>Action for Demurrage.</p>

<p>2. Public and Private .Nuisance from Mining- Debris.</p> <p>Tlie Yuba river rises in the Sierra Nevada mountains, and after flowing in a westerly direction about. 12 miles across tlie plain after leaving the foot-liills, joins the feather. At the junction, within the angle of those two rivera, is situated tlio city of Marysville. The Feather thence runs about 30 miles and empties into the Sacramento. These three rivers were originally navigable for steam-boats and other vessels for more than 150 miles from the ocean, at least as far as Marysville — tlie Sacrament o being navigable for the largest-sized steamers. Tlie defendants have for several years been and they are still engaged in hydraulic mining, to a very great extent, in the Sierra Nevada mountains, and have discharged and they are discharging their mining debris, — rocks, pebbles, gravel, and sand, — to a very large amount, into the head-waters of the Yuba, whence it is carried down, by the ordinary current and by floods, into the lower portions of that stream, and into the Feather and the Sacramento. The debris thus discharged lias produced tlie following effects: It lias filled up tlie natural channel of the Yuba above the level of its banks and of the surrounding country, and also of the Feather below the mouth of tlie Yuba, to the depth of 25 feet or more. It has buried with sand and gravel and destroyed all tlie farms of tlie riparian owners on either side of the Yuba,'over a space two miles wide and twelve miles long. It is only restrained from working a similar destruction to a much largor extent of farming country on both sides of these rivers, and from in like manner destroying or injuring the city p£ Marysville, by means of a system if levees, eroded at great public expense by the property owners of tlie county and inhabitants of the-city, which levees continually and yearly require to be enlarged and strengthened to keep pace with the increase in the mass of debris thus sent down, at a great annual cost, defrayed by means of special taxation. It lias polluted the naturally clear water of these streams so as to render them wholly unfit to be used for any domestic or agricultural purposes by tlie adjacent proprietors. It has filled to a largo extent, and is filling up tlie bed and narrowing tlio channels of these rivers, and the navigable bays inio which they flow, thereby lessening and injuring tlieir navigability, and impeding and endangering their navigation. All these effects have been constantly increasing during tlie past few years, and their still further increase is threatened by tlie continuance of the defendants’ said mining operations. Held, that these acts, unless authorized by some law, constitute a public and private nuisance, destructive, continuous, increasing, and threatening to continue, increase, and be still more destructive.</p> <p>2. Special Injuries to the Complainant.</p> <p>During all this time the complainant was and lie now is owner in fee of a block of buildings in Marysville, in the business portion of the city, about 500 feet from tlio levee on tlie Yuba. Originally the steam-boat landing for the city was on the Yuba, nearly opposite to this block, but by reason of the filling up of that river its navigation has been prevented, and the landing is now in the Feather, three-fourths of a mile distant from said block. By a break in the levee of the Yuba during one of its annual floods, the city of Marysville was inundated, the water stood several feet deep in this block, debris was deposited in it, its underpinning- was washed out so that the roof fell in, and tlie repairs of t,líese injuries cost between §2,000 and §3,000. The building is liable in the same manner to similar injuries from every flood in the river. The complainant also owns two farms, — one of 952 acres, abutting on tlie Feather a few miles bo-low Marysville, upon which there was formerly a public steam-boat landing for shipping and receiving freight and passengers, but which lias become useless by tlie filling up of the river in front; the other of 720 acres, abutting on the opposite bank of tlie Feather. Seventy-five acres of one of these tracts and 50 acres of the other have boon completely buried and destroyed by the debris, and the remaining portions are only protected from destruction "oy the levees, which on several occasions have, broken, and the lands have been damaged by water charged with debris, and they are in danger of being overflowed and injured in a similar manner from a breach of the levees at any flood. The valué of the complainant’s land has been depreciated from these causes ; his acceso to the river from his farms for the purpose of shipping or receiving freights has been cut oft'; he has been obliged to pay an extraordinary, onerous, annual tax for the erection and maintenance of the levees to protect his property from the constantly increasing danger of loss or destruction. Meld, that these facts constitute special injuries to the complainant, which entitle him to maintain a suit in equity to restrain the further commission of the public nuisance created by the defendants.</p> <p>3. Sott by a Private Person to Restrain a Public Nuisance. •</p> <p>When a private person has sustained special injuries from a public nuisance, he thereby gains a standing in court which enables him to maintain a suit for such injury. In the suit so brought the plaintiff acts on behalf of all others who are or may be injured, as a public prosecutor rather than on his own account. The court, in deciding such suit, has regard to the'interests of the public, as well as to those of the plaintiff.</p> <p>4. Such Nuisance not Authorized by Legislation.</p> <p>The acts of defendants creating such a public and private nuisance are not authorized or justified by the legislation of congress recognizing, permitting, and regulating mining on the public lands of the United States, or on lands granted by the government to private owners, (Rev. St. $ 2338, Act of 1866;) or by statutes providing for the improvement of the navigable rivers of California, which recognize the injuries above described as existing facts (river and harbor bills of 1880 and 1882;) or by the legislation of California regulating mining operations, or purporting to permit t-lle condemnation of lands for the uses of miners, (Code Civil Proc. § 1238, subd. 5;) or by the act of 1878, (section 1, subd. 8,) concerning the Sacramento and San Joaquin rivers, and recognizing the injuries as above described from the mining debris.</p> <p>5. Nuisances not Authorized by Implication.</p> <p>Under the provisions of the California Civil Code, 5 3482, defining nuisances, acts otherwise constituting a nuisance cannot be justified and legalized by implication, but only by the express authority of some statute.</p> <p>6. Statutory Rights — Conditions Implied.</p> <p>It is a condition'always implied bylaw, that rights granted or regulated by statute shall be exercised by their possessors with due regard to the rights of other persons.</p> <p>7. Powers op gr-iE United States over Public Lands within a State.</p> <p>• Over the public lands within a state the United States has only the rights of a proprietor, and it has no power to authorize its grantees of such lands to invade the private rights of other proprietors.</p> <p>8. Powers op Congress over Navigable Streams.</p> <p>Congress has no power, even by express statute, to authorize a public nuisance destroying or materially obstructing the navigability and navigation of navigable streams within a state, for purposes wholly unconnected with commerce or post-roads. Its power over such streams is limited to the regulation of commerce and establishing post-roads, and it cannot authorize the navigability of a navigable stream to be totally or partially destroyed for purposes having no connection with or tendency to benefit the operations of commerce or the carrying of the mails.</p> <p>9. Powers op tiie State to Authorize Such a Nuisance.</p> <p>A statute of the state of California expressly authorizing the acts of the defendants, and the injuries caused by them, would be in conflict with the fourteenth amendment of the United States constitution, and with similar provisions of the state constitution. Such legislation would either deprive the complainant and others of their property without due process of law, or would take or damage their property for alleged public use without compensation.</p> <p>10. Powers op the State over Navigable Streams.</p> <p>A state cannot, except under its power of eminent domain, and upon making just compensation, interfere with the navigable streams within its territory, in any manner, or for any purpose, oilier than that of regulating, preserving, and protecting the public easement of navigation therein.</p> <p>IX. Act Admitting California into tub Union.</p> <p>The provision of the act admitting California into the Union “upon the express condition # * * that all the navigable rivers within said state shall be common highways and forever free as well to the inhabitants of said state as to the citizens of the United States,” is valid as a law under the authority of congress to regulate commerce, which the state has no authority to violate, and with which it cannot interfere.</p> <p>12. Presoru’tton, Nature of.</p> <p>The statute of California merely Axes the time in which a right by prescription shall be acquired at live years; but it nowhere determines the circumstances which constitute prescription, and thus leaves them to be determined by the settled law as it stood prior to the Code.</p> <p>13. bio Prescription in B'avor of a Public Nuisance.</p> <p>A o right or title can he acquired by prescription to commit or continue a public nuisance.</p> <p>14. Same, in Suit by a Private Person.</p> <p>The same doctrine applies to a suit brought by a private person who has sustained special injuries from a public nuisance, as to a suit brought by the attorney general, or by some corporate, portion of the public. A public nuisance is not' unlawful as to the whole public and lawful as to its constituents; it is absolutely and wholly unlawful.</p> <p>15. No Prescriptive Right Acquired.</p> <p>The defendants have acquired no right or title by prcscription.to commit or continue the nuisance complained of, whether regarded as a public or a private nuisance; there has been no acquiescence, either by the public or by complainant, in the acts of defendants as done under an adverse claim of right.</p> <p>16. Delay as .Evidence of Acquiescence.</p> <p>How far delay may be evidence of acquiescence must depend upon the circumstances of each case. In the present case, the complainant is entitled to the benefit of the conduct of the community, and this conduct shows a constant opposition on their part to the acts of defendants during the whole period of their hydraulic mining operations, since the injury became material. Acquiescence in a certain amount of nuisance is not acquiescence in a similar nuisance which is constantly increasing in magnitude, and in its destructive effects. 1'or the same reasons, the delay or lapse of timo in bringing this suit does not constitute laches.</p> <p>17. Adverse Possession.</p> <p>Defendants have not acquired title by adverse possession to the two tracts of complainant’s lands — one of 75 acres, the other of 50 acres — which have been completely buried by their mining debris. These tracts have not been “ protected by a substantial inclosure,” or “usually cultivated or improved” by defendants. as required by the Code of Civil Procedure, § 325, in all cases where the adverso possession is “ not founded upon a written instrument, judgment, or decree,” and there has been no ouster of the complainant by defendants.</p> <p>18. Customs of Miners.</p> <p>The acts of defendants are not authorized by the “ customs of miners ” recognized by the legislation of California and of congress, which customs so recognized are only local, not general, customs. A custom which authorized such acts, if it existed, would be “ in conflict with the laws and constitution of the state,” and would be illegal and void.</p> <p>19. Inconvenience to Defendants.</p> <p>In granting relief, where the complainant’s rights are certain, and the invasion of them is clearly established, a court of equity cannot consider the inconvenience which wiíl result to defendants from the relief. Nor is it the province of the court to speculate upon or to consderi or to suggest any possible modes by which defendants maj' avoid the injurious consequences of their acts, or to decide upon the conflicting opinions of scientific experts concerning the feasibility or sufficiency of such suggested modes. The only duty of the court is to grant the relief to which the complainant is entitled upon the law and facts of the case.</p>

<p>1. Bill in Equity for Settlement oe Title and Partition — Multieariousness.</p> <p>A bill in equity to determine and settle a disputed legal title, and for a partition of the land, is multifarious.</p> <p>2. Same — Bill for Partition Retained till Title is Settled at Law.</p> <p>A bill for partition will not lie wben the legal title is in dispute, or when it depends on doubtful facts or questions of law; and when one is filed and the pleadings or proofs show a dispute about the legal title of the real estate, the usual course is for a court of equity to retain the bill until the title is settled at law.</p>

<p>Equity Pleading — Cross-Bill— Demurrer — Answer — Reformation of Contract.</p> <p>It is not necessary to filo a cross-bill to reform a contract which is already before the same court in equity at the suit of the other party; but the defendant should plead the facts relied upon by way of answer, even if they vary a written contract, and the court will enforce the contract as it is found to have been made or as it ought to be reformed, as the case may be.</p>

<p>1. Individual Name — Use by Partnership — Dissolution.</p> <p>A partnership which is suffered by any one to use his name as a part of the firm s’tyle-and title, though it may acquire by such license an exclusive right to the use of the name so long as the partnership continues intact, cannot, upon its dissolution, confer the same privilege upon its successor.</p> <p>2. Laches — Acquiescence—Notice.</p> <p>.Acquiescence by any person in the wrongful use of his name will not estop him from asserting his rights in equity, unless he lias notice-during such acquiescence of the facts rendering the use of his name wrongful.</p>

<p>Statute m? Limitations — Laches.</p> <p>Application to file a supplemental bill of complaint denied, both because of the bar of tlie statute of limitations and of the laches of the complainants.</p>

<p>In Bankruptcy.</p>

<p>COUNTERFEITING UNITED STATES COIN — REV. St. j 5457 — COIN CALCULATED TO Deceive — Further Act to be Done to Perfect Spurious Coin.</p> <p>A party who lias made false coins with, intent to circulate them, and has carried the manufacture so far as to produce coins capable of being uttered as genuine coins, may be convicted of the offense described in Kev. St. § 5457, notwithstanding he intended to coat such coins with silver before putting them in circulation.</p>

<p>1. Patents — Design Patent Wo. 4,802 — Infringement.</p> <p>Design letters patent No. 4,802, dated April 11,1871, and granted to 'William H. Walton for a design for printed material for gored skirts, consisting of printing a series of gore-sliaped patterns, made to matcli around the lower edge in a skirt, the narrow end opposite the broad end of another, on a piece of woven fabric, so as to fill the width of the fabric; leaving blank spaces for seams, with dotted lines in the blank spaces by which to divide the fabric into parts, having-eacli a pattern of proper shape to be sewed together into a full skirt, are not infringed by the gore-shaped patterns printed according to the patent, but already" divided, ready to be sewed together into skirts, or by cutting skirt fabrics printed with gore-shaped patterns, the wide ends of which are placed alternately opposite the narrow ends, filling the width of the fabric, hut without blank spaces for seams or lines or marks by which to divide them other than the outlines of the patterns.</p> <p>2. Same — Differences in Design.</p> <p>The differences in designs necessary to take away tlicir identity in law are such appearances as would attract, the attention of an ordinary observer, giving such attention as a purchaser of the articles in question, for the purposes for which they were intended and purchased, would usually give.</p> <p>3. Same — Infringement of Part of Design.</p> <p>There may he an infringement of a patented design without taking the whole of it, but in such cases the part taken must be a part covered by the patent.</p>

<p>Patents fob Inventions — Anticipations—Indefinite Desckiption.</p> <p>Patent No. 184,933, dated November 28, 1876, granted to Alexander Vogeley for an improvement in apparatus for beveling glass plates, and consisting of a truck moving by hand on ways of proper height, carrying an adjustable lable for holding the plate at desired angles against the grinding wheel, was not anticipated by the Prench patents of Romongin & lesson, No. 60,174, dated September 18,1863, and of Jaubert, No. 94,457, dated March 7,1872, nor is such patent void for want of explanation of the principle of the apparatus, and the best mode of applying it. ■</p>

<p>In Admiralty. Collision.</p>

<p>Sup — A.noiioti—Negligence—Damage pbom.</p> <p>¿V vessel throwing an anchor in shallow water in a large slip or basin where other vessels are in the habit of coming and going, without a buoy, and at a considerable distance from the vessel, and with nothing to indicate the presence of the anchor in the spot where it lies, is liable for the injury caused to another vessel which runs upon it without notice.</p>

<p>Removal of Cause — Act of 1875 — Defective Bond — Amendment.</p> <p>Tlie formalities proscribed by the removal act of 1875 are not conditions precedent to the jurisdiction of tlie federal courts, and a defect in the bond required by that act maybe cured by the substitution of a new bond upon motion in tlie federal court to amend.</p> <p>Deford v. Mehajfy, 13 Fed. Rep. 481, followed.</p>

<p>1. Removal of Cause — Suit by State asainsta Citizen of Another State— Act of March 3, 1875.</p> <p>A suit instituted by a state in one of its own courts against a citizen of another state is not removable on the ground of a diversity of citizenship of the parties.</p> <p>2. Same — Fourteenth Amendment — Equal Protection of the Laws.</p> <p>Such a suit is not a denial of the equal protection of the laws, within the meaning of the fourteenth amendment or Rev. St. § 641, and removal on that ground.</p>

On Motions to Remand and to Dissolve the Injunction. This suit was instituted in the civil district court of the parish of Orleans, on a petition, verified by affidavit, setting forth, in substance, that the complainant is chartered and carrying on a large banking business under the national-banking laws of the United States, and has important connections with other banking institutions and persons throughout the United States, with whom it is necessary to maintain…

<p>1. Removal of a Prisoner from State to United States Court — Jurisdiction — Whit of Habeas Corpus not Necessary on Application fob Order of Transfer.</p> <p>Section 1014, Rov. St. 1S78, among other things provides that “when any oííeiider or witness is committed in any district other than that where tiie of-fence is to he tried, it shall bo the duty of the judge of the district where such offender or witness is imprisoned, seasonably to issue, and the marshal to execute, a warrant for his removal to the district where the trial is to he had.” Under this statute the practice of hearing an application for removal without invoking the writ of habeas corpus is admissible and proper.</p> <p>2. Same.</p> <p>When a state; court and a court of the United States may each take jurisdiction, the tribunal which first gets it holds it to the exclusion of the other until its duty is fully performed and the jurisdiction invoked is exhausted; and this rule applies alike in both civil and criminal cases.</p> <p>3. Same — Effect of Removal Upon Liability of Bondsmen.</p> <p>The removal of a prisoner by a court of competent jurisdiction beyond the control of his bondsmen, thus rendering them unable to produce the prisoner at the time and place set for trial, as undertaken by the conditions of the bond, is, in the language of the authorities, “ an act of the law,” and can be set up in defense to a suit on the bond.</p> <p>4. Same ~í<’aili;re of State to Appear in Proceedings to Transfer.</p> <p>The failure of the stale to appear by its judicial officers to object to proceeding to remove a prisoner from the jurisdiction of its courts can make no difference where the right of the state fully appears and has been made known to the court.</p>

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

<p>Special Appearances — When Allowed, and for what Purposes.</p> <p>A defendant may, without leave of court, enter a special appearance for the purpose of objecting to the jurisdiction of the court, by virtue of the stops taken to bring him in or serve him with process, or for any other reason, but a defendant interested in a controversy cannot be allowed to come in under a special appearance and avail himself of all the chances of a decree in his favor and retire without harm if the decision of the court should be against him.</p>

<p>Municipal Bonds — Bona Fide Holden — Purchaser without Notice oe Defect.</p> <p>Rouedev. Mayor, etc.,' of Jersey City, ante, 719, followed.</p>

<p>1. Injury Caused by Negligence oe Fellow-Servants.</p> <p>Tlie rule first suggested in Priestly v. Fowler, 3 Mees. & W. (1837,) 1, tliat a master who lias exercised due care and skill in tlie employment and retention of his servants is not responsible for an injury sustained by one of them in the course of his employment by the negligence of another, however distinct the grade or different tlie labor of such servants or how widely separated the locality of their several employments, is being modified bj the course of judicial opinion and decision so as to meet the ends of justice in cases since arising of corporations and others engaged in varied and widely extended operations under one nominal and invisible head, but in reality divided into separate partí or divisions, under the direction and control of local bosses, superintendents, or heads of departments, who to all intents and purposes represent and stand for the corporation, with practically unqualified power to employ, direct, and discharge workmen, and to provide the necessary.material and appliances foi their convenient and safe employment.</p> <p>2. When Fellow-Servant Stands eor Master.</p> <p>It seems well established that a master is responsible to his servant for an in-juiy sustained by him, without his fault, in consequence of the negligence of a fellow-servant, (1) when the latter, having authority over the former, orders him to do an act not within the scope of his employment, whereby he is exposed to a danger not contemplated in his contract of service, and he is injured in so doing; (2j where the master has charged the latter with the duty of providing proper material and appliances for carrying on a work in which he is personally engaged with the former or not, and by'the neglect to do so he is injured.</p> <p>3. Oase in Judgment.</p> <p>In February, 1883, the Northern Pacific Railway was engaged in construcing itsroad through western Montana, and had many gangs of men, numbering not less than fifty each, at work on the line of the route, at from three to five miles apart, under tho control and diiectionof foremen or local houses, with the power lo employ and discharge, subject themselves to the control oí a general superintendent and assistant, who passed along tho route and inspected the camps at certain periods. Some of these gangs used giant powder for blasting the rocks and frozen earth, and in such case the foreman was charged specially with the duty of handling the powder and thawing- it when frozen. The general superintendent was aware of the danger of thawing powder before a fire, and had given general notice not to do it, and provided a safe appliance, called a “healer,” for the purpose, subject to the requisition of the local boss. The plain till was employed as a common laborer in one of these gangs, where powder was always thawed without a “heater” before the fire, and while assisting in so tflawing powder by direction of the local boss, was injured by its explosion. Held., that the local boss, so far, stood in the place of the defendant, and that the neglect, of the former to obtain and use the proper appliance for thawing powder, and his directing the plaintiff to assist in thawing- powder without the security of such appliance, wore wrongful acts for which the defendant is responsible to the plaintiff so far as he was injured thereby.</p>

<p>Defense or Question Not Made to Jury.</p> <p>"Where a party has a defense to an action arising out of the testimony in the ease, and omits to present it to the jury, but relies upon a defense involving a different, if not inconsistent, conclusion from the testimony, a new trial will not he granted to enable him to submit the case to another jury upon this untried question, unless it clearly appears from the evidence that he is entitled to a verdict on that ground, and then only upon the payment of the costs of the first trial.</p>

<p>Action to Recover Damages for Personal Injury.</p>

<p>Names op Cokpokations — Eppkot of Misnombb in Signing Contkaots.</p> <p>A corporation, like a natural person, may bo known and designated by several names, although it can have but one corporate designation. It is well settled that it is not necessary in order that a corporation be bound by its contracts that they shall be made in its exact corporate! name. If it appears from allegations anil proof that (lie obligation sued upon was intended to be the obligation of the corporation sued, a recovery will not be defeated by reason of a misnomer.</p>

This is a civil action to recover the price of spirituous liquors from the defendant upon the ground that he was a dormant partner of J: W. Bailey, who purchased the articles from the plaintiffs.

<p>1. Duties on Imports — Notice of Protest to Collector — What Sufficient —Notice Signed by one Partner of a Firm.</p> <p>The plaintiff, doing business in bis own name as an importer, gave notice by what was known as a prospective protest to the collector of customs ; he afterwards took a partner, adding “& Co.” to his name, and the lirm continued the importation of the same class of goods. Reid, that the notice of protest given in the name of the plaintiff was sufficient to cover duties subsequently levied upon importations made by the firm.</p> <p>2. Same — Protests—Commercial Documents.</p> <p>Protests against the levy of duties are commercial documents, and if they are sufficiently formal and accurate to inform the collector distinctly and unequivocally of the position of the importer, the object of the statute requiring them is accomplished. It is not intended that they shall possess all the technical precision of legal documents.</p>

<p>1. Bankrupt Act — Insolvent Debtor Suffering His Property to be Seized.</p> <p>Whore the bankrupt act provides that if an insolvent debtor suffers or procures his property to be seized on execution 'within two months before the filing of the petition against him, the assignee in bankruptcy can set aside the preference! obtained by the creditor in whoso favor the execution issues, it seems that a mere failure by tho bankrupt to avail himself of the bankrupt act, in order to prevent a creditor from acquiring a judgment lien, will render any preference so obtained voidable, at tho option'of tho assignee; but whether this be true or not, any circumstances showing the existence, within the stated time, of an active desire upon the bankrupt’s part to give such preference, will be sufficient to vitiate the judgment lien. Such circumstances are the confidential relations between the parties, their co-operation for each other’s benefit, the secrecy of their transactions, and the continued enjoyment of the property by the bankrupt after the seizure.</p> <p>2. Same — Warrant to Confess Judgment — Exercise not the Debtor’s Act.</p> <p>A warrant of attorney to confess judgment speaks from the time it is given, and not from the time it is exercised. Accordingly, tho entering of judgment in pursuance of such a power, within two months' before, the filing of a creditor’s petition, is not an act of the bankrupt, within tho provision of the statute.</p>

<p>1. Return to Habeas Corpus.</p> <p>Unless tlie return to a writ of habeas corpus shows that the caption and detention ai-e legal at the time of the service of the writ, the prisoner ought to be discharged'; and a return showing a caption and detention upon valid process since such service, is not sufficient.</p> <p>2. Warrant oe Extradition.</p> <p>A warrant for the arrest and return of a fugitive from justice must recite or set forth the evidence necessary to authorize the state executive to issue it, and unless it does it is illegal and void.</p> <p>3. Habeas Corpus — Jurisdiction oe.</p> <p>A person arrested under a warrant of extradition from one state of the Union to another “is in custody under or by color of the authority of the United States,” and the national courts have jurisdiction to inquire by habeas corpus into and determine the legality of the same.</p>

<p>1. Ruling of the Circuit Justice or Judge.</p> <p>A ruling of the circuit justice or judge, on the circuit, ought to be followed by the other judges thereon, until the question is determined by the supreme court.</p> <p>2. U. S. ». Loftis, 8 Sawy. 194; [S. 0. 12 Fed. Rep. 671.]</p> <p>The ruling in this case being opposed to the decision of the circuit judge in an unreported case in the district of California, not then known to the district judge of Oregon, the latter is now followed and the former disregarded, without reference to the personal opinion of said district judge; but in the light of further examination of an information on the subject the case is not regarded as sound, and is overruled.</p>

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

<p>1. Use of tub Mails fob Fraudulent Purposes — Nature op the Offense,</p> <p>To constitute an offense, under section 5480 of the Revised Statutes, which provides for the punishment of any person using the mails for fraudulent purposes, it is not necessary that the guilty person should be the originator of the fraudulent scheme in which he participates.</p> <p>2. Sami; — Depositing Letter.</p> <p>Under that section a person is guilty of “ placing a letter in the post-office” if a letter has been so deposited by his direction, even though by the hand of another.</p> <p>3. Same — Fraud—-Participation by Agent.</p> <p>A clerk who knowingly assists in the fraudulent practices of his principal is as much a party to the fraud as the principal himself. .</p> <p>4. Bam® — Evidence—Similar, but Unconnected, Transactions — Proof of Intent.</p> <p>Upon an issue of fraudulent intent in any transaction, evidence of similar transactions at a previous time is relevant, so far as it goes to prove the intent, though for no other purpose. Accordingly, upon an indictment for the use of the mails in furtherance of a fraudulent scheme connected with a so-called 11 Fund W,” held, that evidence of fraudulent practices by the same parties, by means of certain funds, H ” and “ K,” was admissible.</p> <p>5. Same — Pailube to Produce Evidence — Inff/sences.</p> <p>The neglect of a party to produce books which would show the character of his transactions, warrants an inference that such evidence would be damaging.</p> <p>6. Same — Testimony of Accomplice</p> <p>The testimony of an accomplice,though it should be corroborated if possible, is to be considered By the jury, even though uncorroborated, for what it is worth.</p>

In Admiralty. W. H. Black, whose administratrix, Frances Black, brings this libel, was a colored man, 64 years old, who had irregular employment in the United States navy yard, at Gosport, opposite Norfolk. He came upon the ferry-boat Manhasset, to cross the harbor to Norfolk, on the eighteenth of March, 1881.