Volume 19 — Federal Reporter

<p>JinupoicTioN—Foreclosure or Mechanics’ Liens—Suit by Assignee— Averment AS TO CITIZENSHIP— ACT OR MARCH 3, 1875.</p> <p>Where the assignee of a mechanic’s lien seeks to enforce and foreclose such liens in a circuit court of the United States, it must affirmatively and clearly appear from the bill filed tliat the court had jurisdiction as to all of the origina] lien claimants, and where no averment as to the citizenship of some of such claimants is made in an amended bill, it will be presumed that they are citizens oí the slate where the suit is brought, and the bill will bo dismissed for want of jurisdiction.</p>

Bill in equity brought to obtain decree for the specific performance of a written agreement for the sale by defendant to complainant of certain land.

<p>Suit to Correct a Mistake in a Policy of Insurance.</p>

<p>1. Express Facilities.</p> <p>Whether an express company doing business over a line of railway or steamboats is entitled to the services of the pursers and conductors thereon, as its messengers, depends on circumstances; but when one express company doing • business over any such line of transportation is allowed such service, the same thereby becomes an express facility, as to all other express companies doing business thereon, and cannot lawfully be withheld from them.</p> <p>' 2. Injunction to be Obeyed.</p> <p>When a pai'tj to an injunction doubts its extent or significance, he ought not to disobey or disregard it, with a view of testing it in this particular, hut he should apply to the court for a modification or construction of it.</p> <p>3. Punishment for Contempt.</p> <p>In a proceeding for contempt between the parties to a suit for disobedience to an injunction, causing a pecuniary loss or injury to the party instituting the proceeding, the court, m imposing punishment upon the wrong-doer, may do so for the benefit of the party injured.</p>

Stipulation is filed waiving a jury. On March 8, 1879, the plaintiff shipped a quantity of flour, by through bill of lading, from Minneapolis to Bristol, England. He applied to an insurance agent in Minneapolis, who gave him a certificate insuring him to the extent of $1,100. The certificate is in the following form: “Insurance Certificate, “$1,100, Gold.

<p>1. Fugitives from Justice Arrested and Returned under Laws of the United States.</p> <p>The governor of a state, in issuing a warrant for the arrest of a fugitive from justice, the officer who makes the arrest, and the party commissioned to receive the fugitive and deliver him to the authorities of the state in which the offense is charged to have been committed, in pursuance of the provisions of sections 5278 and 5279 of the Revised Statutes, act under the authority of the laws of the United States, and <¡n'o hac vice are officers or agents of the United States.</p> <p>2. Writ of Habeas Corpus—Jurisdiction.</p> <p>Where a petition for a writ of habeas corpus presented to a state judge or court by a party in the custody of one claiming, in good faith, to be authorized to deliver him to the authorities of another state, as a fugitive from justice, in pursuance of the provisions of said sections, shows upon its face that the petitioner is so held in custody under such claim made in good faith, the state judge or court has no jurisdiction to issue the writ. The jurisdiction in such case is exclusively in the courts of the United States.</p> <p>8. Same—Duty of Custodian.</p> <p>Where a writ of habeas corpus has been issued by a state judge or court, and been served on the party having the custody of such alleged fugitive, it is the duty of such custodian to make full return to the writ as to the authority under which he holds the prisoner, and to exhibit to the court the original papers evidencing his authority, and respectfully decline to produce the body of the prisoner; and if it appears from said return, or said petition and return, that the prisoner is claimed to ho held in good faith, in pursuance of the provisions of said statute, the judge or court issuing the writ has no jurisdiction or authority to proceed further, and no jurisdiction or authority to compel the production of the body of the prisoner, or to commit the party holding him for contempt in thus respectfully declining to produce the prisoner.</p> <p>4. Same—Effect of Production of Prisoner.</p> <p>Thé effect of the production of the prisoner would be to place him in the physical control of the court,, and to deprive the agent of all power to execute the superior commands of the laws of the United States, to which he owes obedience.</p>

<p>Sending Matter Concerning Lotteries through the Mails—Decoy Letters.</p> <p>Tlie oil'ense of sending loiters or circulars concerning lotteries through the mails is complete under section 3894 of the Revised Statutes, although the circulars in question are sent in reply to letters written by a detective, under a fictitious name, for no other purpose than to obtain evidence of the commission of the oil'ense.</p>

<p>Information for Violation of Section 3995, Eev. St.</p>

The following are the findings of fact on this appeal s (1) About half past 10 o’clock in the evening of July 21, 1882, the steam-tug Whipple, having in tow the barge Allandale, both owned by the libelant, lashed to her starboard side, left Jersey City, bound for pier 8, East river. The tug and tow had all their regulation lights properly set and brightly burning.

<p>Motion to Bemand.</p>

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

<p>1. Petition nor Removal—Jurisdiction.</p> <p>After tlie filing of a petition for tlic removal of a causo loa federal court, and the tender of a valid bond, if tlic petition and record show good ground lor removal, the jurisdiction of the slate court is superseded, and an amendment of the pleadings subsequently allowed in the state court- is invalid.</p> <p>2. Same — Separate Controversy—Necessary Parties—Ubeunct Corpora-</p> <p>tion.</p> <p>A corporation which has sold all its property and franchises, except the mere right to exist, and which has no officers or place of business, is not a necessary party in a suit against a stockholder f o make him liable for his unpaid subscription, notwithstanding the fact that the corporation has still the power to reorganize and collect the stockholders’ dues.</p>

<p>1. Jurisdiction of Circuit Courts—When Concurrent with District Court.</p> <p>By section 4979 of the Revised Statutes of the United States the several circuit courts have concurrent jurisdiction with the district courts “of all suits at law or in equity, brought by an assignee in bankruptcy against any person claiming an adverse interest, or by any such person against an assignee touching any properly or rights of the bankrupt transferable to or vested m such assignee.” By this section jurisdiction is conferred upon the circuit courts to ascertain and adjust all lien and other specific claims upon the property vested in the assignee claimed by any person adversely to the assignee representing the general creditors, without regard to the citizenship of tho parties. Nor is such jurisdiction affected by the change of interest created by a conveyance made under the decree of the district court. Having once acquired jurisdition of the subject-matter and the parties, the court will retain it for all purposes within the scope of the equities to he enforced.</p> <p>2. Defect Given to Testimony of Parties on Former Triad.</p> <p>8. Bird of Revivor—Statute of Limitations—Laches.</p> <p>Ordinarily a hill of revivor may be filed at any time before it is barred by the statute of limitations, which, when the suit is abated by tho death of the plaintiff, begins to run from his decease, or, according to some authorities, from the time administration is taken out. Where one acquires title with full notice and subject to an ineumberance of a lien, he cannot charge laches on the part of the person bringing suit to enforce the lien if the suit is brought within the time prescribed by the statute.</p>

<p>1. Carrier—Liability for Goods Destroyed by Fire on Wharf.</p> <p>Goods were delivered to the defendant, a steam-boat company, for transportation. The bills of lading did not designate any particular vessel. The goods were burned on the wharf by a fire not occurring through any neglect of the defendant. Held that, even though the goods were negligently delayed by the defendant, the delay was not the proximate cause of the loss.</p> <p>Raib'oad Co. v. Reeves, 10 Wall. 190.</p> <p>2. Same—Bill of. Ladino.</p> <p>The bills of lading stipulated, “dangers of the seas, fire, breakage, leakage, accidents from machinery and boilers, excepted, and with liberty to tow and assist vessels in all situations. ” Held, that this was an exemption from liability from loss by fire while the goods were on the wharf awaiting transportation, as well as when on board the vessel.</p>

<p>1. Monthly Salary—Presumption as to Period op Employment.</p> <p>There is a presumption of law that a person employed at a monthly salary is engaged by the month, so that either party may terminate the contract at the end of any month, unless it affirmatively appears that a definite period of employment was contemplated by the parties to the contract.</p> <p>2. Pause Representations—Rescission of Contract—Recovery of Damages.</p> <p>A person who secures employment for a stated period by false and fraudulent representations may be dismissed at any time, and his employer may recover from him for any damage sustained by reason of the deceit.</p> <p>3. Contract of Service—Incompetency—Rf.scission.</p> <p>A person who, representing himself as competent to discharge any duty, is employed for that purpose, may be dismissed upon his ineompotenev being shown.</p> <p>4. Same—Breach—Neglect to Discharge—Waiver.</p> <p>One who, after a material breach of contract on the part of a person em- • ployed by him, continues to accept his services without reasonable cause for delay in discharging him, is presumed to have waived the breach, and will not he allowed to set it up afterwards.</p> <p>5. Same—Breach of Confidence.</p> <p>A person in whom peculiar confidence is reposed may be discharged by his employer for misleading him with respect to the matter of confidence, even though the truth might have been ascertained by inquiry elsewhere.</p> <p>6. ' Same—Wrongful Discharge—Damages.</p> <p>_ A person wrongfully discharged can recover the contract price for the full time of service agreed upon, without showing constant readiness to perform the work from which he has been dismissed.</p> <p>7. Same—Special Contract—Quantum Meruit.</p> <p>One employed by special contract cannot recover on a quantum meruit for liis services.</p>

The United' States brought suit in the court below to recover of the Missouri Eiver, Fort Scott & Gulf Eailroad Company the sum of $19,474.93, claimed as due for taxes, under the revenue laws, as income tax upon the earnings of said company for the year 1870.

<p>Live Insurance—Policy Taken Out for the Benefit of a Creditor—Proof of Death—Nature of Evidence.</p> <p>Absence of a person alone does not raise a presumption of bis death; but such absence, in connection with surrounding circumstances, such as the failure by his family and friends to learn of his whereabouts, his character, and business relations, together with the fact that he was last known to be seen near the place where a murder is supposed to have been committed, and the reputation in his family and with his friends that he is dead, creates a very strong presumption of death, the law being satisfied with less than certainty, yet requiring a preponderance of proof. On the other hdnd, evidence to overcome the presumption of death, that the party supposed to be dead was in a financial condition which might have induced'him to abscond, or that he was a speculator, or visionary, in his business or trades, is all proper evidence to be considered by the jury in establishing the fact.</p>

<p>1. Attachment—When Creditor Mat Resort to—Under the Missouri Statutes—Assignment Law of Missouri.</p> <p>Under the Missouri statutes a creditor may obtain an attachment against the property of his debtor on the affidavit that the debtor has conveyed and assigned or disposed of his property and effects, so as to hinder and delay his creditors, or is about to further fraudulently convey, assign, and dispose of the same with such intent. In order to maintain such an attachment it is not necessary to prove the act of the debtor to be fraudulent in fact; it is fraudulent in law if it hinders and delays creditors in the collection of their debts.</p> <p>2. Assignment under Law oe Missouri.</p> <p>A debtor, under the laws of Missouri, may prefer certain creditors to others, by mortgage or deed of trust in part or all of his property, but he cannot make such a preference iu an instrument or instruments by which he disposes of the whole of his property at one and the same time. Such an act would be a virtual declaration of insolvency and would bring the debtor under the assignment law, which requires a distribution of the property of the failing debtor for the benefit of all the creditors in proportion to their respective claims, if either can a debtor in failing circumstances, and unable to pay all his debts, convoy his property in trust, and reserve to himself any benefit.</p>

<p>1. PoinsraN Corporation—Power to Hold Land.</p> <p>A corporation, even though it does little or no business in the state whore it is organized, is not necessarily incapable oí holding and dealing in land in another state.</p> <p>2. Deed—Acknowledgment—After Expiration of Authority.</p> <p>A_deed executed by a commission empowered to convey public land may be lawfully acknowledged by the commissioners after tlieir authority has been revoked.</p> <p>3. Same—How Far Acknowledgment is Necessary.</p> <p>An unacknowledged deed is good against all persons having actual notice of its existence.</p> <p>4. Same—Uncertainty Arising after Execution.</p> <p>A valid deed does not become void because, by reason of the loss of a plat referred to .therein, it has become difficult to define the boundaries.</p> <p>0. Deed—Estoppel.</p> <p>The joint proprietors of a tract of land, who have accepted other land in exchange therefor, are estopped to deny the validity of a deed executed by a part of them only, on behalf of all, without power of attorney.</p>

<p>1. Contributory JSÍisgmgbnce.</p> <p>A person, cannot recover for injuries sustained by reason of the negligence of another, when he has himself been guilty of negligence, but for which the mischance would not have oocurrred.</p> <p>2. Same;-—Sudden Piitgiit.</p> <p>Imprudent conduct growing out of sudden fright is chargeable to the person whose negligence gave rise to the alarm.</p> <p>3. Action eor Injuriéis Causing Death—Measure or Damages.</p> <p>Damages, in an action by personal representatives for injuries causing death, are measured by the pecuniaiy loss, including the deprivation of future pecuniary advantage occasioned thereby to those who take the benefit of the judgment</p>

Stipulation is filed waiving a jury, and the case is tried by the court. The action is brought upon a bill of exchange accepted by the drawee: [Stamp.] “81,000. Tobonto, April 20, 1880. “Throe months after date pay to the order of ourselves, at the Bank of Commerce, here, one thousand dollars, value received, and charge to the account; of Mowat, Maclbnnan & Downey. “To Mess. Brown Indorsed across the face: “Accepted.

<p>In Bankruptcy. Exceptions to examiner’s report.</p>

<p>Bankrupt’s Discharge.</p>

<p>Patent for Process—Infringement.</p> <p>Where a patent process consists of a number of steps, all well known except the first and last, the use of all except the first and last steps will not infringe the patent.</p>

<p>Patents for Inventions—Patent No. 140,012—Motion for Injunction Denied.</p>

<p>On Attachment for Contempt.</p>

<p>1. Patents fob Inventions—Patentability.</p> <p>Letters patent No. S4,803, granted to Thomas B. Davis, on December 6, 1868, for an improvement in scoops, held to embody a patentable invention.</p> <p>2. Same—Calculation and Experiment Contrasted with Mechanical Skill.</p> <p>A result -which required calculation and experiment beyond mechanical skill and good workmanship is entitled to be classed as inventive. A new thing produced, better for some purposes than had been produced before, although it appears easy of accomplishment when seen, is such success as is within tho benefits of the patent law.</p> <p>3. Same—Public Use.</p> <p>Where an inventor gives another an article embodying his invention, and, without his knowledge or consent, it is shown to others, who manufacture and. sell the same for two years prior to an application for a patent, this will not constitute a public use within tho meaning of the acts of 1836 and 1839, and render the patent void</p>

The libels in these two cases were filed to recover damages for injuries to merchandise, consisting of burlaps and paper stock, during the voyage of the steamship Titania from Dundee to New York, through the spare propeller becoming unfastened and being tossed from side to side in the ship in the compartment where these goods were stowed. The Titania was a steamship belonging to the Eed Cross line of steamers, plying between Dundee and New York.

<p>Actions for Collision.</p>

In Admiralty. On the fourteenth of December, 1878, the libelants delivered to the Merchants’ Dispatch Transportation Company, at Bed Wing, Minnesota, 800 barrels of flour, to be transported from Bed Wing to Glasgow, Scotland, and received what is known as a through bill of lading, entitled “The Merchants’ Dispatch Transportation Company and the State Line.” On the sixteenth of December the libelants took out a eertiiicato of insurance from the respondents’ company, to the…

The above libels were filed to recover $9,500 damages for injuries sustained by the canal-ljoat EL B. Wilbur and cargo, which was in tow of the B. B. Saunders, through a collision with the steam-tug Orient, on the twenty-sixth of September, 1879, in the North river, opposite Harrison street. The Saunders, at about 12 it., had left pier 40, North river, with the Wilbur lashed to her port side to be towed to Newark. The day was clear and the tide slack.

<p>1. Shipping—Bill op Lading—Bona Fide Indorsee—Freight Payable—Lump Sum—Quantity Unknown.</p> <p>Where a bill of lading, after reciting receipt of a given quantity, weight, etc., contains a further express provision, “ quantity, weight, and contents unknown,” the vessel may show that less than the amount staled was received, and will not bo liable, as for short delivery, even to a bonaJM.e indorsee of a bill of lading, if she delivers all that she received.</p> <p>2. Same— Receipt por More than Actually Put on Board.</p> <p>. If the master acknowledges receipt, knowingly, for a greater amount than has been put on board, quiere, whether the vessel is liable, in an action in rein, for more than the amount actually laden on board.</p> <p>3. Same—Charter-Party.</p> <p>Tlie bona fide indorsee of a bill of lading is not aifected by tlie provisions of a charter-party, of winch he has no knowledge or notice, so as to be put on inquiry. In sucli a case he is liable for freight only, according to the provisions of the bill of lading.</p> <p>4. Same—Case Stated.</p> <p>Where the bill of lading provided, “freight to be paid for 410 tons, £451,” etc., and “to pay in New York £300.13.4,” held, this was notice of a specific sum to be paid, though the cargo was short of 410 tons, it appearing that the kilos actually receipted for amounted to only 400 tons.</p>

<p>1. Admiralty Law—Schooner’s Liability for Necessary Supplies — What Considered the “Home Port” of a Vessel—Residence of Owner or Master.</p> <p>It is well established that the port of registry is prima facie the home port of a vessel, and this presumption must be overcome by clear proof, before any other home is taken as the true one; but it has often been decided, too, that the place of residence of tho owners of a vessel is to be considered the homo port, oven when tho registration is in another sí ate, if the facts of ownership and residence were known, or might have been known, to tho material-man. But as to majority and minority ownership, or as between the managing or not managing ownership, qmre.</p> <p>2. Same—Name of Port on the Stern.</p> <p>Tiie statute requiring the name of the port of registry to be painted on a vessel’s stern is intended to give to all persons interested notice of the home of the vcsssel.</p> <p>3. Same—Master—“Acting and Managing Owner”—Sailing on Shares.</p> <p>Where a schooner was sailed by the master on shares, he to supply and man her, and pay a certain part of the net earnings to the owners, 7idd, that he was not the “ acting and managing owner,” in tho sense ol' Rev. St. § 4141, but the charterer; and that his sailing on foreign voyages from N ew York more or less often would not make New York his “usual residence,” under that section, if his family lived in Massachusetts.</p> <p>4. Same—Insurance—Premium.</p> <p>It seems that premiums of insurance are not necessaries for a ship; and held that where the, account of a material-man was insured with the consent of the master and of one part owner, and the account was a charge on the ship hut not on the owners personally, there was no privilege for the premiums.</p>

<p>Shipment of Cattle—Unfit Drinking Water—Liability of Vessel.</p> <p>Tiio owners of the steam-ship having contracted to supply ample condensed water for a cargo of 340 live cattle from Baltimore to Glasgow, and the court finding on all the testimony that tl!PWj[£gp*5fj$j3iished was unfit for cattle, and caused the death of 41 and detei^oratjon jn tlieNylil of all the remainder, held, that the ship was liable t > t'ie 0Wner of the ctrttlo for the losses suffered.</p>

The bark Elliseff, of which the libelant was master, brought in ballast -about 257 tons of salt from Lisbon to New York, where she… Held: denied this statement, and testified that he stated only that larger vessels than this had discharged at the Wallabout; that he did not think there would be any difficulty about it, and that the captain must examine and satisfy himself; that the captain wont out and afterwards came hack and said he would go, whereupon the vessel was…

<p>1. Seamen’s Wages—Fines—Discipline.</p> <p>In modern maritime law fines upon seamen being a forfeiture of wages, pro tanto, cannot be imposed by tlie master by way of discipline and punishment for minor oil'enses, except as regulaled and provided by statute.</p> <p>2. Same—Merchants’ ¡Shipping Act or Great Britain.</p> <p>Tlie merchants’ shipping act of Great Britain provides that the shipping articles may contain such stipulations for linos as maybe approved by the board of trade. When such approved stipulations are a part of the shipping articles signed by tlie seamen, fines may be imposed accordingly by the master.</p> <p>3. Same—Shipping Articles.</p> <p>Sucli linos, however, cannot be allowed in diminution of a seaman’s wages except upon proof by the shipping- articles that such stipulations were agreed upon.</p> <p>4. Same—SinrMA-ix Proceedings.</p> <p>In summary actions for seamen’s wages, the authority of tlie statute is sufficiently pleaded by a general reference to the law of Great Britain. The court is authorized by section 4597 of the Revised Statutes to inflict partial forfeiture of wages for disobedience of lawful commands.</p> <p>5 Same—Case Stated.</p> <p>Where a British seaman on a British vessel was lined by the master two dollars for foul language and quarrelsome conduct, and afterwards, on being required to listen to the reading of the entry on the log, imposing the fine, ho refused to attend or listen, and was fined two dollars, being two days’ pay for the last offense, held that, in the absence of proof of the shipping articles, the first fine could not be allowed or deducted from his wages, but that the last fine should be allowed by the court for the seaman’s disobedience of a lawful command, under section 4597 of the Revised Statutes, as well as section 243 of the merchants’ shipping act.</p>

<p>COULISTOX—O LD BOATS—REPAIRS—EXCESSIVE OeAIAHDS— COSTS.</p> <p>Where a steam-tug maneuvering in a slip rubs against or strikes a barge moored at the wharf with unjustifiable force, she is chargeable with the damages properly attributable to her negligent, act, though the boat struck was old and weak, in dealing with old boats, however, tho repairs made should be closely scrutinized to prevent imposition, and nothing allowed for repairs beyond those made necessary by the blow. In this case but one-third of the claim allowed, and costs denied.</p>

<p>1. Shirring—Assignment of Biut. of Lading—Charter-Party.</p> <p>A merchant purchasing goods on board a vessel after arrival, and taking an assignment of the bill of lading, is bound by its terms, but not by tho terms of the charter-party, anyfurlher thanit is adopted by the hill of lading.</p> <p>2. Same—Iimr, of Lading—Demurrage—Seasonable Time.</p> <p>Where the hill of lading provides no stipulated days for tho discharge, the merchant is bound only to reasonable diligence, according to the custom of the port.</p> <p>3. Same—Removal of Vessel fhom Bebth.</p> <p>Where, a merchant procures the removal of a vessel from a berth already secured to another, for his own benefit, pays the cost of removal, and procures the cargo to be discharged within the average time allowed by the custom of the port from the day when she was first ready to discharge, held, no demurrage can be claimed.</p>

<p>1 Removal of Cause—Controversy Wholly between Citizens of Different States.</p> <p>A controversy is not the same thing as a cause of action; and a suit against two persons jointly does not, merely because it might have been brought against either separatelv, involve a controversy wholly between the plaintiff and one of them, within the meaning- of the act authorizing the removal of a suit to the federal courts where there is a controversy wholly between citizens of different states.</p> <p>2. Samk—Separate Controversies.</p> <p>When, however, the separate causes of action could both be pursued against different defendants, and settled independently of each other, the suit, even, though it contain a joint cause of action also, involves separate controversies and falls within the term of the act.</p> <p>3. Same—Bill against Fraudulent Trustees.</p> <p>A cause of action against several trustees for the fraudulent misappropriation of trust funds, being ex delicto and involving, therefore, no right of contribution between the defendants, may in equity as well as at law bo pursued either jointly or severally; and a hill in equity founded upon such a claim, and demanding a joint and several accounting by the trustees, involves such a separate controversy with each defendant that if one. of the defendants is a nonresident the cause is removable.</p> <p>4. Same—Piling of Petition before Trial.</p> <p>The trial of a cause upon demurrer is a trial within the meaning of the act requiring- a petition for the removal of a cause to be filed before the trial thereof.</p>

<p>Removal of Cause—Citizenship—Separate Controversy.</p> <p>Where the question to be decided in a cause is the right of a plaintiff to carry passengers into a certain park owned by one of the defendants, the other defendants being the lessees of such park, a separate controversy exists between the lessor and plaintiff, and if they are citizens of different states the cause is removable under the second section of the act of 1875.</p>

Motion to remand, on the ground that this court has not jurisdiction of this ease and the same was illegally removed because the claims and demands of the complainants are several and not joint, and some of them do not exceed the sum of $500, and because the controversy herein is not wholly between citizens of different states, but on the contrary is between citizens of the same state, and the controversy cannot be severed.

<p>1. Jurisdiction—Collusive Suit—Objection, now Raised.</p> <p>The objection lo a bill that it was not exhibited in good faith, but collusively and in the interests of others, goes 1,o the jurisdiction ol the court, and should be raised by plea in abatement and not by answer.</p> <p>2. Same—Evidence not Suemcient to Establish Collusion.</p> <p>The fact that some of the officials of a rival corporation, with which complainant has close business relations, have been friendly and active in giving him aid in (lie preparation of lus case, will not sustain a charge of bad faith and render his suit collusive.</p> <p>3. Same—Preliminary Injunction Keeusbd.</p> <p>Upon examination of iho bill, answer, and affidavits, no circumstances entitling complainant to a preliminary injunction appearing to exist, the motion, therefore, is denied.</p>

<p>Jurisdiction—- Citizenship.</p> <p>Ferry v. Town of Merrimack, 18 Red. Rep. 657, followed, and cause remanded to state court.</p>

Motion to Modify an Injunction granted in favor of complainant Sharp in the state court, and to grant an injunction in favor of "Whiteside, under her cross and supplemental bill.

<p>1. Mortgage ob’ Railroad Property—Foreclosure—Watvbr op Appraisement—Laws ov Kansas.</p> <p>Under section 3983 of the Compiled Laws of Kansas no order for the sale of railroad property mortgaged with a waiver of appraisement can be made by the court until the expiration of six months after the decree of foreclosure. This statute regulates the transfer of land within the state, and is therefore binding upon the federal courts.</p> <p>2. Same:—Appointment op Receiver.</p> <p>After such foreclosure the income of the road, being the property of the bondholders for the liquidation of their claims, should be received by a disinterested trustee until the time of the sale; and the fact that certain of the bondholders are in possession, to the exclusion of others, is a sufficient reason for the appointment of a receiver, unless the interval between the decree and the sale is verv brief.</p>

<p>Railroad Bridgk—Taxation—Laws of Iowa.</p> <p>Tlio constitution of Jowa requires tlio property of all corporations for pecuniary profit to be taxed in the same way as that of individuals. In 1872 tlio legislature passed an act providing that railroad property within the state should be assessed for taxation by a special board appointed by the state, and not by the local authorities. This statute was hold by the courts to be constitutional, on the ground that it applied to all railroad property whether owned by corporations ór by individuals. ¡Section JO of the act of 1872 declared that no provisions of the act should apply to any railroad bridge across the Mississippi or Missouri river, hut that such bridges should bo taxed as individual property. At the time the act was passed none of the bridges over those rivers were owned by railroad companies, but the companies paid rent or toll for the use of them. In 1880 the Chicago, Milwaukee & St. Paul Railroad built a bridge of its own across tiie Mississippi at Sabula. Held, that tlio nature of the property and not the ownership determined whether it fell within section 10 of tlio act, and tiiat the bridge was therefore subject to be taxed by the local taxing district.</p>

<p>On Habeas Corpus.</p>

<p>On Rulo to Dissolve Attachment.</p>

At Law. Motion for judgment non obstante. This is a suit for a balance due plaintiff on account of a bill of exchange drawn on him by defendant and duly paid at maturity. The case was tried before a jury.

<p>Death of Plaintiff—Rev. St. § 955—Foreign Administrator Continuing Suit.</p> <p>Under the provisions of section 955 of the Revised Statutes of the United States, when an alien sues in the circuit court and dies, the suit cannot he continued to final judgment by his executor or administrator, unless such executor or administrator has taken out letters testamentary or of administration on the estate in the staté where the suit is brought.</p>

At Law. Suit upon a policy of insurance issued by defendant.

At June term, 1883, the complainants recovered a judgment against the defendants for $29,355, and costs. Thereupon, before an execution was issued, the defendants paid into the clerk’s office the amount of the judgment and costs, except a commission of 1 per cent., which the clerk claimed under Rev. St. § 828; the defendants denying the right of the clerk to any commission, and claiming that, in any view, they were not liable for it.

<p>In Equity. On bill, etc.</p>

<p>1. Offer of Pilot Service by Signal.</p> <p>The pilot commissioners of Oregon, under the pilot act of 1882, are authorized and required to declare by rule wliat shall constitute a valid oiler of pilot service on the Columbia river bar pilot grounds, by a signal addressed to the eye, and in so doing may prescribe the distance within which such signal must be made from the" vessel signaled.</p> <p>2. Signal fob ax Offeb of Pilot Sebvice.</p> <p>The statute of the United Stales does not' prescribe any signal to be used on a pilot boat in making an offer of pilot service; and the light required by section 4333 of the Revised Statutes, to be carried by a sailing pilot vessel at night, is only used to prevent collision and incidentally to give notice of the character of such craft; but the usual signal by which an oiler of pilot service is made, is the jack set at the main truck in the day-time, and “flare-ups” at night, and this jack is usually the ensign of the country in which the service is offered. In the United Stales it is a blue flag charged with a star for every state then in the Union, and called the “Union Jack.”</p> <p>3. Tub Them “State” Construed to Ihcludk a “Tekkitoby.”</p> <p>The term “state”in the act of March 2, 1837, (5 St. 153; section 4236, Rev, St.,) regulating the taking of pilots on a water forming the boundary between two states, construed to include an organized “ territory” of the United States.</p>

In Admiralty. Appeal from the decree of the district court sustaining the libel of the Scots Greys, and dismissing the libel of the Santiago de Cuba. The facts are set -forth in the following opinion, and also in the report of the same ease in the district court, 5 Fed. Eep. 369.

<p>Charter-Pabtv—Bills op Lading.</p> <p>_A charter-party contained the following stipulations: “The captain shall sign bills of lading at any rate of freight as presented, without prejudice to this charter-party; any difference between the amount of freight by the bills of lading and this charter-party to be settled at port of loading, in cash, before sailing. * * * The owners or master of the steamer shall have an absolute charge and lien upon the cargo and goods laden on board for the recovery and payment of all freight, dead freight, demurrage, and all other charges whatsoever.” The master refused to sign bills of lading unless there was stipulated or expressed therein, “other conditions as per charter-party.” Held that the master had the right to insist upon such stipulation.</p>

This libel was filed to recover a balance oi $468.30, with interest, for coal furnished to the steam-boat Charlotte Vanderbilt, at Philadelphia, in July and August, 1880. The steam-boat was at that time owned by a New Jersey corporation, which purchased the boat on May 10, 1880, and gave a consideration mortgage of $25,500 to secure various promissory notes for the purchase price.

<p>Salvage—Compensation—Costs to Neither Party.</p> <p>A schooner grounded on Brigantine slioal, a, dangerous shoal in the Atlantic ocean, in fair weather, with the wind light, the sea smooth, and the tide young-flood. The bottom was smooth, she did not pound, nor leak, nor suffer any damage, nor sot a distress signal. The value of the schooner was 84,000. A tug, which came by, offered to low her oil for $500 and her master offered to pay $200, but neither offer was accepted, and the tug towed her off the slioal to an anchorage three miles distant, being employed some three-quarters of an hour, on the understanding that underwriters should fix the amount of compensation. On their refusal to do so, this suit was brought. The owners of tho tug- claimed 81,000. Held, that there was no room to deny that this was a salvage service; that the service was worth §200, and the offer of that sum should have been accepted. Oosts were not given the libelant, because the efforts of the owners of the schooner to agree, on an amount before the suit were not met in a proper spirit, and there was some reason to suppose there was the intention to compel payment, of moro than was just by pressure of legal proceedings. Costs were not given the claimant, as no amount was tendered, and the ground was taken that tho service was towage, not salvage.</p>

<p>Liability of Steamer for Damage to Canal-Boat by Steamer’s Careening</p> <p>Where a canal-boat, employed in coaling a steamer, was, when nearly discharged, hauled by the si earner to a position whore she lay wedged in between the steamer and other boats in tho slip, and when the tide ioll the steamer took bottom and careened over and crushed the canal-boat, which could not extricate herself, and the liability of the steamer to careen when the tide fell was knovm to thoso in charge of the s1 earner, held, that the obligation to remove the canal-boat from the dangerous position before tlie tide fell attached to those in charge of the steamer, and, that obligation not having been discharged, the steamer was liable for tho damage that resulted.</p>

<p>In Admiralty.</p> <p>The libelant propounded certain interrogatories to be answered by the claimant. These interrogatories were not attached to the libel, and were not propounded until after the claimant had filed his answer.</p>

<p>Motion to Remand.</p>

<p>Removal op Cause—Separate Controversy—Ivtervenor.</p> <p>The plaintiff, claiming tbat by a contract with him the defendants became lessees of a plantation, of which lie became owner, sued them for rent, and asserted his lessor’s lien upon all effects found upon the premises. The parties all lived in the saíne state. A citizen oí a different state intervened, claiming to be the owner of a part of the effects in question, and praying-, as essential to his relief, that the contract between the plaintiff and the defendants be decreed to be a mere mortgage giving the plaintiff no rights of ownership. Held, that there was no separable controversy wholly between the intervenor, on one side, and the other parties upon the other, such as to give him the right to remove the cause into a federal court.</p>

<p>In Equity. Sur motion for a preliminary injunction.</p>

<p>Contract— Construction—Dependent and Independent Stipulation.</p> <p>The Washburn & Moon Manufacturing Company granted Wilson an exclusive license to manufacture bale-ties under their patent, in New York city, for ■which he agreed to pay them certain royalties every month. lie afterwards invented a splicing-machine, and made a written agreement with the company, by the terms of which he was to assign to them for $300 the patent for ids machine when secured, and they were to grant him back a license to use tho machine, under certain conditions, while he was to continue paying the royalties. The patent was obtained, and the assignments -were made according to agreement, but Wilson refused to pay the royalties. The manufacturing company thereupon brought suit to restain him from using the splicing-machine till the royalties were paid; but, held, that the license to use the machine was independent of the agreement to pay the royalties, which had to do only with the previous license to manufacture bale-ties.</p>

<p>1. Preliminary Examinations—Practice in State and Federal Courts.</p> <p>The examination of a party to a suit as a witness for the adverse party, pending in a state court under a provision of the Code of Procedure for that state, may he continued after the removal of such suit to the federal court, though such an examination would not be allowed under the practice of the federal court, had the action been originally brought there.</p> <p>2. Same—Survival of Proceedings Taken in State Courts After Removal.</p> <p>The removal act oí 1875 carefully saves to both parties the benefit of all proceedings taken in the action prior to its removal from the state court, and by section 4 of said act, it is provided that when any suit is removed from a slate court to a circuit court of the United States, all injunction orders and other proceedings had in such suit prior to its removal shall remain in full force and effect until dissolved or modified by the court to which such suit has been removed.</p>

<p>Conveyance in Lteu oe Attachment Held not in Fraud oe Creditors.</p> <p>Where a bank levied an attachment upon lands owned by its treasurer who was under liabilities to it far exceeding- in amount the value of the land, and in order to save the trouble of legal proceedings he made a deed of the land to the bank in lieu of the attachment, held, that creditors of his who afterwards attached llie land could not avoid the conveyance to the bank.</p>

<p>1. Contract—Stipulated Damages for Failure to Perform.</p> <p>A provision in a contract to build a railroad bridge that, in case of non-completion of the bridge or providing a crossing for trains by a given date, the sum of $1,000 per week should be deducted from the contract price of the bridge for the time its completion or provision for crossing trains is delayed beyond that dato, is a stipulation for liquidated damages.</p> <p>2. Same—Delay—Good Faith.</p> <p>In such case, if the contractors act in good faith, and the delay results from causes beyond their control, they will not be liable for damages in excess of the stipulated amount.</p> <p>3. Same—Assuming Hisks—Excuse.</p> <p>The fact that the contractors were rdarded in the work by high water, sickness of hands, and sunken logs encountered in sinking piers, does not excuse them from performance of their contract. They assumed these risks when they exocut,cd the contract, without a provision exempting them from the consequences of sue!) casualties.</p> <p>4. Same--Construction of Contract—Province of Court and Jury.</p> <p>It is the duty of the court to determine the construction of a contract. But where it lias relation lo a trade, profession, or business of a technical character, and is expressed in terms of art, or in words having a technical or peculiar sense in such trade, profession, or business, resort must be had to the testimony of experts, or those acquainted with the particular art or business to which the words relate: and when such testimony is conflicting, the question of the meaning of such terms and words must be referred to the jury.</p> <p>5. Same—Waiver—Silence.</p> <p>A waiver is not to be implied from the silence of one who is under no obligation to speak. The intention to waive a right must be established by language or conduct, and not by mere conjecture or speculation.</p> <p>6. Same—Additional Work—Extending Time,</p> <p>If, after a contract, is made for building a bridge by a given day, the owner of the bridge directs the contractor to make additions or changes, or do work on the bridge not covered by the contract, Which will require longer time to complete the bridge, the time necessary to do such extra work must be added to the contract time allowed for the completion of the work.</p>

This was an action upon the case brought by William Bradley and wife, citizens of Pennsylvania, against The'Hartford Steam Boiler Inspection & Insurance Company, a corporation of Connecticut, to recover damages for the death of plaintiffs’ child, caused by the explosion of a boiler inspected and insured by the defendant.

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

<p>,1. Federal Court Practice—Processes—How Issued.</p> <p>All writs and processes issuing from the courts of the United States shall be ' under the seal of the court from which they issue, and shall be signed by the clerk thereof. Those issuing from the supreme court, or a circuit court, shall bear teste of the chief justice of the United States. Section 911, Kev. St.</p> <p>2. Same—Garnishee Proceedings—Summons in—How Issued.</p> <p>The summons in a garnishee proceeding is “-process ” within the meaning of the statute prescribing the manner in which processes shall issue from the federal courts, both the statutes and the decisions of the state courts regarding the garnishee proceeding as the commencement of a new suit against the defendant therein.</p> <p>S. Same—Summons Issued by the Attorney—Amendment.</p> <p>A process which has been issued by the attorney when it should have been issued by the clerk is no process at all, and cannot be amended as in the case of an irregularity. Under such a summons the court gets no jurisdiction of the case, and there is nothing to amend.</p>

<p>1. Right to Appear Specially.</p> <p>A defendant in an action, upon whom a summons has been served illegally, may appear therein specially, for the purpose of having such illegal service set aside; and there is nothing in sections 61 and 520 of the Oregon Code of Civil Procedure derogatory of such right.</p> <p>2. Action in National Courts.</p> <p>Subdivision 1 of section 54 of said Code, when applied to actions in the national courts, must be construed as if the word “county” read “district.”</p> <p>3. Corporation—Service of Summons on.</p> <p>In an action against a corporation in the United States circuit court for the district of Oregon, if the summons is served under said subdivision 1 of section 54, on any agent of the defendant other than its president, secretary, cashier or managing agent, unless it appears that the cause of action arose in the district, such service is illegal, and will be set aside on the application of the defendant.</p> <p>4. Cause of Action—When and Where it Arises.</p> <p>A cause of action given by statute to an administrator to recover damages for the death of his intestate arises out of such death, and where it occurred; and not the appointment of the administrator or the place where it was made.</p>

<p>1. Patents for Inventions—Infringement—Second Action for Damages for Same Act.</p> <p>A party who has elected to take judgment for his profits, which judgment has not been reversed, cannot prosecute a second action for other damages arising out of the same acts of infringement.</p> <p>2. Same—Damages for a Single Wrong.</p> <p>For a single wrong, the damages for which are capable of ascertainment, and which is not in the nature of a continuing nuisance or trespass, only one action will lie, and the damages musL be assessed once for all</p>

<p>Patents for Inventions—Combination Void for Want of Patentability.</p> <p>Patent JSTo. 241,405, granted December 27, 1881, to Nicodemus & Weeks, for improvement in apparatus for processing canned goods, held to be a combination of old elements, void for want of patentability.</p>

<p>Patents—Validity op Reissued Letters. No. 2,568.</p> <p>Reissued letters patent No. 2,568, granted upon tlie surrender of original letters patent No. 59,733, for an improved broom, were properly reissued. Tlie invention, therein described is the same as that described in the original letters, and if the claim is enlarged the reissue was, nevertheless, proper in the absence of intervening rights.</p>

In Admiralty. These were consolidated libels against the propeller Tames P. Donaldson, to recover for the abandonment and subsequent stranding and loss of the barges Eldorado and George W. Wesley, some three or four miles below Erie, Pennsylvania, upon the evening of November 20, 1880.

Motion to Bepload. The plaintiff, under an act of the Tennessee legislature of March 23, 1877, c. 47, which enacts that the jurisdiction of all civil causes of action now triable in the circuit court, except for injury to person, property, or character, involving nnliquidating damages, is hereby conferred upon the chancery court, which shall have and exercise concurrent jurisdiction thereof along with the circuit court, filed its bill in the chancery court of Shelby county…

<p>3. Demurrer—Insufficiency of Complaint—Corporate Powers, etc.</p> <p>The kill of the plaintiff, a stockholder in the defendant corporation, brought to restrain tlio corporation from employing its assets in excess of its corporate powers, held insufficient on demurrer on the ground that the allegations and statements should be more specific to show good cause for the relief sought.</p> <p>2. Corporations—In What Oath the Majority Rules.</p> <p>In corporations within the scope of tlio corporate authority the majority rules ; beyond this they have no right to go, and one may insist upon stopping at the limits.</p> <p>S. Same.</p> <p>Those who become members of a corporation consent to the rule of the majority within the powers of the corporation, but not beyond. As the right to restrain going beyond snob powers depends upon the want of consent, if the consent is given the right ceases. Therefore, when such rostra int is sought, due diligence, in the proper direction, to prevent what is sought to be restrained, must be shown as a part of the title to relief.</p>

<p>1. Express and Constructive Trusts—Parol Agreement respecting Land.</p> <p>A parol agreement by whicli one of several joint purchasers of land takes the title in trust for the others, imposes upon the grantee an express trust which does not fall within the meaning of a statute of limitations fixing a time for the enforcement of constructive trusts.</p> <p>2. Limitation—Bankrupt Act—Adverse Interest.</p> <p>The clause of the bankrupt act requiring all causes of action, “between an assignee in bankruptcy and a person claiming an adverse interest,” to be prosecuted within two years, applies only when the interest has been actually adverse for two years; and the interest of a trustee, so long as he acknowledges the trust, is not adverse to that of his cestui que trust.</p> <p>3. Witness—Competency—Action by or against Executors—Party to the Record.</p> <p>Section 858 of the Revised Statutes, making both parties in actions by or against executors, administrators, or guardians incompetent to testify as to certain transactions, does not disqualify a person interested in the controversy unless he is an actual party to the record.</p> <p>4. Equity Pleading — Responsive Allegations — Row ear Conclusive Evidence.</p> <p>The rule that responsive allegations in the answer to a bill in equity are conclusive evidence in favor of the respondent unless overcome by the testimony of two witnesses or their equivalent, cannot bo invoked when the answer is upon information and belief, or is discredited by circumstances.</p>

<p>1. Conveyance—Consideration bob.</p> <p>A conveyance under seal is prima fade evidence oí a sufficient consideration, and a mere stranger to the land cannot question it.</p> <p>2. Case in Judgment.</p> <p>G. and C. were tenants in common of a tract of land which was surveyed and platted as Carter’s addition to Portland, and then partitioned between the tenants in common by mutual conveyances, the one to C. containing a small park for the purpose of equalizing the partition, described therein as block 67, and afterwards changed said survey so as to materially diminish said park; and at the same time G. surveyed a tract of land adjoining the tract held in common, into lots and blocks, and together with liis co-tenants platted the two tracts as one Carter’s addition, and duly acknowledged and recorded the same, with a block numbered 67 in the G. tract, and the small park aforesaid, not numbered. Held, that the conveyance to C. of the park as block 67 did not affect the bloek 67 afterwards laid off in the G. tract, and that the assignee in bankruptcy of C. had no right, interest, or equity therein, and should be enjoined at the suit of G.’s grantee from selling the same as the property of C. and thereby casting a cloud on such grantee’s title thereto.</p>

<p>Decision of Motion for Judgments against defendants on the answer, and against gamisheo defendant.</p>

<p>1. Negotiable Paver—Qualified Indorsement—Notice.</p> <p>An indorsement upon negotiable paper “ For collection; pay to tlio order o£ A. B.,” is notice to all purchasers that the indorser is entitled to the proceeds.</p> <p>2. Money Had and Received—Priority.</p> <p>An action for money had and received lies against anyone ■who has money in his hands which ho is not entitled to hold as against the plaintiff; and want o£ priority between the parties is no obstacle to the action.</p>

<p>1. Mistake in Statute—Interpretation—Legislative Intent.</p> <p>An act of congress, approved August 7, 1882, purports by its title to correct an error in section 2504 of tlie Revised Statutes; but in the body of the act the clause to be corrected is quoted as a part of “ schedule M of section 25.” Section 25 contains no schedule M, and bears upon an entirely different subject, and the language quoted is found in.schedule M of section 2504. Held, that the act corrects section 2504.</p> <p>2. Statute—Title.</p> <p>The title of an act may be resorted to by the court for the purpose of eluci*i v dating what is obscure in the provisionary part.</p> <p>3. Customs Duties—Woolen Knit Goods.</p> <p>Certain woolen knit goods held dutiable under schedule L, and not under schedule M, as corrected by the act of August 7,1882.</p>

<p>Patent—Previous Deso ription.</p> <p>An inventor is not burred from obtaining a patent because Ms invention has been described, though not claimed, in a prior pat ent to the same inventor.</p>

<p>Patents fok Inventions.</p> <p>Amended bill to cover reissue of patent allowed, though the patent alleged to be infringed by the first bill had expired before the amended bill was filed. Reissued letters patent No. 2,529, granted March 26, 1867, for improvements m envelope machines, held to have been infringed by the defendants as to the first, second, and tenth claims, and an injunction and accounting ordered.</p>

<p>Patent for Invention.</p>

<p>1. Patents for Inventions—Infringement.</p> <p>It is no answer to an action for infringement of a patent, that all the parts of the patent were known before, if they were not known in that connection and arrangement.</p> <p>2. Same.</p> <p>Letters patent No. 140,619, dated July 8, 1873, granted to John B. Firth, for an improvement in cake-pans, and new owned by the plkintilf, held, to be infringed by letters patent No. 255,045, dated March 14, 1882, and granted to Joseph Smith for a patty-pan.</p>

<p>Patents for Inventions — Suspension of Injunction — Public Interest — Inconsistent Contentions.</p> <p>After a final decree establishing an exclusive right 1 o the use of a patent and awarding an injunction to protect, it, the injunctions will not be suspended while the decree stands uimsvorscd, unless some extraordinary cause outside of the interests of the parlies is shown. Public necessity may be a cause for such suspension; but the defendant, after insisting that the invention is of no use and benefit, and thus defeating the orator’s claim for substantial damages on account of infringement, will not bo heard to allege that it is of such public importance as to 'warrant a court in suspending the injunction.</p>

<p>1. Patents for Inventions—Infringement—Claims in IIeissues not Found in the Original.</p> <p>A claim of a second reissue of letters patent held invalid as going beyond the invention shown in the original. But where a now claim contained in a first reissue was brought forward into the second, it being valid in the first reissue, held, not avoided hy the invalid claim of the second reissue.</p> <p>2. Same.</p> <p>Complaint for infringement of reissued letters patent No. 9,097, granted February 24, 1880, to August Beck, assignor to the orator, for an improvement in quilting-machines, dismissed.</p>

<p>1. Letters Patent—Basket Lantern.</p> <p>Tlie validity of letters patent granted to John II. Irwin in 1865, for an improved basket lantern, sustained.</p> <p>2. Bight to Part or the Belike Sought when tub Best Cannot be Given.</p> <p>Tlie expiration of a patent, ponding a suit for its infringement, will defeat a prayer for an injunction, but not for an accounting, though tlie bill contains both.</p> <p>3. Costs—Where Both Parties Have a Degree.</p> <p>When two distinct causes of action are united, and one party prevails in each, costs will be allowed to neither.</p>

<p>Letters Patent—Perforated Cigar.</p> <p>Letters patent No. 186,628. for a cigar with a hole in the end, cover only cigars manufactured by the machine described in the specifications. It is no infringement to punch a hole in the cigar with a pencil.</p>

<p>Patents—Improved Paper Box.</p> <p>The distinctive characteristic of letters patent No. 124, 319, for an improved paper box, consists in the closed corners ; and a box of which the end can be turned down is hot an infringement.</p>

<p>Patents eqr Inventions—-Evidence—Judgment—Strangers to tiie Suit.</p> <p>A decree obtained by the plaintiff in an action to recover for the infringement of his patent cannot be introduced in an action against a stranger to the former suit for the purpose of proving ácquiesence in the plaintiff’s use of the patent.</p>

<p>Patents—Estoppel.</p> <p>The inventor of a certain mechanism assigned the improvement to his emJployers, by whom it was patented. While in the same employ he ordered a mechanism to be made which lie represented as a modification of the patented invention. After leaving the service of his employers he manufactured machinery identical with what he had previously ordered to be made. Held, that he, and those in privity with him, were estopped to deny that the mechanism in question was covered by the patent.</p>

<p>1. Patents—Utility.</p> <p>A patent will not be declared void for inutility if it possesses any utility whatsoever, even tlie slightest.</p> <p>2. Same—License to Use not Assignable.</p> <p>A license to use a patent ed process at the licensee’s place of business, and to associate others with him in such use, is not assignable.</p>

<p>1. Copyright—Act of Congress.</p> <p>The act of congress secures to the proprietor of a copyright the " sole liberty ” of printing, etc., and vending the copyrighted book, and this is inconsistent with a right in any other person to print and vend material and valuable portions of said work taken verbatim therefrom.</p> <p>2. Same—Infringement—Text-Books—Key for Use of Teachers.</p> <p>A key, purporting to be for the use of teachers, to copyrighted text-books which contain an original method by which instruction in the English language is made interesting and effective by the use of sentences formed into diagrams under certain rules and principles of analysis, in which key are transcribed from the original works, diagrams, and also all the lesson-sentences arranged in diagrams according to said rules, is an infringement of the copyright.</p> <p>3. Same—Injunction—What Must be Shown.</p> <p>Upon an application for an injunction to restrain infringement, it is not necessary to show that the piratical work is a substitute for the original.</p> <p>4. Same—Intention.</p> <p>Intention is a matter of no moment if infringement otherwise appears.</p> <p>5. Same—Injunction—When Granted.</p> <p>If a plaintiff shows infringement of his copyright the court will grant an injunction without proof of actual damage.</p>

<p>1. "Wharves—Right to Moor Vessels.</p> <p>The right of mooring vessels at public wharves is as much to be protected as that of navigation itself, but it is to be exercised with due regard to the rights of passing vessels, and any unnecessary encroachment upon the channel-way which greatly imperils passing craft is without justification.</p> <p>2. Same—Position of Steam-Boat.</p> <p>A steam-boat lying at a wliarf-boat at the public landing of Pittsburgh, threw her stern out in the way of a descending coal-tow, when she might have lain broadside to the wharf-boat, and thus afforded a sufficient passage-way for the tow-boat',and tow. A collision occurring, held, that the steam-boat was answerable to the owner of a coal-boat thereby lost.</p> <p>3. Same—Collision with Tow.</p> <p>In case of a collision between a descending coal-tow and avessel wrongfully obstructing the channel-way, the previous fault of another vessel, in striking and throwing out of shape the coal-tow, is not to be imputed to the tow-boat, if the latter were free from blame.</p> <p>4. Same—Mutual Fault—Damages Recoverable from Either Vessel.</p> <p>An innocent party who sustains loss by reason of the concurrent negligence of two vessels ma3 pursue and recover the entire damages from either wrongdoer.</p>

<p>1. Seamen—Desertion—Discharge.</p> <p>In consequence of a disagreement between tlie master of a vessel and bis seamen about the amount of wages due them, the mariners were ordered to go to work or go on shore. They agreed to go ashore if he would give them orders for their wages, stating that they would regard themselves in that case as discharged. The master gave them the orders, and the sailors left the vessel. Held, that they were discharged, and were not to be looked on as deserters.</p> <p>2. Entire Contract—Discharge—Recovery of Wages Earned.</p> <p>Upon the wrongful discharge of a workman engaged under an entire contract, he is entitled to recover his wages during actual service.</p> <p>3. Statutory Remedy not Exclusive.</p> <p>The remedy afforded seamen by sections 4546 and 4547 of the Revised Statutes is not exclusive, and the usual process in rem against the vessel is still open to them.</p>

In Admiralty. Hearing on libel, answer and proofs. Libel by the owners of the canal barge Henry S. Pence, against the sloop Sally. The libelants claimed that on July 18, .1883, while the barge Henry S. Pence was floating up the Woodbury creek, and had proceeded about half a mile from its mouth, site was struck upon the starboard side by the sloop Sally, although the sloop had ample time and sufficient water to go astern of the barge.

<p>On Motion to Dismiss Appeal in Admiralty.</p>

<p>1. Jurisdiction or Circuit Courts—Review or Proceedings in District Court —IVaivhr or Jury.</p> <p>The circuit courts of the United States have no jurisdiction to review any question raised by a bill of exceptions in an action at law in a district court, where the facts have been found without the aid of a jury, since there is no warrant in the statutes for the waiver of a jury in the district courts.</p> <p>2. Same—Arpead—Dill in Equity—Action at Daw—Writ or Error.</p> <p>Proceedings in equity in the district courts can be reviewed in the circuit courts only upon appeal, and not upon writ of error. If a writ of error is taken, the"court of review can only' treat tlio case as an action at law.</p> <p>3. Same—Limited by Statute.</p> <p>The circuit court has no jurisdiction to revise judgments of the district court in any other way than the statutes prescribe; and no agreement of the parties, can give it such authority.</p>

<p>Jurisdiction of Federal Court—Pendency of Cause in State Court.</p> <p>Pending a suit in a state court for the partition of land, a court of the United States having concurrent jurisdiction may refuse to entertain a suit between the same parties or t-heir successors by purchase, pendente lite, when the issues and interests involved in the two cases are the same.</p>

<p>1. Courts of Concurrent Jurisdiction — Jurisdiction Actually Acquired.</p> <p>Of two courts having concurrent jurisdiction of any matter, the one whose jurisdiction-first attaches acquires exclusive conlrol of all controversies respecting it involving substantially the same interests.</p> <p>2. Same—Foreclosure of Mortgage on Railroad.</p> <p>Accordingly, where the supreme court of New Hampshire decreed the foreclosure of a deed of trust and mortgage of a railroad, and the property was actually sold, held, that the circuit court of the United States could not entertain a bill to enforce the operation of the road by trustees for the benefit of its stockholders, although the bill was filed before the sale, and the sale when made was declared to be subject to the result of the suit in the circuit court.</p> <p>3. Receiver—Possession of tiie Court.</p> <p>The possession of a receiver is the possession of the court appointing him, and-cannot be divested by a court of co-ordinate jurisdiction.</p> <p>4. Evidence—Admissibility—Reco rds.</p> <p>The admissibility of copies of a record in evidence does not render the record itself inadmissible.</p>

<p>Practice—Service of Process on Attorney—Suit for Injunction.</p> <p>In a suit to enjoin the prosecution of an action at law, if the defendant cannot be found in the district, process may be served upon his attorneys in the legal action.</p>

<p>Bill of Bo view.</p>

<p>1. Multiplicity op Suits.</p> <p>.Equity has jurisdiction to enjoin the, collection of a tax levied under an invalid law, when necessary to prevent a, multiplicity of suits.</p> <p>2. State Statute Involving Federal Question.</p> <p>In construing or determining the validity of a state statute involving a federal question, the national courts are not bound by the decision of the state court. .</p> <p>3. Impairing the Obligation op a Contract.</p> <p>At the date of the execution of a nolo and mortgage, the law of the state required the mortgaged promises to be assessed at their full cash value for laxation, and afterwards an act was passed requiring tlie note and mortgage to be assessed at its par value for taxation, and exempting so mucii of the land from taxation; held that the latter act did not impair the obligation of the contract between the creditor and the debtor.</p> <p>4 State Power of Taxation.</p> <p>The state has power, so long as it does not trench upon the constitution of the United Stales, to tax all persons, property, and business witliiri its jurisdiction or reach; and whether any person, property, or business is so within its jurisdiction is not a federal question, and must be determined by the state for itself.</p> <p>5. Uniform and Equal Taxation.</p> <p>An act of the legislature, providing for the taxation of mortgages as land, which, in effect, exempts all such mortgages from such taxation upon land in more than one county, violates section 1 of article 9 of the constitution of the state, which requires” that taxation shall be uniform, and imposed according to its value, upon “all property” not specially exempted therefrom, and is therefore void and of no effect; and, semble, that such act is also a “ special ” one for “ the assessment and collection of taxes,” and therefore in violation of subdivision 10 of section 23 of article 4 of this constitution of the state.</p> <p>6. Due Process of Law.</p> <p>The enforcement by the state of a tax levied under a void law is a deprivation of property without due process of law, contrary to section 1 of the fourteenth amendment to the constitution of the United States.</p>

<p>1. Taxation—National Bank Shares—Inequalities in Valuation.</p> <p>Inequalities in the valuation of property for taxation, under the constitution and laws of a state requiring that all property shall be taxed upon its value by a uniform rule, afford no ground for relief, unless it be made to appear that such inequalities result not merely from error in judgment on the part of the assessing officer, but it must appear also that there was an intentional discrimination. The same rule applies to the valuation of shares in national banks for taxation, wliero it appears that they were actually assessed at a greater rate than other moneyed capital in the hands of individual tax-payers of the state. Intentional discrimination may be established by proof of inequalities so gross as to lead the court to the conclusion that they were designed. But the facts do not warrant such conclusion in this case.</p> <p>2. Corporations—Sharks abb Property Distinct from the Property of the Corporation.</p> <p>Shares in the capital stock of corporations in Ohio are not necessarily to be treated or regarded as portions of the capital of the corporation. They are property of the shareholders, distinct and separate from the property of the corporation itself.</p> <p>3. Taxation of National Bank Shares—Truk Money Value.</p> <p>Under the constitution and laws of this state, and also under the law of congress authorizing taxation on shares in national banks, they may be taxed at their true money value.</p> <p>4. Same—United States Bonds and Other Son-Taxable Securities not Deducted.</p> <p>A statutory rule fixing such value, which does not permit a deduction therefrom for the amount of United States bonds or other non-taxable securities held by the bank, is not in conflict with t,he constitution of Ohio, nor with the law of congress authorizing taxation on such shares.</p> <p>5. Same—Ohio—Such Mon-Taxable Securities Deducted from Returns of Individual Bankers, hut not from Those of National Banks.</p> <p>The elimination from the returns made by unincorporated banks and individual bankers to the assessing officers, within the state of Ohio, of all United States bonds and other non-taxable securities held or owned by such bank or banker, is not a. deduction nor a discrimination in favor of such bank or banker and against the holder and owner of shares in national banks, although such shares are valued for taxation without such deduction for the non-taxable securilies held and owned by the bank.</p> <p>6. Same—“Other Moneyed Capital” Means Taxable Moneyed Capital.</p> <p>“Other moneyed capital,” in section 5219, Rev. St., refers to other taxable moneyed capital, and tho valuation of shares in national banks for taxation is not. wilhin the meaning of that section, at a greater rote than the assessment of other moneyed capital, unless such other moneyed capital be subject or liable to taxation.</p>

<p>1. Ultra Vires—Retention op Benepits.</p> <p>A corporation cannot retain property acquired under a transaction ultra vires, and at the same time repudiate its obligations under the same transactions.</p> <p>Z. Corporations—Power to Contract with Stockholders.</p> <p>A corporation is not precluded from contracting with its bondholders because they own all the stock.</p> <p>3. Same—Mortgage op Corporate Franchise.</p> <p>A corporation lawfully purchasing its franchise has implied authority to mortgage it for the purchase money.</p> <p>4. Same—Case Stated.</p> <p>A railroad corporation organized in Arkansas issued bonds secured by trust mortgage of its franchises and other property; the mortgage was foreclosed, and a scheme of reorganization adopted, in pursuance of which the company conveyed all its property to the trustees, and the bondholders formed a new corporation, to which the franchises and other property of the old one were conveyed by the trustees. The new corporation, thus composed entirely of the original bondholders, issued its bonds to those bondholders, secured by mortgage of its franchises and other property; and the new bonds were received in lieu of the old. Afterwards portions of the stock passed into other hands. Held, that the bonds constituted a valid obligation, notwithstanding the stockholders of the contracting corporation were the contracted, and notwitstanding a provision in the constitution of Arkansas forbidding private corporations to issue stock or bonds except for value actually received.</p>

<p>1. Authority or Tax Collector.</p> <p>A tax collector has no authority to compromise a claim against a tax-payor.</p> <p>2. Taxation—Unconstitutional Assessment—Estoppel. •</p> <p>In Tennessee, when taxes have been assessed and collected under an unconstitutional statute, the municipality receiving them is not estopped by such receipt from disputing the correctness of the valuation and making a reassessment.</p> <p>3. Same—Assessment dy Collector—Railroad Property.</p> <p>The statute of Tennessee empowering collectors of taxes to assess property which, by mistake, has escaped assessment in regular course, applies to the propertyof railroads as well as to that of prívale individuals.</p> <p>4. Same—Unequal Valuations—Validity of Assessment.</p> <p>An exaggerated valuation intentionally put upon a particular class of property renders unconstitutional a tax imposed in accordance therewith; but the tax-payer may lie required to pay the amount justly due, without the formality of a new assessment.</p> <p>5. Value or Railroad Property.</p> <p>The value of railroad property is to bo determined largely by reference to present and prospective profits, and not by the cost of construction alone.</p>

Hearing on Bill, Answer, and Proofs. This was a bill to enjoin Pollock, collector of internal revenue, and his deputy from proceeding to enforce payment of a tax levied under the nineteenth section of the act of congress of February 8, 1875, (18 St. 311,) providing “that every person, firm, association, other than national bank associations, and every corporation, state bank, or state banking association, shall pay a tax of ten per centum on tbe amount of their own notes…

<p>New Triad—Verdict against Evidence.</p> <p>A verdict will not be set aside merely because the court is of the opinion that a contrary verdict should have been rendered, unless it is clearly and palpauly against evidence.</p>

The defendants made an assignment to one Bennett, in pursuance of the provisions of section 1 of the insolvency law of the state of Minnesota, approved March 7, 1881. While the debtor’s property in store was in the possession of a deputy sheriff of Hennepin county, Minnesota, the United States marshal attempted to take the same by virtue of a writ of attachment issued out of the United States circuit court for this district.

<p>Customs Duties—Appraisee, not Allowed to Impeach His Own Valuation,</p> <p>A merchant appraiser appointed under section 2930 of the Revised Statutes is a quasi judicial officer, and will not be permitted to testify to his own neglect of duty. To permit the awards of the important tribunal, which congress has established to appraise imported merchandise, to be overthrown on the assertion of one of its members made years afterwards, is clearly against public policy. It is putting a premium upon incompeteney, inaccuracy, and fraud.</p>

<p>Customs Duties—Watch Enamel.</p> <p>Tlie substance known as “watch enamel” is dutiable under schedule M of section 2504, as “ watch material,” at 25 per cent, ad valorem, and not, under schedule B of the same section, at 40 per cent., as “manufactures of glass, or of which glass shall bfe a component material.” Schedule JB was in1 enled to cover only manufactured articles of glass, and not the crude material.</p>

<p>Customs Duties—Tire Blooms—Steel Partly Manufactured.</p> <p>Held, that certain steel-tire blooms which had gone through several stages in the process of manufacture, were dutiable at 45 per cent, as “ articles of steel partially manufactured,” and could not be classified as “steel not otherwise provided for,” the duty upon which is only 30 per cent.</p>

<p>Customs Duties—Taffeta Gloves.</p> <p>TaJl'eta gloves containing over 50 per cent, in value of silk and over 25 per cent, of cotton are subject to a duty of 50 per cent, ad valorem, under the ninth paragraph of schedule 4.</p>

<p>Customs Duties—Steaeine.</p> <p>Stearine is not to be classed as “ tallow,” but as a “manufacture of tallow,” and as suclf is subject to a duty of 25 per cent.</p>

<p>Customs Duties—Silk and Cotton Shawls.</p> <p>Certain shawls worth 15 shillings and 6 pence, containing one shilling and six pence worth of silk, and the rest cotton, held, subject to a duty of 35 per cent,, only, as “shawls, cotton chief value,” instead of 60 per cent., as “wearing apparel, silk chief value.”</p>

Hearing on Bill, Answer, and Proofs. This was a bill to restrain an infringement of patent No. 201,536, dated March 19, 1878, for improvement in bronze alloys, issued to Edward C. Kirk.

<p>IRRELIMINARY INJUNCTION—WHEN TO BE GRANTED.</p> <p>A preliminary injunction will not bo granted while another to the samo effect is in force in a different suit.</p>

<p>Patent—Laches—Pending Litigation.</p> <p>When the validity of a patent is in litigation, the patentee may, without being guilty of laches, wait until a decision is rendered before bringing suit against infringers.</p>

<p>Patent—Previous State oe the Art—Oopy—Distributor.</p> <p>Letters patent No. 149,092, for an improved galley-holder,_ designed to facilitate the orderly assortment of compositors’ copy, are invalid for want of patentable novelty in the invention.</p>

<p>Patents—Combination of Separate Devices—Subcombination.</p> <p>The fact that a device, comprising several patentable elements, has been patented as a whole, will not prevent the patentee from afterwards securing a patent for a combination of any number of the elements less than the whole, provided he appplies for it before the lesser combination has been two years in public use.</p>

<p>1. Patents—Extraction op Gelatine from Fish-Skins.</p> <p>Letters patent No. 167,123, for a process of extracting gelatine from fish-skins, sustained against letters No. 177,764, granted to another person for a like process, and the latter held to he an infringement.</p> <p>2. Same—Decisions op the Patent-Oppicb.</p> <p>The decisions of the commissioner of patents, though entitled to great weight upon questions of priority, are not conclusive.</p>

<p>Patents—Reissue—Sewing-Machine.</p> <p>Tlie third claim of original letters patent No. 108,827 was for the combination of an annular plate with the stitching and feeding mechanism of a sewing-machine, for the purpose of guiding the fabric. The first and third claims of the reissue, No. 9,176, were for a wheel to feed as well as guide the fábric. Held, that the reissue, being more than a mere reproduction of the original patent, was invalid as against intervening rights.</p>

Iu Admiralty, in a Libel for Damages. After tbe decision rendered in this case on tbe question of jurisdiction, on tbe fifth of January, 1884, (18 Fed. Bep. 918,) tbe libelant moved for leave to dismiss the original libel as to herself, as administratrix of William H. Black, and to file an amended libel in her individual character as widow of Black, and in her character as guardian of the two minor children of the deceased.

In Admiralty. Libel for salvage. The passenger and freight steamer Excelsior, belonging to the Potomac Steam-boat Company, claimants in this suit,—Theodore E. Baldwin, master,—left her wharf in Norfolk at 5 p. -m. on the fourth of December, 1882, on her regular trip to Washington City. She was valued at $150,000. She had a cargo worth $10,000, and the usual number of passengers, and her regular crew, on board.

The libel in this case was filed by the owner of the barge E. M. Greeninan, to recover freight under an agreement for the transportation of some 15 miles of wire rope cable from the city of New York, to bo laid in the Erie canal.

<p>1. Collision—Anchored Vessel'—Presumption.</p> <p>Where a steamer in motion collides with a vessel properly anchored, the presumption of fault is upon the former.</p> <p>2. Same—Ringing Bell—Snow.</p> <p>There being no positive rule nor settled usage for a vessel at anchor to ring a bell in thick snow, hHd, such vessel is not in fault for not ringing a bell during a thick squall of snow of a few minutes’ duration only,</p> <p>3. Sahe—Case Stated.</p> <p>Where the ferry-boat R., running from Hunter’s Point to Seventh street, Hew York, her usual course being near where the barkS. was anchored olf nineteenth street, was overtaken after leaving Hunter’s Point by a sudden squall of thick snow, and on passing Twenty-third street was embarrassed by one of the ferry-boats of the Twenty-third street line crossing her bows, compelling her to stop and back, and while so doing, and being headed well towards the Hew York shore, she drifted down with a strong tide and ran afoul of the S. at anchor, the position of the lattoT being previously well known to the II., held, that the ferry-boat'was in fault for not keeping further away from the known situation of the ¡S.; held also, that under the circumstances it was not probable that the ringing of a bell would have been of any service to the R. in avoiding the collision, and that the II. accordingly was alone answerable.</p>

<p>1. COLLTSIOX—NEGLIGBXCE—BURDKX 01’ PROOF—CUSTOM.</p> <p>Where a boat properly me ored receives damage from another colliding with her, tlie latter is presumptively liable for the damages, and the burden of proof is upon her to clear herself from fault.</p> <p>2. Same—Like across Channel.</p> <p>’i’iie temporary use of a line or warp stretched across a narrow stream in the mooring and handling of vessels is not necessarily unlawful.</p> <p>3. Sauk—Custom.</p> <p>Whore a tug-boat coming down Newtown creek discovered such a lino ahead of her, and upon backing to avoid it, ran into the libelant’s boat, held, that the burden of proof was upon tho tug-boat, to show that the line was used improperly, or that any proper signals were omitted; held, also, that in view of tlie local usage the tug-boat should have been more cautious in her approach, and kept further away from the libelant’s boat, and was therefore chargeable with the damage.</p>

This action was brought to recover damages for injuries to the canal-boat C. B. Simon, on the fifteenth day of July, 1881, on the west side of the Harlem river, at High bridge, caused through a line by which she was fastened having been cut by those in charge of the steam-launch Swan.

<p>1. Charter-Party—Demurrage.</p> <p>The words “providing for demurrage for every day, day by day,” in a charter-party, are to bo construed as running days, and not working days, and all days are to be counted, including rainy days, Sundays, and other holidays.</p> <p>Lindsay v. Gusimano, 12 Pud. Hep. 503, 504, followed.</p> <p>2. Same.</p> <p>The words “weather permitting,” in the charter-party in this case, apply to the time to be taken for unloading, and not to the time of the detention of the vessel by the default of consignees.</p>

<p>1. Appeal—Bond—Parties.</p> <p>Where the appeal was taken and bond given before the decree below was made final by the signature of the judge, and where all parties against whom the decree below was rendered have not appealed nor severed, and where the motion and order for appeal were not taken against any of the numerous libel-ants by name, and where no bond was given in favor of any other than one of the libelants, and the judgment below in his favor was only for S-10, not sufficient to give jurisdiction to this court, the appeal will be dismissed.</p> <p>2. Same—Amendment op Prooess.</p> <p>On appeal from district to circuit court defective process cannot be cured bv amendment.</p>

<p>Jurisdiction—Admirauty.</p> <p>An unexecuted contract of affreightment gives no lien in admiralty. The Pacific, 1 Blatchf. 569, distinguished</p>

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

<p>JuiusniCTioN oe Circuit Court—Right ow Revio van—Separate Controversy.</p> <p>One of several attaching creditors joined the others as defendants in a suit to set aside certain judgments obtained against the debtor by confession. Held, that they -were-necessary parties to the controversy between the plaintiff and his debtor ; and that, as they were citizens of the same state with the debtor, the cause could not be removed to the United States court.</p>

<p>1. Joint Stock Company—Fraud of Directors—By whom Suit to re Brought.</p> <p>Where the organizers of a joint stock company put in as a part of tlie capital stock certain patent rights, and by fraudulent pulling induced others to purchase the stock at factitious rates, held, that whether tlie purchasers could set aside the sales or not, they were not entitled to gain control of the company and pursue their remedy against the fraudulent directors in the corporate name.</p> <p>2. Master’s Finding Affirmed.</p>

<p>1. Equity Pi.eadino—Relevancy of Averments.</p> <p>A stockholder of lire Credit Mobilior brought suit in behalf of himself and others against Thomas C. Durant and others, trustees, to enforce the trust, and set forth in liis bill a decree formerly rendered in a different court declaring certain-shares nominally held by Durant to he in fact the property of the stockholders of the Credit Mobilier and appointing the plaintiff in the present caso receiver of ail moneys due from Durant to the stockholders. Held, that, the averment of the plaintiff’s appointment as receiver was relevant as tending to show the disposition to bo made in the final decree of the moneys for which the defendants may be held accountable.</p> <p>2. Survival of Liability for Breach of,Trust—Joinder of Defendants.</p> <p>The personal representatives of a deceased trustee are liable to the extent of their assets for breaches of trust committed in his life-time; and in case of a joint breach of trust the representatives of a deceased trustee may he joined with the survivors as defendants.</p> <p>3. Absence of Parties beyond the Jurisdiction of the Court—When Relief will be Granted.</p> <p>When effectual relief can be given against the parties actually appearing, the courts of the United States will not dismiss a bill because of the absence of other parties whose appearance would be required if they were within the jurisdiction of the court.</p> <p>4. Same—Joint Breach of Trust.</p> <p>Such relief cari be given against one of several trustees jointly implicated'in a breach of trust, since their liability is several as well as joint.</p> <p>5. Powers of Receiver Limited to the Jurisdiction where Appointed.</p> <p>A receiver appointed in one jurisdiction to lake charge of a fund cannot sue in another in his own name, though expressly authorized by the decree to maintain actions in his own name.</p>

<p>Demurrer to Bill.</p>

<p>1. Municipal Corporation—Authority to Issue Bonds.</p> <p>Authority conferred upon a municipal corporation to purchase property for • its uses implies the power to issue negotiable bonds for that purpose.</p> <p>2. Same—Powers Conferred isy Charter.</p> <p>The charter of a city empowers it to organize a fire department and regulate the samo, and to adopt' such other measures as should “ conduce to the interest and welfare of said city.” Reid, that the city was authorized to purchase a fire engine, and to issue its negotiable bonds therefor.</p> <p>3. Same—Municipal Bonds—Validity Presumed.</p> <p>Municipal bonds which recite the ordinance under which they were issued will he presumed to he valid without the production in evidence of the ordinance itself.</p>

<p>Action upon Judgment Obtained by Fbaud in another State.</p> <p>In an action of debt in one state upon a judgment obtained in another, a plea that the judgment was obtained by fraud is no defense. To avail himself of such a defense, tiie judgment debtor must invoke the aid of the court upon its equity side.</p>

<p>New Trial.</p> <p>New trial ordered, unless defendant should consent to a judgment against him for a certain sum.</p>

<p>Chinese Immigration—Restriction Act—Certificate of Previous Residence—When Exclusive Evidence.</p> <p>Tlie act of May 6,1882, restricting Chinese immigration permits all laborers who were in this country at any time before the expiration of 90 days after the passage of the act, and who shall produce the certificate provided for by the act, to go and come at pleasure, and no evidence of previous residence, except the prescribed certificate, can be received from those laborers who quitted the country since the certificates were obtainable; but those who went away before the act was passed, or before certificates were to he had, must bo allowed (as was held in the Ouse of Chin A On, IS Ted. Hep. 506) to prove tlieir previous residence by any competent evidence.</p>

<p>Indictment for depositing in the mail a publication of an obscene and indecent character. The indictment describes tho publication as “a pamphlet entitled ‘Prof. Harris’ Hew Discovery for the Radical Cure of Spermatorhosa and Impotency, with the Anatomy and Physiology of the Generative Organs, Illustrated; and the Science of a Radical Cure/ By his ‘new departure’ in the treatment of those troubles, viz., local absorption at the seat of the disease,”—which said publication is so indecent that the same would be offensive to the court here, and improper to be placed on the records thereof.</p>

<p>1. Patents—What is Patentable—Mere Aggregation.</p> <p>The mere • ombination in a convenient form of several devices, having no common purpose, is not patentable.</p> <p>2. Same—Improved Monkey-Wrench.</p> <p>Patent FTo. 56,166, for an improvement in monkey-wrenches, cannot be held to cover every wrench in which the cam is solidly attached to the jaw, since similar arrangements were in use before the letters issued.</p>

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

<p>1. Patents—False Mabks—Kev. St. § 4901—Demdbber—Action Qdt Taw.</p> <p>An action brought by an informer for his own benefit and that of the United States, under section 4901, Kev. St., for falsely stamping the word “patented” on an unpatonted article, is an action qui tain, in which the plaintiff may properly describe himself as bringing the action for the benefit of himself and of ihe United States. In such cases the United States is not regarded as a party to the action, and a demurrer for misjoinder of parties will not be sustained.</p> <p>2. Sabe—Jurisdiction.</p> <p>Such an action may be brought in the district where the offense is committed ; and the jurisdiction of the court does not depend on the residence of the parties.</p> <p>3. Same—Parties.</p> <p>Such an action may be brought, under the statute, as well by a person suffering no special injury, as by one who is specially damaged by the defendant’s illegal acts. Averments of special damage in the complaint are, therefore, immaterial and irrelevant; but though, they may be stricken out on motion, they are not a ground of demurrer under the New York Code of Procedure.</p> <p>4. Same—Averments—Evidence.</p> <p>In such an action it is not necessary to aver or prove that the articles falsely stamped were capable of being patented; if not patentable, and if the acts alleged were incapable 'of deceiving the public, that is matter of defense.</p>

<p>Motion for Leave to File an Amended Flea.</p>

<p>1. Patents for Inventions—Parties in Action at Law for Infringement.</p> <p>In an action at law for infringement of a patent, all parties wlio participate in the infringement are liable, although some are simply acting as officers of a corporation; all parties who participate in a tort or trespass are liable, and a man cannot retreat behind a corporation and escape liability for infringements in which he actively participates.</p> <p>2. Same—Construction of Patent.</p> <p>It is for the court, as a matter of law, to construe a patent, and for the jury, as a question of fact, to determine whether it has been infringed, and the amount of damages that should be allowed.</p> <p>3. Same—Burden of Proof—Damages.</p> <p>lu an infringement suit, the burden is on the plaintiff to show the amount of damages he has suifered; and if he furnishes reasonably satisfactory evidence on that subject, he is entitled to substantial damages, otherwise to nominal damages.</p> <p>4. Same—Evidence of Damage—License.</p> <p>On the question of damages, it is competent for a patentee to prove the' prices at which licenses were granted under the patent while it was in force ; but in order to he competent evidence of value, the prices agreed upon must he prices fixed with regard to the future, when there is no liability between the parties, and the parties not being subject to suits are presumed to act voluntarily, and therefore to make up their minds deliberately as to what would be a fair price. Such arrangements, licenses thus granted, fees thus fixed, are competent evidence to consider in determining what the actual value of an invention is, and what the recovery ought to be for its use.</p> <p>5. Same—Payments Made in Settlement.</p> <p>It is not competent for a patentee to prove the prices paid for infringements already perpetrated; such settlements are not at all admissible on the subject of value.</p> <p>6. Same—Amount of Damages.</p> <p>The value of an invention for which an infringer is liable is the value at the time of the infringement. A man who has got a patent owns it as property, and if anybody sees fit to infringe it he is bouiid to pay for its fair value; and the fact that there is something else just as good or better does not entirely destroy its value, but may affect it.</p> <p>7. Same—Confusion of Goods.</p> <p>The doctrine of a confusion of goods has no application to a suit for infringement of a patent, especially where there is only a confusion of book-keeping and not a confusion of the articles themselves, the articles being incapable of mixture.</p> <p>8. Same—Concealment—Production of Books.</p> <p>If a party shows an unwillingness to let the truth out, aud keeps back facts and the means of getting at facts, in his power, then the jury is warranted in drawing the strongest possible inferences against him, which may be drawn from the evidence actually given in favor of the other party. But if he comes forward with his hooks., furnishes ail the evidence in his power, and is fairly candid in the matter, no inferences should be drawn against him, except such as are fairly drawn from the evidence adduced.</p> <p>9. Same—Record of Patent—Notice.</p> <p>Every one is hound to take notice of the existence of a patent, and of the rights of parties under it; like the record of a deed to real estate, the record of a patent at Washington is notice thereof to all the world.</p>

<p>1. Shipping—Seaman’s Wages—Advance Noth—Discharge after Nf.Gotiation—Indorsee—Rev, St. § 4534.</p> <p>Where an advance note is given upon the shipment of a seaman lor a voyage, and it is transferred to a bona fule indorsee, under section 4534, the latter may recover of the owners of the vessel the amount thereof, notwithstanding the seaman’s discharge by the master before sailing, and notwithstanding tlnn the note contained the proviso that the seaman “be duly earning Ms wages.’’ Ry giving the advance security, the master under the statute incurs the risk, as respects a bona fule indorsee, of the seaman’s discharge before the vessel sails.</p> <p>2. Same—Case Stated.</p> <p>Where the shipping commissioner, at the request of the master, gave such an advance security to the seaman shipped by him, with the consent of the master, the master having full opportunity previously for ascertaining the fitness of the seaman, and the master subsequently discharged the seamen by reason of drunkenness on the evening preceding the sailing of the ship, and the latter act not being sufficient ground, of discharge by the maratine law, held, that the mast or was not entitled as against the indorsee of the security to allege the general unfitness of the seaman of which he had previously means of knowledge; that the security was valid, and could be enforced by the indorsee; and that the shipping'commissioner being obliged to pay it, could, therefore, recover the amount, in an action against the owners. Held, also, that the shipping commissioner, having defended in a former action against him on the note, without notice lo the present defendants, was not entitled to recover against them the costs of the former suit.</p>

<p>Shipping—Seamen—Shipping Articles—Discharge—Extra Wages—Section 4582.</p> <p>An American seaman discharged from an American vessel in a foreign port, because this captain “has no funds to pay and could sail no further,” will be deemed discharged with his own consent within the meaning and equity of section 4582, which was designed to furnish the seaman, in such cases, with means of return to his own country; and no consul being found in the foreign port nor extra wages paid there, as required, the seaman may maintain an action in admiralty on his return, against the owners, for his two months’ extra pay.</p>

<p>DKArnER\GE—Bill of Latong—Keadinkss to DrsoHARGF..</p> <p>Where the hill of lading for a block of marble •weighing seven tons provided that it should be disharged by the receiver within six hours after written notice of the master’s readiness to"deliver it, or pay demurrage, .CIS per day, held, that tho ship was bound 1o afford reasonable and customary facilities for the discharge; and tlio receiver being; prepared to move tho vessel some 230 feet to the usual placo of discharge at his own expense, as was usual, and iho mate, in the absence of the captain, having repeatedly refused to permit the vessel to iso thus moved, partly for the reason that she had not her anchors aboard, held, that she was not in readiness to deliver within the meaning of the bill of lading, and could not recover during the time of such refusal.</p>

<p>Admiralty Practice—New Trial—Appeal.</p> <p>AXier a hearing in an admiralty canse in this court., and a decision rendered upon complicated questions of law and iact, the cause should not be reopened and a new trial had i'or the introduction of further evidence in this court, where there does not appear to have been any mistake or misapprehension in regard to the evidence taken and the facts proved : such relief should ho sought upon appeal to the circuit, where the additional facts may be proved as a matter of right.</p>

<p>Shipping—Seamen—Shipping Articles—Evidence.</p> <p>Though shipping articles may be attacked by the seamen, and shown by parol to be incorrect, fraudulent, or void; yet, m case of dispute as to the amount of wages agreed on, the shipping articles will control, the seaman being competent to bind himself thereby, unless the articles are shown to bo invalid by a reasonable and satisfactory preponderance of evidence.</p>

<p>1. Collision—River and Harbor Navigation—Right of Way.</p> <p>A steamer meeting another in tlie fifth situation, and bound to keep out of her way,—if able to do so through stopping and backing,—has no right to go to the left and attempt to cross the bows of the other when there is not sufficient time or space to pass in that manner without a collision, unless the other vessel either stops or changes its course; the latter has the right of way, and the right to proceed on her course without obstruction.</p> <p>2. Same—Signals—Timely Notice.</p> <p>In river and harbor navigation, although for good reason a vessel may, 'under the inspectors’ rule-:, signal that she will go to the loft, instead of the right, these rules require early notice of such intention, and such a notice is not early or timely when it would compel the other vessel to stop in order to avoid a collision, unless in a situation whore the former vessel has no other alternative.</p> <p>3. Sami:—Inspectors’ Rules.</p> <p>Under the inspectors’ rules the vessel signaled is bound to give an answer promptly, either of absent or dissent.</p> <p>4. Same—Mutual Fault.</p> <p>Where the ferry-boats G. O. and R. were approaching each other in the East river in the fifth situation, and the latter being oz^the former’s starboard hand, and thoG. 0., instead of stopping and backing, as she might have done, signaled with two whistles, and at the same time starboarded her helm so as to cross tile R.’s bows, and the latter made no answering signal, and the G. 0., after going about a length under a starboard wheel, again signaled with two whistles, to which there was no response, and she then stopped and backed until the collision, which happened shortly after, and the evidence being contradictory as to the other details of the maneuvering of the two vessels, held, that both were in fault: the G. C., for undertaking to pass to the left, and cross the R.’s bows without assenting signals, and the latter for not answering as required, and thereby preventing the embarrassment and confusion of the G. 0., which in this case plainly contributed to the collision.</p> <p>5. S\.mk—Excuse—Departure from Rules.</p> <p>Though the G. C. ran in connection with railroad trains, and the avoidance of unnecessary stops was desirable, and though the usual course of the R. at this point was to swing to port, held, that these facts, though a sufficiently good reason for the signal of two whistles, given by the G. O., regarded merely as a proposition or request to pass to the left, were not a justification for any departure from the rules of navigation, without assenting signals from the R. in reply.</p>

The above libel in personam was brought to recover the sum of $1,566.62 freight for 941 bales and 66 bags of rags shipped on the bark Exeellenzen Sibbern, at Libau, April 22, 1880, to be delivered in New York. The libel in rein was brought to recover damages for the non-delivery of 524 bales and 28 bags, part of the above shipment, valued at $15,000. The rags not delivered were sold by the master at Cowes, at which port he had been obliged to put in, in distress..

<p>Admiralty—Maritime Lien—Vessels—Dredge and Soows.</p> <p>Dredges,and scows, though never used in the transfer of passengers or freight, and furnished with no motive power of their own, are vessels, and subject as such to maritime liens for services rendered and supplies furnished.</p>

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

<p>1. Collision—River Navigation—Hugging the Shore—Statutes.</p> <p>By the statutes of New York, steam-boats in passing up and down tlie Hast river, from the Battery northward, are bound to go as near as practicable in the center of the river, except in going in or out of their usual berths or landings, and steam-boats meeting eacli other in the rivers are required to go to that side which is to the starboard of such boat, so as to enable them to páss each other with safety. H eld, the above statutes forbid steamers to keep close to the shore on going round the Battery either way.</p> <p>2. Same—Bounding Battery—Mutual Fault.</p> <p>Where two unwieldy steamers, one a tug with two schooners, were coming round the Battery in opposite directions so close to the shore that they were not visible to each other in time to avoid a collision, held, both in fault for being too near the shore, and that such fault in this case directly contributed to the collision.</p> <p>3. Same—"Violation oe Statute.</p> <p>Where a violation of the statute does not directly contribute to the collision, there being plenty of time and room lor the vessels to avoid each other, semble, such violation is immaterial.</p> <p>4. Same—Cause oe Collision.</p> <p>Where the steamer M., 240 feet long and 60 feet wide, with square bows, bound from Jersey City to Harlem river, upon the ebb tide, passed close to the Battery and collided about. 250 feet off pier 2 with the steam-tug P. S., having a schooner laslied on each side in tow, and both steamers liad exchanged a signal of two whistles as soon as they were visible to each oilier around the bend, and no fault was apparent in the navigation or maneuvering of either from the time the signals were given, held, that the cause of the collision was that both were so near the shore that they were not visible to each other in time ; that each was alike in fault in this respect, and that botli were therefore liable for the damage to the schooner in tow.</p> <p>5. Same—Liability oe Vessel.</p> <p>Irrespective of the statutory provisions, the obligations of prudence in navigation forbid close approach to the piers or slips in rounding the battery. The common practice in this respect affords no justification, and vessels adopting it do it at tlieir peril, and must be held liable for the damage when this is the proximate cause of the collision.</p> <p>6. Same—Amendments to Pleadings—Evidence.</p> <p>Where a cause of collision is fully presented upon the merits and all the facts have been put in evidence without objection, and there is no question of surprise or desire for further evidence, the cause should be determined upon lha merits, as justice requires, and the pleadings be deemed amended to conform to the facts proved.</p> <p>7. Same—Amendment Allowed—Costs.</p> <p>Where the facts necessarily known to the libelant are misstated to his proctor, so that the precise faults, as finally determined, are not stated in the libel, though charged in one of the answers, held, the libel should be deemed amended and the libelant recover, but without costs.</p>

In Admiralty. On motion for a new trial. This was a libel for damages suffered by the barge J ames F. Joy, while in tow of the steam-barge Empire, and by reason of her alleged negligence. The case was tried by a jury, pursuant to Rev. St. § 566, and a verdict returned for the libelant in the sum of $200. Motion was made for a new trial, upon the ground that there was no evidence to justify the jury in rendering a verdict for so small an amount.

<p>1. Jurisdiction of Federal Courts — Rrhit of Removal—Case Involving Federal Law.</p> <p>A case may be removed to tlxe federal courts whenever rights of the parties are alleged to depend in any way upon an act of congress, even though the act is only set xip by way of defense, and though other questions not of a federal character enter into the controversy.</p> <p>2. Same—Separate Controversy between Citizens of Different States.</p>

<p>Navigable Rivers—Unsettled Question on State and Federal Powers.</p> <p>The supreme court oí the United States, in the case of Escanaba Co. v. Chicago, 2 Sup. Ct. Rep. 187, determines that the control of “ rivers wholly within the bounds of a state ” is held by the legislature thereof, until the congress of the United States passes some act assuming control for the national government. In the Wheeling Bridge Case, 13 How. 519, the same court held that the mere confirmation by congress of a compact theretofore made between Kentucky and Virginia, relative to keeping open the Ohio river, was tantamount to an act assuming such control. Under these two decisions, quosre whether such navigable rivers of California are within the control of that state, or have been removed therefrom by the act of congress admitting it into the Union, which act contains these words: “All navigable rivers within the state of California shall be common highways and forever free, as well to the inhabitants of that state as to the citizens of the United States, without any tax,"duty, or impost therefor.” Decided (proforma) the latter.</p> <p>Escanaba Co. v. Chicago, 2 Sup. Ct. Rep. 187, and other cases reflecting on the matter in discussion, noted and commented upon, and their various distinguishing points mentioned.</p>

This was a suit on a distiller’s bond. The bond was executed by the defendant O’Neill as principal, and by two of the other defendants as sureties, April 30, 1874, and covered the period from May 1, 1874, to May 1, 1875.

<p>Promissory Note—Transfer to One Partner—Payment to Another.</p> <p>When a note payable to a partnership firm is indorsed by the firm in blank and transferred to one of the partners before maturity, the maker, if he has notice of the transfer, is not discharged of his liability to the transferee by pay. inent of the amount of the note to another member of the firm.</p>

<p>Customs Duties—Grain Bags—Re-entry Free oe Duty—Powers op Secretary.</p> <p>The customs and revenue laws provide that “grain bags, the manufacture of the United States, when exported filled with American products, may be returned to ihe United States free of duty, under such rules and regulations as shall Tie prescribed by the secretary of the treasury. ’ ’ Grain bags manufactured in this country from imported materials were exported full of California wheat. The exporter demanded and received according to law, out of the public treasury, the drawback due him on account of the duty formerly collected upon the materials of which the bags were made. Upon the return of the grain bags, held, that they were entitled tp pass free of duty. The power of the secretary to prescribe rules and regulations does not authorize him to impose a duty, not provided for by congress, in repayment of the drawback.</p>

<p>Y. Municipal Bonds—Saceamento City—Mo Action Maintainable.</p> <p>The legislature of California in 1858 enacted that thereafter no action should he brought against the city of Sacramento by its creditors; that the city should issue its bonds for the purpose of funding its debt, and should levy an annual tax of 1 per cent., of which a specified portion should be set aside for the payment of the bonds. Those who hold claims against the city surrendered their evidences of indebtedness, and took the bonds instead. • Held, that no action would lie upon the bonds, but that the renv-dy of the bondholders was by mandamus against the proper officers to compel them to carry out the terms of the statute. 'The creditors, bj accepting the bonds, contracted that the city should not be liable to be sued.</p> <p>2. Statute Permitting Performance of a Duty Construed as Mandatory.</p> <p>In 1863 the legislature revised the act of 1858, re-enacted its provisions with regard to the payment of the bonds, except that the terms of the re-enacted clause, sanctioning a tax of 1 per ceút., was permissive instead of mandatory. But, held, that the provision was still compulsory, since words in a statute per-, mitting officers to discharge a public duty are to he construed as mandatory. If the act were susceptible of any other construction it would impair the obligation of contracts.</p> <p>3. Waiver of Constitutional Right.</p> <p>The constitution of the state provided that all corporations should he subject to be sued like natural persons. Held, that (even supposing the clause to apply to municipal corporations) the bondholders had by their contract divested themselves of their constitutional right.</p>

<p>Powers and Duties of a Marshal as to Precepts in his Hands at the Expiration of his Term of Office.</p> <p>In North. Carolina a marshal, whose term of office has expired, may be required so to amend his return upon an execution as to furnish his successor with a description of the land levied upon, sufficiently accurate to enable him to execute a valid deed to the purchaser at the execution sale.</p>

<p>On Exceptions to Master’s Beport.</p>

<p>1. Evidence—Similar rut Unconnected Transactions—Guilty Knowledge.</p> <p>In an indictment for the falsification of an account, other false accounts made by the defendant at about the same time may be introduced ia evidence for the purpose of proving guilty knowledge.</p> <p>2. False Account.</p> <p>An account including items for services not actually rendered or moneys not actually paid is a false account.</p> <p>3. Same—By Means of an Agent.</p> <p>'An .(officer who conspires with others to obtain money by false accounts is , ■ guilty of falsification though he may be ignorant of the items of any particular account.</p>

<p>Trade-Mark—Transfer by General Conveyance.</p> <p>A trade-mark will pass under a general conveyance of all tlie assets and effects of a firm, though, not specifically designated.</p>

<p>1. Patents—Crimping-Machine—Patent'No. 37,033.</p> <p>The first claim oí patent No. 37,033, for an improvement in frilling and crimping- machines, being limited by its terms to a combination in which the blade acts to space the crimps as well as to form them, is not infringed by a crimper which does not space the crimps.</p> <p>2. Same—Crimper and Smoother—Second Claim.</p> <p>The specifications for the second claim of the same patent, describing a combined crimper and smoother, point out the method in which the parts can operate without spacing- the crimps, and the claim is infringed by a machine which crimps and smooths the cloth by a similar device.</p>

<p>1. Patents—Improvement in Looms—Shuttlb-Kace.</p> <p>The characteristic feature of the second claim, patented by letters Ho. 63,853, for improvements in looms, is the vertical spring adjusted over each end of the shuttle-race; and a contrivance for checking the flight of the shuttle by other means is not an infringement.</p> <p>2. Same—Adjustable Hose-Piboe.</p> <p>The third claim of the same patent, if valid at all, is not infringed without the use of an adjustable nose-piece upon the cam.</p>

<p>Motion foe Contempt—Plain Evidence Kequibed.</p> <p>To sustain, a motion for contempt on account of the violation of an injunction issued to restrain the infringement of a patent-, it must appear clearly and indisputably that the infringement continues.</p>

<p>1. Salvao® by Pilot.</p> <p>Under the Oregon pilot act of 1882, (Boss. Laws, 15,) a pilot is hound to render aid to a vessel “ in stress of weather or in case of disaster,” and he is not entitled to salvage for such service unless ho is thereby involved in “ extraordinary danger and risk.”</p> <p>2. Case in Judgment.</p> <p>The libelant in a smooth sea and calm weather boarded the Bryant, in a thicK fog, while she lay aground at low tide on the outer edge of the middle sand of the Columbia river,"and at the next llood sailed her over into deep water in tlie south channel, and, after drifting out to sea in the night, brought her into port the next morning. Held, that the service of the libelant did not involve • any “ extraordinary danger or risk,” and that he was only entitled to a pilot’s compensation therefor.</p>

<p>Maritime lien—Draft Recoonizing the Lien.</p> <p>"Where a maritime lien attaches to a vessel, and her owner gives a draft for the debt, the draft in terms recognizing, confirming, and continuing the lion, an assignee of the draft and claim can enforce the lien against the vessel.</p>

<p>1. Limitation—Government.</p> <p>Time does not run against the sovereign, government.</p> <p>2. Laches—Agents op Government.</p> <p>The government is not chargeable with laches by reason, of the procrastination of its officers.</p> <p>3. Larse of Time—Public Corporations.</p> <p>Equity will not refuse to ehforco an obligation merely because of the lapse of time, unless evidence has been lost, or the rights of third parties have become involved, or the personal relations between the parties have been so much altered as to change the essential character of the obligation. Governments and municipal corporations are of such a permanent nature that their mutual relations are presumably unaffected by the lapse of years.</p> <p>4. Specific Performance—After-Acquired Title.</p> <p>A party agreeing to transfer property which lie does not own at the time, cannot rcluse'to perform his contract after acquiring title.</p> <p>5. Samis—Only Part Performance Possible.</p> <p>One who, by his own fault, is unable to perform a part of his contract, cannot upon that account resist a bill for the specific performance of the rest.</p> <p>6. Same—Pecuniary Damages Kef used.</p> <p>Where congress authorized an advance of money to a city upon the surrender to the government of stock which it held, and the money was advanced hut the stock was not transferred, held that, though specific performance of the obligation to transfer the stock would be decreed, no pecuniary damages could be awarded.</p>

By an act of May 20,1836, (5 St. at Large, 32,) congress, after authorizing the secretary of treasury to assume the payment of certain bonds, respectively, of Georgetown, Washington, and Alexandria,… Held: on final hearing, that congress in the act mentioned had contemplated the surrender of 3,500 shares of canal stock by Alexandria to the secretary of treasury, and it was decreed October 6, 1882, that the city was bound to deliver that number of shares.

This ease, by stipulation of the parties under the statute, was submitted to the court without a jury. The court found the following to be the material facts: I. The plaintiffs and defendants are members of the Memphis Cotton Exchange, an incorporated association, the purposes of which are thus described by its constitution: “ARTICLE II.—PURPOSES. “Section 1.

<p>Misjoinder of Causes of Action—Joint and Several Liability.</p> <p>Where two or more defendants are sued jointly, a count in the same action against one of them alone upon his several liability cannot be sustained.</p>

<p> Habeas Corpus. </p>

For Manslaughter. The case arose out of a collision between the steamers Scioto and John Lomas, in the Ohio river, between Mingo island and Indian Cross creek. The defendant was the pilot of the steamer Scioto, and was navigating his boat up the Ohio river on the fourth clay of July, 1882, with about 500 persons on board.

<p>1. Pa tests—Nos-Claiw of Acbabent Device—Abandonment.</p> <p>The omission by an inventor to claim a combination or device apparent upon the face oí his patent amounts to a dedication of the neglected contrivance to 1 he uses oí the public.</p> <p>2. Injunction—Kot to Issue when it would Work Injustice.</p> <p>An injunction should not issue when it would work great harm to one party without corresponding beneiil to the oilier, at least where adequate protection can be afforded by other means.</p>

<p>Suit for Infringement of Patent, and for an account and injunction.</p>

<p>1. Contract to Assign Patent-Right—Specific Performance—Injunction.</p> <p>Where it, was mutually agreed between a patentee and the inventor of an improvement, upon liis device that the patentee should surrender liis individual right, and a new patent for the improved device should be applied for by the two parties jointly, held that, in equity they were joint owners of the patent as improved by the subsequent, invention, and that the inventor of the improvement could restrain the palomee from using his patent, except, for their joint boneiit.</p> <p>2. Same—Jurisdiction of Federal Court.</p> <p>Held, also, that the controversy related to the patent-right itself, and was within the jurisdiction of the circuit court, without respect, to diversity of citizenship.</p>

Hearing on Bill, Answer, and Proofs. This was a bill in equity by John Matthews and others, citizens of New York, against Robert M. Green, a citizen of Pennsylvania, setting forth that by an agreement under seal, dated the thirteenth of February, 1874, complainants, in consideration of one dollar, granted to defendant the exclusi ve right to use Matthews, patent steel fountains for aerated beverages, patent dated June 25,1872, No. L8'2,411, and “Mathews’ patent wagons for…

<p>1. Salvaoe.</p> <p>Salvage refused in case where the facts showed that libelants should have had some knowledge of how the vessel got adrift, with her chains and ropes missing, she having been shown to have been securely fastened a short time before.</p> <p>2. Costs.</p> <p>Where, both parties have unnecessarily encumbered the record, no costs will be allowed.</p>

<p>In Admiralty. An exception.</p>

<p>Amendments to Pleadings—Admiralty Hule No. 24. _</p> <p>_ Admiralty rule No. 24 is not an arbitrary rule. It' does not mean that in every ease counts presenting new causes of action may, under all circumstances, be added, but leaves the matter to the discretion of the court, the rule being merely permissive, and the discretion to be exercised upon principles of justice toward the defendant. “ Amendments are alwaj-s limited by due consideration of the rights of the opposite party, and where, by the amendment, he would be prejudiced, it is not allowed.”</p>

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

<p>On Motion of Intervenors to Quash Injunction, and on motion of complainant to strike out the interventions.</p>

<p>Railroad is a Post-Road, and as such Amenable to Act of Oongrf.ss, July 24, 1866.</p> <p>A railroad is, under the statutes of the United States, a post-road, and accordingly the act. of congress of July 24, 1866, giving to all telegraph companies alike the right to construct, maintain, and operate lines along all post-roads of the United States, is paramount over any agreement made by a railroad company securing to a telegraph company the sole use of its line of road for its wires.</p>

<p>1. OoKPORATION—ItECIOIVKRSHIP—WHEN PROPER.</p> <p>An insolvent railroad corporation may, in the discretion of the court, upon a bill for an injunction and a receivership, be put in the hands of a receiver whenever the welfare of the various interests dearly requires it, even though no default has actually been made by the corporation in its obligations to the petitioner, but a default is imminent and manifest, and the corporation is in peril of a breaking up and destruction of its business.</p> <p>2. SAjns—Collusion, when Fraudulent.</p> <p>The mere concurrence of the direelors, in a,n attempt, to secure the appointment of a receiver, does not amount to fraudulent collusion, unless they design some injury to the company or its creditors.</p> <p>3. Finances of the New York and New England Railroad.</p> <p>The financial condition of the New York & New England Railroad Company reviewed, and held to warrant the appointment of a receiver.</p>

<p>Injunction.</p> <p>A bill for an injunction to .prevent interference by criminal procedure will lie when the parties sought to be enjoined have, as plaintiffs, submitted themselves to the court by a bill in equity as to the matter or right affected by or involved in the criminal procedure.</p>

<p>1. Life Insurance—Lapse of Policy by Collusion to Defeat Interests of Beneficiary.</p> <p>If tlie insured, even by collusion with the company, suffers his policy to lapse, with the intention of securing another policy containing the name of a new person as beneficiary, the courts will not regard the second policy as a mere continuation of the first.</p> <p>2. Same—Rights of the Assured as to the Recipient of Benefits of Policy.</p> <p>A policy of insurance may be considered as an inchoate or uncompleted gift from tlie assured to the beneficiary. The former ought to be able to make it at, will, or to change the direction of its benefits.</p> <p>3. Same—Policy in Favor of Assured Himself—Amount Becomes Assets.</p> <p>I f tlie assured himself appears by name in the policy as the beneficiary, the money accruing on the policy at bis death becomes assets in the bands of the administrator.</p>

<p>Yerbal Agreements.</p> <p>No verbal agreement of parties or their counsel, touching any cause pending before this court, shall be deemed of any validity, or be noticed in any way by the court, in case of dispute or disagreement.</p>

<p>1. Trust—Power op Iíe vocation—Failure to Exekoisb.</p> <p>A trust declared by testator (luring his life-time, with the privilege of revocation, will, if unrecallod, prevail over the title of a residuary legatee.</p> <p>2. Same—Statement.</p> <p>Testator transferred stocks and bonds to L., upon trust to pay him the income while he lived, and after his death to transfer them to others, reserving the ¡lower, however, to revoke this disposition of the property at any time. Ho died, leaving the trusts unrevoked. ILeM, that the power of revocation died wilh him, and that upon his death the trusts became absolute.</p>

<p>On Buie for Contempt.</p>

The Louisville & Nashville Railroad Company filed its bill alleging that it was a Kentucky corporation, extending its road into the state of Tennessee by authority of the laws of the latter state; that by other laws passed for the purpose it had been authorized to acquire and to consolidate with other roads extending into neighboring states; that by its charter, and the charters of the other roads so acquired by it, there were fixed certain maximum rates of charges for…

<p>Deed op Assignment by Insolvent—Validity—Burden op Proof.</p> <p>A deed of assignment prima facie good may be impeached for circumstances connected with, and conduct' of the insolvent at and about the time of, the execution of it. In such cases the burden of proof is on the grantor or his beneficiaries under the assignment to show the validity of the deed.</p>

<p>1. Assignment to Oebditoks.</p> <p>An assignment for tho benefit of creditors, under the laws of Texas, wherein the assignor has expressly reserved an interest to himself, to tho exclusion of his creditors, is null, void, and of no effect.</p> <p>Lawrence v. Norton, 15 Fed. Rep. 853, followed.</p> <p>2. Same.</p> <p>Such an assignment is a contract between the assignor and assignee, which, while it may be aided by the Jaw, must be taken and construed by the terms and provisions expressly stipulated therein; and any stipulation therein which is intended to hinder or delay non-consenting creditors must find warrant therefor in the law, or the assignment to such creditor is null and void.</p>

<p>Assignment.</p> <p>An assignment which authorizes the assignee to sell the assigned goods on-credit, which undertakes to distribute the remnant after paying consenting creditors, in opposition to the terms and .provisions of the law, and by which, the assignees, by such distribution, exclude from the benefits of the assignment their individual creditors, and reserve an interest for themselves, is unauthorized by law. Lawrence v. Norton, 15 Feb. Rep. 853, and Muller v. Norton, ante, 719, followed.</p>

<p>Assignment to Creditors.</p> <p>An assignment for the benefit of all the creditors, without proof or suggestion of insolvency, where there is no attempt to prefer any creditor, but a decided attempt to hinder and delay them all, is unauthorized by law.</p>

<p>Taxation—Notes Used bob Otkculation—Notes Redeemable in Goods.</p> <p>The tax imposed by the act of congress of February 8,1875, § 19, upon “ notes used for circulation,'’ is a charge upon such notes only as arc intended to circulate as money. The, act hears no reference to the so-eallod notes issued by mercantile firms to bo redeemed in goods.</p>

<p>1. MrNTCTi’Aii Bonds—Statutory HuQurRiarnNTS—Certificate of Judge.</p> <p>The act of 1871, of the New York legislature, authorizing municipal corporations to aid in the construction of railroads, requires the petition to show to the satisfaction of the county judge that the petitioners are a majority of tito tax-payers, “not including those taxed for dogs or highway tax only.” Held, following the case of Cowdrey v. Town, of (Janea,dea, 16 Fed. Jíiar. 582, that municipal bonds issued under the act are void unless the record shows that the county judge was satisfied of the sufficiency of the petition.</p> <p>2. Same—Tax-Payers—Definition jiy Statute.</p> <p>The act of lb71 defines the term “ tax-payer,” “ when used in this act,” to mean such lax-payers as are not assessed for dogs or highway lax only. But, fa/d, that- this definition did not cure a petition which merely showed the consent of “a majority of tax-payers,” where the act explicitly required the approval to appear of “ a majority of tax-payers, not including those taxed for dogs or highway tax only.”</p>

<p>1. Contract—Rules op Interpretation.</p> <p>Where a contract is ambiguous, contradictory, or obscure in its language, and is capable of two interpretations, it'must be given that construction which inclines most nearly to justice and common sonso.</p> <p>2. Same—Estoppel.</p> <p>Where an actor is employed by a manager who agrees that'lhc actor shall appear at least seven times a week and be paid 8100 for eacli appearance, which stipulationthe manager violates by failing to provide employment for the actor for a period of three weeks, the actor waives none of his rights by subsequently appearing under the contract and receiving pay pursuant to its provisions.</p> <p>3. Same—Implied Agreement.</p> <p>Where an employe agrees to work during a definite period for a stipulated sum, and enters upon the discharge of his duties under the contract, and renders services which are accepted by the employer, the law implies an agreement upon the part of the latter to furnish employment to the servant and pay for it as stipulated in Ine agreement.</p> <p>4. Pleading—Amendment.</p> <p>Amendments will be allowed to correct errors in pleading when the opposite party is not misled and substantial justice so requires. It is not the policy of modern procedure to defeat a party who has a meritorious cause of action because he has not declared in the right form.</p>

<p>Arbitration.</p> <p>Under a contract by which tlie defendant was to pay plaintiffs for work done upon certificates and estimates of defendant’s chief engineer for the time being, the obligation of the defendant does not practically arise until the defendant is satisfied that the plaintiffs are entitled to compensation; and it was held that the defendant may not avail itself of the labor performed by the plaintiffs, and then “ wrongfully, arbitrarily, unreasonably, and in bad faith,” stand upon the literal terms of the contract and refuse to pay.</p>

<p>In Bankruptcy.</p>

<p>1. Patents fob Invention—Perfecting Device—Public Use.</p> <p>The law permits an inventor to' construct a machine which ho is engaged in studying upon and developing, and place it in friend]y hands for the purpose of testing’ it and ascertaining whether it will perform the functions claimed for it, and if these machines are strictly experiments, made solely with a view to perfect the device, the right of the inventor remains unimpaired; but when an inventor puts his incomplete or experimental device upon 1 he market, and sells it, as a manufacturer, more than two years before he applies for his patent, he gives to the public the device in the condition or stage of development in which he sells it. In such case his patent cannot be allowed to relate back and cover forms which he gave to the. public more than two years before he applied for a patent.</p> <p>2. Same—Patent Bo. 179,581 Construed—Infringement.</p> <p>The Wilfred C. Lyman patent of July 4, 1876, Bo. 179,581,-construed, and held not to be infringed by a condenser head having an enlarged drain-pipe instead of a hand-hole, and not having inside cones with turned rims or edges.</p>

<p>1. Patent—Infringement,</p> <p>Infringement of patent for the manufacture of combined ingots of iron and steel by means of moulds and a mechanism, producing a variable cavity in the moulds.</p> <p>2. Same—Invention in a Foreign Country.</p> <p>The use or knowledge of the use of an invention in a foreign country by persons residing in this country will not defeat a patent which had been granted to a bona fide patentee who, at the time, was ignorant of the existence of the invention or its use abroad.</p>

<p>1. Pateht—'Validity of Keissue—.Cmkical Thermometer.</p> <p>The original patent fpr a clinical thermometer, in place of which reissued letters No. 10,189 were taken out, was broad enough to cover a tube in which the mercurial column is magnified by moans of a raised ridge having a sharper curvature than the main shaft, oven though the column is not placed beyond the mechanical center of the main tube. The reissue, therefore, more specifically describing this device, is valid.</p> <p>2. Same—Prior Dsk—Looatioh of the Bore.</p> <p>The characteristic of this patent is that tho bore is back of the mechanical axis of tho curved surface through which it is viewed. Prior use of a so-called magnifying tube, with the bore at the center or in front of it, does not defeat the patent.</p>

<p>Patents Held Personal Property.</p> <p>A patent-right is personal property, and goes to the executor. Section 4884 of the Revised Statutes, providing for the grant of a patent to the patentee, “ his heirs and assigns,” does not change the law by which executors and administrators take the title to a patent on the death of the owner: as appears, by other sections of the same chapter.</p>

<p>Patents—Tiling—Pbevious State of the Art.</p> <p>Reissue No. 5,174, for a sectional arch of hollow tiles having plane joints, to be used underneath the floors of fire-proof buildings, is void for lack of patentable novelty. All of the features except the plane wussoirs were incorporated in previous foreign patents, and the use of plane wussoirs for analogous purposes was not new.</p>

<p>Pleading—Infringement of Copyright—Necessary Allegations.</p> <p>In a suit to recover for the infringement of a copyright, the declaration must set out in detail a substantial compliance with the various requirements of the copju'ight laws.</p>

<p>1. Conditional Sale—Attachment.</p> <p>An engine was furnished to a steam-lighter under a written contract of saley by which it was to remain the property of the vendor till paid for. The engine was attached by screws to the vessel. The contract was made in New York, but the lighter afterwards went into New Jersey, where an attempt was made by the creditors of the vessel to attach the engine. Held, that the engine remained the property of the vendor, and coiild not be attached.</p> <p>2. Same—Not a Chattel Mortgage.</p> <p>An agreement by which goods delivered to the vendee are to remain the property of the vendor till paid for is a conditional sale, and not a chattel mortgage, within the meaning of the registration acts. In the absense of fraud the vend- or’s title will prevail over an attachment.</p> <p>3. Conflict of Laws—Lex Situs.</p> <p>\ Such is, at all events, the law of New Jersey, (Cole v. Derry, 13 Vroom, 308 ;) and property brought into a state becomes subject to its law and policjr, which will govern the construction of contracts made elsewhere with regard to the. transfer and disposition of the property.</p>

In Admiralty. This was a libel for a collision between the tug Martin Swain and the propeller Jay Gould, which took place about 3 o’clock in the morning of September 27,1881, in the Detroit river, between the head of Bois Blanc island and the main Canadian shore.

<p>1. Collision—Obligation of United States Navigation Laws.</p> <p>The obligation oí the United States navigation laws, relative to the rate of speed allowed a steamer in order to prevent its colliding with other vessels in its path, does not become operative until the vessels are known to be about to meet. Nevertheless, moderate speed must always lie used by steamers in a iog.</p> <p>2 Same—Moderate Speed.</p> <p>The criterion of moderate speed is the condition of the steamer to be stopped immediately upon the apprehension of danger ahead.</p> <p>3. Same—Evidence—Burden of Proof.</p> <p>Proof that the party has violated the navigation laws, and been otherwise negligent, lays upon him the burden of proving that the damage did not result from such violation and neglect.</p> <p>4. Same—Scientific Theories.</p> <p>Scientific acoustic theories cannot be safely accepted generally in explanation of the failure of fog-horns to he heard.</p> <p>5. Same—Measure of Damage.</p> <p>The originator of the damage whereby the vessel is exposed, more or less helpless, to destruction by the elements, is responsible for the entire damage done.</p>

In Admiralty. This was a libel for repairs put upon the schooner C. N. Johnson,> at the port of Chicago, in the spring and early summer of 1880, to the amount, including interest, of $710.34. Defense, stale claim. One Buckley was the real owner of the vessel, though the title stood of record in the name of Joseph Single, of Wausau, Wisconsin. Milwaukee was her home port.

<p>1. Collision—'Negligence—Evidence.</p> <p>In a case of collision the libelant must show the alleged negligence by a fair preponderance of the evidence.</p> <p>2. Same—Running on Ohio River.</p> <p>Running on the Ohio river in a fog is not negligence per se.</p> <p>3. Same—Mutual Fault—Apportionment of Damages.</p> <p>Boats so running should observe great care and caution ; but, this being done, the court will not apportion the damages in caso of a collision upon the ground that the colliding boats were both in fault in running in a fog. Having voluntarily encountered the hazard of the navigation tlie loss must lie where it falls in the absence of proof of negligence.</p>

<p>1. Collision—Steam-Tug with Tow—Rounding Bend.</p> <p>A steam-tug with a tow, in going around a dangerous bend, where the tide . sets strongly across the river, is not entitled, as a matter of right, to occupy the full half of the river on the right-hand side.</p> <p>2. Same—Duty of Schooner Becalmed.</p> <p>A schooner rounding such a bend in the opposite direction, becalmed or nearly so, is bound to make use of the customary means of oars, or a small boat ahead, to keep some steerage way in order to avoid collision with other vessels.</p> <p>3. Same—Case Stated.</p> <p>Where the steam-tug W., with a tow on a hawser, was proceeding northward around West Point in the Hudson river, and met several sailing vessels becalmed, floating down with the tide, a short distance apart, and the W., having overtaken another tow a little below West Point, passed it on the left inste.id of the right, as she might have done, thereby going found the bond nearly in the middle of the river, when there was abundant room to go to the eastward ; and the schooner IT., nearly becalmed, drifted down around the bend with the tide, which there set strongly to the eastward across the river, carrying- the H. against the W.’s tow, and the schooner used no oars or small boat, as she might 'have done, to give her some headway and aid in avoiding the tow: held, that both were in fault,—the tug for proceeding unnecessarily towards the middle of the river, knowing the strong set of the tide, and the danger to sailing vessels becalmed; and the schooner, lor not using customary means to aid in avoiding the collision.</p>

<p>1. Negligence—Sudden Emergency.</p> <p>One who, in the confusion of a sudden emergency caused by another’s fault, fails to adopt the most'prudent measures of safety, is not chargeable with negligence on that account.</p> <p>2. Same—Collision of Vessels.</p> <p>Accordingly, where a tug-boat tras coming down the stream with a canal-boat in tow, and a steam-propeller, whose officers might easily have seen the tug, suddenly and without warning swung out into the stream, thus rendering a collision imminent, and the master of the tug endeavored to pass by in order to escape the danger, held, that even though some other course might have been in fact more prudent, the owner of the tug was not answerable for any part of the damage sustained by the canal-boat, when struck by the propeller.</p>

<p>1. Salvage—Vessel and Oaego.</p> <p>Where a vessel and cargo, owned by different owners, are libeled for the recovery of salvage. and the different owners file separate answers, claims, and bonds, and one of them claims an apportionment of the salvage, and a sum iu gross is agreed upon between the parties, it is the duty of the court to apportion the amount awarded upon the interests of the different owners; it would he error to award a gross sum which might be collected wholly out of the property of either.</p> <p>2. Same—Apportionment.</p> <p>Where in such a cause all the iscues are referred to a commissioner to hear and determine, held, such apportionment is a part of the issues referred; and the commissioner’s report having been filed without apportionment, it was scut back on exceptions that such apportionment might be made upon the evidence of the respective values of the vessel and cargo.</p> <p>3. Same—Average Bond. •</p> <p>if, as alleged, an average bond has been entered into between the parties, affecting the distribution of the salvage, the apportionment made in this action will be without prejudice to the covenants and obligations of the bond.</p>

<p>Collision on Brie Canal—Rule of the Road—Burden of Proof.</p> <p>A loaded boat,the B , bound east on the Erie canal,towed by a cable-boat, met a light boat,the O. P., while turning a bend where the cable-boat, must keep close to the inside of the turn, which was the tow-path side. The 0. P. passed the cable-boat on the outside, and then, in accordance with the rule of the canal, attempted to regain 1lie tow-path side bypassing between the cable-boat and the 15., over the tow-line of the cable-boat, and in so doing was struck by the B. In an action against the 0. P. for the damage done the B., held, that, the 0. P., having taken a course in accordance with the rule of the canal, and the B. having done otherwise, the burden was on the B. to excuse her omission to conform to the rule; and that, as the B. failed to do so upon the evidence, tier libel must be dismissed.</p>

<p>Permission to Extract Guano—Rights thereby Acquired.</p> <p>One J. obtained permission from tlie government of Brazil to extract a cargo of guano or mineral phosphate from R. island, and sent out a vessel to get it, ■but the voyage was broken up. W., learning of this, went to the island with his vessel and obtained the cai-go by virtue of a subsequent permission obtained by W. himself. J. filed a libel against W.’s vessel and cargo, claiming as ■owner to recover the cargo obtained by W. Held, that J.’s right of property ■could only attach to what phosphate he might acquire possession of by extracting it and loading it upon his vessel under the permit issued to him, and that, in the absence of proof of false representations on W.’s part in obtaining his permission that he was acting as J.’s agent, the libel must be dismissed.</p>

In Admiralty. This is a motion in the nature of an appeal from the taxation of the marshal’s bill of costs, by the clerk. The marshal employed a ship-keeper at $2.50 per day to take charge of the libeled vessel. The clerk allowed the bill at $1.75 per day. Various affidavits were submitted by the parties. Some to the effect that the amount was too high; others that it was a very reasonable charge for the work done.

<p>'Costs—Libel in Rem—Settlement.</p> <p>The respondent in a suit for seamen’s wages cannot avoid the payment of costs by settling with the libelant without the knowledge of his proctors.</p>

<p>Motion to Serve Amended Complaint.</p>

<p>Motion to Compel Security for Costs.</p>

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

<p>1. Consolidated Railroads—Status in Different States.</p> <p>Two corporations, charted under tlie laws of different states and afterwards consolidated under the laws of both, are separate in so far that each state is left the control over the .charter it grants, and identical in so far that the corporations may represent each other in suits by or against either of them.</p> <p>2. Same—Equity—Pooling Agent.</p> <p>The pooling agent, under a contract between railroad companies, is a trustee, and as such is accountable in a court of equity for his acts.</p> <p>3. Pave—Parties to Suits.</p> <p>The plaintiff is entit’ed to join as defendants with the corporation all persons into whoso hands they can trace the funds of the joint management.</p> <p>5. Same—Contract—Estoppel.</p> <p>A pooling contract being once executed, one corporation is estopped from denying the validity of its own act in making it, in defense of an action for its Infraction brought by the other. Still less can the agents of the parties set up such a defense.</p>

Action upon the bond of Lewis Stowe, late Indian agent at the White Earth Reservation. Defendant Stowe, as such agent, and under the direction of the commissioner of Indian affairs, hired Warren, the official interpreter at the agency, to render certain services as a day laborer in the government warehouse, and as a clerk in the agent’s office. For such services he paid Warren $336.

<p>Hew Trial—Damages—Personal Injury—Newly-Discovered Evidence.</p> <p>In an action to recover damages for a personal injury a motion by defendant for a new trial because of newly-discovered evidence as to the extent of plaintiff’s injuries will not be granted where it does not appear that defendant, before the trial, made any investigation as to the character of the injuries received.</p>

<p>Accounts of Supervisor of Elections— Act of February 22, 1875, (18 St. at Large, 333,)—U. S. Rbv. St. § 2031—Certificate of Judge under § 846.</p> <p>Tlie eiteet of Rev. S1,. § 2031, is not sucli as to bring the accounts of a chief supervisor of elections within the scope of the act of February 22,1875, (18 St. at Large, 333,) providing for the passing of accounts of clerks, marshals, district attorneys, and United Stales commissioners in open court.</p>

<p>Contempt—Power, op Court to Revoke its Orders.</p> <p>An order committing a defendant for contempt, in refusing to pay a sum. of money, is civil, and not criminal, in its nature, and the court which committed him is at liberty to release him again in case he shows himself unable to comply with the requirements of the court</p>

<p>Patents von Inventions—Patent No. 221,432—Invention.</p> <p>Patent. No. 221,432, granted to Anson ¡Searls, as assignee of John M. Underwood, the inventor, November 11, 1879, for an improvement in whip-sockets, is void i'or want of invention.</p>

<p>Interfering Patents—Action under Rev. St. § 4918—Plea in Bar.</p> <p>In an action under Rev. St. § 4918, where tlie plaintiff seeks to have tlie defendant’s patent deelared void on tlie ground that it is for the same invention, and subsequent to the plaintiff’s patent, a plea in bar by the defendant, which admits tlie priority of the plaintiff’s patent for the same invention, but sets out a fact which would render the plaintiff’s patent void for want, of novelty, must be overruled, because the fact is immaterial in this proceeding.</p>

<p>1. Patent—Horse-Shoe Wail—Infringement.</p> <p>Patent Wo. 92,355 for a horse-shoe naif made hy cold-rolling the shank oí a headed blank cut from a hot-rolled ribbed bar, held to be infringed by the manufacture of a nail produced in the same manner, except.-,that the head is cold-rolled, and a small portion of the shank next to the head not rolled at all.</p> <p>2. Same—Method not Shown in Previous Patent.</p> <p>The nail secured by loltersWo. 92,355 differs in hardness in its different parts; and the validity of the patent is not affected by the description in a previous patent of a method of manufacturing nails of uniform hardness throughout.</p> <p>3. Same—Reissued Patent Wo. 5,207.</p> <p>Reissued patent Wo. 5,207 held to be substantially identical with the original, No. 78,044, and therefore valid.</p> <p>4. Same—Infringement—Horse-Shoe Nails.</p> <p>The process described hy reissue No. 5,207, of beveling the points of horse-shoe-nails hy spreading the metal laterally and then shaving off the superfluous projections, held to he infringed by a method purporting to force the metal upwards instead of sidewise</p>

<p>Patents bob Inventors—Expibation ob Patent—Demubrek.</p> <p>Demurrer to bill for profits and damages, filed against an infringer one day before the patent expired, sustained, and bill dismissed, with costs; following Root v. liy. Go. 105 U. S. 189, and Burddl v. Comstock, 15 Fed. Rep. 395.</p>

<p>1. Patents bob Inventions—Evidence—Motion to Suppress.</p> <p>Where evidence has been taken and filed out of time, but no motion to suppress lias been filed, it may be considered.</p> <p>2. Same—Reissue Mo. 9,028—Claims 5 and 7 Void.</p> <p>Claims 5 and 7 of reissued letters patent Mo. 9,028, granted January 6, 1880, to John Matthews, for soda-water apparatus, are anticipated by letters patent Mo. 44,045, granted to A. J. Morse, October 11, 1804, for a syrup fountain.</p> <p>3. Sauk—-Claims 4, 6, 8, and 9 Valid—Infringement—Disclaimer.</p> <p>As the parts of the thing patented in the fourth, sixth, eighth, and ninth claims, which have been infringed, are definitely distinguishable from the parts claimed in the fifth and seventh claims, and the latter claims were made by mistake, without any willful default, or intent to defraud or mislead the public, and complainant has not been unreasonably negligent in not entering a disclaimer as to such'parts, he may, on entering a disclaimer, maintain a suit for infringement, but without costs</p>

<p>Patent—Infringement — Breach of Contract of License—Jurisdiction of Circuit Court.</p> <p>. Where the owner of a patent, grants an exclusive license to a corporation to make and sell the article patented during the term of the patent, requiring sales to be returned monthly and license fees to be paid monthly, and retains the right to terminate by written notice the license, on failure to make returns and payments for three consecutive months, after due service of notice of the termination of the license for failure to make returns, an action for infringement, in which the corporation sets up in its answer that the license was not lawfully terminated, and that it had not sold any of the patented article,s, and was not making and selling them, involves a question of infringement, and is cognizable in a federal court, although the parties are citizens of tlie same state. WiHonv. Hanford, 10 How. 99, and Harteü v. Tüghman, 99 U. S. S47, distinguished.</p>

<p>On Exceptions to the Master’!. Report. The facts appear in the opinion.</p>

<p>Motion for Rehearing.</p>

<p>1. Patents for Inventions—Accounting before Master—Evidence.</p> <p>In an account before a master, evidence of payments for past infringement, for the purpose of ascertaining the amount which should be paid by the defendant, is incompetent. To admit it is contrary to the maxim, Inter alios acta, etc.</p> <p>2. Same—Bale of Licenses—Measure of Damages.</p> <p>When the sale of licenses by the patentee has been sufficient to establish a price for such licenses, that price should be the measure of his damages against an infringer; but a royalty or license fee, to be binding on a stranger to the licenses which established it, must be uniform.</p> <p>3. Bame—Single License—Market Price.</p> <p>Proof of a single license is not sufficient to establish a market price.</p> <p>4. Same—Several Claims—Royalty.</p> <p>In respect to two or more claims in a patent, each of value and distinct from the other, one cannot equal both or all in value, any more than, in mathematics, a part can equal the whole. A licensee may, if he choose, bind himself to paj' the same price, whether he use the entire invention or a part only; but at the same time he acquires the right to use all, and so his agreement may not be unreasonable; but if, as against an infringer, such a license can have any force, reasonably, it must be in the way only of establishing a royalty for the entire invention.</p>

<p>Patent—Infringement—Glove-Easteners.</p> <p>The ease oi‘ Field v. Gomeau, 17 O. G. 568, followed;, holding that the complainant’s patent for a glove-fastener, consisting of an automatic wire spring, is not infringed by a device consisting of stiff arms pivoted at one end.</p>

In Admiralty. This was a libel for a collision between the schooner Gladstone and the schooner Davis, in tow of the propeller Worthington, which occurred on the night of July 26,1881, on the St. Clair river, near Her-son’s island. The Gladstone was bound on a voyage from Detroit to the port of Golden Valley, Ontario. She left Detroit in the afternoon, under sail, reached the St. Clair river, and sailed up to a point a little above the place of collision.

<p>Damage, to Canal-Boat by Suction and Surge Caused by Passing Perry-Boat—Dvidence.</p> <p>In an action against the ferry-boat 6., to recover damages for injuries caused by the suction and surge produced by the passing ferry-boat to a canal-boat moored in a proper place at a bulk-head at Staten island, held, that, upon the evidence, tho injuries were caused by the ferry-boat’s passing at an unnecessary rate of speed, and that the ferry-boat was liable for the damage sustained.</p>

<p>1. Collision—Steam-Boat and Tug— Crossing Courses—Fault in not Holding Course—Faulty Lookout.</p> <p>A collision occurred between tlic tug S. and the steám-boat O., in the East river, in the day-time, in clear weather,under the following circumstances: The tide was flood. The O. had left Fulton market pier, where she had lain head down the river, and rounded out, bound up the river. The S. was coming down near midstream. Abreast, or nearly so, and between the S. and the New York shore, was a tug towing a schooner on a hawser down stream. Ahead of the S., coming up, was a tug with two barges along-side, and between this tow and the New York shore was another tug and schooner. The S. could not pass to port of the barges, owing to the closing up of the other vessels, and starboarded, and had just cleared the barges when she struck the O. ou the port side. Held, that the S. was not in fault for sheering across the bows of the barges, nor for not stopping and backing when she found she could not pass the barges to port; nor wa i the collision caused by the S. being within 20 yards of the vessels going down, in violation of a state statute; that the omission of the S. to answer the O. ’s whistle caused no change in the movements of either, and in no way conduced to the collision; that after the S. starboarded to pass the barges, the ¡3, and the O. were on courses crossing, and the O. was in fault, for straightening up the river and not holding her course, and for not seeing the S. as soon as she might have done; that the S. was also in fault for not keeping a good lookout, and seeing the O. before the S. sheered, it being highly probable that if the O. had been then seen the S. would have sheered more sharply, and removed from the O. the temptation to cross the S.’s bows. Both vessels being responsible for the collision, the damages must be apportioned.</p> <p>2. Same—Claim for Salvage by Vessel in Fault.</p> <p>A claim for salvage, made by the. S. for towing the O. to a place of safety, after she was disabled by the collision, was rejected because the collision that made the service necessary was in part caused'by the fault of the S. herself.</p>

<p>Appeal from Taxation of Costs.</p>

<p>1. Ship’s Husband—Lien—Proceeds of Sale of Yessel.</p> <p>There is no lien on moneys, the proceeds of .the sale of .steam-boats, in favijr of one who acted in the capacha of ship’s husband, for sums paid by him m satisfaction of demands claimed to be at the time subsisting maritime liens on the vessels, such proceeds not being in his hands.</p> <p>2. Same—Exception to Libel.</p> <p>Exception to a libel claiming such a lien on proceeds of certain vessels was sustained and the libel dismissed.</p>

Motion to remand a case removed to this court from the circuit court of Jefferson county, Missouri, at the instance of the defendant who is a resident of Missouri.

In Equity. Demurrers and plea to the bill, and exceptions to answer. The facts stated in the bill are, in substance, as follows: Abraham Oyster died in 1882, testate and seized of certainlands situated in Missouri. He left four children, Margaret, George, David X., and Simon Oyster. Simon died,, however, before his father’s property was distributed. He left a will, of which he appointed his wife, Margaretta, executrix.

In Equity. On motion for injunction. The complainant’s bill shows that on the seventh of May, 1873, Henry Clews being the' owner and in possession of certain mineral lands in Calhoun county, in this state, sold and conveyed for value tho same to John M. G-uiteau, who afterwards, on the sixth of June, 1876, sold and conveyed to John P. MeEwan, and that the latter, with his wife, on the sixth of March, 1880, by proper deed, sold and conveyed the same to complainant, and that…

At the October term, 1881, the following petition was filed: “To the Hon. John Brace, presiding in the Circuit Court of the United States for the Worthern District of Alabama : 111 the ease of W. H. Johnson and others against W. R. Alexander and others, pending m said court, your petitioner, W. P. Newman, is receiver, having been appointed as such at a former term thereof.

<p>1. Liens upon Property in the Hands op a Receiver.</p> <p>Where a railroad has been placed in the hands of a receiver by this court, persons claiming statutory liens may lie permitted to file them here with the same force and effect as if tiled respectively in the state courts.</p> <p>2. Same—Statutory and Equitarue Liens on the Same Footing.</p> <p>Where like demands are presented from other states in which no statutory lion therefor exists, they will bo entitled to the same status as statutory liens.</p>

<p>1. Depositions—Certifícate.</p> <p>Where depositions are taken de bene esse, under section 865, Rev. St., before a notary, his certificate should stale, among other things, (1) that he is not a party in interest; (2) that the depositions were reduced to writing in the deponent’s presence; and (3) in what court it is to be used.</p> <p>2. Same—Amendments.</p> <p>Where a notary’s certificate fails to comply with the requirements of law, leave may be given to amend it.</p>

This is an action of ejectment brought by the plaintiffs, Moses Waring and Virginia E. Mitchell, against the Louisville & Nashville Railroad Company, to recover the possession of a triangular lot of ground near the foot of Theatre street, in the city of Mobile, and damages for its detention. A jury has been waived by written stipulation, and the >ease submitted to the court.

<p>Motion to Strike out Part of Answer.</p>

<p>1. Act of Louisiana, No. 73 of 1872.</p> <p>The act of the legislature of Louisiana, No. 73 of 1872, approved April 26,1872, (Bess. Acts 1872, p. 124,) was in force until the passage of the premium bond act, March 6, 1876, (Sess. Acts 1876, p. 54) By section 15 of the act of 1872 a sinking fund was created for certain bonds of the city of New Orleans, in which fund the bondholders interested wore declared to have a vested interest. The taxes levied and collected under the aet were insufficient to pay the coupons maturing while the law was in force. Held, that holders of coupons maturing after the repeal of the law acquired no right to the fund; holders of coupons maturing before the repeal of the law were entitled to the fund in the hands of the fiscal agent, and could have enforced collection as the taxes were collected and received by him.</p> <p>2. Prescription—Pledge.</p> <p>As long as the debt secured remains unpaid and the pledge continues in existence, whatever be the time elapsed since maturity, the defense of prescription cannot be raised. Forstall v. Consolidated Ass’n, 34 La. Ann. 776. As to the coupons which fell due prior to the repeal of the act of 1872, prescription . has been interrupted; those which fell due after the repeal, and more than five years prior to the institution of this suit, are prescribed.</p>

Demurrers to the Answers. These are suits upon interest coupons cut from bonds issued as a gift from the city of La Grange, Missouri, to the La Grange Iron & Steel Company, a private corporation, under an act of the legislature of Missouri. The answers set up as defenses, (1) general denials; and (2) that the issue of the bonds was ultra vires, and.contrary to law.

<p>In Bankruptcy.</p>

<p>This is an appeal from a decision of the register sustaining certain proofs of debt. The petition in bankruptcy was filed November 13, 1873. On the twenty-sixth of the same month the bankrupts contracted the indebtedness in question. The adjudication was dated February 27, 1874. The proofs of debt were made February 13, 1875. The creditors contend that their proofs should stand, for the reason that the indebtedness upon which they are founded was due and payable at the time of the adjudication. The assignee insists ,that they should be expunged because the indebtedness was contracted subsequently to the proceedings in bankruptcy.</p>

<p>1. Shipping — Delivery — Perishable Cargo — Discharge in Freezing Weather—“Act of God.”</p> <p>A steamship brought a consignment of oranges to Now York, where she arrived on December 29th. The weather was so cold as to render it impossible to land oranges without freezing them, and continued below zero for several days. The oranges were landed in spite of the consignee’s objection, and their value was for tlie most part destroyed. Held, that the act which destroyed the fruit was not the “ act of God,” but of man, in discharging the oranges at an unsuitable time.</p> <p>2. Same—Exceptions in Bill of Lading—Vessel Ready to Discharge.</p> <p>A vessel is not “ ready to discharge,” within the meaning of a provision in the bill of lading that all goods are “to be taken from along-side immediately the vessel is ready to discharge,” when it is impossible for her to discharge without destroying the cargo.</p> <p>3. Same—“Effect of Climate.”</p> <p>' “Effect of climate,” used in a bill of lading, does not apply to the effect of a temporary frost.</p> <p>4. Same—Negligence.</p> <p>Where it was proved that there was no necessity to land the oranges at that time, either because other consignees had demanded their cargo, which could not be separated from the libelant’s, or because of the engagements of the vessel, it was held to be negligence on the part of the vessel to discharge at that time, and a decree was ordered in favor of the libelant.</p>

<p>In Admiralty. Action on bill of lading by consignee of cargo.</p>

<p>Maritime Lien—Assignment o» Debt.</p> <p>A maritime lion passes to an assignee of the debt.</p>

<p>Collision in Slip—Canal-Boat and I’iiopeller—Contradictory Evidence.</p> <p>A canal-boat, lying in the same shp with a steam-ship, fouled the screw of the steam-ship and received injuries which caused her to sink. On the part of the canal-boat it was alleged that the accident was due to the screw being put in motion before the steam-ship was unmoored, which created a current. The steam-ship denied thatthe screw had been put in motion, and claimed that the canal-boat had drifted with the 1 ide against the screw. Held, the testimony being contradictory, that the case did not present such a preponderance of evidence in favor of the libelant as to allow it to be held that he had proven his case, and the libel was dismissed, without costs.</p>

<p>1. Removal of Causes from State Court—Application must Specify when Ground Existed.</p> <p>In order to show jurisdiction in a federal court over a cause removed thither from a state court on the ground of the parties being residents of different states, it must, appear in the application for removal that this ground subsisted at the time the suit was instituted in the state court.</p> <p>2. Same—Amendment not a Right.</p> <p>'Lffie amending of an application so as to show jurisdiction is a matter within the discretion of the court, and cannot be claimed by a party litigant as aright.</p> <p>3. Same—“Session” Equivalent to “Term” in Contemplation of Act of Congress.</p> <p>The word “session ” in the present constitution of California,relative to the sittings of courts, is “ term.” within the contemplation of the act of congress.</p>

On April 9, 1884, the defendant filed a petition and bond for removal of the above-entitled cause to tlie circuit court of the United States for the district of Minnesota. The petition is in compliance with the statute for the removal of causes from the state to the federal court, and is accompanied by tho bond required.

<p>1. Fire Insurance — Description of Premises — Responsibility of the Assured for Warranties and Representations.</p> <p>Whore, in an application for insurance whereby the assured agrees that the application is a just, full, and true exposition of all the fads and circumstances in regard to the condition, situation, value, and risk of the property, so fardas the same are known to him and are material to the risk, it is immaterial whether the statements are regarded as warranty or morely as representations of the truth of the statement, because the applicant only assumes responsibility for their truth so far as the facts are known to him and are material to his risk.</p> <p>2. Same—Conditions Working Forfeiture.</p> <p>Conditions that work a forfeiture are not to be extended by construction. Being put into the policy for the benefit of the msuier, they will bo construed most liberally for the assured.</p> <p>3. Same—Materiality a Question of Fact.</p> <p>The materiality of a representation is a question of fact. The test is the probable effect of the representation upon the judgment of the insurer.</p>

The above suit was brought in personam to recover $321,519.29, the value of a large quantity of silk ribbons imported" from Switzerland into the port of New York, during the years 1879, 1880, 1881, and 1882, and entered in the custom-house by the defendants, as it is alleged, by means of fraudulent undervaluations in the invoices as to the market value of the goods. The importations and entries are 91 in number.

<p>Public Land—Entry—Right to Out Tlwrer.</p> <p>One wbo has entered upon public huid according to law for the purpose of claiming a homestead therein, and is residing thereon in good faith, and improving it for agricultural purposes, is entitled to cut so much timber from the land as is necessary for his actual improvements; but until he has received his patent he cannot cut timber for any other purposes nor under any other com. ditions.</p>

<p>Procuring the Commission of Perjuri—Elements of the Crime — Knowledge.</p> <p>To constitute the crime of procuring perjury to be committed, it is not enough that both the accused and the false witness knew the falsity of the statements sworn to, but .the accused must also have known that the witness knew the statements to be false.</p>

<p>1. Patents for Inventions—Death of Patentee—Title Vests in Administrator.</p> <p>Under tlie act of July 8, 1870, and the Revised Statutes, upon the death of a patentee intestate, the title to the patent vests in his administrator, and not in his heirs.</p> <p>2. Same—Connstriiotion of Patent.</p> <p>In the interpretation of a patent., the court, proceeding in a liberal spirit, should sustain the construction claimed by the patenteo himself, if this can bo done consistently with the language he has employed.</p> <p>3. Same—Patent No. 121,746— Infringement.</p> <p>[letters patent No. 121,746, for an apparatus for drying sand and gravel, granted to Allen II. Bauman, December 12,1871, construed, and the defendants held to infringe.</p>

<p>1. Patents for Inventions—Puddling-Furnace.</p> <p>Letters patent No. 135,650, granted February 11, 1873, to E. Lloyd, for an improvement in puddling-furnaces, construed, and held, not to be infringed by the defendants</p> <p>2. Same—Infringement.</p> <p>Tlie plaintiff's’ invention, which secures protection from tlie intense heat to the walls of the chimney or stack of the puddling-furnace, by means of an opening in1 o the stack at its base, whereby a current of air drawn from an air-conduit underneath the furnace-bed is permitted t,o enter the stack, heM not to-be infringed by a construction which secures such protection to said walls at, tlie base of the stack by an external circulation of air.</p>

<p>Salvage Service — Award—$25,000 Allowed on Valuation of $252,500 — Costs.</p> <p>The steamship Daniel Steinman, 1,790 tons, on a voyage from Antwerp to New York, with general cargo and 335 steerage passengers, lost her propeller. She set all the sail she could, but made no headway. The same day the steamship R., of the White Star line, bound from Liverpool to New York with cargo and mails, and 697 passengers, came near, and the master of the S. applied to her to be towed to Halifax, 280 miles distant. This the R. was not willing to do, but was willing to attempt to tow her to New York, 630 miles distant. An agreement was made between the two masters, by which the R. was to receive ¿10,000 if she brought the S. to New Vork, which she proceeded to do, being detained some two days, of which 36 hours were occupied in towing, and bringing the S. to New York by the time the S. was due there. No damage of consequence was sustained by either, be3ond the breaking of a hawser belonging to the R. The weather was fair and the sea smooth during all the time. The value of the S., cargo and freight, was $252,500; that oí the R., cargo and freight, was $780,000. The owners of the S. were not satisfied to p"ay the MO,000, but offered $7,500; the owners of the R. did not insist on the agreement, but considered $25,000 net to be tlieir proper reward. Held, that an important salvage service was rendered by the R. in rescuing the S. and her passengers from a position of danger, and enabling her to reach her port of destination without loss of time, lor which the R. should receive a salvage compensation of $25,000. Expenditures of the R., amounting to $2,800, were not allowed in addition, as these wore taken into consideration in fixing the award; but it was directed that the owners bo reimbursed out of the gross amount before its distribution. As no tender was made, costs were allowed libelants. Particular comparison of this case with the circumstances and the award of the English court in the case of The Silesia and The Yaderland, L. K. 5 Prob. Dir. 177.</p>

<p>Salvage—Amount—All the Oaugo and Bale the Vessel Allowed.</p> <p>The steam-ship Ü., valued at §180,000, the day after leaving NewYork, found the schooner L. in the trough of the sea, without steerage-way, a large hole in her side, and seriously damaged forward. The L. ’s crew announced their intention to abandon her in case the 0. declined to take her in low The G.‘ towed the L. hack to New York, losing thereby three days’ time, breaking a steel hawser, and paying pilotage and towage, amounting to $279. The schooner and cargo were sold, the net proceeds being $3,514.25. The proof showed tiiat the cargo of tlie L, from its nature, would have been wholly lost if the L. had not been taken in tow by the G. No one appeared to claim the cargo. The court allowed the whole of the proceeds of the cargo—not a large sum—and one-half the net proceeds of the vessel, to be paid the salvors for salvage, and, in addition, the above expenses of tlie steamship and $200 for damages to hawsers, to be first deducted from the proceeds and also costs.</p>

<p>Seamen—Contract to Send Them Howe—Damages—Mitigation.</p> <p>Where natives of the Philippine islands shipped as seaman on an American vessel at Iloilo for a voyage to Hew 1 orb, and the master bound himself to return them to their country at his expense, and the men left the vessel at New York without objection, no provision being made for their remaining on board, and afterwards the master offered to the boarding-house man at whose house the men were that the men should return to the vessel and go in her to Portland, Oregon, held, that on the proof the men did not desert the vessel at New York, and were not bound to remain on board her; that under the agreement the men were to be sent home direct, and not by way of Oregon, and that no offer had been shown to send them home, even via Oregon ; that there had been, therefore, a violation of the contract on the part of the vessel, and the vessel was liable for the damages that the libelants might have sustained, to be ascertained by a reference. As a matter of protection to the foreign sailors, the vessel was allowed now to provide them with a passage home, and to show this in mitigation of damages.</p>

<p>Hegligence—Privity of Contract—Responsibility.</p> <p>A stevedore employed, by another, who has contracted to unload a vessel, can recover for injuries sustained by the defective appliances furnished him by the vessel, upon the same evidence which would enable his employer to recover. Though there is no privity of contract between the ship-owners and him, they were under the same obligation to him as they were to his employer. What would be negligence to one would be negligence to the other.</p>