Volume 20 — Federal Reporter

This is a suit in equity to dee]are null and void, and to canoe], an instrument claimed to be a contract of marriage, executed under the Jaws of the state of California, between William Sharon, of the state of Nevada, complainant, and Sarah Althea Hill, of the state of California, defendant, said contract being claimed to be a forgery.

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

<p>1. Jurisdiction — Service of Process.</p> <p>Tlie jurisdiction of a*ctourt attaches upon the service of process, and the court whose process is first served upon the defendant will retain the cause.</p> <p>2. Same — Possession of Property in Controversy.</p> <p>A court, having gained prior jurisdiction of a cause by the service of its process, is no.t deprived of its jurisdiction by reason of the actual seizure of the property in controversy by the officer of a court having concurrent jurisdiction.</p> <p>3 Same — Where Jurisdiction Attaches.</p> <p>The jurisdiction of a court of the United States to which a cause has been removed from a state court relates back to the time of the original service of process.</p> <p>4. Same — Administration of Trust Estate.</p> <p>The court first gaining jurisdiction of a part of a trust estate is entitled to administer the whole, even though some portion of the property lies within the domain of another court.</p> <p>5. Trustees — Refusal to Sue — Action by Cestui que Trust.</p> <p>When the trustees of a mortgage deed, executed for the security of bondholders. refuse to institute proceedings to enforce the security, the bondholders themselves are entitled to prosecute a suit for that purpose.</p>

In Equity. The Alexandria & Washington Railroad Company extends from Alexandria to the south end of Long bridge, opposite Washington city, on tlie Potomac river. It is less than four miles long, but it is the important link which connects all railroads north with all railroads south of the Potomac river, which lie east of the Blue ridge-mountains. The width of ground originally condemned for its construction was 50 feet.

<p>1. Decision oe thé Tide-Land Commissioners.</p> <p>The commissioners under the acts of 1872 and 1S74, to dispose of the state tide lands, were authorized to decide who was entitled, in certain cases, to he preferred as a purchaser thereof, and their determination'of the matter cannot be questioned elsewhere, except for an error of law or a fraud extrinsic, and collateral to the contest, by which a full and fair hearing of the matter was pre•vented.</p> <p>2. Settler under the Donation Act.</p> <p>It does not apppar that James Welch was ever a “ settler,” under the laws of the provisional government or the donation act, upon the donation patented to John M. Shively and wife; and if he was, upon his abandonment of all such claim thereto in 1860, and before he ivas entitled to the grant, his wife had no interest in it or the consideration received therefor.</p> <p>3. Conveyance to One Person upon a Consideration Moving prom Another.</p> <p>In 186!) John il. Shively, in consideration that James Welch abandoned his claim to be a “settler’' lipón the former’s donation claim, conveyed a certain portion thereof to said Welch, and a like portion, including blocks 5 and 13, in “ Shively’s Astoria,” to his wife Nancy. Held, that, Nancy did not hold said blocks under her husband, but the grantor, Shively, and therefore she was entitled under the acts of 1872 and 3874 (Sens. Laws, 32!), 76) to purchase the tide land in front of said blocks, although her husband had quitclaimed the same to Shively in 1850.</p>

<p>1. Agency — Concealed Agency — Responsibility of Principal.</p> <p>A party selling goods to another and taking his individual acceptance therefor, may, upon the discovery that the latter was really acting in the interest of and under authority from a third party, hold that third party responsible for payment.</p> <p>2. Same — Act of Agency Established by Subsequent Acceptance of the Property Purchased.</p> <p>A party who, without the authority of another, purchases goods for him, which the other, knowing the. purchase has been so made, accepts, becomes thereby an agent, and the other, as principal, may bo required by the seller of the goods to pay the consideration.</p>

<p>Action for Damages.</p>

<p>Customs Duties.</p> <p>Bullion fringe held dutiable under Schedule N, act March 3,1883, as bull-ions or canetille, and not as a “manufacture not specially enumerated or provided for, composed wholly or in part of metal.”</p>

<p>BANKRUPTCY — INTEREST ON DIVIDENDS.</p> <p>Assignees of an estate in bankruptcy are not bound to pay interest upon dividends which may be declared upon debts wliicli have been fairly and reasonably disputed, from the time that like dividends were declared upon undisputed debts.</p> <p>BenUe, they may be ordered to pay such interest as has been earned upon funds set apart to meet the disputed claim.</p>

<p>Information for Embezzlement.</p>

<p>1. FoKMEB JfJDGMMNT — WHEN A BAR.</p> <p>A decree under equity rule 38 dismissing the plaintiff’s hill because oí his failure to reply to a plea or set it down for argument, is not conclusive, since all the authorities agree that in order to constitute the former judgment or decree a bar it must appear that the point, in issue was judicially determined after a hearing and upon consideration of the merits.</p> <p>2. Patents iros, Invention — Pabtneb Inventing Machine — Use by Fikm— License.</p> <p>Luring the existence of a partnership between i wo persons one of them invented a machine upon which a patent was granted to him. The firm paid the fees and costs of procuring the patent and the expenses of an experimental trial of the invention and also the expenses of some litigation which ensued. It appeared, however, that ail the outlay of the firm was more than repaid hy the benefits arising- from the free use of the patented machine in the partnership business. If eld, that upon these facts no implied license arises to the member of the firm not the iuventor to make, use, and vend the patented math;ue after the dissolution of the partnership.</p>

<p>. In Admiralty.</p>

<p>In Admiralty. Action for Seaman’s Wages.</p> <p>Tlie libelant was a seaman on tlio propeller, the City of Now Bedford, running between Pall River, Massachusetts, and New York. The parties agree that the sum of $32.67 was due to the libelant for wages for his services up to the evening of November 5, 1883, when he was discharged. The propeller was owned by the Old Colony Fall River Steamboat Company, a Massachusetts corporation. Payments were ordinarily made on the eighth or ninth of each month, on the arrival of the “pay-car.” On November 9th, the pay-ear having arrived, the-libelant called on Mr. Ackley, the agent of the claimants, and asked for his pay, and was told to call again shortly, when the agent would be ready to pay him. An hour or two afterwards he called again for his pay, and was informed that his wages had been attached by a trustee or garnishee process, served upon Mr. Ackley, at the suit of one Blake. This process had been issued in accordance with the usual course of procedure in the courts of Massachusetts, and was returnable on November 25th. The process did not state the amount of the debt claimed by Blake against the libelant, but attached as security for the payment of whatever might be recovered, not exceeding $300, any moneys, effects, and credits of the libelant in the hands of the company. The libelant thereupon went to Blake for the purpose of procuring a settlement with him, but did not effect any settlement.. The libelant and Blake are both residents of Fall River. The libel-ant was not served personally with the process. He subsequently came to this city and filed his libel in this cause for the recovery of' his full wages; and caused the propeller to be seized by the marshal on November 12th. By diligent efforts the propeller was released, under bonds, in time to leave this city upon her usual trip the same day. On the twenty-fifth of November the claimants here, by the answer interposed in the suit against the libelant in Massachusetts, duly set up the facts in regard to the wages due to the libelant; that they were for his services, as a seaman upon the propeller, in running from Fall River to New York; that the wages had been demanded, and that they were exempt from attachment. The court, however, overruled the claim of exemption set up in the answer, and gave judgment for $8.25, the amount of Blake’s claim, which the claimants here subsequently paid to the sheriff on November 30, 1883, upon execution issued upon that judgment, together with 70 cents additional costs.</p> <p>The claimants in their answer in this cause set up the above facts, and paid into court the balance of the wages due to the libelant at the time of filing their answer. Upon the trial, the above facts were admitted. The only questions submitted to this court are — First,. whether the sum of $8.95 shall be allowed as a credit to the claimants in this action; second, the question of costs.</p>

In Admiralty.' On motion to strike from claimants’ answer their demand for trial by jury: This was a libel for damages received by the schooner Lizzie Law, through the negligence of the tug Erie Belle, in towing her from Chicago to Buffalo.

The Ohio Falls Gar & Locomotive Gompany is a corporation duly organized under the laws of the state of Indiana. It stopped payment in the month of October, 1873.

<p>IMPROVEMENT OF HAVIGABLK STREAMS — CONSEQUENTIAL DAMAGE — LAND OUTSIDE tjíjí State — Legislative J’ovwk.</p> <p>Remote and consequential damage, such as the diminution of water-power, accruing to land from improvements to the navigation of the water-ways of a state authorized by the legislature thereof, do not apiount to a “ taking ” within the meaning of the < onstitulion, and tins legislature is empowered to authorize such improvements without reference to such consequential .damage to land within the state; but the legislature lias no power to cause such damage to the owners of laud in other states.</p>

<p>Railroad Bonds — Rights of Holder Unaffected by Subsequent Fraudulent Issue.</p> <p>One who purchases 'from a railroad company their bonds, under the assurance that no further indebtedness shall be placed on the portion of road then constructed, enjoys all his rights against the company, unaffected by those of a purchaser of bonds issued subsequently in violation of the assurance.</p>

' This was an action brought by a locomotive fireman to recover damages for a physical injury alleged to have been caused by the negligence of a freight conductor in the defendant’s employment. MoCbaRt, J., (charging jury orally.) You are, I suppose, aware that theuontrolling question in this case is the question of negligence. The plaintiff’s allegation is, that he was injured by the negligence of the defendant, the St. Louis, Keokuk & Northwestern Railway Company.

<p>'Contract — Facts of Case Reviewed.</p> <p>Where a letter was written to the defendant proposing that as a part of a contract he should agree to furnish. $15,000 in stock, and requesting him to signify his acceptance of the terms by telegraphing back “proposition as to fifteen thousand stock accepted,” and the defendant telegraphed “I will provide for the fifteen thousand stock,” intending the dispatch to be regarded as an acceptance, held, on the facts found by the court, that a refusal to furnish the stock rendered him liable.</p>

<p>1. Liability of the Master for the Act of His Servant.</p> <p>A master is liable for tlie act of liis servant when done within the scope or general course of his employment, although done contrary to the master’s orders.</p> <p>2. Same — Complaint—Demurrer.</p> <p>An answer to a complaint by a passenger against a common carrier for injuries caused by the negligent discharge of a pistol by the car porter, which alleges merely that the porter received the pistol from another passenger, in violation of the company’s rules and directions to receive no package, baggage, or article of luggage from passengers, is demurrable.</p>

The case was heard before the circuit judge, without a jury, upon an agreed statement of facts.

<p>BANKRUPTCY — PREFERENCE—UNITED STATES.</p> <p>Where a bankrupt firm, through fraudulent undervaluations of goods entered at the custom-house, has incurred a forfeiture of their value to the United States, the claim of tlie latter against the firm for the tort is joint and several; and upon proof of the debt, containing a statement of the "facts, the United States is entitled, under sections 5501 and 3466 of the Revised Statutes, to priority of payment out of any of the proceeds of either the joint or several estates, without reference to what may be tlie particular claim of priority in Us proof of debt.</p>

<p>Patent Law — Reheaiuncm of Cases to be Discouraged ‘When Prtoe Use is the Defense.</p> <p>Leliearings in equity eases should he generally denied, when the grounds offered therefor pertain to matters of evidence that, could just, as well have hcen procured before the trial already had. This should he especially the rule in patent cases when the defense is prior use, since it is seldom that the defendant cannot, make it appear that he has discovered new evidence in support of such a defense.</p>

<p>Patent Law — Automatic Switch for Dynamo-Machine.</p> <p>An automatic switch, for a dynamo-machine for shifting the electric current from one path to another is the invention of Smith; the rheotomes and the devices of Siemens being circuit breakers designed for another purpose.</p>

<p>Patent — Drivrc-Screw—Iothinch went.</p> <p>Tlie orator’s patent for a drive-screw he,Id to be reslrickd to a screw having a smooth conical point large enough to divide the fibers of the wood so as to give free entrance to the threads of the screw.</p>

<p>Patent — Injunction.</p>

<p>Patent— Hoisting- Drums — N overt t — Infringement.</p> <p>Reissued letters patent No. 9,28.9, for an improvement in friction drums for pile-drivers and hoisting-machines, although the friction surfaces claimed therein were anticipated by a previous patent, contain an element of novelty in the arrangement of the spring, and the patent is infringed by the use of a similar combination, including that kind of spring.</p>

<p>Motion for Preliminary Injunction.</p>

<p>1. JnitrsnTOTio'sr of Cniourr Court — Aooevtanom of Service.</p> <p>By accepting service of process the defendant, in a suit arising under tiio patent laws, subjects him,self to the jurisdiction of a court, sitting in a district of which ho is not a resident.</p> <p>2. Sami — Bill to Secure a Patent.</p> <p>The tjnlied States courts have jurisdiction of bilis to obtain the issue of patents refused by the commissioner.</p> <p>S. Same — Want of Power to Enforce Decree.</p> <p>llie fact that a circuit court cannot compel the commissioner of patents to obey its decree is no objection to its jurisdiction to entertain a bill against him for the purpose of obtaining a decree in favor of the orator’s right to a patent. It is mesnined that he will do his duty</p>

<p>1. Patents — Bed-Bottom—Infringement.</p> <p>Neither the first claim of reissued letters No. 5,312 nor reissues 9,919 or 9,920, if restricted within the limits of the original claims, which is essential to their validity, is infringed by a bod-bottom of continuous zigzag wires, linked together at the corners of diamond-shaped figures, and connected at each end to the ends of the frame by spiings.</p> <p>2. Same — Novki.ty.</p> <p>The third claim of reissue 5,312. for an iron corner piece with a flange, is void, having been substantially anticipated by patent No. 113,559.</p>

<p>PATENT — SASH-FaSTENBR—INFRINGEMENT.</p> <p>Patent No. 212,487 issued to Morris for an improved sash-fastenor, the characteristic features of which are the elevated notched plate and hinged pendant, is not infringed by the subsequent patent issued to Sparks having a notched flange at the top of the pivotal post above the sweep and jiivoted latch.</p>

<p>Patents von Inviintions — Conveyance—Reconveyance.</p> <p>Letters patent conveyed by a patentee with condition of reconveyance upon a certain emergency; that emergency having arisen, the court decrees the ex-cution of the reconveyance.</p>

<p>Patent Infringement — Burden of Proof.</p> <p>When in a patent-infringement cause the defense relied on is that the plaintiff was not the original inventor, the burden of proof is on the defendant to satisfy the court on tiiat poiut beyond a reasonable doubt</p>

On December 12, 1883,-the canal-boat J. W. Tucker was libeled in this court by David’ Cox, and in that proceeding she was subsequently sold. After satisfying the amount due on that libel with costs, the sum of $206.23 remained, which was deposited in the registry of the court.

<p>Admiralty Appeal.</p>

<p>Admiralty,appeal.</p>

<p>1. Charter-Party — Commencement oe Lay Days.</p> <p>Charterers had furnished cargo and asked and received hills of lading on December 7, 1880; and furnished more cargo on December 9th and again on December 11th, on which last day the ship was first fully prepared to receive cargo at all hatches. Held, that the action of libelants in furnishing cargo and receiving bills of lading therefor on December 7th ought to estop"them from denying that the lay days for loading had then commenced.</p> <p>2. Same — Working Days.</p> <p>Where the charter provided that “ eighteen working days, Sundays excepted,” should be allowed, that provision shows that custom was not to control, and the exception of Sundays was the intent and meaning of the parties as to what should be considered working days, and therefore “rainy daj^s” could not also be excepted.</p> <p>3. Same — Technical Violation oe.</p> <p>A technical violation of the charler-paity, otherwise fully executed, would hot entitle either party to claim the full penalty named in the contract.</p>

In this case, which is a suit on an open policy for reinsurance, the parties have waived a jury, and submitted the case to the court on the following agreed state of facts: (1) That at several places on the Yazoo river, which is a tributary to the Mississippi river, on the twelfth and fourteenth days of November, 1883, several persons delivered on board the steam-boat E. C. Carroll, Jr., with privilege of reshipping, several parcels of cotton; that is to say, 79 bales of…

The above four libels are brought to recover damages sustained in consequence of the sinking of the canal-boat Belle in the Hudson river, between 5 and 6 in the morning of the fifth of October, 1881, while in tow of the steam-tug Niagara, near the long dock at Pier-mont. The Niagara belonged to what is known as Schuyler’s line, which, during the season of navigation, takes a tew of numerous boats every night from New York up the North river to Albany.

<p>1. Collision — Rev. St., A.ut. 4233, Rule 20.</p> <p>Steamer found in fault for violating rule 20, art. 4233, of tlie Revised Statutes : “If two vessels, one of which is a sail vessel and one a steam vessel, are proceeding in such directions as to involve a risk of collision, the steam vessel shall keep out of the way of the sail vessel, and the sail vessel shall keep her course.</p> <p>2. COLLISION — EFFORTS MADE IN EXTREMIS.</p> <p>In this case of collision, wlmt was evidently done in extremis, if unwise, was error and not fault.</p> <p>3. SUBKOttATrON.</p> <p>The original libelant having died during the pendency of the suit, and his widow as executrix having been made a party, and she having sworn to the sale and transfer of the claim by the original libelant to the subrogee, the court finds that the proper parties are before it and the subrogee properly subrogated and entitled to judgment.</p>

<p>1. Admiralty — Collision—Wharves and Slips — Propeller in Motion-Cargo.</p> <p>A steamer having a propeller in motion while lying insido a slip is bound to he prepared to stop it upon being hailed from other boats whose safety requires it.</p> <p>2. Same — Case Stated — Carrier—Damages.</p> <p>Where the canal-boat Y. came into the slip where the City of M. was lying ■with lior propeller in motion, shortly before her departure, and the captain of the Y. hailed the steamer t.o stop her wheel, but slie did not do so, ami the Y. was drawn by the suction against the wheel of the engine, he'd, that the steamer was in fault; but it appearing also that the captain of the Y. was acquainted with the slip, and the customary starting of the propeller before tlie steamer sailed; that he might have seen it. before coming aloug-sidc, ami might also have proceeded further up the slip and out of danger, instead of stopping to fasten along-side another bargeheld, that the captain of the Y. was also negligent, and that the damages should be divided. Also held, that, be ng liable as carrier of the cargo, he might recover also for one-half the loss of the cargo.</p>

<p>Lies os Snip — Hone Attaches is Favob op One Oo-owneu.</p> <p>A part owner has no lien or right of priority in equity upon the ship itself for balance of account which may be due him.</p>

<p>Equity Pleading — Waiver of Eaults.</p> <p>In a suit for the infringement of a patent, although an answer denying information as to the infringement and denying damages is wholly insufficient, the orator, by replying to it, admits its sutficiencj’', and takes upon himself the burden of proving the infringement.</p>

<p>Equity — Decree oe Court — Interest oe Complainant in.</p> <p>The successful complainant is not properly concerned in the interests of any one, under the decree, but himself.</p>

<p>Reopening a Final Decebe.</p> <p>Efforts to reopan a final decree should be discouraged, no matter how meritorious the grounds. The party has his remedy by offering a iresh grievance, and upon suit therefor introducing the new defense.</p>

<p>Equity Practice — Master to Pass on Questions of Evidence.</p> <p>Under tlie seventy-seventh rule of equity the admission and rejection of evidence, according as it may be proper or otherwise, rests entirely within the sound discretion of the master.</p>

On Final Hearing. In 1868 B. F. Allen, Ebenezer Cook, who were directors of the Ghi-.cago, Bock Island & Pacific Railroad Company, and John F. Cook made a verbal contract to purchase grounds for the company upon which to locate its stations between De Sota, Iowa, and Council Bluffs, and also for the purchase of lands adjacent to such stations, a part of which was to be laid out into town lots.

<p>1. FRAUDULENT CONVEYANCE — CHATTEL MORTGAGE — RESERVATIONS IN FAVOR OT? MORTGAGOR.</p> <p>A chattel mortgage reserving to the mortgagor the right to dispose of the goods in the usual course of trade, provided the stock bo kept up, is void with respect to the creditor's of the mortgagor.</p> <p>2. Sauk — Not Cured by Possession Afterwards Taken.</p> <p>Possession taken by the mortgagee under a chattel mortgage, originally void as in fraud of creditors, before its validity is ati aekod by them, is affected with the original fraud, and gives the mortgagee no rights against the mortgagor’s creditors, who can at once attach the property.</p>

<p>At Law. Motion by defendant to suppress depositions taken in behalf of the plaintiff.</p>

<p>■Demurrer to an Action to Collect Delinquent Taxes.</p>

<p>Patent Law — Denial of Costs under St. § 4922.</p> <p>St. § 4922, applies to patentees without, original right, and not to such, as have had their rights impaired by their neglect.</p>

<p>1. Foreign Statutes in a United States Court — Construction.</p> <p>A statute of another country, when considered by our courts, carries the construction given it by the courts of that country.</p> <p>2. Patent Law — Construction of Section 4887, Bev. St.</p> <p>A patent issued successively by Canada and the United States, and after-wards declared void db initio by a Canadian court, does not by that fact expire in this country, but will be regarded as if it had never existed m Canada at all.</p>

<p>Patent Law— Rights op Assignee Concluded by Decree against Assmnor. Assignee of a patent is subject to tlie limitations winch affected tlie title of Ms assignor. If tlie latter is estopped by a decree the former is.</p>

<p>Patent — Adoption of Old Portion of Improved Device no Infringement.</p> <p>A certain, patent being found to be an infringement upon an old invention, it is no infringement to imitate the old portion of it, so long as there is no interference with the new.</p>

<p>Patent — Adoption op Invention por Purpose op Adding to it, an INFRINGEMENT.</p> <p>Tlie taking of an invention for the purpose of adding to it is as muck an infringement as would be tlie taking and using it without tlie addition.</p>

<p>Admiralty Appeal.</p>

<p>3 DEMURRAGE — 1'.EASON ABLE TIME— USAGE.</p> <p>Where goods are taken on freight consigned to a consignee at a particular wharf, and there is either no bill of lading, or the time for delivery is not specified, and títere is no contract on the subject, held, that the obligation in respect to delivery is that each party shall use reasonable diligence in performing his part to effect the delivery; and that in the absence of any special usage of the port or of the trade neither will be liable to the other for any detention of the vessel arising from any cause over which he has no control, and for which he is not in fault.</p> <p>2. Same — Stipulation to Protect Vessel.</p> <p>If the vessel would guard against detentions not arising from the fault of the consignee, she must protect herself by stipulating for a given period for the discharge after arrival, or for dispatch. Where no such precautions are taken the consignee is not liable for detention, if not in fault.</p> <p>3. Same — Gash Stated.’</p> <p>Where the canal-boat J. B. A. took on board, at a port in Connecticut, a cargo of brown stone, deliverable at Sixty-tliird street pier, New York, and on arrival there was obliged to wait seven days for her turn to get a berth to deliver the cargo, through (ho accumulation of other vessels arriving before her, and Sixty-ihird street pier was known to the libelant to be usually crowded and a bad place, and the usage in the brown-stone trade was for tbe carrier to take the risk of such detention, held, that the consignee was not in fault, and that the libelant was not entitled to recover demurrage, both on that ground and on the ground of the usages of the trade.</p>

<p>1. ADMIRALTY- — DIVISION 01? DAMAGES — RECOUPMENT.</p> <p>Whore a schooner was lost in a collision with a steamer, occasioned by the fault of both, and llie damages were to be divided equally between the owners of tho two, held that, from' tho damages otherwise due to the owners of the schooner, the owners of the steamer might recoup half of the damages recovered against the steamer by the owners of the cargo that was lost with the schooner.</p> <p>2. Same — Division of Costs.</p> <p>Decree that costs be equally divided, in a case where damages were equally-divided, even though the libelant’s vessel was wholly lost. The particular circumstances of each case must govern.</p>

<p>X. ADMIRALTY — IjIBWI, IN REM — POTMOE BOAT BxBMJPT.</p> <p>A police boat owned and used by a city for public purposes cannot be subject ed to a libel in ran without the consent of the city.</p> <p>2. Same — Reimbursicmeht of Bxpehses hot Profits.</p> <p>The indirect profit which the city may derive from the use of the vessel by reason of the law requiring masters of vessels to pay the expense of theirremoval when ordered by the harbor-mast er does not render it subject to attachment as a piece of property earning' money for the city.</p>

<p>1. Removal op Causes under Section 639, Rev. St. — Amount in Dispute.</p> <p>In order that a cause may be removed from the state courts to the United States courts, under section 639, Rev. St., the sum in dispute, exclusive of costs, must exceed $500 at the time of the commencement of the action in the state courts.</p> <p>2. Same — Act op 1875 — Citizenship.</p> <p>A suit cannot be removed from a state court to the United States courts, under the act of 1875, unless the requisite citizenship of the parties existed, both when the action was begun and the petition for removal filed.</p>

<p>Report of Master.</p>

<p>1. Trade-Mark — Exam’ to the Symbol Inseparable from Eight to Sell Commodity.</p> <p>The right to the exclusive use of a word or symbol as a trade-mark is inseparable from the right to make and soil tlio commodity which it has boon appropriated to designate.</p> <p>2. Same — May be Peculiar to a Factory and Pass with it.</p> <p>A trade-mark may be appropriated by a manufacturing company as well as an individual, and pass with the property to their successors.</p> <p>3. Same — Measure of Damages.</p> <p>The measure of damages is limited by the extent to which the unlawful use of the design by the defendant has interfered with the sale of plaintiff’s commodity.</p>

Bill m Equity to set aside certain tax sales and deeds, upon the-ground that the sales were not made in accordance with law, and for the further reason that no sufficient expiration notices were giren, as required by the statute.

<p>]. Liability of Life Insurance Corporation for Dividends.</p> <p>Where annual dividends are declared hy a life insurance companj', injiccordance with an established rule, and the acts of the officers show that they are payable on certain classes of policies, a subsequent attempt on its part to limit the meaning of the vote, and make it at variance with the contemporaneous written rules and the acts of the company, is vain, the attempt being evidenced by the erasure of the dividend indorsement from the premium notes, and the company will be liable for the amount of the dividends so erased.</p> <p>Ü. Policies Included under Term “Renewed.”</p> <p>The office of a renewal of a life insurance is to prevent discontinuance or forfeiture-; and the -word “ renewed,” in the vote of the directors of an insurance company granting dividends upon certain policies answering this description, includes participating, limited-payment policies, which have been prevented from forfeiture prior to the passage of the dividend.</p>

At Law. The petition states, in substance, that the firm of Norvell, Can-field & Co. pledged cotton notes for 1,200 merchantable bales of cotton, belonging to them, to the defendant, and afterwards, without the defendant’s knowledge, got possession of the cotton and had it rebaled, • so as to make three new bales out of two of the old ones, and returned 1,200 of the rebaled bales and retained the balance; that thereafter the defendant discovered the manner in which the…

<p>1. Authority or Fire Insurance Agents — Power to Waive Payment or Premium.</p> <p>Where the authority of agents of a fire insurance company consists of full power to receive proposals for insurance, to receive moneys, and to countersign, issue, and renew policies, subject to such rules and regulations as may bo adopted by the company, and such instructions as may, from time to time, be given by the management, they have authority to waive the immediate payment of premiums.</p> <p>2. Fire Insurance — Evidence or Waiver or Payment or Premium.</p> <p>Evidence considered, and held that the acts of insurance agents amounted to a waiver of the immediate payment of a premium on a policy.</p> <p>3. Fire Insurance Company — Waiver or Immediate Proof or Loss.</p> <p>Where an insurance company asserts that a policy has been canceled previous to a fire, it waives all right to insist that the policy has been forfeited because the proofs of loss came too late.</p>

<p>Bankrupt’s Discharge.</p>

<p>1. Criminal Law — Indictment.</p> <p>An indictment need not set out 1 lie law upon which the offense was founded.</p> <p>2. Same — Statutory Offense — Statute Repealed — Arrest of Judgment.</p> <p>if the indictment contains allegations, recitals, or averments that make it evident that the grand jury acted in finding it upon a statute which had been repealed, tlio judgment must bo arrested.</p> <p>3. Same — Surplusage—Allegations.</p> <p>Such allegations cannot, though unnecessary, be rejected as surplusage, so as to allow judgment to be rendered under another statute enacted in place of the one repealed.</p>

<p>Demurrer to Complaint.</p>

<p>1. Collision — SÁruraa Vessels — Lookout—Presumption.</p> <p>Whore a collision, happens between two sailing vessels, the one sailing close-hauled, 1he other with the wind free, the night being clear and the lights of both vessels seen, the legal presumpiion is prima facie that the fault was m the vessel sailing free. This presumption is increased ty proof of the absence in the latter of any lookout other than the captain standing near the wheel.</p> <p>2. Same — Piíetondehancb oi? Pkooe.</p> <p>The evidence of neither of the persons on deck of the latter being obtained,™ the captain having been knocked overboard and drowned at the time of the collision, and the wheelsman having died before the trial, — and the only evidence in her behalf being that of the captain of another schooner about half a mile altead, sailing in the same direction, who testified that the schooner, sailing-close-hauled, just before she was reached lulled up into the wind so that her sails shook, and then, paying oil', ran down on the other schooner, and several witnesses from the schooner c'lose-liauled contradicting the alleged lull, and giving a consistent and probable narrative involving no fault on their part: held, that the lull alleged was improbable under the circumstances, and not sustained by the weight, of pro jf; that the libelants had not overcome the presumption against them by any preponderance of proof; ami that the libel must be dismissed.</p>

<p>1. Common Catoitisr — Particular Voyage — Charter-Party—Bill op Ladino.</p> <p>Where a ship is chartered to carry the goods of a single freighter only upon a particular voyage, semble, she is not a common currier, but is subject only to the express and implied obligations oí the charter-party and bill of lading.</p> <p>2. Same — Wariunty—Seaworthiness.</p> <p>The implied terms of such a charter, and the ordinary bills of lading given in pursuance of it, as well as the covenant in the charter that the ship shall be “tight, stanch, strong, and every way fitted for the voyage,” include an implied warranty of the seaworthiness of the vessel at the time she sails for the particular voyage, and in respect to the cargo laden on board.</p> <p>3. Same — Ballast.</p> <p>The proper ballasting- of the ship, and the amount, and arrangement, of the cargo so as to make her sufficiently steady, are included in seaworthiness.</p> <p>4. Samis— Jettison — Limited Liability — Rev. St. § 4213 — Pending Freight— Amendment.</p> <p>Where the libelants agreed to take a cargo of petroleum in low-top 10-gallon cases from Philadelphia to Japan, and the owners superintended the loading- and ballasting of the ship, and determined tne amount of cargo they -would receive, and on starting from Philadelphia the ship was found unsteady, and, immediately on getting to sea, showed great crankness, so that, notwithstanding all efforts to diminish it, the ship, on the fourteenth day out, in a storm of no unusual character, was nearly on her beam ends, and it was found necessary to jettison 3,000 of the cases, held, that the jettison was made necessary, not by perils of the seas, but because the ship was top-heavy from want of sufficient ballast in connection with the loading, and that these defects were at the risk of the ship-owners, and within their express and implied warranty of seaworthiness. Held, therefore, that the ship-owners were liable on their bond given in this proceeding to limit their liability for the loss by jettison. Held, further, that section 4283, llev. St., requires the surrender of pending freight, which includes, at least, the freight earned up to the time of the loss; and liberty was given to the libelants to amend their proceedings by paying the amount of such freight into court, or giving a further bond therefor.</p>

The libel in this case was filed by the owners of the schooner' Knight, to recover damages for a collision with the steam-ship State of Texas, on the twenty-first of March, 1882, about 7 a. m., near the middle of the East river, a short distance above the Brooklyn bridge. The schooner was in tow of the steam-tug Unit, on a hawser from 30 to 35 fathoms long.

In Equity. Wilkerson, a retail grocery merchant at Jackson, Tennessee, suddenly and secretly sold his stock of groceries to Hopper, a speculator, for 75 cents of the invoice price, the purchaser paying in cash $6,100, of which the debtor paid to one Bond the sum of $3,000, and to one Smith the sum of $2,250, they being alleged creditors for borrowed money, and residing at Jackson, thereby preferring them to his commercial creditors, of whom he purchased the goods, and to…

<p>1. RAILROAD Mortgage — Foreclosure—Receiver.</p> <p>Where a railroad company makes default in tlie payment of the interest on its mortgage indebtedness, and the mortgaged property, consisting of its road and other property, is inadequate security for the mortgage debt, and the company is insolvent and appropriating its earnings to its own use, a receiver will he appointed, during the pendency of a bill filed by the mortgagees, to be put in possession of the mortgaged property.</p> <p>2. Same — Lex Rei Sitae.</p> <p>When not varied by contract, the law of the state where a mortgage is executed and the mortgaged property situated, furnishes the rule for determining the rights of the mortgagees after condition broken.</p> <p>3. Same — Common-Law Rule — Condition Broken.</p> <p>In Arkansas, the common-law rule on the subject of the rights of a mortgagee, after condition broken, prevails; and if the debtor fails to pay the mortgage debt at the law day, the mortgagee is entitled to the possession of the mortgaged property, and may maintain ejectment therefor.</p> <p>4. Same — Subject-Matter oe Mortgage — Bill in Equity.</p> <p>Where a railroad mortgage embraces the road, rolling stock, and other personal property of the company, the proper remedy of the mortgagee to obtain possession of the mortgaged property, after condition broken, is by bill in equity for specific enforcement of the mortgagee’s rights.</p> <p>- 5. Same — Stipulation as to Sale — Remedy Given by Law.</p> <p>A stipulation in a railroad mortgage, that, in case of default in the paj^ment of interest for 60 days, it should be obligatory on the trustees named in the mortgage, upon the written request of one-third in interest of the holders of the bonds, to take possession, operate, and sül tho road and other mortgaged property, as a remedy, is cumulative, and not exclusive of tlxe remedies given by law.</p> <p>6. Same — Doties akd Liabímties«oe Kkoeivur.</p> <p>The terms proper to be imposed, as a condition upon which a receiver of a railroad will lie appointed at the suit oi' the trustees for tho first mortgage bondholders, discussed, and held:</p> <p>(1) That where the default in the payment of the mortgage debt occurred more than a year before the filing of the bill, the receiver should be required to pay all the debts and liabilities of the railroad company incurred in operating, repairing, and improving the road for the period of six months next before tho filing of the bill.</p> <p>(2) That a general license should bo given to sue the receiver, in any court of competent jurisdiction, for liabilities incurred by him in operating tho road.</p> <p>(3) That the debts which the receiver is required to pay, and all debts and liabilities incurred by him in operating the road, should be made a first lien on the mortgaged property, which should not be released until such liabilities are discharged.</p> <p>(4) That the plaintiffs should be required to prosecute their suit to a final decree with diligence, and, failing so to do, the receiver should be discharged by the court of its own motion.</p>

<p>1. Constitutional Law — Charter oe Corporation — Contract.</p> <p>A charter granted by a state and accepted by the corporation constitutes a contract which falls within the protection of the tenth section of article 1 of the constitution of the United States.</p> <p>2. Same — Statutes, when Declared Void.</p> <p>It is a well-settled rule that courts will not declare legislative enactments void by reason of their repugnance to the constitutions, state or federal, except when the judicial mind is clearly convinced of such repugnancy.</p> <p>S. Same — Police Powers oe State.</p> <p>The legislature cannot part with any of the police powers of the state, which are matters that affect the public peace, public health, public morals, and public convenience.</p> <p>4. Same — Regulation oe Tolls for Transportation of Persons and Property .</p> <p>But the right to fix and regulate tolls to be charged and received for transportation of persons and property does not fall within the police power of the state.</p> <p>5. Same — Mississippi Statute of February 17,1848.</p> <p>The twelfth section of the charter granted by the state of Alabama to the Mobile & Ohio Railroad Company, and adopted by the legislature of Mississippi, approved on the seventeenth of February, 1848, which provides as follows: “And be it further enacted, that it shall be lawful for the company ■hereby incorporated, from time to time, to fix, regulate, and receive the toll and charges, by them to be received for transportation of persons and property on their railroad or way aforesaid, hereby authorized to be constructed, or any part thereof,” — creates a valid and binding contract between the state of Mississippi and the Mobile & Ohio Railroad Company.</p> <p>6. Same — Act of March 11, 1884, Void.</p> <p>The act of March 11, 1884, entitled “An act to provide for the regulation of freight and passengers on railroads in this state, and to create a commission to supervise the same, and for other purposes,” is null and void in so far as the act relates to the Mobile & Ohio Railroad, for the reason the state conferred the right and power upon the company in its charter to fix and regulate the toll to be charged and received for the transportation of persons and property, without reserving the right at anytime in the future to change, modify, repeal, or withdraw such right.</p> <p>7. Same — Charter of Mobile & Ohio Railroad- Company — Object.</p> <p>The states of Alabama, Mississippi, Tennessee, and Kentucky, in chartering the Mobile <& Ohio Railroad Company, acted separately, it is true, but with one common purpose, and that was to create one corporate body for the maintenance of a great commercial highway of communication from Mobile, Alabama, to Cairo, Illinois, and to connect with all the commercial highways converging at those points.</p> <p>8. Same — Regulation of Commerce.</p> <p>The act of March 11, 1884, is in conflict with and violates the eighth section of the first article of the constitution of the United States, because in purpose and effect it is a regulation of “commerce among the states,” which right is exclusively vested by this provision of the federal constitution in the congress of the United States, and is therefore null aDd void.</p>

<p>1. .Jurisdiction of Court of Equity in Matters of Account.</p> <p>A court of equity lias jurisdiction in matters of account tvlicn there is a fiduciary relation between tlio parties, and when the account is so complicated that it cannot be conveniently taken in a court of law.</p> <p>2. Bill, when not Multifarious — Jurisdiction of Court of Equity.</p> <p>Where all the manors in controversy are between the same parties, arise out of the breaches of the same instrument, relate to the same transaction, and can bo conveniently settled in one suit, the bill in equity in which they are joined is not multifarious; and the court having jurisdiction for one purpose will proceed to determine the whole case although some of the questions do not furnish abasia for equitable relief when taken separately.</p> <p>3. Parties in Action for Acoountino. .</p> <p>Where a lease provides that dividends shall be paid directly to the stockholders, the stockholders are not necessary parlies to an action for an accounting, and the corporation being composed of all the stockholders, fully represents their interests, and is the proper party to enforce á claim lor unpaid dividends.</p> <p>4. When Demurrer will not Lie for Laches.</p> <p>Where a defendant has suffered no prejudice by delay in bringing an action, and the plaintiff’s demand is not barred by the statute of limitations, and the latter also furnishes a satisfactory excuse for not commencing the suit earlier, a demurrer will not lie for laches.</p>

<p>1. Written Contract of Marriage — Validity.</p> <p>A written contract oí marriage, although not provided for by statute, is a good contract of marriage, per w/rba de prwsenti.</p> <p>2. Marriage a Civil Contract — Consent.</p> <p>Marriage is a civil contract, the essence of which is consent.</p> <p>3. Marriage at Common Law — Consent.</p> <p>At common law, persons of suitable age might, bywords of consent, contract a valid marriage without the presence and intervention of a minister, and without any particular form of solemnization.</p> <p>4. Same— Effect of Directory Statute Regulating Marriage.</p> <p>Where a state statute regulating marriage is directory merely, and does not forbid other marriage contracts, a marriage valid at common law is good in that state.</p> <p>5. Chapter 134, Rev. St. 1857, R. I., Directory.</p> <p>Chapter 134, Rev. St. 1857, of Rhode Island, relating to marriages, is directory merely.</p> <p>6. Common Law in Rhode Island.</p> <p>The common law has always existed in Rhode Island, except so far as modified or changed by statute.</p> <p>7. Repeal of; Statute — Revivor of Common .Law.</p> <p>Where the legislature of a state does away entirely with the common law by passing statutes, but afterwards repeal those statutes, upon their repeal the common law revives.</p> <p>8. Common-Law Marriage — Validity in United States.</p> <p>Marriages at common law are not partial in the United States, in the sense that the contract must be completed in fade eeelesiw, but they are valid without the presence or intervention of a person “in holy orders.”</p> <p>9. Same — Validity—Dower—Unlawful Relations of Parties.</p> <p>A written contract of marriage entered into between two parties in the presence of witnesses constitutes a valid marriage, and confers upon the wife the right lo dower: the fact that the previous relations of the parties were unlawful is immaterial.</p> <p>10. Same — Effect of Denial.</p> <p>A denial by a party to a marriage per verba de prwsenti does not annul the contract,</p> <p>11. Land Covered by Tide-Water — Dower in.</p> <p>Where a husband deeds land partially covered by tide-water, his wife is entitled to dower in the part not so covered.</p>

The plaintiffs sued the defendants for a balance due by account, and the plea of defendants sets up that the balance arose out of contracts for gambling in “futures.” The plaintiffs were commission merchants doing business at New Orleans, and the defendants, country merchants doing business at Trezevant, Tennessee. During the season the defendants shipped cotton to ’the plaintiffs, which was sold for 'aceounti of defendants, who drew drafts in the usual way.

<p>Demurrer to return to Mandamus,</p>

Proceedings in Habeas Corpus: In this case the petitioner, Prank Morgan, files his petition for a writ of habeas corpus, in which, among other things, he states that by virtue of a requisition issued by the'principal chief of the Cherokee Nation upon the governor of the state of Arkansas, the said governor did, on the eighteenth day of August, 1S83, issue his warrant, directed to the sheriff of Sebastian county, state of Arkansas, for the arrest of . the petitioner for the…

<p>In re Petition of William McCallin, sheriff of Allegheny county, for a rule upon Prank P. Caso, United States collector of internal revenue, etc.</p>

<p>Motion for Eehearing.</p>

<p>1. Patents for Inventions — -Relief for Infringement, when Granted.</p> <p>Relief for the infringement of a patent will not be granted unless the patents interfere.</p> <p>2. Same — Interference.</p> <p>When differences in patents are distinct, and neither covers the same things as the other, they do not interfere.</p>

<p>Patents fob Inventions — Infringement.</p> <p>Wliere it, is shown that one patented process is the application of Iioat and steam to coffee, in its unenred state, to cure it, and a second is the application of heat alone for the same purpose, the second is not an infringement on the first.</p>

<p>1. Patents for Inventions — Measure of Damages for Infringement.</p> <p>The amount of an established license fee for the use of a patented invention is a proper measure of damages for the infringement of a patent.</p> <p>2. Same — Additional Evidence not Making a New Case.</p> <p>Where a case is referred hack to a master in chancery to take additional proof, and the proof so taken is on the same subject, it does not make out a new case.</p> <p>3. Same — Parol Testimony of a License to Use Patent.</p> <p>A license for using a patent, and the amount of the fee required, may he shown by parol testimony without varying the written license contracts, the suit not being brought on such contracts and the defendants not being parties to them.</p>

<p>.Patent — Ixeeihgement—Fckkace—Gratk-Baus—Oam-Siiavts.</p> <p>A combination patent is not infringed by another patent unless all of the elements composing the combination in tile first patent, or equivalents therefor, are employed in the second patent.</p>

<p>1. Collision — Libel — Burden of Proof — Failurh to Comply with Law— Damasks.</p> <p>Wlien the law provides that lights shall be carried by barges at certain hours and in certain positions, and a barge is run into which has not complied with the law, the burden oi proof is upon the owners of the barge, in a hüel foi damages, to show that the damage did not result from iho failure to comply with the law, and they cannot recover unless they so show.</p> <p>2. Same — Derogation of Law — Custom.</p> <p>A custom cannot lie set up in derogation of the strict, requirements of a law, by those whose duty it is to comply with the law.</p>

<p>Stowage — Damage to Caugo.</p> <p>Tlie claimants of tho ship having proved a succession of severe storms, and having proved that the cargo was stowed with customary care and skill by experienced stevedores, held, on the evidence, that the libelants had not supported the onus of showing affirmatively that by proper attention to the stowing the damage to the cargo might have been avoided.</p>

<p>1. ComastoN — Local Statutes — Proximate Cause.</p> <p>Where both steam-tugs were navigating in violation of local statutes, but there was plenty of timo and space to avoid each other, the breach of the statute was held immaterial, as not a fault proximately contributing to the collision.</p> <p>2. Same — Hounding Battery — Usage.</p> <p>Where a tug with a tow is rounding the Battery within the eddy, and within 800 or 400 feet of the shore, another tug with a tow upon a hawser, coming down and crossing with the ebb-lido, lias no right to cross the bow of the former in order to run between her and the .New York shore, both from the inherent danger of such a maneuver, and the established usage of boatmen to the contrary in rounding the Battery.</p> <p>3. Same — Cask Stated.</p> <p>Where the tug E. A. P., with a tow lashed upon her port side, was rounding the Battery and going up the East river, the tide being strong ebb, and she was proceeding in the eddy, about 300 or 400 feet oil the barge office, when the tug W., with the barge A. in tow upon a hawser of 20 fathoms, was seen coming down and across the East river from the direction of Huberts’ stores, about 500 or 600 yards distant, and the E. A. P., being headed somewhat towards the New York shore, gave two whistles and put her helm to starboard, and the W. ported her holm and gave a strong sheer also towards the New York shore, in order to run inside the E. A. P., and the latter then slopped and backed, but the W., keeping on at full speed, crossed the bows of the E. A. P., hut brought her barge into collision with the latter’s tow, and the evidence being exceedingly conflicting as to the relative positions and bearings of the two tugs when first seen, held, that the W., when first, seen, was on the E. A. P.’s starboard hand, about one-third the distance to the Brooklyn shore, and much further out in the stream than the E. A. P.; that the latter, before 'the W.’s sheer to starboard, was nearly directly ahead oí the W.; that, under the peculiar circumstances of navigation about the Battery, the exceptions in the inspector’s rules, as well as under statutory rule 24, and the established local usage of boatmen, it was the duty of the W. to pass outside of the E. A. P. in accordance with the two whistles of the latter; that she had no right to cross the E. A. P.’s course near the shore: and that the latter was without fault and the W. solely responsible for the collision.</p>

<p>1. CoiJjisrorr — East River — Tcg and Tow.</p> <p>A tug, with a tow on a hawser, in the East river, is hound to keep out of the way of a schooner close-hauled.</p> <p>2. Same — Case Stated.</p> <p>The schooner 0. was sailing close-hauled up the East river, below Corlear’s Hook, about 200 feet off the Hew York shore, heading to Grand street, Will-iamsburgh; and the steam-tug JR., having the schooner K. in tow, on a hawser 240 feet long, came down the river from above, and passed between the C. and the Hew York shore, clearing the C. by about 50 or 75 feet, bu1 the K. and C. came into collision. Held, that the tug was in fault for needlessly attempting to pass between the schooner G. and the shore, there being no obstructions toward the middle of the river, where she might have gone, and where the statutes required her to keep.</p>

<p>Removai, oe Cause to Federai. Court aeter Judgment Given in State Court.</p> <p>After judgment against defendant in a state court, plaintiff cannot have a removal of Ms cause to a federal court as against parties who have filed their petition of intervention.</p>

<p>Demurrer to Bill.</p>

<p>1. Invalid Tax — Rev. St. 'Wis. 1878, § 3063 —Failubb o» Assessob to Comply with Stay off Proceedings — Rb:v. St. Wis. 1878, ( 1210.</p> <p>Where an assessor does not annex to the assessment roll the affidavit required by section 1063, Rev. St. Wis. 1878, the tax is invalid, and it is the duty of a court to stay all further proceedings in the case uutií a reassessment can bo made. Rev. St. Wis. 1878, § 1210.</p> <p>2. Sauk — Appears by Admission upon Record — Rev. St. Wts. 1878, § 1210 — Stay off Proceedings.</p> <p>Section 1210, Rev. St. Wis. 1878, relating to stay of proceeding's, applies to cases where the fact of the invalidity of a tax appears by an admission upon the record.</p>

<p>Life Insurance Company — Dividends—Policy of Directors — Failure to Answer-Confession of Bill.</p> <p>When the question in a suit in equity, as shown by the bill, is whether the policy of the directors of an insurance company in declaring dividends has been lawful and right, and the defendant fails to answer this question after repeated allowances of exceptions for failure to answer the point, the orator is entitled to take the bill as confessed, so far as this point is concerned.</p>

<p>1. Injunction.</p> <p>A motion to dissolve an injunction restraining a forfeiture, for the enforcement of which an action at law has been instituted, must depend upon the result of the action at law; i. e., upon whether it shall be finally determined in the suit at law that the forfeiture must bo enforced.</p> <p>2. Equity Jurisdiction.</p> <p>A suit in equity cannot be maintained to have a forfeiture declared. The universal doctrine is that equity will relieve from, but never inflict, a forfeiture.</p> <p>3. Same — Waste.</p> <p>The commission of waste of every kind will be restrained in equity till the rights of the parties are determined.</p> <p>4. Equity Jurisdiotion.</p> <p>The equitable jurisdiction of the circuit courts is the same in every state ; it is not ousted by the fact that a local statute gives a peculiar remedy at law.</p>

<p>Practice — Cross-Bicij in Lieu oe Answer.</p> <p>Permission given by court for a cross-bill to be filed, by consent, instead of the defendant bringing up llie reformation oí the contract between the companies hy way of answer to the original bill. In the event of success in reforming the contract the plaintiff must pay costs up to this time.</p>

In Equity. Motion by receiver to have order appointing legal advisers rescinded, and to substitute for the attorneys then employed a Chicago attorney, who was already attorney for the bondholders, and the receiver’s brother, who had lately come to St. Louis from Wisconsin, and had been admitted to the federal bar of this circuit.

App ication by Attorneys for a Receiver for compensation for legal service j, part of which were rendered before and part after the receiver vas appointed.

<p>Cause Submitted on General Demurrer, the ground in support of it being that there is remedy at law.</p>

<p>CONTKA' !T — CONSTRUCTION OF.</p> <p>A holding less stock than B. in a railroad corporation, they agree, in order to O' [uaiize their respective holdings, that the stock held by them shall be common property, and that A. shall give his note to B. for the amount necessary to o. .utilizo the joint-stock account, the cost of the stock being computed as of the ' late of the contract. Three years afterwards B. renders an account, of the cost of the stock, with interest to date, takes A.’s note at one year for the cost of e tough stock to equalize their respective holdings, and gives a receipt for the rote, reciting that “ said note is given me for the purchase of 39]y shares * * * now held by me, and to be delivered, upon payment of his note,” to A. Shortly before maturity of the note, A. is no lifted, that, if it is not paid at mat ' uily, his right to the stock will not be recognized. The note is not paid at n iturity, and B. destroys it. Mearly six years after date of receipt, A ’s assign '0 tenders to B. the amount duo on note and demands stock. Held, that the itle to stock did not vest in A., and that he did not pledge it to B. as se-curi y for payment of note, but that, by the terms of the receipt, B. retained the itlo until the purchase price should be paid; that the suit is for a specific perf irmauce of a contract, and not a bill to redeem; and that, by reason of the déla r and changed condition of the parlies and of the value of stock, specific peri irmance must bo denied.</p>

<p>1. Lex Loci — Contracts Void in One State and Goon in Another — Scope oe Investigation Allowed to Courts.</p> <p>1 n a question involving the validity of a contract as such the court may con-sid ir the very time and place when and where the act was done that gave life to ho contract.</p> <p>2. Sam ■: — The Place op the Contract is Determined by tub Question, W USEE WAS THE CONTRACT COMPLETED?</p> <p>' 'he contract of a traveling- agent, which required ratification by his princi-pa tis deemed to have been made at the place where the ratification was given.</p>

<p>Ot Motion to Stay Proceedings.</p>

<p>1. Tax Deed — Effect of, as Evidence.</p> <p>Notwithstanding the act of 1865, (Or. Laws, $ 90,) making a tax deed conclusive evidence of the regularity and validity of the prior proceedings, in an action by the owner of the property to recover the possession from the grantee in such deed, or his assignee, it may be shown that no warrant issued for the collection of the tax levied on the property, or that there was no sale thereon on that account.</p> <p>2. Warrant for the Collection of a Delinquent Tax.</p> <p>A warrant for the collection of a delinquent tax was received by the sheriff on May 5th, and on Friday, July 6th, 62 days thereafter, he sold the same. Held, that the warrant was dead and the sale void; and that the sale could not be made after the return-day of the writ, which was either the first Monday in July, or the sixtieth day after its receipt by the sheriff, and possibly 30 days in addition, in case a prior appointed sale was postponed to some day within that period for sufficient cause, with the approval of the county court.</p> <p>3. Assessment Roll — Description of Property Therein.</p> <p>In 1876 there was only one place in Multnomah county laid out and recorded as the “ Portland Homestead,” containing a lot 3, in block B, of which Mary Kelly was the owner. The assessor entered the same on the assessment roll for taxation in her name, and described it as “lot 3, in block B, Port. Homstd. Ass.,” and valued it for taxation at $100. Held, that the description was sufficiently certain.</p> <p>4. Revenue Laws — Construction of.</p> <p>Laws for raising revenue for the support of the state are remedial in their character, and proceedings taken under them for the purpose of ascertaining the amount a citizen ought to contribute to the common weal ought not to be considered as taken in invitum, or hostile to him or his interests, but rather as proceedings in his behalf, in which it is his duty to co-operate with the state, so as to enable it to reach a correct and just result.</p>

At Law. This was an action upon certain coupon bonds alleged to have been issued by the defendant and to be owned by the plaintiff. The defendant by its answer denies the allegations of the petition, and alleges that the plaintiff is not the real party in interest.

<p>Sales — Misrepresentations as to Quality — Counter-Claim.</p> <p>Wliere A. sold B. a lot of ice at an agreed price, to tie delivered when called’ for, and went to expense, at B.’s request, in getting the ice out of the house in-which it was stored, and B. paid part of the agreed price and part of the sum expended by B. at his request, and went to expense in sending for the ice, but only received about half of it, and refused to receive the balance, on the ground that he had been deceived into purchasing it by B’s misrepresentations as to its quality, held, in a suit by A. for the balance of the contract price and the balance of money expended as aforesaid, that A. was entitled to recover, notwithstanding any misrepresentations ho might have made, if B. had been given a fair opportunity to inspect the ice before he closed the bargain; but that if B. had not been given an opportunity to inspect it, and had relied entirely upon. A.’s representations as to its quality, and it was in fact of a poorer quality than represented, then A. was only entitled to recover the value of the ice received by B., and that B. was entitled to be allowed as a counter-claim and to recover back from A. all the money he had paid A. in excess of the value of the ice received.</p>

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

Heard on Motion of Mathias C. Osborn, former marshal, to be recognized and held by the court as now entitled to resume the duties of that office. 1

<p>1. Libel — Intervenors—Seamen’s Wages — Maritime Service.</p> <p>Where intervenors are mere landsmen, -who procure cargoes for a vessel and assist in loading them, they do not perform a maritime service, and are not entitled to recover upon a libel for seamen’s wages.</p> <p>2. Maritime Lien — Purchase on Cargo by Master oe Vessel.</p> <p>The master and pArt owner of a vessel cannot purchase a cargo on credit and thereby create a maritime lien upon the vessel for the purchase money.</p> <p>■3. Ship’s Husband — Duties and Powers.</p> <p>The duties of a ship’s husband are to provide for the seaworthiness of the ship, to take care of her in port, to see that she has on board necessary and proper papers, to make contracts for freight, and to collect the returns therefor; but he cannot borrow money, give a lien .on the freight, make insurance, or purchase a cargo, without special authoritjL</p>

<p>1. Mai itime Lien — Stevedores—Workmen—Oobbatbeal Promise.</p> <p>' 'lie work of a stevedore in loading or unloading cargo is a maritime service, wi liin the definition of the supreme court in Tita. Go. v. Dunham, 11 Wall. 26. It i maritime because it “ relates to a maritime transaction,” and is rendered in lie discharge of the maritime obligation which the ship owes to the goods. Jit'd, therefore,, that a lieu should no longer bo denied to workmen rendering stc /edore’s service to foreign vessels.</p> <p>2. Sam j; — Workmen—Ooblateeab Promise.</p> <p>Vorkmcn employed solely by the head stevedore, under the modern usages of bu üness, arc presumed to know that they must look to him only for their pay, an 1 hence have no lion upon the ship, ñor have tlioy a lion on the captain’s col lateral promise as to past services; but where they work, either upon the cai tain’s direct employment, or upon the faith of his promise that he will see tin m paid, the workmen are entitled to a lien, as provided by the Consulat de la Her.</p>

<p>In 1 .dmiralty.</p>

<p>Deck- Hoad.</p> <p>iVitli reference to cargo stowed on deck, the ship is not liable as a common ca riar, but its liability in this case is limited to ordinary care, i. e., such degree of care as a prudent owner would exercise If the loss was the result of the n< i-hgcnce, want of skill and care of the master, the liability of the vessel is es ablibhcd. Lawrence v. Minturn, 17 How. Ill, followed.</p>

<p>Libel — Negligence—Preponderance of Testimony.</p> <p>When a libelant makes out a case of negligence by a clear preponderance of testimony, a decree will be entered in bis favor.</p>

<p>Seamen’s Wages — Libel by Minor Sons of a Deceased Part Owner —Allowance Refused.</p> <p>The minor sons of a deceased part owner of a boat libeled her for wages for their services upon her during their father’s life-time, when the boat was run by him, the other owner taking no part in her running. The libelants gave evidence to show that there ivas an understanding between their father and themselves that they were to receive wages, but in fact none of them had been emancipated, and they were supported by their father. When he died he had in his hands earnings of the boat unaccounted for in excess of these wages claims. The surviving owner, who took defense, had no knowledge of the arrangement between the father and his infant sons, and its enforcement against the boat would have prejudiced him. Reid, that the claims must be disallowed, and the libels dismissed.</p>

<p>Mat or of Jurisdiction.</p>

<p>1. Bill for Specific Performance must be Based upon some Certain Contract or Agreement.</p> <p>In order to sustain an action for specific performance against a railroad company, to compel it to construct its line through a certain city, and for other relief, it is necessary for the complainant to prove that he had an agreement with the railroad company whereby that company was bound to construct and operate the main line of its road through that city.</p> <p>2. Rush know oí? a Leased Raiuroad Company as Regamos its Right of Re-mo\ vl of Action to Fkdbrai. Court.</p> <p>A railroad company under a perpetual lease to a foreign corporation is not, toy t hat fact, a resident of the same place as the latter; therefore, an action aga nst it and its lessor cannot be removed to a federal court, on the ground of its i osidonce being in a state other than that of the complainant, unless it can be } tiown that it is not a material party.</p>

<p>1. Equi y IIulf. No. 82 — Not to be Invoked to Collect Disbursements Tax-abl ¡ as Costs.</p> <p>T us eighty-second equity rulo cannot be invoked by a party to enable him to coll'd of the opposite party disbursements which can be taxed as part of the cost i in a final decree.</p> <p>2. ÜON'I DIPT — PUNISHMENT—IMPRISONMENT FOR NON-PAYMENT OF MONEY JuDlf-mei r — PowkRS of United States Courts — Controlled by State Courts.</p> <p>T ie power of United Slates courts to punish for contempt and imprison for non payment of money judgments is circumscribed and controlled by state law ;.</p> <p>3. Sami -Non-Payment of Monf.y — Execution—Order of Court in Nature of judgment — When not Enforced on Theory that Disobedience is a Coi tempt.</p> <p>I) a state whore proceedings for contempt for the non-payment of money ord red by the court to bo paid cannot be had when the payment can be en-for< ed by execution, and imprisonment for non-payment of costs is abolished, wli- n an order of the court is in the nature of a judgment or decree for the paj :ient of money, it cannot be enforced on the theory that disobedience is a con empt.</p>

<p>1. Order Pro Confesso — Does not Entitle Complainant to Einal Decree as op Course.</p> <p>A complainant is not entitled as of course to a final decree wiien lie lias obtained an order pro confesso, be not being- permitted to take at bis discretion sucb a decree as be may be willing to abide by.</p> <p>2. Pinal Hearing — Right to Docket Pee — Rey. St. $ 824</p> <p>Tbe consideration of a bill is a hearing, and is final when it results in the final disposition of a cause, and entitles a party to a docket fee under Rev. St. j 824.</p>

<p>1. CONt ITTUTTONAL LAW — STATE STATUTE MAKING COUPONS ON BONDS ReCEIV-aisi ic foe Taxes — Subsequent Statute.</p> <p>, V lure a state contracts, in terms, that the coupons attached to its bonds shall be i .¡ceivable in payment of “ all debts, dues, and demands due the state,” the con ract embraces license taxes; and if, in a subsequent law, it. prescribes such con litions precedent to the issuing of licenses as to enforce the payment of lice iso taxes in money, and to preclude their payment in coupons, she violates Ilia clause of the tenth section of Hie first article of the constitution of the Urn ted Slates which forbids any slate from passing any law impairing llie oblige ¡ion of contracts.</p> <p>2. Sami —Right oi? Citizen to Sue State — Jurisdiction ov Circuit Court.</p> <p>(¡! were, whether the first clause of the second section, of the third article of the Un' ted Slates constitution, which extends the judicial power of the United Sta es to «U cases in law and equity arising under the constitution and laws of the United States, as this clause is put in force by ¡.lie first section of the ju-die' iry act of congress of March 3, [s73, giving jurisdiction of all such cases to ho circuit courts of the United ¡slates, authorizes a citizen to sue liis own sta e, in such a case, in a federal court.</p> <p>3. Sami ¡ — Conformity to Practice in State Court — Repeal by State of Spi cial Act Authorizing Suit.</p> <p>J ven though (under section 9i4 of the Revised Statutes, requiring proceod-int ! at law in courts of the United States to be conformed to proceedings in sin dar cases in state courts) an anomalous proceeding at law may bo brought in a federal court in tlie manner in which it is authorized by special act to be brought in a state court, yet if the state lias repealed such special act, then the special proceeding is no longer maintainable in the federal court, and must be dismissed if brought.</p> <p>4. Same — UNCONSTITUTIONAL Clauses in Statute — Eeeect of Repealing Clause.</p> <p>If any act of legislation, which is unconstitutional in many of its provisions, repeals all acts and parts of acts inconsistent with such provisions, the repealing clause is effective,’ although such provisions bo null and void.</p> <p>Seo 1 'Mimóte & 0. It. Co. v. Allen, 17 .Fed. Rep. 171, and note, 188. — [Ed.</p>

<p>1. Collection of Taxes — Injunction to Restrain — Jurisdiction of United States Courts — How Established. '</p> <p>In order to enable a federal court to enjoin the collection of state, county, and municipal taxes, it must proceed upon clear and. established principles of equity jurisdiction.</p> <p>2. Equity — Interference of, to Prevent Multiplicity of Suits — Irreparable Injury — Cloud on Title.</p> <p>Equity will not interfere except in special cases, as of fraud, to save a multiplicity of suits, or prevent irreparable injury, or a cloud upon title to land.</p> <p>3. Jurisdiction — Hot Conferred by Joinder of Claims Insufficient in Amount , to Large Ones.</p> <p>When claims are not of sufficient amount to give a court jurisdiction if suits are severally brought, a court will not gain jurisdiction by joining them with other claims sufficient in amount. Courts of equity cannot wrest jurisdiction from courts of law because there is more than one plaintiff severally interested in a controversy.</p> <p>4. Multiplicity of Suits.</p> <p>Many actions by different plaintiffs, when an action at law will settle a controversy as to each, is not what is intended by a multiplicity of suits.</p> <p>6. Equity — Multiplicity of Suits — Parties cannot Base Bights on Rights of Third Persons.</p> <p>Where no one of a number of complainants stands in danger of a multiplicity of suits, they cannot complain that a third person must have a suit iu order to obtain his legal rights.</p> <p>6. Taxes — Unjust Assessment — Remedy at Law.</p> <p>Where a tax is unjustly assessed, a complainant has an adequate remedy at Jaw by paying the tax and suing to recover the amount so paid.</p>

<p>1. Attachments — Priority of Levies — State and United States Courts.</p> <p>In case of several levies by the same officer, priority depends upon tbe time of levy, or of commencing to hold under the subsequent processes. To effect a levy upon property in actual possession of the officer no overt act is necessary. In ease of actual successive levies, the time when made determines rank or order of priority. In case of no actual subsequent levy, the time when officer commenced to hold under the process determines. In either case, the evidence may come from his return.</p> <p>2. Same — Property Held by Officer in Due Process — Seizure under Process of Another Court.</p> <p>When property susceptible of manual delivery is physically held by an officer of and under process from a court of one jurisdiction, it is incapable to be subjected to seizure by an officer and under process from a court of another jurisdiction.</p> <p>3. Same — Unlawful Detention — Void Levy.</p> <p>A levy upon property, otherwise valid, if effected by means of an unlawful, detention of the property is void; but the invalidity of such a levy cannot be urged by a party whose right also springs solely from a seizure effected through the unlawful detention.</p>

Cause Heard on the Petition and an Exception, which, under the practice in the state of Louisiana, has the effect of a demurrer.

<p>Criminal Law — Illegal Pension Pees — Deceased Pensioner — Reimbursement Claim — Rev. St. $$ 5485, 4718 — Act oe March 3, 1881.</p> <p>The penal legislation contained in section 5485 of the jievised Statutes, and the acts of June 20, 1878, and March 3,1881, limiting the amount lawfully de-mandable or receivable by an agent, attorney, or other person instrumental in. prosecuting a claim for pension, etc., does not apply to a claim under section 4718, Rev. St., for reimbursement out of an accrued pension by one who bore the expenses of the last sickness and burial of a deceased pensioner, nor to the agent or attornej of such claimant.</p>

<p>1. Cor nnanT — Infringement—State Kbporter — .Affirmance os’ Decision.</p> <p>. [’ho court affirms its prior decision, — First, that, in the absence of express le; islation to the contrary, a state reporter is entitled to copyright his volumes of' reports to the extent that the same consist of the work of his own mind, not-wi .hstanding he may not have a copyright in the opinions of the court; sec-on l, the copyright law is to be liberally construed that effect may be given to wl iat is to be considered the inherent right of the author to his own work.</p> <p>2. Bay b — Instance.</p> <p>L’he court finds an infringement on the copyright hold by complainant, cover ng volumes 39 to 46, inclusive, of Illinois reports.</p> <p>3. Sai e — Arrangement of Law Cases and Pages.</p> <p>n connection with other evidences of infringement, the court will consider tli j arrangement of the books infringing the original edition, and such evi-dt ice will be entitled to weight, in judging of the fact of infringement.</p>

<p>Admir. my — Salvage—Rule eor Estimating.</p> <p>1.1 making up its judgment, in an action for salvage, claimed for relieving a gr< andad vessel, tho court inquires into whether or not the tugs employed pei formed only ordinary towage service; and, estimating the salvage earned, if: ny, considers how much danger and risk the plaintiffs incurred, the merito-rio is nature of their services, and the gallantry displayed.</p>

<p>1. Libi l — Satwage—Costs.</p> <p>1 filero a vessel is attached upon a libel for salvage, no demand having been ms le, and under circumstances which put the claimants to unnecessary expense an. trouble, costs will not be allowed to the libelants</p> <p>2. SAB AGE— COMPENSATION.</p> <p>' 'lie amount of compensation which will be allowed to a libelant for an ad-mi ted salvage service considered.</p>

<p>1. Rem wal oe Causes.</p> <p>J , defendant will not be allowed to transfer a case from tlie slate courts, tlio clu sen jurisdiction of a complainant, to the United States courts, upon tlie bare su| gestión of a contingency which may never happen</p> <p>2. Rem jvaTi on Gbound oe Citizenship — Motion to Remand.</p> <p>1 n an action where the main controversy is between citizens of the sa me state, tin re being no controversy wholly between citizens of different states which caí be fully determined as between them, the suit is not removable ir i the sla ie to the United States courts on the ground of' citizenship, under section 2, ad of March 3,1875 ; and when it has been removed, a motion to re naml will bo Granted. Arapahoe Co. v. Kansas Paa. My. Go. 4 Dill. 277, distinguished.</p>

<p>Motion to Dismiss.</p>

<p>Equity Practice — Questions Arising beeore Master.</p> <p>All questions arising before a master in chancery should be presented to the court by objection and exception to his report. Before such report is made, the court will not entertain a motion to instruct the master while discharging his duties according to the best of his ability.</p>

<p>Dec: auation of Trust — Actual Manual Delivery not .Essential to its Validity.</p> <p>In cases of declarations of trust arid deeds of conveyance or mortgage, -when iot.hing further is expected to 1)0 done by the beneficiary or grantee to com-itate the transaction as a whole, a formal sealing and delivery, without an .ct.ual delivery to the other party, or to a third person for his use, will be suf-icient to make the deed or declaration operative immediately, unless some-lnng else exist or be done to qualify such formal delivery.</p> <p>Sea Ireland v. Geraghty, 15 Fed. Rep. 35, and note 45. — [Ed.</p>

<p>Motion for Preliminary Injunction.</p>

<p>VENDOR and Vendee — ifottoe oe Inctjmtrance — Improvements—Rev. Laws Vt. * 126.</p> <p>Oí' 3 who takes a deed i'or an incumbered piece of property, knowing it to be so, ii the faith that liis grantor will relievo it of the incumbrance, does so at his ] erii, and he cannot, by the la ws of Vermont, recover of his ejector (30111-pens lion for the improvements he has made upon it.</p>

<p>Vendor and Vendee — Bight to Becover for Improvements — Ejectment— Notice of Incumbrance.</p> <p>Jones v. Steam Stone Cutter Co., ante, 477, distinguished.</p>

<p>Yendoi, and Vendee— liroiiT to Recover eor Improvements — Ejectment— .No-i ice ox? Incumbrance.</p> <p>G orgev. Beam Bone Gutter Go., ante, 478, distinguished.</p>

Sur Motion to take off Compulsory Nonsuit. This was an action of assumpsit on a policy of insurance for $1,500, dated August 25, 1881.

<p>1. Like Insurance — Untrue Answer — Use oe Intoxicating Liquors.</p> <p>An untrue answer to a question in the application regarding the use of intoxicating liquors will avoid the policy, where the application is part of the contract.</p> <p>2. Same — Impairment of Health — Use of Stimulants — Physician’s Certificate.</p> <p>The policy provides that if the insured should become so far intemperate as to impair his health, it should be void. The attending physician certified that he.was in the habit of using stimulants and tobacco, and probably they impaired his health. Held, that while the certificate must not be taken as evidence of the truth of the fact stated, it is a suggestion entitled to weight in considering the justification of resistance by the company.</p> <p>3. Same — Breach of Warranty.</p> <p>A substantially untrue answer, where the application is part of the policy, is a breach of warranty which avoids the policy. It is of no consequence whether the question be material or not.</p> <p>4. Same — Intemperance—Delirium Tremens.</p> <p>The condition that if the insured should become so far intemperate as to impair his. health, the policy would be void, is a condition subsequent whose breach involves a forfeiture. Delwivm tremens from intemperance would amount to a forfeiture.</p> <p>5. Same — Impairment of Health.</p> <p>Impairment of health is to he taken in its ordinary sense, and need not be permanent. Habitual intemperance is not necessary, so long as his health is impaired.</p> <p>3. Sajo —Death Caused Wholly oh Partly from Intoxicating Liquors.</p> <p>I death resulted wholly or partly from the use of intoxicating liquors, the pol oy is void.</p>

<p>On Application for Rule to Show Cause.</p>

<p>Gusto® 3 Duties. — Swedish Ikon Naii-Rods.</p> <p>8 ¡radish iron nail-rods should bo classified as a description of rolled and ham-me 'ed iron, not otherwise provided for, and so subject to a duty of one and one -fourth cents a pound.</p>

<p>BANKRUPTCY JURISDICTION — EXEMPTED PROPERTY.</p> <p>When exempted property is designated and set apart to the bankrupt, under the orders oí the bankruptcy court, as such property does not pass to the as-signee, and does not further concern the court nor the estate, the court has not jurisdiction to defend such property from adverse liens that may or may not be extinguished by the bankruptcy.</p>

In Bankruptcy. Sur motion for an injunction to restrain proceedings at law. Oj . the second day of December, 1876, D. C. Negley filed his petition for s ijudication in bankruptcy. Held: and a con position effected. When the amount of composition was tendered to these creditors they refused to accept it, and a scire facias was issue l on June 1, 1882, to revive the lien of the judgment at No. 1,071, Dei ember term, 1876, which is still pending.

<p>Sur Rule to Show Cause why forfeiture of recognizance should not ■be taken off.</p>

<p>Pates rs nor Invention — Threatening Suits nor Infringement — Injunction.</p> <p>lourts of equity have no jurisdiction of libel or slander affecting title to a ps tent or patent-right, or any other slander or libel, unless threatened or ap-pi ¡hended repetition make preventive relief proper and necessary. The rom-ee f for past injuries of that nature is an action at law.</p>

<p>Patent — Pleading—Multifariousness—Infringement op Separate and Distinct Patent-</p> <p>’ Upon the alleged infringement of live distinct patents by the use of one machine, each of the five inventions being capable of separate use independent of the others, the trial as to the validity of each patent, and the infringement as well, must be separate from trials as to the validity and infringement of the others, and upon distinct issue as to each.</p>

<p>Pate: ,t Law — Desigst—ETgubes in Kwijep — Photograph.</p> <p>The prominent, claim in a patent, design being figures in relief, a photograph o tile design, since it does not. show the relief, does'not, sufficiently desorillo the d sign in the absence oí a minute description in the specifications.</p>

<p>Patent Law — -Amendment of Bill — Assigned Claims for Damages.</p> <p>TJ e assignee of a patent., in an action against, an alleged infringer, can move, befo 'e the signing of an interlocutory decree, to amend his bill so as to include the subject of assigned claims for damages and profits which were due to mes íe assignors, the bill having been brought, answered and tried upon the thee ry that, a recovery upon the assigned claims was sought.</p>

<p>Patent — Improvement in Envelope-Making Machine.</p> <p>Olaim in the patent being for improvement in envelope-machine in respect to the table over the conveyor, whereby the blanks are held in place while being carried by the conveyor to the creasing box, the alleged infringer may continue the use of the machine, the table and conveyor being changed, such use not being inconsistent with the claimant’s rights.</p>

<p>Li tel for Short Delivery of Cargo of Lumber shipped from Tensas river Alabama, to New Orleans, Louisiana.</p>

<p>In . admiralty.</p>

<p>1. Dei isiJOT — Right of First Salvors.</p> <p>' 'lie bark Oairnsmore went ashore on Clatsop beach in a thick fog, and flio m¡ ster and crew took to the boats and loft her, without, so far as appeared, an - intention to return or hope of recovering her, but sold her as she lay, within tw ) days, for the benefit of whom it might concern; but in the mean time she w¡ s taken possession of by the libelants, who proceeded at once to save her tu We, apparel, furniture, st ores, and cargo. JIM, that the vessel was dere-lic and that the salvors who first, got possession of her were entitled, for that pi rpose, to maintain the same, even against the owners or their vendees, so far ar 1 so long as they were reasonably aide and had the means to save her or any pp rt of her; but when it was manifest that they wore unable to do so in any pi rticular, as well and surely as others who might, offer to assist, in the cutor-pj ise, it was their duty so far to yield the possession to such others.</p> <p>2. Sai vagk Service — Compensation op.</p> <p>Where there is neither risk of life nor property involved in a salvage service, in r any special knowledge or ingenuity required or used therein, the principal el ¡ments in the compensation of the salvor are the value of the labor and care bf stowed upon the saved property, and the degree of integrity and responsi-b: lity involved in keeping it safely and duly accounting for it, together with tl e risk of success.</p>

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

<p>A-Dmirai/l’y — Ujtseaworthy Vessel.</p> <p>Where cargo is laden on board of a ship whose owners know that she is not seaworthy, and who have put her up for a long voyage that they never intended she should complete, but intended to fraudulently break up the voyage at an intermediate port, which intention was afterwards carried out, held, that all the expenses of taking the vessel into the intermediate port, and her expenses there, and the cost of discharging, storing, and reshipping cargo, must be borne by the ship and her owners, and are not a legitimate charge against the cargo.</p>

<p>1. Colliding Ste ambus — Law as to Navigating in a Fog.</p> <p>Tlie law requires that every steam-vessel shall, when in a fog, go at moderate speed, and the theory that full speed is the safest speed when offered as an excuse for infringing the law, cannot be accepted by the courts.</p> <p>2. Same — Willful Breaking the Law Entails upon the Law-Bkeaker Full Consequences of His Act.</p> <p>One who takes a course forbidden by law does so at his peril, and the excuse that the unlawful way is the best way will not save him.</p>

<p>Admiralty — Jurisdiction—Arbitration.</p> <p>It is not the province of an admiralty court to investigate the conduct of arbitrators in a matter previously submitted to them, and to review their award.</p>

<p>1. Libel — Negligence.</p> <p>Where a lag, engaged in towing, carries a barge too near a shoal, and does not protect her from llie foreseen danger from a passing vessel, although she has an opportunity to do so, she is liable, in an action for libel in rem, for damages occurring through her negligence.</p> <p>2. Steam-Vessel— Duty in Narrow Channel — Liability for .Failure of Duty.</p> <p>Where a steam-vessel is about to pass through a narrow passage in which is a tag and its tow, it is her duty to go slowly and carefully, in order to avoid the danger resulting from rapidly passing very near another vessel; and when damageoecurs through failure to do her duty in this respect, she is liable for it.</p>

<p>Motion to Dismiss.</p>

<p>1. JURISDICTION OF FEDERAL OOUUl'S — DEEDS OF ASSIGNMENT.</p> <p>A United States circuit court may entertain jurisdiction of a bill to set aside as fraudulent a deed of assignment at suit of a resident of a state other than that of the assignor and assignee, when the amount involved exceeds $300.</p> <p>2. Same — Adjudication of State Court — Effect in other State.</p> <p>One who is not resident in the same state with a certain mortgagor, is not bound by an order of the state court adjudicating the validity of the mortgage as against'his equities.</p>

<p>1. MORTGAGE — NEGLECT TO RECORD DESTROYS LlEN AS AGAINST PARTIES WITHOUT Notice.</p> <p>The neglect oí' a mortgagee of a chattel mortgage to record the instrument within the time when lie should have done so, through, which neglect innocent parties have been led to intrust, goods with the mortgagor, deprives the mortgage of its character as a prior lien as against such innocent parties.</p> <p>2. Same — Rights or a Subsequent Mortgagee.</p> <p>A second mortgage incumbers only the remnant left after satisfying the first; and the holder of a judgment, who’defeats the first mortgage as against him self, comes in before'the second mortgagee, up to the amount of the first mort gage.</p>

<p>1. Insolvency Law of Iowa — Rights and Liabilities of Assignee.</p> <p>The assignee succeeds to all the rights of his assignor and is affected hy all the equities against him; but equities or rights belonging to a creditor are not by operation of law transferred to the assignee.</p> <p>2. Same — Jurisdiction of the Courts.</p> <p>The state court in which the assignee flies his bond is charged with the duty of carrying out the provisions of the Iowa insolvent law; but other courts may entertain jurisdiction of cases settling the rights of parties who are interested in the estate.</p> <p>3. Same — Order Approving Payment of Mortgage Debt.</p> <p>The court that controls the proceedings in assignment does not, by an order approving the payment of a mortgage debt by assignee, adjudicate the question of the validity of the mortgage.</p> <p>4. Same — Neglect to Record Mortgage — Subsequent Creditors without Notice. \</p> <p>The neglect ora mortgagee to file his chattel mortgage deprives him of his right, as against a subsequent creditor, without notice, of the mortgagor; and after assignment by the debtor he is on a like footing with all creditors, without notice, of a date prior to the recording of the mortgage.</p>

<p>Equity Jurisdiction. *</p> <p>A court of equity can interfere, by an order, with a party conducting a criminal procedure only when the parties sought to he enjoined have, as plaintiffs, submitted themselves to the court by a bill of equity as to the matter or right, affected by or involved in the criminal procedure; hut the pursuer and pursued must be identical in the case, i. e., the defendant in the bill and in the indictment must be the same person, and the person preferring the bill and the criminal charge must also be the same. As to parties and controversy the inquiry is analogous to that in regard to the plea of Us pendens.</p>

<p>1. Pbactice — Res Adjudicata — Action by Stockholder.</p> <p>To a bill filed by a stockholder of a corporation to rescind a sale of his stock,, which he was induced to make by the fraudulent practices of the defendant, the defendant pleaded a former adjudication in his favor in an action at law between the parties, in which the complainant sought to recover damages of the defendant for the fraud. Held that, although the case made by the bill as to the details of the transaction and the matters of evidence of fraud differed from the case tried in the former suit, the gravamen of the case was the same in each, and the judgment in the former suit was res adjudicata.</p> <p>2. Same — What Issue is Concluded by.</p> <p>The matter in issue or point in controversy, which'is concluded by a former-judgment, is that ultimate fact, or state of facts, upon which the verdict was-based.</p> <p>3. Same — Writ of Error — Affirmance of Judgment.</p> <p>On a writ of .error takefi from the judgment in the former suit the judgment was affirmed. Held, that the effect óf the judgment was not impaired because-the appellate court, in affirming the judgment, did not, in the opinion delivered, consider the question whether the conduct of the defendant was fraudulent or not.</p>

<p>■ 1. CORPORATION — License to Maintain Telegraph Line — Expiration op Charter.</p> <p>A license was granted on June 18,1853, by tlie Baltimore & Ohio Railroad Company to the Western Telegraph Company (a Maryland corporation) to maintain a telegraph line along the railway so long as the grantee existed as a telegraph company. At the time of the grant the telegraph company held control of the Morse patents for 14 years from June 20,1840, and its charter was for 30 years from February 4, 1847; that is to say, to expire February 4, 1877. Held, that the license lasted no longer than- the corporation to which it wiis granted, and expired by its own limitation on the fourth of February, 1877.</p> <p>2. Same — Reincorporation—NEiy Corporation.</p> <p>The telegraph company, before the expiration of its charter under provisions contained in the general incorporation act of Maryland, passed in 1868, caused itself to be incorporated under that act as the “Western Telegraph Company of Baltimore City,” to continue for 40 years. Held, that the corporation thus formed was a new and different corporation, and not a continuation of the old one, and that the old corporation had gone out of existence and the license was at an end.</p>

<p>1. CORPORATIONS — IilSHT OJF MAJORITY OB’ STOCKHOLDERS TO WrND Up — MOTIVES.</p> <p>A majority of stockholders were authorized hy law to dissolve the corporation and distribute its property, and availed themselves oí their power to do so according to the forms of law, but sold the property to themselves at an unfair appraisal. Held that, although the court would not inquire into the motives of the majority as to those acts which were within the exercise of their legal powers, they had no right to sell the property to themselves at an unfair price, and must account to the other stockholders for its value.</p> <p>2. Same — .Appropriation of Corporate Property.</p> <p>A11 hough a majority may have full power to hind 1.lie whole body of stockholders in respect to all transactions within the scope of the corporate powers, tho have no right to exercise that power in order to appropriate tho corporate property to themselves at an inadequate price.</p> <p>3. Same — Sale of Corporate Property — Rights of Minority — Accounting.</p> <p>Where 1lie corporation is practically dissolved, and all its property sold by the action of the directors and a majority of the stockholders, the minority stockholders may maintain a suit, in equity directly against the persons who have thus dissolved the corporation, and who have purchased the property, for an accounting, without making tho corporation a party.</p> <p>4. Same — Parties—Action to Compel Accounting.</p> <p>Such a suit may be brought by one or more of the minority stockholders without making the other minority stockholders parties.</p>

<p>1. Mortgage — Assailable for Constructive Fraud — Bankruptcy—MORTGAGEES’ Sureties on Bond.</p> <p>Where a mortgage is given to indemnify the mortgagees as sureties of a mortgagor on a bond, the consideration being legal and sufficient, it is only assailable for constructive fraud as a preference forbidden by the bankrupt law.</p> <p>2. Mortgage — Execution and Delivery — Complete Transaction — Yaridity.</p> <p>When a mortgage is executed and delivered, nothing further is necessary to its validity as a complete transaction.</p> <p>3. Fraud on Creditors — Bankruptcy Proceedings — Mortgage—Failure to Record — Two Months Limitation.</p> <p>Where a'statute forbids a preference of creditors within two months prior to the commencement of bankruptcy proceedings, and a mortgage is given by the bankrupt long before the proceedings in bankruptcy, but is not recorded until within the two months prior to the commencement of such proceedings, there being no evidence of fraudulent intent in making it, the mortgage will not bo declared fraudulent on account of the failure to previously record. Blanner-h.asset v. Sherman, 105 U. S. 100, distinguished.</p> <p>3. Bankrupt Creditors — Benefit—Equitable Interest in Mortgage.</p> <p>Where a party has simply an equitable interest in a mortgage, a court will not establish an unwilling connection with it on her part, in order that a hen-fit may be conferred upon other creditors of a bankrupt.</p> <p>4. Court op Equity — Jurisdiction—Bankruptcy—Failure to Account for ' Mortgage Security.</p> <p>Where a bankrupt act prescribes the mode of proceeding and the penalty, when the holder of a mortgage security refuses to account for it, a court of equity will not take jurisdiction of it.</p> <p>5. Same — Adequate .Remedy at Law.</p> <p>Where there is a remedy plain and adequate at law, a court of equity will not take cognizance of a claim.</p>

<p>In Equity.</p> <p>Motion for an Attachment for Disobedience to an Injunction,</p>

<p>1. Contract for Future Delivery — Validity.</p> <p>To render a contract for the future delivery of commodities invalid there must at the time of its creation he a -mutual understanding between the parties that no delivery is to he made, hut the difference between the contract price and the market price at the time fixed for delivery paid.</p> <p>2. Same — Promissory Note — Consideration.</p> <p>Where the consideration for promissory notes is money advanced under contracts for future delivery of cotton, and commissions thereon, the notes are valid.</p> <p>See Melcherí v. American Union Telegraph Co. 11 Fed. Eep. 193, and note, 201; Union Nat. Bank of Chicago v. Carr, 15 Fed. Eep. 438; Cobb v. Prell, Id. 774; Jackson v. Foot, 12 Fed. Eep. 37; Bryant v. Western Union Telegraph Co. 17 Fed. Eep. 826; Irwin v. WMiar, 4 Sup. Ct. Eep. 160. — [Ed.</p>

<p>At Law. On motion for new trial.</p>

<p>1. Insurance — Representations—Good Health.</p> <p>A representation by an applicant for insurance that he is in possession of good health, means that he is free from apparent sensible disease, and unconscious of any derangement of important organic functions.</p> <p>2. Same — Severe Illness.</p> <p>“ Severe illness” means such as has, or ordinarily does have, a permanent, detrimental effect upon the physical sj'-stem.</p> <p>3. Same — Misrepresentation—Intention.</p> <p>A false answer, made without qualification, to an inquiry as to a matter of fact, annuls the contract of insurance, whether the reply is designedly untrue or not.</p>

<p>State Insolvent Laws — Alien Resident.</p> <p>An alien living and doing business in Louisiana, witli actual and constructive notice, is bound by insolvency proceedings under ’the laws of Louisiana. Mississippi Mills Co. v. Ranleit, 19 Red. Rep. 191, distinguished.</p>

<p>1. Factor — Consignment for Sale — Right to Control Sale.</p> <p>Where a consignment is made to a factor for sale,,tho consignor has a right, generally, to control the sale thereof, according to his own pleasure, from time to time, if no advances have been made or liabilities incurred on account of the consignment, and the factor is bound to obey bis orders.</p> <p>2. Same — Advances by Factor — Discretion—Usages of Trade.</p> <p>But when tho factor has made large advances or incurred expenses on account of the consignment, the principal cannot, by any subsequent orders, control his right to sell at such time as, in the exercise of a sound discretion, and in accordance with the usage of trade, he may deem best to secure indemnity to himself and to promote the interests of the consignor.</p> <p>3. Same — Advances on Consignments — Respective Duties and Interests.</p> <p>_ A factor who advances money on a consignment is still the agent of the consignor, and must act in good faith, so as to promote the latter’s interest, as well as to indemnify himself.</p> <p>4. Same — Duty of Factor in Responding to Wrsms of Consignor.</p> <p>If a factor, after making an advance on a consignment and delaying sale of the goods, receives a letter from consignor directing him to sell, he ought to sell as soon as the goods can bo made to realize sufficient to reimburse him.</p> <p>5. .Same ^Inference of Consent to Past Acts to be Drawn from Discretionary Authority.</p> <p>After a long delay in the sale of wool consigned to a factor, if the consignor, with full knowledge of the facts, and uninfluenced by concealment or fraud on his factor’s part, authorizes the latter to sell at his discretion, he thereby ratifies the action of the factor in not having sold before.</p>

<p>At Law. Action in ejectment.</p>

<p>Motions to Quash Informations on the ground of insufficiency of affidavits.</p>

<p>On Demurrers to Informations.</p>

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

<p>Argument on Final Hearing beforo Wallace and Coxe, JJ,</p>

<p>1. Patents fob Inventions — Presumption of Patentability — Ratchets for Coupling Barges.</p> <p>The presumption of patentability, authorized by the grant of a patent, is not repelled where it is proved that no such device as a ratchet for coupling- barges was in existence or use before the issue of the patent.</p> <p>2. Conflicting Evidence — Burden of Proof on Defendant — Doubt Resolved in Favor of Complainant.</p> <p>Where evidence of a fact is conflicting, but the burden of proof is on a defendant, a doubt will be resolved in favor of a complainant.</p>

<p>Admiralty Jurisdiction.</p> <p>Where a damage done is done wholly on land, the fact that the cause of the damage originated on water, subject to the admiralty jurisdiction, does not make the cáse one for the admiralty. The Plymouth, 3 Wall. 20.</p>

Admiralty Appeal. From 1871 to 1876 the libelant was master of the tug Tyler, owned by the Harbor Protection Company, a body claiming to be incorporated by a number of the insurance companies of New Orleans, the act being signed by their respective presidents, and the stock owned by the various companies.

<p>1. COLUSION — ANSWERING SIGNALS.</p> <p>A steam-tug, at rest in the stream preparing to land her tow, and in a place in the stream where she leaves room i'or other vessels to pass, being required by rule, to answer signals from other vessels, is not required, in consequence of answering with two whistles a signal of two whistles given to her by another tug, to suspend, the business in which she is engaged, and pull away to the left. Such response is only a signal of acquiescence wi.th the other tug’s signal, and an agreement that she will do nothing to embarrass the latter’s passing to the</p> <p>2. Same — Acts'in .Extremis. _ ,</p> <p>_ Where a steam-tug put herself in the Way between her tow and a schooner which was about to strike the tow, so as to fend o£E the schooner from the latter, and damage thereby resulted to the schooner, held justified as an act in extremis, to prevent a more injurious collision, for which the tug was not responsible.</p>

<p>1. Collision — T a® and Tow — East Biter.</p> <p>A steam-tug has a right to remain stationary in the East river, or nearly so, while making up a tow in the usual place, leaving» room for vessels to pass on either side.</p> <p>2. Same — Answering Signals.</p> <p>An assenting response of two whistles to a previous signal of two whistles from another tug imposes on the former no duty to move away to the left, and she is not liable for a collision, unless fault in her management be proved.</p> <p>3. Same — Grossing Bows.</p> <p>Where the steam-tug Y. was making up a tow of canal-boats opposite piers 4 to 8, East river, about one quarter of the distance across from the New York shore, heading against a strong flood-tide and remained nearly stationary by frequent turns of her engine, and the steam-tug W. H. P., with four canal-boats in tow, two lashed upon each side of her, came round the Battery from the North river, about 400 feet from the shore, and the tugs, when first seen by each other, exhibited each to the other her red light a little on the port bow, and the W. H. P., instead of keeping to the right, with the set of the tide, and towards the middle of the river, where she was required by statute to go, gave a signal of two whistles to the V-, to which the Y. replied with two, and the W. H. P. thereupon crossed the bows of the Y. to go between her and the New York shore, and in so doing the port quarter of her starboard tow struck the bows of the V., the latter having backed in the mean time as far as safe towards her own tow, held, the collision was solely the fault of the W. H. P., in going to the left rather than to the right, caused by miscalculation of either the distance of the V. or of the sweep of the flood-tide.</p>

<p>CoumsioN — Damages—Satisi'aotxoh or Loss by Insurers.</p> <p>Damages caused by a collision may be recovered by the owners of the injured vessel in a proceeding against the vessel in fault, notwithstanding the fact that they have received satisfaction from the insurers for the damages sustained.</p>

<p>Seamen’s Wages — Shipping Articles — Interlineations—Rev. St. § 4575.</p> <p>Upon a dispute concerning tlie rate of a seaman’s wages, where the shipping articles show alterations, a lesser rate being written over a larger,'and the seaman testifies to the larger sum as the rate agreed- on, and the evidence being evenly balanced, and the alteration not otherwise satisfactorily explained, held, the amount as first written should be allowed, in accordance with section 4S75, as a salutary rule of practice, although that section is no longer in force as an express statute applicable to vessels engaged in the coasting trade</p>

<p>Appeal in Admiralty.</p>

<p>On Motion to Find for Defendant.</p>

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

Instruction of Court on Motion to Nonsuit. This was a suit by the plaintiff, as indorsee of a draft, against the defendants as drawers. The draft was payable at sight. It was re>-ceived by the plaintiff on the eighteenth of June, 1883, and presented for payment on the same day. Instead of paying cash the drawers gave the plaintiff a check on their bank in New York, which was accepted without direction or authority, and the draft wás delivered up to the payee.

<p>Motion to Amend Judgment.</p>

<p>Statute of Frauds — Contract for Sat/e of Goons — Memorandum.</p> <p>The traveling agent of the defendant company addressed to his principals an order, “ Send to C. W. S. Banks; terms, net 30'days; freight allowed,” signed by him as agent and followed by a list of the merchandise desired, with prices and directions for shipping, signed by Banks, the plaintiff. Held, that the paper was upon its face merely an order, and not a memorandum of sale signed by the defendant or his agent, within the terms of the statute of frauda.</p>

Bill of Beview to the District Court, brought by E. P. Wilbur, as-signee in bankruptcy of the Glen Iron Works, bankrupt. The facts are set forth in the report, of the decision of the district court, 17 Fed. Bep. 324, and in the following opinion:

<p>. 1. Patent Law — "What is Necessary Proof of Infringement.</p> <p>To make the defendant liable as an infringer it must appear that he has appropriated all the elements of the plaintiff’s combination, or their equivalents.</p> <p>2. Same — Subject-Matter of the Invention Infringed as Alleged.</p> <p>Alleged infringement of reissued patent No. 9,729, for a running gear for vehicles, in which there are combined an endless perch and an equalizing bar, connected to the adjacent ends of semi-elliptic springs, supporting the body of the vehicle between the perches, held not established.</p>

<p>1. Patent Law — Reopening Case once Decided for Trifling Reasons.</p> <p>Matter having been once decided will not be reheard because it is alleged that certain drawings before court at first trial were defective, and that evidence now proposed will.show the structures in the original and the reissue to be the same, unless the new evidence is so clear and positive that an entirely , different case is presented.</p> <p>2 Jurisdiction of Co-ordinate Courts with Respect to Each Other.</p> <p>One court does not reverse or review judgment of a court of co-ordinate jurisdiction.</p>

<p>Patekt Law — Peiob Fatetsit — Prior Ihvrstios — Burbest of Proof.</p> <p>Where the defendant, in an infringment suit, proves that he invented the patented device before the date of the plaintiff's application, the burden is transferred to the plaintiff to satisfy the court beyond a reasonable doubt that ho first conceived the invention.</p>

<p>Points in dispute decided in preceding case of Thayer v. Hart.</p>

<p>In Equity. Suit for the infringement of a patent ior an improvement in drilling damps for drilling railroad rails.</p>

<p>1. Patent Law — Legal Title as Opposed to Equitable — Notice.</p> <p>The legal title to a patent will prevail over tlie equitable title, unless the rights of the holder of the legal title wore acquired with notice of the equities of the party in whom the equitable title is.</p> <p>2. Corporation — Effect of Knowledge of Stockholders.</p> <p>A corporation is not affected with notice of facts because some of the promoters who organized the corporation had knowledge of the facts, or because some of its stockholders had notice.</p> <p>8. Same — Presumption of Knowledge.</p> <p>A corporation is charged with notice of facts known to a director who is an activo agent of the corporation in the transaction affected by his knowledge, although he acquired his knowledge unofficially.</p> <p>4. Same — Knowledge of Officers or Agents.</p> <p>A corporation is not charged with notice of facts known to its officer or agent in a transaction between him and the corporation in which he is acting for himself and not for the corporation.</p>

<p>1. Marine Tort — Liability of Ship — Negligence of Fellow-Servant.</p> <p>In the admiralty, no more than elsewhere, should the owner, without fault himself, he held as a general warrantor of the competency of any of his servants to the others, all alike engaged in the common employment of navigating the ship.</p> <p>2. Same— Contributory Negligence. .</p> <p>Nor in the admiralty should one, as a general rule, he compensated in damages who has, by his own fault, contributed to bring about his own injury. The Wanderer, ante, 140, distinguished.</p>

<p>Removal of Cause — Tkial—Issue Raised by DemuhbeR.</p> <p>The trial in the state court of an issue raised by a demurrer, which involves the merits of iho action, is a trial of the action within the meaning of the act of March 3, 1875, and the cause cannot thereafter be removed into the United States court.</p>

<p>1. Removal op Cause — Diligence op Applicant.</p> <p>The law requires diligence on the part of the applicant for removal. Ho cannot remain passive, and then, after tlie lapse of several terms of the state court, make an application for removal.</p> <p>2. Same — Matters not in the Record.</p> <p>Court cannot take judicial notice of matters that do not appear in the record.</p>

<p>NESUIfíENTUT SPREADING CONTAGIOUS DISEASE — BOARDING-HOUSE—ACTION EOR Damages.</p> <p>Defendant took Ms children when they had whooping-cough, a contagious disease, to the boarding-house of plaintiff to board, and by reason of his negligence her child, and the children of other boarders, contracted the disease, • whereby she was put to expense, care, and labor in consequence of her child’s sickness, and sustained pecuniary loss by reason of boarders being kept away. Held, that defendant was liable for damages.</p>

<p>1. Pensions — Second Marriage — First Husband Living.</p> <p>A second marriage by a deserted wife wlio imagines her first husband dead, and her continuing to live with the other party to such marriage after discovering her husband to be alive, precludes her from claiming a pension, such husband having meantime entered and died in the service of the United States.</p> <p>2. Marriage — Legal Intent — Presumption from Continued Intercourse.</p> <p>The presumption of the legal intent, with which parties innocently entered into on marriage, continues after the discovery of a prior husband of the woman, still alive; and their continuing living together and holding themselves out to the world as husband and wife constitute a relation to which the law attaches all the legal rights, obligations, and disqualifications which flow from a marriage entered into according to the forms oi law.</p> <p>3. Same — Law oe the Place — Act op Congress op 1882.</p> <p>The act of congress of 1882 provides that, in determining the fact of marriage, the law of the place controls</p>

<p>Common Carriers — Contract—Tender on Goods.</p> <p>A. railroad company is not responsible in an action for an alleged infringement of a contract to carry coal for the plaintiff, unless it is proved that the plaintiff actually tendered the coal to the company for transportation, and the .company then refused to carry it.</p>

<p>1. Prescription — Effect of Pledge — Interrupts against Principal Obligation.</p> <p>The pledge of a thing, legally made, in Louisiana is a tacit acknowledgment of the debt, and interrupts prescription against the principal obligation.</p> <p>2. Municipal Corporations — Powers.</p> <p>A municipal corporation can exorcise only the powers expressly granted to it, —those fairly implied from the granted powers, and those essential and indispensable to its declared objects. ___■</p> <p>3. Same — Power to Pledge City Property.</p> <p>The power to pledge city property is not essential to the declared objects of a municipal corporation in Louisiana, and when an act incorporating a city contains no rules relating to the pledging of municipal property, the city has no power to do so. Civil Code, § 3151.</p> <p>4. Plea of Prescription — Tacit Acknowledgment of Debt by Municipal Corporation.</p> <p>Where city authorities tiirn over bonds to creditors, the act not being that of the municipal corporation,, because illegal, it is not a tacit acknowledgment of the debt so as to preclude the city from setting up a plea of prescription.</p> <p>5. Municipal Corporation — Authority of Agent — Power of City — Subsequent Acts cannot Make Void Obligations Binding.</p> <p>.Where an agent of a municipal corporation has no authority to bind a city by giving notes, because the city has no authority to raise money to donate to a railway company, no subsequent act of the municipal authorities can make the obligation binding.</p> <p>6. Same — Power to Donate Aid to Railway Company — Obligation not Binding unless Authority to Issue.</p> <p>In the absence of express power, a municipal corporation cannot incur any binding obligation when its authorities borrow money in the name of the city for the purpose of donating pecuniary aid to a railway company.</p>

<p>Order of Arrest.</p>

<p>1. Revenue Laws — Liquor License — Purchase for Another without Receiving Profit.</p> <p>A grocer wlio, without obtaining a license for selling liquor, purchases-a barrel of whisky for a customer, and enters on his books a charge against the customer for the price at which it was actually obtained from the liquor dealer, does not transgress the spirit of the revenue laws.</p> <p>2. Same — One not Presumed to Offend on Account of being a “Grocer.”</p> <p>The fact that one is a grocer, rather than in any other line of business, should not raise a presumption of wrong-doing against him, in case of his purchasing a barrel of whisky to oblige a customer, and his entering on his books a charge therefor.</p> <p>3. Same — Not Intended to be Odious or Oppressive.</p> <p>The revenue laws are for the purpose of aiding the collection of the government revenue and taxes, and they should not be construed by the courts so as to become odious or oppressive to the people</p>

This was'a criminal information filed by the United States attorney charging the defendant with selling liquors at retail without payment of the special tax. The defendant plead not guilty.

<p>Patent Law — Bale op Patented Article — Vendor and -Vendee.</p> <p>The purchase of a patented article from, the patentee or owner of the patent confers upon the buyer the right to use the article to the same extent as though it were not the subject of a patent; but the sale does not import the permission of the vendor that it may be used in a way that will violate his exclusive property in another invention.</p>

This was a bill filed against the defendants for an alleged infringement of a patent granted May 20, 1879, to Bartholomae, as assignee of Meller & Hofmann. Bartholomae has assigned his interest to the plaintiff, a corporation of tho state of Illinois. Meller & Hofmann bad previously (1876 and 1877) taken out patents in France and Belgium.

<p>1. Admiralty — Liability of Claimahts — Admiralty Rule, No. 2.</p> <p>Where two parties appear and claim to he tlie owners of a vessel arrested under an admiralty warrant of arrest, containing the attachment clause, according to admiralty rule No. 2, and give a joint bond for her release, one of them cannot avoid liability by afterwards pleading that he was not an owner.</p> <p>2. Same — Cohtracts.</p> <p>When a contract is silent as to time of performance, and performance is tendered, without reserval ion, which is admitted to be defective, and the obli-gee acts irreparably upon such admitted non-performance, the contract is violated and damages result.</p> <p>3. Same — Charter-Party.</p> <p>Where, under a contract of charter-party to furnish a vessel of a certain capacity, a vessel is tendered which, after loading, is admitted to be of less than the guarantied capacity and is declined and the charterer suffers loss, ho is entitled to recover damages.</p>

<p>1. AdmiRAlty — Collision—Burden op Proof.</p> <p>In an action growing out of a collision of vessels consequent upon a failure of one to respond agreeably with the signal of the other, as directed in the navigation laws, (Rev. St. 4ÍL05 and 4412,) the burden of proof is on the vessel that, fails so to respond to explain the failure satisfactorily to the court.</p> <p>2. Same — Party Complaining Must Himself Keep within the Law.</p> <p>A vessel cannot evade all responsibility for damage given or received in a collision by showing that the other vessel did not respect her signal as the laws require, unless she further shows that she herself, in prudence, afterwards endeavored to avoid the peril imminent by checking her speed and backing water, as directed by the same laws.</p> <p>S. Same — Apportionment of Damages.</p> <p>In cross-suits growing out of a collision of vessels, there being proved fault on both sides, damages -will be apportioned according to the disparity of fault.</p>

<p>Shipping — ^ChaRtek-Paety—Damagk to Cabgo — Liability op Owners.</p> <p>A steam-ship was chartered at a certain hire per month, the owners to appoint and pay the master, officers, ami crew, and the charterers to direct what voyages the ship should make, and pay for the coals. The charterers sent the ship to Kingston, Jamaica, to bring back a cargo of green bananas to a port in the United States, and instructed the captain to pay attention to the temperature, and close the hatches whenever the thermometer fell to 50 deg. Fahrenheit, or else the fruit would become chilled and injured. This instruction was neglected, and the fruit was chilled and injured in consequence of the neglect to close the hat ches. Held, that the master and crew were servants of the owners for the purpose of navigating the vessel, and that, as it was part of the duty of those in charge of the navigation to take usual and proper care of the cargo, the owners were liable to the charterers for the damage.</p>

<p>Libel in Rem for Salvage.</p>

<p>1. Real Estate — Statute of Frauds — Parol Contract — Part Performance.</p> <p>The statute of Minnesota providing that contracts as to real estate must he in writing continues: “ ^Nothing in this chapter contained shall be construed to abridge the power of courts of equity to compel the specific performance of agreements incases of part performance of such agreements.” Whenever a parol contract for the sale of real properly is shown to be within this exception, a court of equity will not hesitate to enforce and decree specific performance by a conveyance from the vendor.</p> <p>2. Same — Specific Performance.</p> <p>Whenever it appears that a vendee, who is seeking the enforcement of the agreement, has been permitted by the vendor to treat the agreement as binding, and to do positive acts, amounting to part performance, based upon the assumption that the agreement is binding, specific relief will be granted and the vendor compelled to perform his part.</p> <p>S.' Same — Separate Parcels of Land.</p> <p>When, under an arrangement between two parties, by which one is to convey land to the other, the payments for the land are not to be applied upon the contracts generally, but always to specific sections or parcels, then, when a lament is made, it is payment in full only to the extent of tlie land upon which the application is made. And where the lands within the parol contract are of many distinct pareéis and each tract separate from all the remainder, and the purchase price is not a gross sum for the whole quantity of land, and all the tracts upon which valuable improvements were made?, and all of which possession has been taken, is conveyed to the vendee, equity will not decree a specific performance.</p>

In Equity. George L. Davenport and wife and George A. Davenport, their son, executed a mortgage to secure the payment of certain bonds on real estate in the city of Davonport, the debt to bo apportioned upon the different pieces mortgaged.

<p>1. Tax Title — Opinion of State Supreme Court — Authority in Federal Court.</p> <p>The opinion of the supreme court of Nebraska is a construction by the highest tribunal of the state of the effect of its statutes upon its tax proceedings, and as such should be followed by a federal court sitting in Nebraska.</p> <p>2. Same — Equity—State Lien — Owner—Party Paying-.</p> <p>In actions in equity the courts will inquire, not simply into legal, but also into equitable rights. In such actions each party must be required to do equity. The state has a lien upon land until all taxes are paid. When paid by other than the owner of the land, the state must be considered as transferring its lien to such party, and the only way that equity should relieve the owner from the burden of such lien is by payment.</p> <p>3. Same — Rights of the State — Transfer to Party Paying Tax.</p> <p>If one, without stopping to question the validity of the proceedings, comes forward and pays the tax, he ought to be entitled, not merely to the benefit of the proceedings then already had, but also the full benefit of all the state’s rights.</p>

<p>1. Equity — Incomplete Contract — Consideration—Insurance.</p> <p>An agreement to pay the premium at the rate specified is a sufficient consideration to make the agreement a binding contract. Generally, whatever is agreed to be done is considered in equity as done. The agreement to insure may be considered in equity as insurance.</p> <p>2. Same — Remedies.</p> <p>When a contract is made out in any mode to be a preliminary contract of insurance instead of a completed contract of insurance, the remedies upon it are the same, and may be enforced in the same way. The right to proceed in equity in such case cannot be denied.</p> <p>3. Same — Insurance Agent — Delivery of Policy.</p> <p>If the agents of five-insurance companies make an agreement with a party to insure' her premises in four of their companies, naming them, such party has not, after destruction of her premises by fire, and before any policies are delivered to her, a claim against the fifth company for the loss, even though each</p> <p>' of the five companies had written out policies for hex-.</p> <p>4. Same — Parties Defendant.</p> <p>If the agents of five insurance companies make an agreement with a party to insure her premises in four of those companies, naming them, such party has, after destruction of her premises by fire, a claim against the four companies named for the loss, even though there have as yet no policies been deliv-' ered to her, and such companies are proper parties in a suit to recover the los3.</p>

<p>1. Mortgagor and Mortgagee — Default—Possession after — Rents and Profits — Right to — Accounting for.</p> <p>When a mortgagee allows a mortgagor to remain, in possession of the mortgaged property after default, the latter takes the rents and profits to his own use, and the former cannot require him to account therefor, nor recover them from him.</p> <p>2. Same — Railroad Company — Mortgage Description — Oostruction of.</p> <p>When a railroad company mortgages its “income, earnings,” etc., the words being prospective in their operation, the use of the word ‘ ‘ moneys ’ ’ in connection with them does not enlarge the rights of the mortgagee, so as to convey to him such moneys as are simply past income and earnings.</p> <p>3. Same — Equitable Action to Foreclose Mortgage — Appointment of Receiver — Rights of Mortgagor.</p> <p>Where certain provisions in the order of a court appointing a receiver of mortgaged property flow from the mere discretion of the chancellor, they cannot he made the basis of invading the absolute right of the mortgagor.</p> <p>•4. Same — Preference of Creditors — Right of Corporation — Effect of Order of Court on.</p> <p>The right of a corporation to prefer its creditors cannot be defeated by the order of a court, in an equitable action to foreclose a mortgage, by taking into its possession property not covered by the mortgage, which ought to have been left in the hands of the company.</p> <p>■6. Same — Practice and Procedure — Motion to Strike Out.</p> <p>A motion to strike out from the order of a court, in an equitable action to foreclose a mortgage given bjr a railroad company, so much as requires the corporation to deliver to a receiver moneys on hand, being unexpended earnings of the mortgaged property not included in the mortgage, will be granted.</p>

<p>1. Executors and Administrators — Equity—Trustee—Relation to Creditors.</p> <p>In courts of equity, executors and administrators are considered in almost every respect as trustees, and tlie proper representatives of all persons interested in tlie personal estate. Tlie duty is imposed upon tliom of protecting sucli estate from all improper demands, and persons interested cannot properly be made parties in a suit against sucli executors or administrators for an account of the personal estate, although such person may bo greatly interested in contesting tlie demands which have occasioned the "suit.</p> <p>2. Same — Reference—Waiver—Failure to Answer — Legal Inference.</p> <p>The privilege of a reference allowed by law to an executor or administrator may bo waived by him If, upon the occasion presenting itself, such executor or administrator does not appearand answer, and avail himself of the privilege of a reference as to the condition of the assets in his hands after due service of process, the court may presume that his silence and inaction are equivalent to a waiver of a reference, and an admission of assets sufficient to satisfy the ascertained claims of the plaintiffs.</p>

<p>1. Creditors — Insolvent Bank — Contribution—Creditor Stockholders.</p> <p>In proceedings in llie nature of a creditor’s bill, to force certain accessible stockholders to contribute in order to satisfy creditors of an insolvent bank, in the court’s decree was considered the amount of the whole indebtedness, the number of shares of stock, and the liability of all the stockholders, in effect reducing the pro rata amount of liability of each defendant. The stockholder creditors, although quasi parties in that llieir interests were represented by the defendants in resisting- the demands of the plaintiffs, were not actual parties, and so cannot be included in the decree and made to contribute their part. But if, thereafter, they come as creditors to claim a part of the fund, the plain principles of equity and justice would deny their right.</p> <p>2. Same — -Parties before Master.</p> <p>In order to become a party to an action by simply proving a claim before the master, the person’s rights must, have existed at the commencement of the suit and been represented by the original plaintiff. lie cannot be consideied as thus represented, if, at the time of the filing the bill, he was a debtor, and his rights inconsistent with and adverse to the rights of the plaintiff.</p> <p>ó. Same — He who Seeks Equity must Do .Equity.</p> <p>If ono seeks equitable relief against another ho must perforin or offer to perform an equitable duty in relation to the subject-matter in controversy.</p> <p>4. Same — Uote.</p> <p>Stockholder creditors who have contributed, admitted to the benefit of the fund, and the bar of limitations removed as to them.</p>

<p>1. Estates oe Decedents — Creditors—Deyisee.</p> <p>It is well settled that the claims oí creditors of a deceased person must he satisfied before a devisee can derive any benefit from the bounty of the devisor.</p> <p>2. Same — Creditor’s Bill.</p> <p>A devisee can, by a creditor’s bill, be charged with the rents and profits of the property taken under the will of a decedent.</p>

<p>Petition on Review from the District Court.</p>

<p>Bankruptcy — Mortgage—Homestead—Foreclosure—Dependant.</p> <p>If a mortgage is executed by one who afterwards becomes bankrupt, and in his schedule states the premises to be his homestead, the mortgagor must be made a party defendant in the foreclosure proceedings, and cannot be made to appear by his assignee unless the mortgage of the homestead was acknowledged according to the statute of Illinois providing for the acknowledgment of mortgages of homestead.</p>

<p>Patent Mirrors — Measure or Damages.</p> <p>Tlie defendants, retail dealers in fancy articles, had supplied themselves, up to a certain time, with a style of mirror of which the complainants had a monopoly in the United States, hy purchasing the mirrors of complainants; they then began to import a like sort from Europe and sell them at a figure below complainants’ price. They sold tiiem at a loss. Held that, in estimating complainants’ damages, the measure should be the profits they would have made on the trade which defendants diverted. The sales made by defendants are not the criterion of complainants’ loss, because it cannot be legitimately inferred, under the particular circumstances, that the complainants would have sold as many mirrors as the defendants sold.</p>

<p>Referee’s Report.</p>

<p>1. Perpetuities — Realty—Personalty.</p> <p>The laws of New York prohibit the suspension of the power of alienation of both real and personal property by any limitation or condition whatever for a longer period than during the continuation and until the termination of not more than two lives in being.</p> <p>2. Same — “Powek os Alienation” — “ Unqualifid Ownership.”</p> <p>The statutes of New York use the term ‘‘power of alienation” in reference to real estate, and “ unqualified ownership ” in reference to personal property, in prohibiting perpetuities, but the meaning of the terms is synonomous.</p> <p>3. Same — Personal Property.</p> <p>The prohibition upon suspending the absolute ownership of personal property for a longer period than during’ two lives in being is directed to the accumulation of interest and income upon trusts in expectancy, and does not apply where all the cestui que trust are in being and may lawfully join with the trustee in an alienation of the property.</p> <p>4. Same — Patent—Trustee—Resume op Pacts.</p> <p>If two parties, one having exclusive patent-rights in certain territory, the other similar rights in certain other territory, and the two jointly as to still other territory, join in an instrument giving a third party the sole powers (1) to convey rights, etc., in states and territories, with certain exceptions; (2) to do likewise as to the excepted states and territories; (3) to collect money and royalties: and (4) to bring certain suits at request of either party, — all under certain restrictions and in trust for the benefit of the owners, the trust to continue for the unexpired term of the letters patent, — the legal effect of such an instrument is to make the assignee an agent to carry out the joint instructions of the makers, so that it may bo out of the power of either of the two to injure or be injured by the other or his representatives after his death; and the statutes prohibiting perpetuities have no application, as no person has any interest in the trust, present or in expectancy, except the persons who create it for their own benefit.</p>

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

<p>1. Admiralty — Boat in Tow — Collision—Tug—Negligence—Presumption.</p> <p>A boat in tow being powerless to help herself and wholly under the control of the tug, if it is brought into a collision, the occurrence presents an inference of negligence on the part of llio tug.</p> <p>2. Same — Facts of the Case.</p> <p>The facts in the case oí a powerful tug with a tow of 29 canal-boats, endeavoring to meet the tide, and meantime passing between an island and a steamboat at anchor, while doing which one of the boats in the tow is thrown by the tide against the anchored vessel and sunk, raise a presumption of negligence on the part of the tug which it must repel, when libeled.</p> <p>8. Same — Tug—Duty—Pbbils of the Tide.</p> <p>A tug with a tow of boats in charge is in duty bound to anticipate the time and place which are perilous from the ordinary action of the tide.</p>

<p>DEMUEEAfiE— CONSIGNEE TO FIND BERTH — • DUTY OF VESSEL.</p> <p>Wliere a consignee is bound to provide a berth for tlie ship or pay demurrage for the delay, the vessel is not bound to enter upon a struggle with other vessels for the possession of the berth, or upon a race to obtain it. The consignee must find a berth accessible to the ship without difficulty or struggle, and in default thereof must pay for the delay.</p>

<p>1. Admiralty — Collision—Libel—Innocent Purchasers.</p> <p>A vessel which has collided with another, and not been subjected to a libel therefor within two years, after which it passed into the hands of innocent purchasers, who, before the purchase, took every means to ascertain the existence of any liens, cannot be libeled on account of that collision, as against the new owners, four years after the damage was done.</p> <p>2. Same — Lien—Lack op Diligence in Enforcing — Innocent Third Parties.</p> <p>Admiralty denies the privilege of enforcing a lien which has been suffered to lie dormant, without excuse, until the rights of innocent third parties would be prejudiced if it should be recognized.</p>

<p>1. Attaching Creditor.</p> <p>The lien of an attachment is sufficient to enable a creditor to maintain a suit in equity to set aside a fraudulent assignment of the property attached : particularly under section 148 of the Oregon Code of Civil Procedure, which makes an attaching creditor a bona fide purchaser for a valuable consideration.</p> <p>2. Assignee, Power of.</p> <p>The assignee in a voluntary assignment is the mere instrument of tlie debtor for the distribution of his property, and unless the power is conferred upon him specially by statute, he cannot maintain any action or suit concerning the same, that the debtor could not, in case no assignment had been made.</p> <p>3. Construction of Act — Title and Preamble.</p> <p>In the construction of a statute, both tlie title and preamble may be considered in doubtful oases.</p> <p>4. Act to Prevent Fraud and Injustice — Construction of.</p> <p>An act to prevent fraud and injustice, as 1he assignment act of 1878, (Or. Sess. Laws, 36,) should be liberally construed to that end.</p> <p>5. Case in Judgment.</p> <p>The Oregon assignment act of 1878 (Se<s. Laws, 36) declares a general assignment by an insolvent debtor invalid, unless made for tlie equal benefit of ail Lie creditors of the debtor; but when so made, it shall have the effect to dissolve a prior attachment in an action in which judgment is not then taken, but does not affect a prior judgment against the debtor or ail execution thereon. S., an insolvent debtor, whose debts equaled 838,000, and assets did not exceed §30,000, confessed judgment in favor of his Portland creditors for §6,690, and had execution issued tuureon and levied on his stock of goods, worth §27,0j0, and sold thereby §25,000 worth of them to said Portland creditors, with the intent to prefer them to his Ban Francisco ones, and with the understanding that they would return the same to him as soon as lie was able to settle with tlie latter on terms sufficiently favorable to himself. The day after this judgment was confessed an action was commenced against S. on tlio claims oil tlie San Francisco creditors, amounting to §29,203.40, and an attachment issued therein and levied on said stock of goods then in the hands of the sheriff on said execution. Soon after, and before judgment could be had in tlie latter action, S. made a general assignment, for the benefit, of his creditors, in pursuance of which the assignee therein claimed tlie possession of the remainder of the goods — about §2,000 in value — still held under the attachment, on the ground that the same was dissolved by the assignment, and threatened to take tlie same and dispose of them thereunder; thereupon the attaching creditor filed a bill to restrain tlie assignee, and have the assignment set aside as fraudulent, to which there was a demurrer Held, (1) that the attaching creditor could maintain the suit; and (2) that the confession of judgment and assignment being parts of one common purpose and transaction, by which the Portland creditors were preferred to the Han Francisco ones, in the distribution of the insolvent debtor’s property, the assignment was fraudulent and void.</p>

<p>Extradition. Habeas corpus and certiorari.</p>

<p>Customs Duties — Bone-Black.</p> <p>The article known as bone-black is subject to a duty of 25 per cent.</p>

<p>1. Land — Treaty with Indians — Conveyance—Title.</p> <p>A treaty between the United States and an Indian tribe having been fulfilled by a conveyance of land, no question can arise as to the character of the conveyance, — whether a gift, donation, or grant for value.</p> <p>2. Same— Description — Mistake.</p> <p>An appointment by an Indian chief of a party 1o receive title to certain land intended 1 o be conveyed under treaty, may be valid; but, unless the conveyance describes the land as it really lies, no title to it can pass to the appointee, whatever may have been the Indian’s impression as to what its situation was.</p> <p>3. Same — Right ov Appointee to Sell — Accuracy op Description.</p> <p>The appointee of an Indian chief to receive title to certain land may after-wards absorb the interests of his co-beneficiaries; but, in a subsequent conveyance by him, he must use language appropriate to his purpose, ór no title will pass.</p>

<p>Habeas Corpus — Removal op Prisoker — Trial by Jury — Police Court op the District op Columbia.</p> <p>The petitioner, a citizen of Maryland, having been committed by a commissioner of the Maryland district for an offense against the law to prevent the sale of lottery tickets in the District of Columbia, an order for liis removal to bo tried in the police court of that district was refused, and the commissioner directed to take bail requiring him to answer the charge in the supreme court of that district, being a court in which he would be tried by jury. The fact, that the accused has to be brought from another district to be tried, held almost conclusive that the offense charged cannot be of that class to which the constitutional guaranty of trial by jury has been held not to apply.</p>

<p>Patent — Electric Lisht — Annular Olamp — Invention Anticipated.</p> <p>The invention, in the first, third, fifth, and sixth claims of the patent to Charles P. Brush known.as “the ciarnp patent,” and which consisted in the described means of moving the carbon rod, holding it by the angular impingement of the clamp, and continuously regulating the distance between the carbons by a continuous and gradual feed through the annular clamp, was anticipated by the invention of Charles JEL Hayes.</p>

<p>1. PATENT TjAW— ASSIGNOR and Assignee — Other Parties.</p> <p>The assignee of a patent is clothed with the right, as against, the assignor, to make articles covered by the patent, although the patent may be void for want of novelty as against the rest of the world.</p> <p>2. Samp, — Estoppel—License—Joint Patentees — Rights Inter Sese.</p> <p>If one of several joint paleutees assigns to a third party, the estoppel upon the assignor must work a license to the assignee to use the patent, and the joint owners of the patent must look to the one who assigns for an accounting.</p> <p>3. Same — Warranty—After-Acquired Rights.</p> <p>The warranty of a title, or right to it, draws to It any after-acquired right or title of the warrantor, and carries it to the benefit of the person to whom (he warranty runs.</p> <p>A Same — Warranty Generally as to Rights Subsequently Acquired.</p> <p>A patentee cannot sell his rigid to another, and then buy or obtain control of an older patent, and through such older patent dispossess'his assignee of the full benefit of what he purchased.</p>

<p>PATENT IjUHBEB DiíIEKS — l-Nl’KINOESfENT.</p> <p>Comparison made of the patent used by the complainant with that previously assigned by him to Burdsall, as to the slate of Wisconsin. Infringement found as to the first, second, fifth, sixth, and seventh claims of the reissue patent No. 8,846, and the first, second, third, fifth, sixth, and seventh claims of reissue Ho. 8,840, including the projecting platform for loading and unloading; flexible self-adjusting car; partition located for the purpose of confining passing air close to the pipes ; (lead-air chamber; horizontal and vertical partitions in the 8,840; and the steam-pipes arranged upon the inclined ground floor; the steam-pipe-; in “ gate form,” with expansion joints and headers; the broad chimney, with the two small chimneys, separated by inclined deflecting hoards; tlie curtain or sliding door; and the curtain depending from, the top of the drying chamber to the lumber in the drying-room.</p>

<p>1. Patents for Invention — Reissue—Delay.</p> <p>There is no unbending rule by which to determine wliat is unreasonable delay in applying for the reissue of a patent to correct a mistake in the claim by broadening it; and each case must be decided upon its special facts and merits.</p> <p>2. Same — Reissue Sustained.</p> <p>In this case, where the original letters patent were dated March 20,1877, and upon an application filed on January 28, 1879, a reissue, which broadened the claim, was granted on December 30, 1879, no adverse rights having accrued in the mean time, the court sustain the reissue.</p> <p>3. Same — Combination—Patentability.</p> <p>There is no patentable combination in a mere aggregation of old devices which produce no new effect or result duo to their concurrent or successive joint and co-operating action ; hut it is by no moans essential to a patentable combination that the several devices or elements thereof should coact upon each other. It is sufficient if all the devices co-operate with respect to the work to be done and in furtherance thereof, although each device may perform its own particular function only.</p> <p>4 Same — Disclaimer—Rev. St. § 4922.</p> <p>A disclaimer under section 4.922, Rev. St., need not be filed (except, where costs are sought to be recovered) until the court has passed upon the contested claims alleged to contain that of which the patentee was not the inventor.</p> <p>5. Same —Patent No. 194,059 and Reissue No. 9,011 Construed — Infringement.</p> <p>Reissued patent No. 9,011, dated December 30, 1879, and letters patent Nos. 194,059 and 198,432, dated respectively August 14,1877, and December 18,1877, for improvements in coal-washings machinery, construed, sustained, and held to be infringed.</p>

<p>1. Patent — Process.</p> <p>The process of determining- the grade of lubricating oils by a fire-tost.</p> <p>2. Same — Prior. Use — Apparatus.</p> <p>Previous patent, for an apparatus to test coal oils cannot be regarded as an anticipation of the patent in suit.</p> <p>3. Saji® — -Evidence Required.</p> <p>Proof of prior use must not be vague and indefinite. It is necessary that it be of that high character that convinces the court beyond a reasonable doubt.</p>

<p>Patent Process for Oil — Reissue—Unlawful Claim.</p> <p>Tlie claim of tlie reissue of a patent for making an oil product by tlie use of steam, in vacuo, cannot be unlawfully broadened so as to include the oil product, no matter by wliat process produced.</p>

<p>1. Patent Law — Reissued Patent — Duties oe Courts.</p> <p>■When it can be seen that, the patentee seeks, by apt words of description, to securo wliat he has honestly invented and nothing more, the courts should hesitate to regard with favor the accusations now so freely made against reissued patents.</p> <p>2. Same — Improvement in Box-Loops, Etc.</p> <p>Reissued patent for “improvement in box-loops for carriage tops,” held valid: following O'randal v. Walters, 20 Blatchf. O. O’. 97; S. 0. 9 Feo. Risf. 659.</p>

<p>1. Patent Law — Or,» Device — Conn,aint Founded Thereon not Good.</p> <p>The application of an old device to another analogous use is not a patentable subject, and a bill of complaint founded thereon is not maintainable under tiie principles of the patent lavs, and must be dismissed.</p> <p>2. Same — “ Process” — Requisites—Ineringbmkkt.</p> <p>A valid patent for a process must be limited to the precise or certainly substantial description which has been given iri the specifications, and in order to constitute ah infringement of that process a person must be shown to have followed substantially the same process — the same mode of reaching the result— as is described in the specifications.</p> <p>3. Same — Assumption of Law — Onus Prouandi — Change ov Onus.</p> <p>The law makes the assumption that the patentee is prima facie an inventor, but when we come to the question of infringement the onvs is changed: it is incumbent on the plaintiff, as patentee, or his representative or assignee, to prove clearly and satisfactorily that there has been an infringement.</p>

<p>1. Patents for Inventions — Remedies—Cpncuruenok op Equity and Law.</p> <p>In cases of patent infringement the statules of the United States have conferred original and concurrent jurisdiction upon courts of equity, and they. ■ may determine, without the assistance of courts of law, the legal rights of the plaintiff and the infringement of the defendant, and may ascertain tfie amount of loss and damage by taking an .account of the defendant’s profits, and afford a complete remedy for the wrong committed, and prevent its continuance by injunction.</p> <p>2. Same — Lunacy op Inprtnoeu — Account—Injunction—Costs.</p> <p>The defendant having admitted the infringement, hut pleaded the fact of his lunacy at the time of the commission of it, the court deuces a perpetual injnnction on account of ilio profils obtained by the defendant through the infringement, as welL as costs in favor of the plaintiff.</p> <p>3. Same — Maintenance OB' Lunatic.</p> <p>Equity’s superintendence and care is only exercised during the period of mental incapacity, when tito lunauc is unable to provide maintenance for himself and family. After the restoration of such person to a condition of sanity, the courts cannot properly allow the expense of past maintenance, although his incapacity for self-support and the incidental expenses necessarily incurred during the lunacy had greatly diminished ids estate, and the damages claimed •were caused by him while lie was a lunatic. An account ordered as to such damage cannot take the past maintenance of the lunatic into consideration, after the establishment of his sanity.</p> <p>4. Same — Equity — Costs in Intermediate Proceedings — Discretion op Courts.</p> <p>Courts of equity having a large discretion in matter of costs, frequently give costs in intermediate stages of a cause, without waiting for a final decree.</p>

<p>Collision — Pilot-Boats—Steaxietí—ScirooNER—Brio—Fault.</p> <p>Two pilot-boats, one ol them u steamer, the other a sailing schooner, make for a ship, coming from sea into the capos of Chesapeake bay, to offer pilot service.- The schooner crosses the bow of the ship, and meets her on the leeward, approaching within 50 foei, of her. The pilot steamer approaches the ship on the windward, and, when within 300 feet, passes off by the ship’s stern. In less than half a minute after the ship passes from between the two pilot vessels they collide. The schooner is damaged and sunk, and libels the steamer. Held, tliat each of the pilot vessels had a right to approach the ship in open sea, for the purpose of proffering pilot service, as these vessels had done, and that the steamer was not in fault m being where she was in lawful pursuit of her calling. Held, on all the proofs in the cause, tliat the collision which oc-Cured was not by fault of the pilot steamer; and this the more true, as the schooner, when the collision was seen to be almost inevitable, made a maneuver which was the direct cause of it, and which rendered it absolutely inevitable.</p>

<p>1. Collision — Tua and. Tow — Responsibility of the Tra.</p> <p>Steam-tugs, having boats in tow, are bound to the exercise of reasonable skill and care in everything relating to their work until it is accomplished, and are chargeable for the want of either to the extent of the damage sustained; and this liability continues, although it may appear that the negligence or unskillfulness of those managing the tow contributed to the collision.</p> <p>2. Same — Responsibility of the Tow.</p> <p>Whenever tow-lines are used, the master of the tow is bound to obey all proper orders of the master of the tug, and when he refuses to obey such orders, or fails in reasonable skill or attention to duty, such conduct may relieve the owners of the tug from responsibilty.</p> <p>3. Same — Application to Facts.</p> <p>A tug having a schooner in tow, attached by a long hawser, in attempting to pass a boat in tow, sheered upon the latter the schooner, and caused much damage to the boat. In such a case, the tug being the motive power, the law regards her as the dominant mind in the transaction, and makes her responsible for all accidents resulting from not exercising ordinary care.</p>

<p>1. Common Carrier — Bum oe Lading — Exceptions ok “Negligence.”</p> <p>A general gMp jg a common carrier; an exception in her bills of lading against loss “ by any act, neglect, or default of the master or mariners ” is invalid.</p> <p>2. Same — Loss “by Thieves or Robbers.”</p> <p>An exception against loss “ by thieves or robbers ” is valid, unless the theft be invited or made easy through some negligence of the ship.</p> <p>3. Same — -Ordinary Negihgenoe.</p> <p>Such an exception serves only to relieve the ship from her liability as guarantor against theft, and from that extreme care which naturally accompanies such a guaranty. She is still bound to use all customary and reasonable vigilance against theft, according to tho nature of the articles and the temptations and facilities for stealing' them.</p> <p>4. Same — Case Stated.</p> <p>Where the steamer S. received on board a box of gold coin valued at 023,000, a few hours before sailing, which was put in the locker beneath tho floor of the “ glory-hole,” in the run of the'ship, and the scuttle to the locker was provided with a bar across it designed to be fastened by a padlock, and also with a stout lock in the edge of tho scuttle, and the box of coin was at once put in the locker and tho lock fastened, but the bar and padlock were not used or fastened, and a former discharged employe had previously gone to the glory-hole, taken out the look, and carried it off and got a key fitted to it, and had then replaced the lock in the edge of the scuttle, and, shortly after tho box was shipped, again wont aboard and went to tho glory-hole, unlocked the scuttle, broke open the box in the locker, stuffed the bags of coin about his waist, secured them by a strap, and left the ship hy the usual gang-way, unobstructed, though observed and interviewed by two seamen, who supposed him to be smuggling, held, that the ship was chargeable with neglect of customary, ordinary, and reasonable vigilance aga nst the theft of the coin in not using the bar and padlock; in not providing any check or guard against access to the glory-hole; in not preventing tampering with the lock; and in not having suitable and proper watch against suspicious persons on sailing days; and in not observing and stopping a person when leaving the ship who was so visibly and plainly stuffed with his plunder.</p>

<p>1. COMMON CARRIERS — BILL OB’ LADING — NeGMGENCE—RELEASE OB’ RESPONSIBILITY against Insurable Damage.</p> <p>If a condition in a bill of lading, relieving’ the carrier from liability for “any damage that can be insured against,” is to receive an unqualified construction, and be deemed to include a loss arising from the negligence of the carrier, it is obnoxious to public policy, and therefore void.</p> <p>2. Same — Public Policy.</p> <p>Public policy demands that the right of the shipper to absolute security against the negligence of tiro carrier, and of all persons engaged in performing his duty, shall not be taken away by any arrangement or agreement between the parties to the service.</p> <p>3. Same — Implied Release.</p> <p>The same reasons that forbid the recognition of an express contract between the carrier and the shipper, exempting "the former from liability for his own negligence, forbid a contract between them which is designed to work the same result. That which cannot be done directly, will not lie permitted to he done indirectly.</p> <p>4. Same — The Objection Defined.</p> <p>The objection to a condition releasing the carrier from liability for an insurable damage lies in its tendency to impose upon the shipper the burden of protecting himself against a risk which it is the carrier’s duty to assume, and which the law will not permit him to evade It is better that the carrier should be paid a higher freight, consequent upon his insuring himself against damage to which his own negligence may contribute, than that he should be given immunity by the shipper.</p>

<p>Libel in Bern.</p>

<p>1. Ejectment — Possession by Defendant — Arkansas Rule.</p> <p>In Arkansas, before tlie plaintiff can recover in ejectment, lie must, show that at tlie time of tlie commencement of tlie action tlie defendant was in possession.</p> <p>2. Possession — Cutting and Hauling Off Timber, not.</p> <p>The mere act of cutting timber on land, and hauling it oif, is not such possession of the land as will entitle the owner to maintain ejectment against tlie trespasser, and occasional intrusions of this sort do not constitute possession, whether done under claim of title or not.</p>

This is a bill in equity, brought here on account of citizenship of the respective parties, to perpetually restrain the defendant from using the mark attached to complainant’s exhibit, “Robert S. Hynes’ Plug Tobacco,” on plug tobacco, complainants claiming to have an established right to the use of the mark of a “star” affixed to plugs of tobacco as a trade-mark, and complainant’s mark is shown on complainant’s exhibit, “Liggett & Myer’s Plug Tobacco.” Specimens or samples…

<p>1. Insurance — Construction of Polioy — “ On or Before.”</p> <p>Where an insurance policy contains a stipulation that the policy shall determine if the premium is not paid “ on or before the day ” fixed, and by a separate instrument, delivered simultaneously with the policy, and for the same consideration, the company agrees, after the payment of three annual premiums, to issue a paid-up policy for a proportionate amount on the surrender of the policy to the company “ on or before it shall expire by the non-payment of the fourth or any subsequent annual premium,” the stipulation and agreement should be read together as one contract, and the word “ on” in the contract should be construed to mean the instant of the expiration of the policy.</p> <p>2. Same — Paid-Up Policy.</p> <p>In such a case the time of the surrender of the policy is of the essence of the contract, and the insured is not entitled to a paid-up policy on the surrender of the original policy after it has expired by non-payment of a premium</p> <p>Former opinion in this case, 16 Fed. Rep. 720, modified.</p>

<p>1. Sale by Asent to Principal — Worthless Bonds op a State.</p> <p>If an agent, in response to his principal’s order to purchase for him certain bonds, purchases such from himself (he having received them in part payment on an individual contract for the delivery of iron) and charges his principal with them thus: “ To hot. $100,000 6 per cent. North. Carol. Bonds, §63,125,”— retaining them in his own possession and manifesting acts of ownership concerning them, in the'event of the bonds being subsequently declared void by . the highest court in North Carolina, the loss should fall on the agent, even though he had no intention to defraud.</p> <p>2. Same — Partnership—Chose in Action — Sunvivoit.</p> <p>Upon the decease of one copartner, -ill the personal estate and assets of the firm, including debts and choses in action, survive to the partner still living.</p> <p>3. Same — Confidence—Equity.</p> <p>When the relations of parties have been of peculiarly great personal confidence, it is proper to resort to equity in case of the discovery of an abuse of it. The propriety of the jurisdiction is as great when the account is opened for affording relief as it would be if the account had been left open.</p>

<p>1. INTERSTATE COMITY — DEED OF ASSIGNMENT.</p> <p>A deed of assignment between residents of another state, valid according to the laws of the state where executed, is valid as to personal property in Kentucky.</p> <p>2. Transfer, of Personal Property.</p> <p>The right of a state to regulate the transfer of personal property within its jurisdiction must be exercised, and the intention to do so clearly expressed by statute or by settled policy, or a transfer valid by llie law of the domicile oí the owner will be held valid within such state.</p> <p>3. Deed op Assignment — Pkeperknce—Í'iíaud.</p> <p>The giving oí a preference to one or more creditors is not, in itself, fraudulent as to creditors.</p> <p>4. Kentucky Statute — Act op 1856 — Gen. St. Art. 2, On. 44.</p> <p>The act of 1856 does not operate to render void a deed of assignment giving a preference, but causes it to operate as a general assignment, upon a petition being filed within six months from date of the deed.</p> <p>5. PniiDGE — Warehouse Receipts — Lien.</p> <p>Neither the custody of the warehouseman nor the pledge of whisky by delivery of the warehouse receipts, gives to the warehouseman or pledgee any general lien for debts not arising from the relation of warehouseman or pledgee.</p>

<p>1. Federal Courts — Costs when “ No Jurisdiction ” Adjudged.</p> <p>The rule is uniform in the federal courts that where the case is one of which the court has no jurisdiction, the duty of the court is to dismiss it upon that ground, and without costs.</p> <p>2. Same — Revised Statutes oe the United States.</p> <p>The provisions of the Revised Statutes of the United States have made no change in the pre-existing laws upon the subject of costs; and the cases of U. 8. v. Treadwell, 15 Fed. Rep. 532, and Cooper v. New Manen Steam-boat Go. 18 Fed. Rep. 588, so far as they intimate the contrary view, are disapproved.</p> <p>3. Same — Case Stated.</p> <p>The court below having dismissed the complaint because the case disclosed by it was one of which the court had no jurisdiction, it was error to award the defendant a judgment for costs.</p>

<p>1. Navigation Laws — Interstate Commerce — Domestic Traffic.</p> <p>The navigation laws do not apply to tlie caso ot a vessel whose trips arc c m-flned to points inside one slate and have no connection with any point outside that state.</p> <p>2. Same — Powers of Congress — Disposition of the Courts — Obiter Dicta.</p> <p>Congress lias the power to prescribe the law of the highway so far as may be necessary to protect interstate commerce, but no court will undertake to expound liio constitution, and declaro incidental powers, tinless the question is directly presented and the case imperatively requires it.</p> <p>3. Sime — Steamer—Barges in Tow — Effect in Law.</p> <p>A steamer being subject to llio navigation laws, the mere fad that she took barges in tow has nothing to do with the proper navigation of the river.</p>

<p>1. Patent Law — Metat.t.to Doors and Door - Frames os PigeoN-Hoi.es in Post-Offices.</p> <p>It is unquestionable that the patentee, when he made his original application, intended to say that his invention did not consist simply of making, by his combination of metallic doors, door-frames, and wooden boxes, a continu-uous metallic frontage, but that it also consisted in the way in which the frontage was made continuous, viz., by the corfneetion of the adjoining frames with each other. His definite and exact specification shows that he supposed that his patentable invention was thus limited</p> <p>2. Same — Reissue No. 8,783.</p> <p>The first and second claims of reissued letters patent No. 8,783 to the plaintiff as assignee of Silas N. Brooks, administrator of Linus Yale, Jr., are to be limited so as to require the combination of door-frames, doors, and pigeonholes, to be by means of rivets or bolts which attach the frames both to the wood work and to each other.</p>

<p>1. Notice of Special Matter, under Section 4920, Rev. St.</p> <p>Notice of special matter, in an action for the infringement of a patent, is not a pleading, and, instead of being put in the answer, should be served on the adverse party.</p> <p>2. Special Plea in Action for Infringement.</p> <p>Special matters, which may be given in evidence under the general issue, and a notice in such action, may also be pleaded specially; but special pleas must conform to the Code of Civil Procedure.</p> <p>3. The Eastmond Patent, No. 371,926, Januaky 11, 1876.</p> <p>Neither the Holt patent, No. 147,266, issued February 10, 1874, nor “A Treatise oil Ventilation,” written by Lewis W. Leeds, and printed by John Wiley & Sons, New York, 1871, anticipated the invention of Elbert Eastmond, entitled, in the application for a patent made September 22, 1873, “improvement in ventilating water-closets.”</p> <p>4. Saaie — -Infringement—-I) AMAUEs.</p> <p>The amount of the royalty charged and paid for the use of the invention taken as the measure of damages for an infringement of the patent therefor.</p>

<p>1. Patents for Inventions — Infringement—Damages—Profits.</p> <p>In estimating profits made by tlie infringer of a patent, the comparison must be between the patented invention and what was known and open to the public at and before the date of the patent. If the rule were otherwise, a patent might he practically destroyed by subsequent inventions.</p> <p>2. Same — Interest.</p> <p>Interest is properly allowable on a decree for profits from the time the report is in proper form for exceptions.</p>

<p>Patent Law — Tiled Arch, Etc., por Interiors — Kreischer’s Patent.</p> <p>The invention is old; and it is useless to attempt to sustain the patent upon refined distinctions in structure, which the patentee evidently never contemplated, and which certainly are not within the claims as expressed in the patent.</p>

<p>1. Admiralty — Collision—Pleading—Evidence—Burden of Proof.</p> <p>Tlie failure of a respondeat to allege, as a defense, that the collision was an inevitable accident', does not aid the case of the libelant. The libelant’s case depends upon his sustaining the main allegations in his libel, to the effect that the collision was caused by the fault of the respondeat, and if he fails of his p'roof in that particular he c'annot recover.</p> <p>2. Same — Unexpected Approach of Vessels — Navigation Laws.</p> <p>■. In cases where two vessels approach each other unexpectedly in very dangerous proximity, the guide for their actiou should be rule 24 of the navigation laws, (Rev. St. 4233,) which provides that “due regard should be had'to all the dangers of navigation, and to any special circumstances which may exist, in any particular case, rendering a departure from the general rules necessary in order to avoid immediate danger.</p> <p>3. Same — Poa-Horns—Proof—Pailurb to Hear.</p> <p>The testimony being that the fog- horn was regularly and properly blown by the vessel complained against, the proof that it was not heard by the vessel complaining does not, under the circumstances, overthrow thit testimony. The proof that the horns were properly blown on each vessel, and yet not heard on tie other, simply shows that the best-known precautions which experience has suggested or the law provided, may at times fail of securing safety.</p> <p>4. Same — No Fault when Rules Complied With.</p> <p>If the officers and crew of a vessel comply with all the rules which circumstances require them to observe, they cannot be held in fault in the event of a collision. The Rhode Island, 17 Fed. Rep. 554, distinguished.</p>

<p>In Admiralty. Un exceptions to the report of the referee.</p>

<p>Libel for Salvage.</p>