Volume 22 — Federal Reporter

<p>Motion to Remand.</p> <p>cited 16 Wall. 190; 19 Feu. Rep. 49; 4 Dill. 557; 99 ü. S. 80; 10 Fed. Rep. 406.</p>

<p>1. Removal of Cases by a Party where Co-Defendant oh Co-Plaintiff is not Entitled to Removal.</p> <p>• Where a mon-resident party has an interest in a controversy in a state court "which is separate and distinct from, and does not necessarily involve the interest of, the other defendants in the issue or the other party on the same side, he can remove the ease into the federal court; but if the interests of the parties on the sid-e of the party desiring the removal are so identified and mixed up that they must and should be decided together, and the final decree must depend upon and involve the rights of both parties, then it cannot be removed, where one of the parties on that side is a citizen of the same state as the adverse party.</p> <p>2. Same — Pakties—Case Stated.</p> <p>A., after recovering a judgment against B., a corporation, had an execution returned nullabona, and then took proceedings under the Missouri law to subject the stockholders io personal liability, and in those proceedings obtained an order against C., and liad an execution issued against him, under which the sheriff levied upon and said certain shares of stock standing in C.’s name on the books of a corporation called 1). A. purchased some of the stock and received certificates of sale from the sheriff, and lindingthe stock unavailable because D. would not recognize him as a stockholder, he instituted suit in the state court to compel I). to acknowledge him as the owner of the stock, to itave it registered in life name on the company's books, and to permit him to receive dividends, and he made O. a party on the ground that the stock stood in Ills name on D.’s hooks, 0. filed an answer claiming that he had sold said stock and delivered the certificates therefor to the purchaser prior to the time said judgment was rendered against him and liad no interest in the stock at the time of said sheriff’s sale and lias none now. I), and A. arc citizens of Missouri, G. of New York, and, the case having been removed to this court, A. moved to remand it, held that, under the rule as above stated, the case must he remanded.</p> <p>3. Puactioe in Supreme Court as to Remanded (Riser.</p> <p>tiemble, that remanded cases, if taken up, are advanced and heard out of their order in the supreme court, o-n motion.</p>

<p>1. Removal of Cause — Case Arising undeir Laws of United States.</p> <p>Plaintiffs sued defendant, a United States marshal, in the state court, for trespass in seizing and carrying away books of account belonging to them, but the declaration failed to allege that defendant acted in his official eapactty. Defendant demurred generally, and thereupon filed a petition for removal of the case to the federal court, alleging in his petition that he was a United States marshal, and acted under an attachment issued by the United States circuit court in making the alleged seizure, “if any seizure actually occurred,” and that the suit was one arising under the laws of the United States, and involved the construction of such laws. Held, that the record did not present a case within the jurisdiction of the federal court, and that the cause was not removable.</p> <p>2. Same — Petition—Record.</p> <p>The ground of jurisdiction of the United States court must appear in the record as it actually exists, and the petition for removal can be taken as part of that record only so far as it states facts which may be regarded as legally consistent with the pleadings of the parties and within the purview of the issue, if one has been made between them.</p>

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

<p>Suit to Set Aside Conveyances to Hinder and Delay Creditors.</p>

<p>Chicago Boatcd oe Trade — Btstbibution op Beports by Telegraph.</p> <p>The Chicago board of trade has the right to decide to what persons besides its own members the telegraphic reports of its dealings, collected by its own employes, shall be distributed.</p>

<p>1. Specific PERFORMANCE — Parties—Trustee’s Sale.</p> <p>A bill of specific performance, filed by a purchaser at auction sale of land by a trustee, is founded upon a contract between complainant and the trustee; and other parties in interest, who are strangers to the contract, should not be made parties defendant.</p> <p>2. Same — Defects in Title — Conditions of Sale.</p> <p>In such a case, the printed conditions of sale govern the contract; and where they do not state any defect in the title, or purport to convey only the trustee’s right, title, and interest, the purchaser has a right to expect and demand a good title.</p> <p>3. Same — Evidence of Title.</p> <p>It is not sufficient for the trustee to show the validity of the conveyance under which he claims title, but he must go further, and make out a good title, where such a title is called for by the terms of sale, and the cause may stand over for the purpose of allowing the trustee to take further evidence as to title, and to obtain possession of the estate.</p> <p>4. Same — Decisions of State Court — Validity of Deed.</p> <p>As the federal courts are bound to follow the decision of the highest oourt of the state in the construction of a state statute, the deed in question in this case must be held valid; following Austin v. A. & W. Sprague Manuf’g Oo. Index U, p. 12.</p>

<p>1. Equity — Pleading—Duplicity—Multiplicity.</p> <p>• A plea of another suit pending in a state court for the same cause of action, and that the United States court has no jurisdiction, because of the citizenship of complainant, is bad.</p> <p>2. Same — Two Pleas — Leave oe Court.</p> <p>But one jilea can be set up iu equity without express leave of the court.</p> <p>3. Same — Another Suit Pending.</p> <p>4 A suit in the state court for a divorce and a division of the community property is for a different cause of action from one by the same parties in a United States court for a decree declaring an alleged written contract of marriage made in pursuance of section 75 of the Civil Code of California to be fraudulent and void, and asking to have it canceled, and defendant perpetually enjoined from claiming ^ny right under it, and cannot be pleaded in abatement of the suit in the United States court. ,</p> <p>4. Same — Suit Pending in State Court.</p> <p>A suit ponding in a state court cannot be pleaded in abatement of a suit in a United States court, as the courts of the states and of the United States are courts of different jurisdictions.</p> <p>5. S-uru — Equity Rtji/e 69— Evidkxce — Hearing ox Pleadings.</p> <p>Where, after expiration of Hits timo allowed by equity rule 69 for taking testimony, a ease is submitted on oili, plea to the jurisdiction, and replication, and no evidence has been taken by defendant, on whom the burden of proof rests, the plea will be overruled for want of evidence.</p>

<p>Res Adjudicata — Claim: against Estate — Administration — Suit to Subject Read Estate to Payment of Claim.</p> <p>Alter a decree of the probate court of Wayne county, Michigan, had been made closing administration of the estate of D., complainant filed her petition in that court praying that the decree might be set aside, that the administration might be reopened, and that she be allowed to prove her claim upon a covenant of D. against his estate, and after hearing her petition was denied. Held, that complainant was not barred by the proceedings in the probate court, and that she could maintain a suit in equity to obtain satisfaction against the heirs at law of D. out of real estate descended to them.</p>

In Equity. The bill states that it is the usage and custom among express companies, known to and heretofore acted upon by the defendant and by all pther express companies, “that when a package of express matter is tendered to the connecting express company it receives the same and pays the tendering express company the charges which have accrued thereon for the services rendered by it, and thereupon transmits said parcel to another express company, or the point of…

Demurrer to Answer and Cross-bill. The St. Louis & Keokuk Railroad Company being largely indebted, the stockholders and officers of the company organized the St. Louis, Hannibal & Keokuk Railroad Company, to which they transferred the assets of the St. Louis & Keokuk Railroad Company, in consideration of stock in the new company. The other material facts are stated in the opinion of the court.

In Equity. Demurrer to bills. The facts in the eases are similar.

<p>Trade-Mack — Use of Surname— Parties of Same Name — Deception and Fraud — Injunction.</p> <p>While a party cannot be enjoined from honestly using- liis own name in advertising his goods and putting- them on the market, where another person, hearing- the samo surname, has previously used the name in connection with his goods in such manner and for auclx length of time as to make it a guaranty that the goods bearing the name emanate from him, he will be protected against the use of that name, even by a person bearing the same name, in such form as to constitute a false representation of the origin of the goods, and thereby-inducing purchasers to believe that they are purchasing the goods of such other person.</p>

In Equity. This is a suit to restrain the defendants from advertising or selling rubber goods, not manufactured by the complainant, with the name of “The Goodyear Go.” in any manner annexed or attached thereto.

In Equity. 0. H. McGruder and H. Condon were partners in the retail shoe trade in the city of Eichmond, who, finding themselves insolvent, executed, on the fourth of January, 1884, an assignment of their stock in trade, and all debts due the firm, to Sol. Cutchins, by deed of record, and charged the fund that should arise from sales with various preferences, which it is unnecessary to specify.

<p>1. Marine Insurance — General Average — Separation oe Cargo.</p> <p>Where the captain of a sunken steam-boat reshipped a part of his cargo on another vessel, consigned to agents of his own, with instructions not to deliver to the original consignees except upon their giving a general average bond, and, having returned to the port of shipment for that purpose, did not notify the consignors, held, that this was evidence of his intention not to separate that portion of the cargo from the burden of the general average, and that it was liable to contribution, notwithstanding the sunken vessel, when raised, returned to the nearest port of safety for repairs, and did not again take on board that part of her cargo, and did not complete the voyage.</p> <p>2. Same Subject — Expenses.</p> <p>The general average should include ail the expenses from the disaster, not excluding those incurred for the roshipmeut of another part of the cargo from, the port of safety first readied.</p>

<p>Sales — Implied Warranty.</p> <p>In sales of personal property, in the absence of express warranty, where the 'buyer has an opportunity to inspect the commodity, and the seller is guilty of no fraud, and is not the manufacturer of the article he sells, the maxim of caveat emptor applies.</p> <p>See Reynold v. Palmer, 21 Fed. Rep. 433, and note, 439. — [Ed.</p>

<p>CONSIGNOR AND CONSIGNEE — PjLiEDGH</p> <p>Where a consignor draws a sight draft upon his consignee before the latter has sold the goods consigned, a pledge by the consignee of the consignment, to secure a loan with which to meet the draft is valid.</p>

<p>1. Taxation — Interstate Commerce — Loss in Transit.</p> <p>Logs cut on lands owned by a Minnesota corporation in Wisconsin and Iiauled down to a river, and piled on tlie ice to await the opening of the river, to be floated down into Minnesota, to be there manufactured into lumber, cannot be considered as in transit from one state to another in a commercial sense, and may lie assessed and taxed in Wisconsin.</p> <p>2. Same — Constitutionality or Wisconsin Statute op 1882.</p> <p>Sections 1 and 2 of the Wisconsin statute of 1882, regulating the assessment and taxation of logs belonging to non-residents, is not unconstitutional as violating the principle of uniformity in providing for an assessment in April, while logs belonging to residents are assessed in May, nor as unjustly discriminating against non-residents.</p> <p>3. Same — Double Taxation.</p> <p>The fact that lands on which logs are grown are assessed for taxation in May, and the logs cut therefrom are assessed for taxation in the following April, does not render the tax on the logs a second tax.</p> <p>4. Samis — Taxation in Another State — Removal op Property.</p> <p>Where a tax is lawfully levied on property in one state, the constitutionality of such tax is not aftoctoh by the fact that such property is again subjected to taxation in another state to which the owner has removed.</p>

<p>Practice — Attachment—Detective A^EmAViT — Amendments—Rev. St. $§ 914, 9.15, 988, 989.</p> <p>Wliore a writ of attachment has been issued in a suit instituted in the circuit court of the United States on a defective affidavit, the court may, when right and justice require it, allow such affidavit to bo amended, although, under the statutes of the state in which the circuit court is hold, tho state court would have no power to allow such an amendment.</p>

<p>1. Marine Insurance — Abandonment oe Vessel.</p> <p>The right of abandonment does not depend on the high probability of a total loss either of the property or of the voyage, or both. The insured is to act, not upon certainties, but upon probabilities; and if the facts present a case of extreme hazard, and of probable expense exceeding half the value of the ship, the insured may abandon, though it should happen that she was afterwards recovered at a less expense.</p> <p>2. Same — Valuation—Loss.</p> <p>in ascertaining the value of the ship, and whether she is injured to the amount of half her value, the true basis of the valuation is the value of the ship at the time of the disaster; and if, after the damage is or might be repaired, the ship is not or would not be worth, at the place of the repairs, double the cost of the repairs, it is to be treated as a technical total loss.</p> <p>3. Same — Repairs—Deduction on One-Third New for Old.</p> <p>The ordinary deduction in cases of a partial loss of one-third new for old, from the repairs, is inapplicable to the case of a technical total loss by an injury exceeding one-half the value of the vessel.</p> <p>4. Same— .Expenses of Raising and Towing Vessel.</p> <p>The expense of raising and towing a sunken and disabled vessel to a port of repair, no matter by whom paid, should be considered as part of the loss, and it is immaterial that a part of this cost has been contributed upon an adjustment in the nature of general average by the cargo.</p> <p>5. Same — Policy Construed.</p> <p>Policy construed, aud held that there was nothing in' the special provisions thereof to preclude the insured from recovering for a constructive total loss after abandonment, when the amount of the repairs, deducting one-third new for old, added to the expense chargeable to it of raising and taking the vessel to the port of repairs, exceeded one-half its agreed value.</p>

<p>On Motion for Judgment.</p>

<p>1. Taxation — Charter Exemption of Capital Stock of Railroad — Exemption of Individual Interests of Stockholders — Obligation of Gontract.</p> <p>The perpetual exemption of the capital stock of a railroad corporation from taxation, by the provisions of its charter, covers the individual interest therein of the stockholders; and a subsequent lawimposing a tax on the shares owned by them impairs the obligation of the contract between them and the state, and is unconstitutional and void.</p> <p>2. Same — Power of Legislature.</p> <p>The legislature of a state may distinguish between the interest of a corporate body in its capital or capital stock and that of the individual shareholder as separate subjects of taxation ; so that one may bo taxed and the other exempt, or both governed by the same rule of taxation or exemption, at its discretion.</p> <p>3. Same — .Nashville, Chattanooga & St. Lours Railway Company.</p> <p>The Nashville, Chattanooga. & St. Louis Railway Company having succeeded to all the rights and franchises of the Nashville & Chattanooga Railway .Company and the Nashville & Northwestern Railway Company, the shareholders of tlie new company are entitled to exemption from taxation under the provisions in the charters of the old companies that “ the capital stock * * * shall be forever exempt from taxation;” and the act of March 1, 1869. passed by the legislature pf Tennessee, taxing such shares, violates the obligation of contract and is void.</p>

<p>Taxation — Nashville Decatur Railroad Company — Exemption of Shareholders — Oeijoation OF CONTRACT.</p> <p>The sixth section of tlie act passed by the legislature of Tennessee, April 19, 1806, declaring that the Nashville & Decatur Railroad Company “shall, for its government, be entitled to all the rights and privileges, and subject to all the restrictions and liabilities, conferred and imposed upon the Nashville & Chattanooga Railroad Company,” confers upon the former company the privilege of exemption from taxation, as to its capital stock and property, enjoyed by tlie latter company, under the provisions of its charter, and the act of March t, I860, taxing the shares of stock owned by individual shareholders in the Nashville & Decatur Railroad Company, impairs tlie obligation of contract and is void. State of Tennessee v. Whitworth, ante, 75, followed.</p>

<p>1. Naturalization — Rev. St. § 2165 — Probate Court — Common-Law Jurisdiction — Tennessee Code, § 316/j.</p> <p>The probate court of Sbelby county, Tennessee, under the Code, § 316h, has no common-law jurisdiction, and is not, therefore, authorized to take a declaration by an alien of intention to become a citizen of the United States under the Revised Statutes, 5 2165.</p> <p>2. Same Subject — Dower—Bastardy—Partition.</p> <p>Neither its jurisdiction to allot dower, that over bastardy and bastards, nor that of partition of estates, is a “ common-law jurisdiction,” in the sense of the Revised Statutes of the United States.</p> <p>3. Same Subject — Common Law oe Tennessee.</p> <p>Whatever may be said of any other statutes passed in England before our revolution, the act of 18 Eliz. c. 3, concerning bastards, and that of 31 & 32 Henry VIH. e. 32, concerning partition, which are the foundation of the legislation on these subjects in Tennessee, were never a part of the common law of North Carolina or Tennessee, and will not, therefore, support any claim for common-law jurisdiction in the probate court of Shelby county.</p>

<p>In Bankruptcy. Sur register’s report, etc., upon the proofs of debt by creditors of Lloyd, Hamilton & Co.</p>

<p>In Bankruptcy. Stir proof by Lloyd, Huff & Watt against the estate of Wm. M. Lloyd.</p>

<p>Patents for Inventions — Reference to Deputy Clerk of Court as Master —Act of March 3, 1879 — Amendment.</p> <p>Where the court makes an interlocutory decree in a suit for infringement of a patent, awarding a recovery of profits and damages, and directing a reference to a party “as master pro luía -otee,” to take and report an account of profits, and to assess the damages, and such party is at the time a deputy clerk of the court, and no “ special reason ” for his appointment is assigned, as required by the act of March 3,1879, (20 St. at Large, 415,) after his report has been made it will not be set aside, on motion of defendant, on the groutid that no “special reason ” for the appointment was assigned when it was made with the assent in open court of the solicitors of both parties, and they carried on the proceedings before the master for several months after the discovery that he was a deputy clerk, but the decree may be amended nunc pro tunc, by inserting the words, “the solicitors for the respective parties having in open court consented to the appointment of said master, although he is the deputy clerk of court', and the court now determining that such consent is a sufficient special reason for such appointment.”</p>

<p>1. Patent for Invention — Supplemental Bill after Decree of Dismissal— Newly-Discovered .Evidence — Diligence.</p> <p>After a decree has been rendered dismissing plaintiff’s bill, a petition for leave to file a supplemental bill, in the nature of a bill of review, on the ground of the discovery of new matter of consequence, must show that the petitioner could not, with reasonable diligence, have obtained, prior to the former hearing, the testimony which he seeks to introduce, and that such matter is material. Demurrer to petition sustained.</p>

<p>1. Patents for Inventions — -Process—Mechanism:-—Reissue.</p> <p>Where a patent is reissued 11 years after the issue of the original patent, which contained no claim whatever for a process with claims enlarged so as to embrace a claim for the process, as well as for the mechanical means by which the process is carried out, such reissue, is void.</p> <p>2. Same — Process Distinct from Mechanism.</p> <p>A process is a very different thing from the mechanism by which it is carried out, and is a different and distinct patentable invention.</p>

<p>1. Patents — License—IliscErv ek.</p> <p>A. license to construct and use a pat ented invention is personal to tlie licensee, and I lie receiver of a Ann to wliicli such a license has boon granted, will not succeed to tlie firm’s riglit.</p> <p>2. Liability of Receivers fob Unlawfully Taking Possession of Proff.rty.</p> <p>“Where a demand against a receiver does not involve tlie administration of tlie trust committed to him, but arises from his having taken unlawful possession of property not included in the trust, a suit will lie against him personally as for a trespass, even though he took possession of such property under an order of court.</p> <p>3. Practice — Comity of Courts.</p> <p>In such cases, whore tlie receiver lias acted under an order of a stale court in taking possession of tlie properly, an application should be made to such court to correct its order before resorting to an action of trespass on the case in a federal court.</p> <p>4. Same.</p> <p>If that course is not followed, the federal court will suspend proceedings before it until the application to the state court is made, in order to avoid a conflict of jurisdiction.</p>

<p>1. Patents for Invention — Infringement—Limitation of Actions.</p> <p>As section 5599 of the Hulled States Uovisod Stal ules saves all rights the same as if suit had been commenced before the repeal of the federal statute of limitations of July 8,1870, section 55 of that act applies to rights of action that were old enough tit the time of its approval to have been fully barred by a state statute of limitations, if they had been sued upon, and if the state limitation had been pleaded, and held to be applicable.</p> <p>2. Same — Original Term — Extenúe» Patent.</p> <p>Where a person sues for any infringement under the original term of a patent. ho must, bring his suit within six years after the expiration of that term ; and when he sues for anything under the extended term, he must bring his suit within six years after the expiration of that extension.</p>

<p>1. Patekts — Pleading.</p> <p>A bill for the infringement of several patents upon machines cannot bé maintained except where the machines covered by the patents have been used conjointly.</p> <p>2. Same — -Same Pabtiks.</p> <p>Where a corporation is sued for the infringement of a patent, and officers of the company are made parties, the fact that they are such officers should be averred.</p>

<p>Bill to Cancel Patents. •</p>

<p>Motion to Confirm Report in Favor oí Petitioner.</p>

<p>Damages for Collision.</p>

<p>1. .maritime ax’d Statutory Liens —Kepatiís and Supj?i jes —Order op Distribution.</p> <p>Claims 1'or ordinary repairs and supplies, furnished upon running accounts, to a tug running about the harbor of New York, that are contemporaneous, or nearly so, and overlap each other, should be paid pro rata,, in case of an insufficiency. No distinction will be made between strictly maritime liens for supplies in foreign ports, and statutory liens given for similar supplies in a home port.</p> <p>2. Same — Damage Claim on Towage.</p> <p>The lien for a claim of damage upon a contract of towage, for negligently running a tow aground, charges the vessel as she was at tlio time she caused the injury; that is, subject to the liens already existing for previous supplies. Held, therefore, that a rest should be made in the various running accounts for supplies at the date when the damage lien accrued; and that the claims up to that date were entitled first to be paid in full, as against tho damage claim, but without preference among themselves: and that any surplus should be next applied upon the damage claim, as ascertained, and such surplus, if any, retained in the registry to await the decision of the damage suit.</p> <p>3. Bams — Supplies Furnished Pendente Lite.Postponed.</p> <p>For supplies and repairs furnished in a foreign port, after the arrest of the tug by the marshal of this district and while he permitted her to be navigated, no lien allowed as against prior claims in suit.</p> <p>4. Same — Libel for Wages— Costs.</p> <p>in a suit for wages, entitled to be first paid in full, under which, also, the vessel was seized and sold, the costs should also be paid in full.</p> <p>5. Same — Costs in Other Oases.</p> <p>The costs upon all tlie-othcr necessary libels directed to be taxed and added to the respective claims, and paid with them pro rata.</p>

<p>1. Liens Maritime and Statutory — Departure—Sworn Specifications.</p> <p>Under the statute of blew York a lien is given for supplies to domestic vessels if a specification of the claim is filed within 12 days after she shall leave the port where the debt was contracted.</p> <p>2. Same — Supplies, when Furnished.</p> <p>The tug A., being proved to have been frequently at Jersey City and Hobo-ken at certain dates, held, that all claims for supplies furnished more than 12 days prior to such dates, without notice filed, tvere cut off.</p> <p>8. Same — Verification of Specification.</p> <p>The statute requiring the specification to be “sworn to,” held, that the absence of a venue to the jural was immaterial, the specification appearing to be “sworn to ” before a notary public of New York county, and proof being given that it was, in fact, “ sworn to ” within this county.</p> <p>4. Same — Items in Specification.</p> <p>Where the specification contained numerous items, the first item of which was, “ To amount of contract, as agreed, $250,” the other items being for extra work, all being stated to be for extra repairs, etc., held, a sufficient bill of particulars under the statute to include the contract work.</p> <p>5. Same — Priority of Liens.</p> <p>Maritime and statutory liens for supplies hold the same rank. Ordinary repairs and supplies that are contemporaneous, or nearly so, and all receut, treated as contemporaneous, as in the case of The Grapeshot, ante, 123, and the costs of the necessary libels share in the fund pro rata.</p>

<p>1. Removal of Cause — Rev. St. § 639, Sued. 3.</p> <p>Subdivision 3 oi' section C39 of the Revised Statutes was not repealed by the act of 1875, (18 St. at Large, 471.)</p> <p>2. Same — Time of Application — Kew Tbial — Local Puejudice.</p> <p>A case .nay bo removed from the state court after reversal of the judgment of the trial court by the supreme court of the state, and pending the second trial, on affidavit of local prejudice, under subdivision 3 of section 639 of the Revised Statutes.</p>

<p>1. CORPORATION — Action by Stockholders — Rule 94.</p> <p>A bill by stockholders to set aside a lease made by a railroad corporation, tliat avers that before their bill they applied to and requested said corporation to take such action as would lead to the annulling of said lease, and stated the grounds on which such lease was claimed to be void, especially alleging the invalidity of the lease for the want of approval of the shareholders, and that they were advised by the officers of the corporation that no action could De taken in the premises with a view to such result, and the company wholly refused and neglected to take action for such purpose, or to recognize complainants as having any right to interfere in the matter of said leasing, or to call upon the corporation to take any action therein, is not sufficient, under the ninety-fourth rule promulgated by the supreme court.</p> <p>2. Same — Lease—Interest oe Stockholders.</p> <p>If complainants had, by their averments, brought their case within the purview of the ninety-fourth rule, they do not, upon the facts of their case, have any such interest in the subject-matter of litigation as entitles them to maintain this suit to set aside the lease complained of.</p>

<p>Telegraph Company — Texas Rev. St. 1879, Art. 624 — Use on Right oe Way ov Railroad--Western Union Telegraph Company — Baltimore & Ohio Telegraph: Company.</p> <p>A telegraph, company in the state of Texas cannot acquire, by agreement with a railroad company, the exclusive right, to use its right of way for a lino of telegraph. Texas Rev. Bt. 1879, art. 624.</p>

<p>On Application of Complainant for Modification of certain Orders of above Courts.</p>

<p>Original, Cross, and Amended Bills.</p>

The petition of Blanchard & Curras, filed as a petition pro in-te,resse suo, and ancillary to said case, which had proceeded to judg» ment and execution, set up the following facts substantially : That on the thirty-first day of March, 1884, J. F. Bushin, the sheriff of Marion county, in said division, levied a certain execution, issued from the superior court in said state, (the same being a court of original and competent jurisdiction,) in favor of themselves, as the…

<p>1. Tax Deed — Assessment—Listing—Levy—Iowa Code, § 897.</p> <p>A tax deed is prima facie evidence of the fact of assessment, listing, and levy, but conclusive evidence that the manner thereof accords with the law.</p> <p>2. Same — Evidence—Burden oe Proof.</p> <p>The introduction of a tax deed in evidence casts upon the party objecting to its validity the burden of proving that in fact no legal assessment has been made.</p> <p>3. Same — Description of Lands.</p> <p>A description of land in the assessor’s book and the tax-list by the common abbreviations used to designate government subdivisions of land, sufficiently identifies it.</p> <p>4. Same — Valuation—Omission of Dollar-Mark.</p> <p>The omission of words or marks to indicate dollars and cents as the amount of assessment on the assessor’s and treasurer’s books, when the entries are so made that the omission does not tend to mislead the owner of the land assessed, will hot render the assessment void.</p> <p>5. Same — Entry of Lands to Unknown Owners.</p> <p>The entry of lands on the assessor’s book as assessed to “ owners unknown ” forms part of the manner in which such lands are to be listed and assessed, and the treasurer’s deed is conclusive upon that subject under the provisions of section 897 of Code of Iowa.</p> <p>■6. Same — Duty of Tax-Payer — Clerical Errors.</p> <p>It is the duty of a tax-payer to see that his property is properly listed and assessed, and if there are clerical errors to have them corrected, and, failing in this, he should not be allowed to remain quiet for years and then seek to escape payment of his share of the taxes by relying on some defect that has worked him no prejudice. When a defect or omission is one of substance a different rule will apply.</p>

A petition signed by a number of citizens having been presented to Mr. J. E. D. Cousins, United States marshal for the Eastern district of Missouri, requesting him to appoint special deputies to attend the polls during the general election to be held November 4, 1884, he appeared in court on November 3, 1884, with a number of deputies whom be desired to have sworn in.

<p>1. Patents — Beissues—Enlarging Clams— Combination — Parts.</p> <p>The introduction into reissued letters patent of claims for the patentable parts of Llio combination claimed in the original letters, does not invalidate the reissued letters, if the patentee was the first inventor of the patentable parts claimed, although the original patent was for the combination alone, so described and claimed that the parts wore not to be used separately, but together and simultaneously.</p> <p>2. Sauk — Limits of Bule.</p> <p>A patentee may, under proper circumstances, by reissue, enlarge his claims so as to make them extend to the limits of his invention, but lie is bound by those limits. °</p> <p>3. Same — When Claims may he Enlarged.</p> <p>Miller v. Brass Co. 104 U. S. 3S0, James v. Campbell, Id. 371, and later oases decided by the supremo court, distinctly recognize that the claims of an original patent may be enlarged by reissue to include the entire invention and its distinct patentable features; provided — First, that there be no unreasonable delay in applying lor the reissue; and, second, that between the date of the original patent and that of the application for the reissue, rights which would be recognized in favor of others have not intervened.</p> <p>4. Same — Within what Time Application to jbe Made — What is a Beason-aisle Time.</p> <p>There is no rule fixing the precise time within which application for a reissue must be made. Wliat is a reasonable time, is a question, when a reissue is attacked, to be decided by the court upon the case presented. The rule is equitable, and therefore flexible, and to be applied according to equity.</p> <p>5. Same — Date of Invention — ■'Drawings.</p> <p>Drawings made by an inventor, prior to his application for a patent, carry date of invention back, if reasonable diligence in applyingfora patent is shown. But thej' will not supersede a patent granted to another in the mean time for the same invention.</p> <p>6. Same — Beissues—Effect upon Other Claims of Invalidity of One.</p> <p>The invalidity of one of the claims of a reissued patent does not invalidate the entire reissue, provided the invalid claim was made in good faith. Where it. appears that claims in a reissued patent were made to broaden the invention, and thereby to cover intermediate invent ions or improvement s, the fraud may so vitiate ail the claims in the reissued patent that ail will be held to be void. But one claim in a reissue may bo void without necessarily invalidating the other claims.</p> <p>7. Patent Suits — Infringement—Abandonm ent — Injunction.</p> <p>If a defendant has, before suit brought, abandoned the manufacture and sale of an infringing machine, and the' court is satisfied that the abandonment was in good faith, and final, an injunction ought not to be granted. But if the defendant, after such abandonment, has engaged in the manufacture and sale of another machine, which is also an infringing machine, and suit is brought for both infringement,s, the court will retain the whole cause under its control, and make lire injunction and order to account to apply to the manufacture and stile of both.</p> <p>8. Patents — Odell Patent for Roller-Mills.</p> <p>The first claim of reissued letters patent No. 10,139, granted to complainant Odell, June 22, 1882, for an improvement in roller-mills for crushing or grinding grain, middlings, and other material, held to he invalid; the second and fourth claims sustained. Complainants required to file a disclaimer of the first claim, before decree, and the decree for an injunction and account to be without costs.</p>

<p>Patents — Use os' Steam to Operate Capstans.</p> <p>Tlie invention covered by letters patent No. 63,917, granted to John S. Mc-Millin, April 16,1867, is tlie use of the freight-hoister or nigger-engine of a vessel, by means of the shafting and gearing described in said patent,"to rotate the capstan; and said patent does not extend to the use of an auxiliary engine-in tlio manner described, unless such engine may also be used as a hoisting, engine.</p>

<p>1. Cohmsion — Piers and Sups — Lookout—Signals—Change of Codes® in Turning-.</p> <p>The tug T., with the libelant’s boat lashed upon her starboard side, was steaming up the North river after dark, near the slips, to avoid the strong ebb-tide. Farther up river the tug ,K. H. W., at the foot of Gansevoorl street, was at tlie same time turning about near the end of the pier, by backing and filling, her head swinging southward towards the Jersey shore. As the T. approached, her two colored lights were visible to the E. H. W The latter exposed her red light, and when first seen was apparently going across the river, but she was swinging downwards, and shortly after showed both lights, and attempted to go inside, crossing the T.’s bows, when a collision ensued. HeM, that both were in fault, — theT. for navigating in the night-time so near to the piers and slips; the B. H. W. for not keeping a better lookout for vessels approaching her while she was executing- her turn in the night-time, and for not giving timely signals of her various changes of course in doing so.</p> <p>2. Same — Fifty-Ninth Rule.</p> <p>Permission given to bring in the T. under the new fifty-ninth rule in admiralty, the delay being excused.</p>

<p>Iii Admiralty.</p>

<p>Iii Admiralty.</p>

<p>1. Pilotage — Libel for Fees — Duty of Pilot.</p> <p>Upon a claim of fees for pilotage against a vessel wliicb had left before the pilot arrived, held, that it was the duty of the pilot to be on hand at high water, and that, in his absence at that time, the vessel was justified in departing without him, and the libel was therefore dismissed.</p> <p>2. Admiralty Practice — Costs.</p> <p>' Costs disallowed where the libel is dismissed upon grounds not pleaded.</p>

<p>Law. Motion to remand.</p>

In Equity. Foreclosure suit. Exceptions to master’s report concerning certain claims allowed by the receiver of the St. Louis Ore & Steel Co. The third exception referred to in the opinion of the court relates to the following item: “August 1, 1884. Paid vouchor, ae. 0. L. Garrison, secretary, $250,” — which represented salary due Mr. Garrison, formerly secretary of said company and now secretary of its receiver.

<p>Taxation — Chattel Mortgage — Lien op Tax Assessed Against Mortgagor.</p> <p>Under the statutes of Iowa, taxes are not a lien upon personalty until dis-traint therefor is made in the mode pointed out in the statutes; and a mortgagee of personal property who takes possession under his mortgage, and sells the property, either directly or through the decree or order of a court, before any distraint is made, is entitled to the proceeds so far as may be necessary to pay his claim as against the taxes assessed against the mortgagor.</p>

Action on two promissory notes signed “J. A. 1). Coley, Agt.,” and on which there was due @1,500. The plaintiff offered in evidence, in connection with the notes, an instrument signed by Charlotte T. Coley, the principal, directed to the plaintiffs, in which she authorized them to credit her husband as her agent, and stating that she would be responsible for all debts so created, and that her separate estate should be bound thereby.

<p>Ejectment — Error to Supreme Court — Supersedeas Bond — Bents and Profits.</p> <p>A supersedeas bond in an ejectment case covers rents and profits accruing pending the proceedings in error to tfie supreme court.</p>

<p>Banks and Banking — Loan—Failure of Bank — Payment.</p> <p>A., the president of defendant, a national bank in Vermont, applied to the plaintiff, a banking corporation in Canada, for a loan for his railroad of $50,-000, which he had been unable to obtain from defendant. Plaintiff’s manager told him the money could not be loaned as an individual loan, as its individual loans were too near the limit allowed by law, but that it would deposit that amount with defendant if desired. A. assented, and they agreed the deposit should draw interest at 6 per cent, while it remained, and that bonds should be deposited as security. Plaintiff drew two drafts for the amount on a Boston bank, delivered them to defendant and received the collaterals, and entered the transaction on its books as a loan to defendant. Defendant indorsed the drafts, forwarded them to the Boston bank, from which it received credit for them, and has always retained their avails. About a year afterwards defendant failed, and a receiver was appointed, who rejected the claim of plaintiff when presented for payment, and defendant brought suit. Held, that the transaction was not a loan to A. individually, but to defendant; that plaintiff was entitled to a judgment, to be paid by the comptroller from the assets ratably with other claims; and that the amount duo should be adjusted as of the time when the receiver,was appointed, and so certified by the receiver to the comptroller, to be paid in due course of administration.</p>

<p>MASTER AND SERVANT — INJURY TO RAIMO VD KmULOYE SENT UNDER CAR-NeO-ligknce — Contributory 'NeotjIGKnoh — Waiver.</p> <p>Where a railroad company calls upon an employe to go under a car on a side track, on which other cars are liable to bo moved or switched, to repair such car, it is its duty to provide him with a red flag as a danger signal; but if the employe is an old railroad man, and fully aware of the danger, and has continued for months to perform such duties, and neglected to demand and procure a flag, he may be considered as having waived his right to recover for any injury received in consequence of such neglect.</p>

This was an action on a promissory note dated May 12, 1882, due October 15, 1882, payable to Lockwood, McClintock& Co., or bearer, for $1,114, signed “J. A. D. Coley, Agt.” A copy of this note was set out in the petition.

Attachment. This is a suit upon a draft for §2,265. The alleged grounds for attaching defendants’ property are as follows : (1) That defendants have fraudulently conveyed or assigned their property or effects so as to hinder or delay their creditors; (2) that defendants have fraudulently concealed, removed, of disposed of their property or effects sd as to hinder or delay their creditors; (3) that defendants were about fraudulently to conceal, remove, or dispose of their…

<p>Liability op Stockholders where Company is not Validly Incorporated.</p> <p>Where persons, supposing in good faith that they are incorporated and are stockholders in a valid corporation, do business as a corporation for a series of years, without the corporate existence being challenged by the state, parties who deal with the company as a corporation cannot hold the stockholders personally liable in case they afterwards discover that the company was not validly incorporated in consequence of some defect or irregularity in the proceedings of the supposed incorporators.</p>

<p>Motion to Suppress Depositions.</p>

<p>Appeal in Bankruptcy from District Court.</p>

<p>1. Collision — Cause of Damage.</p> <p>As the libelant’s tug D. was lying at the end of one of the piers at Jersey City outside of two canal-boats, the si cam-tug P. backed out of the slip above and was swung round with the ebb-tide so that her port quarter came along-side the D., causing the D. to roll somewhat; and, in a few moments afterwards, the D. was found leaking, with two deep cuts in her side below the water-line. Held, upon the evidence, that the leak was caused by cuts from the P.’s propeller blades, notwithstanding that the P. was constructed with widely projecting guards, expressly designed to prevent the possibility of such an accident.</p> <p>2. Same — Offer of Settlement — Costs.</p> <p>The owners of the P., on a claim being made against them, offered to pay the bill at once, if the owners of the D. would permit theP. to come along-side, to test whether the blade of the P.’s propeller could possibly get near the D.; and, the offer not being accepted, held, that the request was a reasonable one having reference to an immediate settlement, and, having been refused, costs were disallowed to the libelant on recovery.</p>

<p>1. Removal ov Cause — Separate Controversy — Oitizensiiif.</p> <p>F. L. H., a citizen o£ Iowa, mortgaged a stock of goods to complainant, an Iowa coi'poration, and such goods were claimed by A. H., a citizen of Ohio, under another chattel mortgage, and removed, and complainant filed a petition in the state court alleging that the mortgage to A. H. was fraudulent, and asking for the issuance of a specific writ of attachment for seizure of the goods, and praying for a judgment against If. L. H. for the amount due from him, and that the lien of complainant’s mortgage lie declared paramount to that of A. H. The writ was issued, the goods seized and redelivered to A. II. on giving a forthcoming bond therefor. I'. L. II. and A. H. answered, setting- up that the mortgage to A. II. was valid, and a lion superior and paramount to complainant’s; whereupon complainant removed the cause to the federal court on the ground that the suit involved a separate controversy between him and A II., who was a citizen of another state. Held, that the cause was removable under section 2 of the act of 1875.</p> <p>2. Same — What is a Separate Controversy.</p> <p>To entitle a parly to remove a cause under the second clause of the second section of the act of 1875, the case must he one capable of separation into parts, so that in one of the parts a controversy will be presented with citizens of one or moro states on one side and citizens of other states on ihc other, which can be fully determined without the presence of the other parties to the suit as it has been begun.</p>

<p>Jurisdiction or Circuit Court — Foreclosure op Railroad Mortgage and Appointment op Receiver in State Court — Action by Bondholder por ■Accounting.</p> <p>Tlie Consolidated Railroad Company of Vermont was formed by the organization of the bondholders of the Vermont Central Railroad Company after the foreclosure of the mortgage on the road, and the appointment of a receiver in a proceeding in the state court of Vermont. The holder of a large amount of the bonds, which were not surrendered into the reorganization, filed a bill in the circuit court of the United States to compel the Consolidated Railroad Company to account with him for the railroad properly, to which the company-pleaded that the road was in the hands of a receiver appointed by and accountable to the chancery court of the state having jurisdiction. Held, on demurrer, that the plea was not sufficient.</p>

<p>1. O</p> <p>2. io •tí tí</p> <p>render a judgment. 3. I*5 g £ if* P m ® ^ <§ os © o 3 H t?'- c d®«! ® §Jg 5.® tí® £ g a S w S ►. *3 p. H? g o S O © 3. ^ zl M * | IS- P £- (> aT © > — 11 © oo a -Aw £0 & _ tí C OCR S O g ^ O & P a & so rt <-*• «({Q LJR qp ^ © S |®l|l| v 8, d. &. 3 “ pí B. £3 _ p ° o&\tí f - n P 3 J c I © tí g )P » s a s a | | f o|=H, ® ffl ! *5 bJ g' <r+ á rn © ^ tr tí w © . -r* V-. ^ ^ ^ ° tí Sj M</p> <p>SAME — CONTRACT SUBSEQUENT TO ENACTMENT, In a case where the contract was entered into subsequently to the enactment of the law, it cannot be held that, such law impairs the obligation oí the contract. 4,</p>

Action for malicious prosecution of an attachment suit. The plaintiff, in the year 1880 and before, was carrying on a cotton plantation in Arkansas, on the Mississippi river, below Memphis, Tennessee.

<p>1. Pleading — Dental on Knowledge or Information.</p> <p>A deienclaut is not bound to inform himself concerning tlie truth of an allegation, of 17111011 lie never had any knowledge, before answering tho same; and a denial of any knowledge or information thereof is a sufficient denial, and will not be stricken out as sham unless it plainly appears that tlie same is false.</p> <p>2. Same — Frivolous Pleading.</p> <p>A.frivolous answer or defense is one which contains nothing that affects the plaintiff’s case, and may be stricken out on motion ; but a motion to strike out for frivolousness is not well taken if the matter included in it is material, if true.</p> <p>8. Same — -Plea in Bar or Abatement.</p> <p>In an action by a corporation on a contract, a denial of its corporate existence goes not only to tho disability of the plaintiff but to the cause of action also, and is therefore a plea or defense in bar of the action, and will be so considered, unless expressly pleaded in abatement.</p> <p>4. Same — Estoppel by Contract.</p> <p>A party who contracts with a corporation, as such, is thereby estopped, in an action on such contract, to deny its corporate existence or power to make such contract; but in case such want of existence or power is pleaded as a defense to such action, tlie corporation must claim tho benefit of tho estoppel on tho record, or the same will be considered vraived.</p> <p>6. Same — Pleading an Estoppel.</p> <p>When the matter constituting the estoppel — the compact — does not appear in tlie previous pleadings, it must be set up by replication; but where tho same does so appear, the estoppel must be raised by demurrer.</p>

<p>1. CONSPIRACY to Defraud United States- — Rev. St. United States, § 5440— ' Indictment — Demurrer.'</p> <p>Section 5440 of the United States Revised Statutes makes it a crime to conspire to defraud tlie United States in any manner, and a count in an indictment is not demurrable because it charges a conspiracy without setting forth the means by which the fraud is to be consummated.</p> <p>2. Same — Fraudulent Entry of Public Lands — False Affidavits.</p> <p>A count in an indictment under Rev. St. § 5440, charging a conspiracy to defraud the United States by presenting for approval to the register and receiver of a land-office false and fraudulent affidavits and proofs of settlement and improvement under the pre-emption law of 28 persons, stating that such persons were ent'tled to enter public lands, and had severally complied with the preemption laws, and had severally entered such lands for their individual benefit and not for speculation, is sufficient.</p> <p>3. Same — Entry for Speculation.</p> <p>A count in an indictment under section 5440 of the United States Revised Statutes, charging a conspiracy to defraud the United States by hiring 28 pei-sons to enter at a land-office, under color of the pre-emption laws, certain public lands of the United States, solely foY the purpose of selling the same on speculation to defendant, and L., and some other person to the grand jury unknown, is not demurrable.</p>

' A rehearing is asked by defendant upon the following grounds: First, the complainant, having declared upon two patents known as the “distillation” and “fire-test” patents, and having on the argument withdrawn the former from the consideration of the court, the defendant was taken by surprise, supposing that the main reliance of -the complainant would be upon the patent thus abandoned; second, little attention was given in the progress of the cause to the fire-test patent,…

In Admiralty. The steamer Thomas Sherlock was enrolled in the port of Cincinnati, her registered owners being James Nichols and Ada Saville, the former being master and managing owner. The boat traded between Cincinnati and New Orleans, and was libeled June 28, 1888, at the port of Cincinnati, on the claim for seamen’s wages.

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

<p>Removal oe Cause — Citizenship.</p> <p>Where the controversy is wholly between citizens of different stales, although not wholly between citizens of the state where the suit is brought and citizens of other states, and the party petitioning for removal appears from the pleadings to be actually interested in the controversy, the case may be removed, under section 2 of the act of 1875, on petition by him alone.</p>

<p>1. Bankruptcy — Equity of Creditors.</p> <p>Creditors can work out equities only through, the rights of the parties where there is no fraud.</p> <p>2.. Same — Erection of Dwelling for Son — Charge on Land.</p> <p>A banker, at a time when he was entirely free frpm pecuniary embarrassment, and apparently' possessed of abundant means of his own, without fraudulent or wrongful intent voluntarily erected a dwelling-house upon his son’s land without request of the son, who innocently acquiesced in the gratuitous act of his father, believing him to be a man of great wealth. The father suspended about the time the building was completed, in consequence of a general financial panic, and he was subsequently' adjudged a bankrupt. Upon a bill filed by his assignees, held, that the voluntary expenditure so made by the father was not a ground for charging the son or his land.</p> <p>3. Same — Equitable Relief Decreeable Under Genera^ Prayer.</p> <p>A bill in equity charged that, in pursuance of a fraudulent conspiracy between grantor and grantee to defraud the creditors of the former, a voluntary deed of conveyance of land was made and subsequent improvements put thereon by the grantor, and the specific prayers of the bill were that the deed be declared null and void as against the creditors of the grantor, and for the reconveyance of the land and an account of rents. The proofs did not sustain any of the allegations of fraud, and it appeared that the deed of conveyance was for a valuable and adequate consideration. Held that, under the prayer for general relief, comyiensation for the value of the improvements was not de-creeable.</p> <p>4. Same — Dealings between Parent and Child.</p> <p>Business dealings between parents and children, or near relatives, are to be treated as are the transactions of other people, and if the bona fides thereof is attacked the fraud alleged must be proved.</p>

<p>1. CONTRACTS OF RECEIVERS.</p> <p>Whore a railroad company contracted for rails, hut became insolvent and passed into tlie hands of receivers, before they were delivered, and in order to avoid litigation, and with the expectation of earning freight by transporting ores for the vendor, the receivers of tho road agreed to receive tho rails at tho contract price and pay for them at a specified time, though the contract price was more than the rails could then have been purchased in the market for, and the rails were delivered; but upon its thereafter appearing that there was no hope of earning anything in transporting freight for the vendor, said receivers declined to pay the agreed price, held that they were bound to comply with their obligation.</p> <p>2. Same.</p> <p>Semble that a court should not authorize or direct its receivers to enter into obligations which the necessities of the case do not absolutely require, but that when entered into with authority llioir obligations should be strictly fulfilled.</p>

In Equity. Application for the appointment of additional receivers under a cross-bill. The Wabash, St. Louis & Pacific Railway Company is a corporation organized under the laws of Missouri.

<p>PRACTICE — Service os Amawr oe ForkigN Corporation — New York Statute Service upon the agent of a foreign corporation, who is agent in the very transaction out of which the suit arises, is sufficient under the statutes of New York.</p>

<p>1. Sleeping-Car Company — Privilege Tax.</p> <p>The act of the Tennessee legislature, passed March 16, 1877, declaring the mode and manner of valuing the property of telegraph companies for taxation, and of taxing sleeping cars, imposes upon sleeping-car companies what is known to the constitution and lavra of that state as a privilege tax. It is not a property tax based on value, but an arbitrary charge, fixed by the legislature, wijlhout regard to the actual or comparative value of the article which is the basis of the tax.</p> <p>%, Privilege Tan.</p> <p>Under the constitution of Tennessee, as construed by tlio supreme court of that stale, a privilege is the exercise of an occupation, or business which requires a license from some proper authority, designated by some general law, and not free to all, or any, without such license. The right, therefore, of the legislature of that state to declare an occupation or business a privilege must depend upon the right of the state to prohibit it altogether.</p> <p>S. Constitutional Law — Interstate Commerce.</p> <p>The interstat.e transportation of passengers is beyond the reach of a state legislature, and, therefore, the legislature of Tennessee has no power to impose upon the Pullman Southern Car Company a privilege tax of $75 per annum for running or using sleeping cars in the transportation of interstate passengers, notwithstanding such cars may enter or cross the territory of that state.</p> <p>4. Interstate Commerce.</p> <p>The cars used by the Pullman Southern Car Company are vehicles of transportation, and tlieir use in receiving and delivering travelers at points widely separated is commerce.</p> <p>5. Same — Taxable Situs.</p> <p>The Pullman Southern Car Company, a corporation of Kentucky, has no domicile in Tennessee, and is not personally subject to its jurisdiction for purposes of taxation. The sleeping cars which it runs upon the railroads of Tennessee, in the transportation of interslate passengers, have no taxable slim within that state. They are not brought into the stai e for the purpose of being employed in a business carried on within it. They are in the slate only as passing to and from it while in the act of transportation, performed by virtue of a right secured to the owner of them, not by the authority of the laws-of Tennessee, but by virtue of a right secured by the exclusive jurisdiction of congress under the constitution.</p>

<p>Pbactice — Action Against Foreign Corporation — Service on Agent — Motion to Quash — Plea in Abatement — Illinois Statute.</p> <p>The question of -fact as to whether a party on whom service of summons in an action against a foreign corporation was made under lilinois statute was at the time of such service an agent of the corporation can only be raised by plea in abatement, unless the grounds of the motion to quash the return of service appear on the face of the record.</p>

<p>1. Indian Country — UmatiijjA Reservation.</p> <p>Tlie Umatilla Indian reservation is a place within the geographical limits and general jurisdiction oí the state of Oregon, but is also a tract of country to which the Indian title is not extinguished, and which has been permanently set apart by treaty as a i-eservation for the sole and exclusive use of the Indians thereon, and is therefore “Indian country,” within the meaning of that phrase as used in the Revised Statutes.</p> <p>2. Intercourse with Indian Tribes.</p> <p>The United States has jurisdiction over the intercourse with tribal Indians, and congress may prohibit and provide for the punishment of acts relating to or affecting such intercourse anywhere in the United States.</p> <p>3. JURISDICTION 03? UNITED STATES COURTS OVER CRIMES COMMITTED ON THE RESERVATION.</p> <p>Tlie United States courts of tlie district of Oregon liave jurisdiction over all crimes committed on tlie Umatilla reservation by a wliite man on the property or person of an Indian, and vice versa,, so far as the same have been defined by an act of congress.</p> <p>4. Plea of Autrefois Acquit.</p> <p>B. and A. were indicted in the United States court for the crime of manslaughter, committed in killing Indian William on the Umatilla reservation, and pleaded to the indictment a former acquittal, from which plea it appeared they had been indicted and tried in the state court for the murder of said Indian, and acquitted, to which plea there was a demurrer. Held, that the crime of which the defendants were acquitted in the state court was not the same as that charged in the indictment in the United States court, and therefore the plea was bad.</p>

In Equity. This was a suit for tho infringement of reissued letters patent No. 6,990, granted March 14, 1876, to Thomas B. Bailey, Jr., of Lock-port, Nev*' York, for an improvement in hydrants.

<p>1. Patents for Inventions — Fricke Copper-Cable Lightning-Rods Construed.</p> <p>Letters patent No. 112,137, dated February 28, 1871, for an improvement in copper-cable liglitning-rods, granted to Joseph. R. Fricke, construed, and held to be restricted to the peculiar form of manufacture therein particularly described.</p> <p>2. Same — Claims.</p> <p>If the patentee meant to assert a right to the exclusive use of coreless strands, he should have indicated that intention with reasonable clearness, and not left the claim to rest upon what, at the best, is but a doubtful implication.</p>

<p>Plea in Abatement.</p>

<p>1. Patents for Inventions — Novelty—Presumption prom Grant oe Letters — Burden of Proof.</p> <p>Evidence of doubtful probative force will not overthrow the presumption of novelty and originality arising from the grant of letters patent for an invention. The defense of want of novelty or originality must be made out by proof so clear and satisfactory as to remove all reasonable doubt.</p> <p>2. Same — Credibility of Witness.</p> <p>Where a witness falsifies a fact in respect to which he cannot be presumed liable to mistake, courts are bound, upon principles of law, morality, and justice, to apply the maxim, falms in uno, falms in omnibus.</p> <p>3. Same — Beil Telephone — Disawbaush Inventions.</p> <p>Upon careful examination of the testimony in this case, held, that Daniel Drawbaugh was not tlio first inventor of the electric speaking telephone, and tlmt patent No. 174,465, for improvements in telegraphy, granted to Alexander Graham Bell, March 7, 1876, and patent No. 186,787, for improvements in electric telephony, granted to said Bell, January 30, 1877, are valid.</p>

In Equity. This is an action for infringement of reissued letters patent No. '6,673, granted October 5, 1875, for improvements in wash-boards to the complainant as asignee of Westly Todd. The original patent bears date February 7, 1871.

<p>Patents von Inventions — Poiststgn Patent — Description.</p> <p>It is only a patent for an invention that has been previously actually patented in a foreign country that is limited by the foreign patent. The description of the invention in the foreign patent might affect the validity of the domestic one and might not, but would not limit it.</p>

In Admiralty. This was a libel for breach of a contract of affreightment made at Buffalo, New York, July 31, 1879, between the libelant, Bewick, and respondent Walker, then master and part owner of the barge J. F. Warner. The libel was in rem against the barge and in personam against her owners.

<p>ADMIRALTY — COLLISION.</p> <p>Wliere two steamers are each in fault in that neither complied with that rule of navigation which required steamers approaching each other not to come noaierto each other Ilian 800 yards without an exchange of understood and harmonious signáis, the damages resulting from their colliding with each other will be divided between them.</p>

<p>ADMIRALTY — JETTISON—CONDUCT OF MASTER.</p> <p>In a case in admiralty, where the shipper has been prejudiced by the jettison of his goods, the court may look into the facts of the case and determine whether the owners have appointed a competent master, and whether that master has used reasonable skill and judgment in encountering the peril of the sea that has made the jettison necessary; and where a jettison has been necessary through the conduct of the master, concurring with a peril of the sea, whether that conduct was reasonably skillful, judicious, and prudent.</p>

<p>1. Removal oe Oatjse — Foreign Corporation — Lease oe Railroad in Another State — Enabling Acts.</p> <p>A railroad corporation chartered in one state does not become a domestic corporation in another state by virtue of leasing, purchasing, and operating roads in that state under certain enabling acts of the legislature.</p> <p>2. Same — Time of Application — Act oe March 3, 1875, e. 137, $ 3.</p> <p>The clause “before or at the term at which the cause could be first tried,” in the removal act of 1875, means at the time when, by the usual orderly course of practice, under the rules of the court,_ the case could be set down for trial, if an action at law, or for final hearing, if an equity case.</p>

<p>Motion to Demand.</p>

In Chancery. These two cases are practically one, and in what follows particular mention will be made only of the first' case named.

<p>RAILROAD COMPANY— EXPHKIH lAOTHTIES — ROAD IN PART IN FOREIGN JURISDICTION— In.tüno hot.</p> <p>An Injunction may be granted by the circuit court to restrain a railroad corporation, one part of whose line is in a foreign country'and the other in a state, from interfering with the facilities enjoyed by an express company, and from refusing' to receive and transport its messengers and express matter for reasonable and just compensation over that part of the road within the state. Souther ib Express Go. v. Sé. Louis, «¡fe., Hu. Go. 10 Fed. Rep. 210, followed.</p>

<p>Motion for Injunction.</p>

<p>Lease of Theater Section— Construction — Implied Covenant — Eviction— Right to Recover Part of Consideration.</p> <p>Lease of a section and seat in a theater construed, and held that there was no implied covenant by the lessor that, during the regular annual theatrical winter season of about 40 weeks, public performances or entertainments should be given in the theater, to which the lessee should have access under the lease, or that, if the lessor did not run the theater for 40 weeks in each year, but discontinued it and ceased to operate it, he was to pay back to the lessee a due proportion of the consideration; held, also, that the lessee was not entitled to recover a part of such consideration because of an eviction of the lessor and a closing of the theater on account of his failure to pay the ground rents due from him under his lease of ground on which such theater was erected.</p>

<p>Conviction under Rev. St. § 5522. Motion for now trial.</p>

<p>Counterfeiting — Gilding Old English Shillings — Intent—Ignorance oe Law.</p> <p>To change, by any kind of manipulation, silver, copper, or any other metal into the resemblance of some coin of the United States, or foreign coin, made current by law, or current as money in the United States, by gilding, electroplating, or any other process, or coloring it so that it resembles gold, is an indictable oliense, under chapter 24,.act of Congress, January 16, 1877; and a party so doing cannot excuse himself by showing what was his intention, or that he did not intend to use the coins he so made for fraudulent purposes, or that they should be so used by others, or that he was ignorant of the law.</p>

<p>Patents ron Inventions — Anticipation—Machine fob Preparing and GILDING MOULDINGS — GLASGOW AND FltlTTS INVENTIONS.</p> <p>Patent So. 226,845, issued April 22, 1880, to William Glasgow, for a machine for enameling- or preparing mouldings for gilding, was anticipated by the Fritts machine of 1875, invented by defendant, and is void.</p>

<p>1. Patents for Inventions — Barrt Patent for Reaming and Squaring- Pipes —Novelty.</p> <p>Patent No. 91,201, issued to William Barry, June 15, 1869, for an “improvement in compound tools for reaming and squaring pipes,” is void for want of novelty.</p> <p>2. Same — Implied License — Employe Using Ills Invention in Employer’s Business — Royalty and Profits.</p> <p>An employe wlio is tlie owner of a patent cannot introduce liis patented device into Ills employer’s business without tlie employer’s consent, and without a special agreement to pay him, and afterwards demand royalties or profits and damages for the use of such device, especially where the invention has been developed and brought to a practical condition at the expense of the employer.</p>

<p>Patents fob, Inventions — Boxes—Patent No. 132,174 — Infringement.</p> <p>Patent No. 132,174, issued to Henry It. Ileyel, assignee of tlie American Paper Box Company, dated October 8, 1872, “for an improvement” in boxes, in view of tlie state of the art at tlie time of issuance of tlie patent, must be confined to a certain-sliaped box and cover, tlie depth and width of which must bear certain relations, and, although the inventor fastened his boxwith staples, that does not enable Ileyel to treat as infringers all box-makers who use flaps and staples, or who use' staples horizontally, nor is such patent infringed by defendants’ box.</p>

<p>EQUITY — PLEADING—jVIlJlTIEARIOUSNRSS — ACCOUNTING EÍ TRUSTEE — INTKRKSTS-Of’ CKSTur Quk Tkust Arising under Distinct Contracts.</p> <p>Where tlie principal matter in controversy in a case is compelling- a trustee to account lo bis cestui que trusts ior money and property appertaining to tlie trust, although the interest of the several complainants may have arisen under distinct contracts, a bill calling upon him in a single action to account respecl-i\ ely to the several complainants for their respective interests in the trust fund will not be considered multifarious, as a multiplicity of suits is thus avoided, and the trustee will be in nowise embarrassed thereby.</p>

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

<p>Equity — Practice—Pleadinc—Answer—Equity Rule 39.</p> <p>Plaintiff filed a bill to procure a determination, under section 4918 of the Revised Statutes, of the question of interference between a patent owned by him and a patent owned by the defendant. Defendant interposed a plea, which was overruled by the court. Thereafter, plaintiff, by leave of the court, filed a supplemental bill. Defendant applied to set up, in an answer to the supplemental bill, the same matter as had been set up in the plea which had been overruled. Held, that neither equity rule 39, nor the practice of equity courts outside of the equity rules, would allow of the defendant’s being' permitted to set up in an answer matter which had already, on the plea, been adjudged not. to constitute a defense.</p>

<p>Chancery. Intervening petition of Matilda Wingate, administratrix.</p>

On Exceptions. The plaintiff sues, as substituted trustee under the appointment of the chancery court of the city of Richmond, Virginia, to execute the trusts of a certain deed of trust made by the National Express & Transportation Company, a body politic and corporate under the laws of Virginia, which court also gave him the powers of receiver of'said company, required a bond, and ordered him to account, to recover assessments made against the defendants, stockholders of…

<p>Statute oe Limitations.</p> <p>Courts cannot ingraft on statutes of limitations exceptions not clearly expressed; and where the language of Ihe statute is perfectly clear, it is the duty of the court to enforce the law as it finds it.</p>

<p>1. Municipal Corporations — Invalid Reorganization</p> <p>An invalid reorganization ol ait incorporated town as a city cannot ailect its corporate existence.</p> <p>2. Sams — Liarility or Successor.</p> <p>Where an incorporated town is reorganized as a city, the latter becomes liable lor the former’s debts.</p> <p>3. QUO WARRANTO PROCEEDINGS UPON — WHEN BINDING.</p> <p>Bondholders of a city are not bound by quo warranto proceedings against it, unless parties thereto.</p>

<p>On Exception of No Cause of Action. (General demurrer.)</p>

<p>New Trial — Excessive Damages — Personal Injury.</p> <p>In an action for a personal injury caused by negligence, the damages cannot be measured by any fixed standard, but rest in the sound discretion of the juiy; and that discretion cannot be interfered with by the court unless the damages allowed are so excessive as to warrant the belief that the jury must'have been influenced by partiality or prejudice, or have been misled bv some mistaken view of the case.</p>

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

<p>Patents for Inventions — Anticipation.</p> <p>Where the devices used were all anticipated by devices used in older inventions, the mere circumstance of a different method of producing the same result in a combination will not entitle a claimant to the exclusive right to the use of such combination.</p>

<p>1. Patents for Inventions.</p> <p>Evidence of settlements for infringements is not competent to allow a license fee or royally, and a license for tlie future, given wholly or partially in consideration of such settlements, is not admissible in evidence against a stranger.</p> <p>2. Pkaotice — Master's Report — Errors Eliminated.</p> <p>Exceptions to a master’s report will be overruled, notwithstanding errors committ ed, if upon the entire report it is evident that the errors did not affect the conclusion.</p>

<p>Patents for Inventions — Rights Acquired by Purchase from Territorial Assignee.</p> <p>A purchaser of patented articles from a territorial assignee of the patent does not acquire the right to sell the articles, in the course of trade, outside the territory granted to his vendor.</p>

<p>Patents for Inventions — Injunction—Infringement in Another District— Citizenship.</p> <p>The citizenship of an infringer within the district where the suit is brought, gives the right to proceed in such district against him jiersonally to prevent infringement elsewhere.</p>

<p>Patents for Inventions — Oue ano Stone Crusher ■— Btjtter, Reissue No. 3,683 — Validity of Claim J — Infringement.</p> <p>The first claim of reissued patent No. 3,633, granted to J. W. Rutter, September 7, 1869, for an ore and stone crusher, the original patent being No. 88,23(5, dated March 23, J86Í), construed, and held valid and infringed by defendant.</p>

<p>In Equity. Exceptions to master’s report.</p>

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

<p>Seamen’s Wages — Contract—Quantum: Meruit.</p> <p>Where seamen ship for a voyage at a staled sum as compensation, and the vovage is broken up by disaster or peril of the sea, and no cargo is carried or freight earned, no recovery can be had for the time services were rendered by the seamen. The court cannot override the contract and award compensation to tito seamen upon the <juazitu.ut meruit.</p>

<p>Admiralty Appoal.</p>

<p>Lighterage — Charterer “ to Pay,” not “ to Provide.”</p> <p>The bark Carrie Winslow was chartered to carry a cargo from New York to Portland for a lump sum; the charterer 1 ‘ to pay ’ ’ for the necessary lighterage between Astoria and the port of discharge. Held, that the charterer was not bound “to furnish” or “provide” the lighterage, but only “to pay” for it; that the contract of the master being to bring the vessel with her cargo to Portland, he was bound to provide and employ the means necessary and appropriate to that end.</p>

<p>Injuries to Stevedore — Heg-uigence.</p> <p>The steam-ship employed a firm of stevedores to prepare the ship for cargo, and to stow cargo. They sent a gang of men on board, who found the upper hatches closed and certain-of the lower ones open. They prepared the ship to receive cargo, and left her in the same condition, as to the hatches, that they had found her in. The next day another gang of men, of which the husband of the libelant was one, was'sent by the stevedores into the hold to receive and stow cargo. While doing so, the husband of tlie libelant, while searching for some dunnage, fell or stepped through one of the open lower hatches into the hold, and received injuries from which he afterwards died. Held, there was no duty on the part of the master and crew of the steam-ship to Icok to the hatches and preparations to receive tlie cargo, nor neglect of duly in leaving tlie hatchway uncovered through which the husband of libelant entered and met his injuries; and that Uvero was negligence in the husband of libelant going to the hatchway without procuring sufficient light, if light was necessary; and if there was negligence in not removing' the upper-deck hatches over the one into which the husband of libelan) fell, it was the negligence of the stevedore and his gang when they first, came on board.</p>

In Admiralty. In this case, which came before the circuit court hy appeal from a decree of the district court, the circuit court found the following facts: (1) Shortly after 4 o’clock on the morning of the sixth of February, 1884, a collision occurred between the schooner Nellie Floyd and the schooner Royal Arch, by which both vessels were seriously damaged.

<p>In Admiralty.</p> <p>These cases were heard together, as involving the same questions of law, arising out of the stranding and sinking of the steam-ship City of Columbus off Gay Head, Martha’s Vineyard, January 18,1884. After the loss of the steam-ship, the Boston & Savannah Steam-ship Company, as owner thereof, filed in this court, February 18, 1884, a libel to limit its liability under Rev. St. § 4283, claiming limitation for all losses to the value of its interest in the vessel and pending freight after the loss. Upon this libel, appraisal of the value of such interest in vessel and freight was ordered and had, and thereupon the company gave proper stipulation to pay the amount into court whenever ordered, as provided by admiralty rule 54. The court then issued a monition to “all persons claiming damages for any loss of life or property, or destruction, damages, or injury, by reason of, or caused by, or arising out of, said striking on the rocks, stranding, and sinking, as aforesaid,” to appear before this court, on the first day of July, 1884, and make due proof of their respective claims in the premises. Service of this monition was made as required, and the court, on March 4th, on application of said company, made an order restraining “the further prosecution of all and any suit or suits against said company, in respect of any such claim or claims for any loss, destruction, damage, or injury by reason of, or caused by, or arising out of, the loss, damages, and acts in said libel or petition set forth.” Various claimants filed exceptions to the libel for limitation, claiming that the limitation of liability claimed was, under the act of congress, limited to loss of property, and did not extend to loss of life or personal injuries. They also filed motions that all insurance money paid on account of the loss of said steam-ship should be ordered to be paid into court and appropriated to payment of claims of loss, as part of the interest of the owner in said steam-ship. Claimants also filed separate libels in admiralty against the company, to recover for loss of life and personal injuries. To these libels the company filed exceptions, claiming that such losses were within the limitation of liability, and that the court had no jurisdiction to entertain separate suits while the proceedings for limitation under the libel of the company were pending.</p>

<p>1. Admiralty — Marshal’s Pees — Custody Pees — Rev. St. § 829.</p> <p>■ Section 829 of the Revised Statutes does not fix $2.50 per day as an absolute limit of the charges taxable by the marshal for expenses incurred by reason of his custody of property attached in admiralty cases.</p> <p>2. Same — Protecting Property against River Thieves.</p> <p>If it is necessary for the marshal to maintain possession and care of property in different places at the same time, and also to protect it from an unusual and serious danger, such as loss by depredations of river thieves, there is nothing in section 829 to limit the marshal’s expenditure to $2.50 a day.</p> <p>3. Same — Expense oe Watchmen.</p> <p>But he cannot charge $5 a day on the ground that he paid a watchman $2.50 for watching the property in the day-time, and another watchman $2.50 for watching the same property, at the same place, in the night-time.</p> <p>4. Same — Extra Men — Defense of Property against Collector of Customs.</p> <p>Charges, incurred by the marshal for extra men employed to prevent the collector of customs from taking the property by force out of the marshal’s custody, were disallowed.</p>

<p>Generad Average — Spars, Rigging, Etc., Cut Away to Have Vesshu — Liabieity op Owners op Cargo.</p> <p>The owners of a cargo arc liable to contribute in general average tor masts, spars, rigging, etc., cut away for the purpose of saving- the vessel and cargo; the value of the material, in adjusting the loss, to be estimated as if it had been recovered from the sea and slowed in safety on board the vessel.</p>

<p>1. Eemovai. of Cause — Case Aiíising totume Laws of United States — Petition.</p> <p>The petition must set out the facts, and question arising thereon, so that the court can determine the question of jurisdiction, when it is sought to remove a, case to a federal court on the ground that it arises under a law of the United States.</p> <p>2. Same — Construction of Law — Act 1875, $ 2.</p> <p>Unless a case arises out of a controversy as to the effect or operation of a provision in a law of the United States, as shown by the facts alleged, it cannot he removed under the second section of the act of 1875.</p> <p>3. Same — Facts Stated on Information and Belief.</p> <p>Sembla, that a statement of jurisdictional facts on information and belief will, not be sufficient.</p>

In Equity. Demurrer to plea. The complainants are creditors of John Kimpel. As such, they file their bill, and state that said Kimpel, while insolvent, mortgaged all his personal property in St. Louis and Kansas City to one Frederick Yaugh, (now deceased,) and subsequently made a general assignment, for the benefit of his creditors, to one Henry Zeigenheim; and complainants pray that said mortgage be declared to be for the benefit of all said Kimpel’s creditors.

<p>Equity Practice — Costs—Attorney’s Eke.</p> <p>.No attorney’s fees for llie examination of witnesses, called before a master or special examiner, are taxable as costs.</p>

<p>Suit to Reform a Policy of Insurance.</p>

<p>1. RAILROAD MORTGAGES— ReOKIVMRS — A.NTE-liEOKIVMRSIIIP DEBTS.</p> <p>A. failure to make the payment of «/¿¿«-receivership debts for current expenses of a railroad — a condition of the appointment of a receiver in a foreclosure suit —is no bar to their subsequent allowance.</p> <p>2. Same — Failure to Foreclose — Agency.</p> <p>A mortgagee who fails to take action upon default in the payment of interest on tlio mortgage debt., does not, by such failure, make the mortgagor his agent to incur debts, nor does he impliedly consent, that debts incurred subsequent to the default shall take precedence over the mortgage debt.</p> <p>3. Same — Claims Entitled to Preference as to Income.</p> <p>Claims for labor and supplies which have accrued within six months of the appointment of a receiver are entitled to be paid out of the net income of the receivership. Ordinarily, older claims are not entitled to any preference.</p> <p>4. Same — Corpus.</p> <p>Semble, that claims entitled to preference "as to income may, in exceptional cases, and where a special equity appears, be made a first lien upon the corpus of the mortgaged property.</p> <p>5. Same — Intervening Claims — Evidence—Company’s Books.</p> <p>Where the application for a receiver contains no charge of fraud and deceit on the part of the company’s officers, a master to whom intervening claims are referred may be authorized to pass upon uncontested claims without any other evidence than the admissions in the company’s books, where the facts upon which such claims rest fully appear from the books, and additional evidence appears to him unnecessary.</p>

<p>Taxation — Assessment ot? Railroad Property — Injunction—Certiorari.</p> <p>The board of examiners organized and acting under the Tennessee statute will not be enjoined from certifying the record of the assessment of railroad property for taxation, and delivering the same to the comptroller, nor will the comptroller be enjoined from receiving said record and certifying said assessments to the counties and towns of the state, and from taking steps to collect any taxes claimed by the state upon said assessments in excess of amount admitted to be due, as such assessments may be reviewed bjr the writ of certiorari and supersedeas in the state court, as decided in Louisville & N. R. Co. v. Bate, 12 Lea, 573.</p>

<p>1. Land Grant to Southern Pacific Railroad Company — Act of March 3, 1871 — Grant Vested, when.</p> <p>The words “ that there be and is hereby granted,’' in the act of congress of March 3,1871, granting lands to tlie Southern Pacific Railroad Company of California, constituted a present grant that could only be defeated by failure to perform the conditions subsequent, and; upon proper proceedings, to lake advantage of the failure to perform them; and the general right to the land, subject to the exceptions found in the act, vested at the date of the passage of the act, March 3,1871, and attached to the specific lands at tlie moment of the filing of the plat in the office of the commissioner of the general land-offioo, as provided by section 3 of the act, on April 3,1871, and from the latter date it was not in the power of any officers of the government, hy any action of theirs, to divest or in any way limit or modify the vested rights of the company.</p> <p>2. Same — Mexican Grant — Final Location — Grant of Same Lands to Railroad.</p> <p>As, under the act of June 14,1860, the location of a Mexican grant becomes final after the publication by the surveyor general of the notice provided by the act, in the absence of an application to have the plat and survey returned to the district court for examination, and all lands outside of such final survey become public lands, and subject to other disposition, under the laws, the grant, by the act of March 3, 1871, attached to such lands within the exterior limits of the fajanta grant, but outside the limits thereof, as thus finally located, before the date of the filing of the plat by the company.</p> <p>3. Same — Rights of Settlers — Con vet ance bt Patentee.</p> <p>D. entered upon land within the exterior limits of the Tajanta grant to secure a pre-emption claim, but, supposing that the land was sub judies, aban-donedit and settled on other land. Fouryearslater, and eighteen months after the filing of the plat required by the act of March 3,1871, by the Southern Pacific Railroad Company, he returned. Held, that he could acquire no title, and that the patent issued to him was void, or in trust for the company, and that he could convey no better title to a purchaser for value without actual notice of the title of the company.</p>

<p>Application for Dissolution of an Attachment.</p>

At Law. Suit upon a policy of insurance, taken out by the plaintiff in his own name, upon a building and contents. The contents belonged to the plaintiff, but the building was the sole and separate estate of his wife.

<p>Customs Duties — Illegal Exactions — Contract to Bring Suit to Recover— Substitution on Attorneys — Effect of Judgment.</p> <p>Contract whereby plaintiffs and others authorized the institution of suits to recover alleged illegal customs duties and fees construed, and hüá that the substitution of the attorneys, through whom some of such suits were settled, was valid,; that plaintiffs were bound by the action of said attorneys; and that the cases so settled should not be revived against the executors of the collector.</p>

<p>1’IRE INSURANCE — KEEPING DANGEROUS SUBSTANCES ON PREMISES.</p> <p>The prohibitory clause in a tire insurance policy against the keeping of dangerous substances cannot be extended so as to include a building oilier than the one covered by the policy.</p>

<p>Habeas Corpus — Chinese Seamen — Right to Land not within Restriction Act — Act ojí Juey 5, 188-1 — Construction.</p> <p>■ All Kee, a Chinaman, but a born subject of Great Britain, shipped as seaman at Calcutta on an American vessel, in June, 1884, and arrived in New York, November 3d, when the crew were discharged, the master intending to ship Ah Kee on board some other vessel on a return voyage without landing. Ah Kee came on shore for the same purpose, and was .thereupon arrested by the United States marshal under the restriction act of July 5,1884, and was lodged in jail. On habeas corpus, held, that seamen landing temporarily only, for the purpose of procuring a chance to ship on a return voyage in the ordinary pursuit of their vocation on the high seas, are not within the act, and are not required to procure the certificate described in section 6, which, for the most part, would be impossible or impracticable for seamen, and the petitioner was, accordingly, discharged from arrest.</p>

<p>Action for Monet Had and Received — Breach of Contract.</p> <p>In .May, 1883, tbe Mexican National Construction Company sought subscriptions to a loan of $2,000,000 to aid in constructing the Mexican National Railway, and plaintiff subscribed $20,000 upon the terms of a contract whereby the construction company agreed to deposit in trust securities of the nominal value of $20,000,000 as collateral for the repayment of the $2,000,000 loan on or before September 15, 1884. October 1, 1883, plaintiff paid the installments of his subscription as called by the company, and received receipts therefor, which, under the contract, were not transferable without consent of the company, but could be exchanged for formal certificates of interest in the loan, authenticated by the trustee. Before payment of the last installment, the company transferred to the trustee the securities by indenture, prescribing the powers and duties of the trustee, and providing that he should execute, as requested by the company, certificates of interest entitling the registered holders to an interest in the securities, or the proceeds of the sale thereof, bearing the same proportion to the whole as the amount of each certificate bore to the $2,000,-000; but that he should not sell the securities to satisfy the loan unless the holders of certificates representing 25 per cent, of the whole amount requested, and that the holders of a majority in interest might waive default in payment of the loan, or extend the time of payment, or suspend or postpone the sale of the collaterals, at their discretion. Plaintiff had no knowledge of the terms of this indenture, and demanded a certificate, as provided in the contract, and, on a refusal to deliver the same, brought suit for money had and received. Reid (1) that the deposit of the collaterals, under the terms of the trust indenture, was a breach of the subscription contract; (2) that, inasmuch as the defendant had put it out of its power to perform an executory contract with the plaintiff, the latter had the right to treat the contract as terminated; (3) that the plaintiff could, at his election, sue upon the agreement and recover damages for a broach, or treat it as rescinded and recover back the money he had advanced.</p>

<p>The opinion states the facts.</p>

<p>On Motion to Dismiss, etc.</p>

<p>PATENTS FOR INVENTIONS — INFRINGEMENT OF ONE Or.AIM ONIjY — PROFITS—EVIDENCE.</p> <p>Wliero it is shown that an Infringer has infringed one of several claims in a parent only, in estimating- the profits it is not admissible to prove that the patent, as an entirety, was capable of producing greater profits than other inventions in use.</p>

<p>Patents for Inventions — Production of Colorín® .Matters from Alpha-Napiithol — Construction of Claim — Infringement.</p> <p>The claim of the patent granted March 2,1880, to Badische Anilin & Soda Fabrik, a corporation, as assignee of Heinrich Caro, for a new and useful improvement in coloring matters produced from alph.a-naph.thol, is not to be construed as one for coloring- matter obtained by any method or process of treating the alpha-napthol sulpho-aoids with nitric acids, but for any method of treatment which is the equivalent of the process described, and although it was not shown specifically that the defendants’ coloring matter was made by Caro’s process, this conclusion may be inferred from the chemical identity of their article with his.</p>

<p>1. Lien under Louisiana Law for Money Advanced.</p> <p>Under the laws of Louisiana advances of money to the caplain or owners of a vessel can only be privileged when advanced under imperious necessity to save the ship, or enable her to complete her voyage, and that the furnisher of moneys to a ship to pay for wages, supplies, and expenses has no privilege unless there is a legal or conventional subrogation. La. Civil Code, arts. 2160, 2161, 3237.</p> <p>2. State Lien under Maritime Law.</p> <p>Where a creditor claims the benefit of a state statute which purports to give a lien, he must take it subject to all the conditions which the state statute imposes. The Edith, 94 U. S. 618, followed.</p> <p>8. DrmATioN op Trek totoer Louisiana Law.</p> <p>The privilege (lien) enjoyed by creditors for cause, anterior to the sale of a vessel, is lost if a sale is made in port and a voyage is thereafter made in the name and at the risk of the purchaser, unless the purchaser shall have some notice, actual, legal, or constructive, of 1lie claim and privilege. La. Civil Code, arts. 3212, 3243.</p>

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

<p>1. Towage — Liability fob. Loss — Notice to Consignee.</p> <p>A transportation company undertook to tow a barge loaded with staves from Kavenswood, West Virginia, to Pittsburgh, and upon arrival there tied up the barge in the company’s landing, i'or want of proper fastening the barge broke loose and the staves wore lost. Held, that until reasonable notice was given the consignee of the staves of their arrival there was no delivery, and that the company was answerable for the loss.</p> <p>2. Consignee — Right to Sue.</p> <p>The consignee, although the mere agent of the non-resident owner, can sue in admiralty in his own name for the value of the staves.</p>

Balt abb Sbevtoe — Bakks in Ice — .Compensation. Tho whaling-bark Eliza became involved in tlie ice in tho Arctic ocean near the Boa Horse islands in September, 1SS4, and her crow, after seven or eight days passed on the ico in trying to reach slum1, returned to her. The bark Mabel had met with tho same misfortune five or six miles from the Eliza, and had been abandoned by her crow, who succeeded in reaching the shore.

<p>1. CoimTsroN in Slip — Half Damages.</p> <p>The tug R., in towing the schooner 31. into a slip filled with ice, passed a canal-boat moored in the slip and caused a break in the planking of the canal-boat, either through direct contact with the schooner or through the crush of ice between them. Meld, immaterial from which canse the break arose, the blow being more violent than could be justified as an ordinary contact in putting boats in place, and that the tug was responsible for the damage; but it appearing further that the boat was old and not sound, and no notice of her weakness being given on the approach of the tug and schooner, held, that this was negligence in the libelant, and that he should, therefore, recover but half his damages.</p> <p>2. Same — Further Damage.</p> <p>The canal-boat having been towed to Hoboken for repairs, and there moored upon sloping fiats, and having broken from her moorings through insufficient lines and slid down with the ebb-tide, and thereby run against some floating spiles, causing her further damage, held,, that the latter damage, arising proximately from an independent act of negligence, was not chargeable against the tug as damages arising out of the previous collision in the slip.</p>

<p>1. Collision — Vigilance—Steamer to Stop and Back — Flash-Light—Neglect — Damages Divided.</p> <p>Navigation at a very bigb rate of speed imposes upon a steamer the duty of proportionately increased vigilance, and tbe avoidance of every alternative in navigation which involves or increases the risk of collision. Where there is risk of collision with a sailing vessel, the burden of proof is upon the steamer to justify her departure from rule 21 in not stopping and backing, or else she rmist be held in fault. The steam-ship A., 500 feet long, steaming W. by S. at the rate of 20 miles an hour, when off Nantucket came in collision about 60 feet from her stem with the bow of the brig C., sailing close-hauled about S. The A.’s lights were seen from the brig at a considerable distance. On the steamer, though three officers were on the bridge and two men on the lookout, the brig’s red light was not seen until about a minute before the collision. The brig’s witnesses testified that a torch-light was exhibited at her waist from 5 to 10 minutes before the collision; the steamer’s witnesses testified that no toreli-light was seen until the steamer’s bows had passed the brig’s stern; held, without determining tixe fact as to the time the flash-light was exhibited, that the brig's red light being more than one point in range for more than two miles previous to the collision, the fact that it was not seen by so many persons on the steamer who were on the watch for such lights was sufficient proof that the red light was defective; and the si earner having starboarded when the brig’s red light was seen at least three-quarters of a minuto before the collision, and kept on at full speed, instead of stopping- and hacking, as rule 21 requires, it appearing- that by hacking the collision might have been avoided, that the steamer was also in fault, and the damages should be divided.</p>

<p>CoimreroTV-Defective Lights — Lookout—Conflicting -Evidence.</p> <p>Where a collision occurred between the steam-boats A and T. No. 2, in the East river, near Blackwell's island, tlio former going up and the latter down, and the pilot of the latter, seeing the A.’s white lights, hut no colored light, supposed the A. was going the same way with him, and starboarded so as to pass to the left, and thereby came in collision, held, upon much eontra-dictory evidence in regard to the A.’s colored light s, that, though burning, they wens defective, so as not to he visible at tlie distance they ought, to have been visible. It appearing, also, that T. No. 2 had no lookout except the pilot, and that with a suitable watch the mistake as to the direction of the A. would have been discovered in time to avoid her, though her colored lights were not seen, hi Id, that the other tug was also in fault. In great conflict, of evidence as to lights being visible, the contemporaneous evidence, afforded by the acts of those in charge of vessels, who, looking for colored lights, (tan see none, and maneuver their vessels accordingly, is entitled to great weight.</p>

<p>In Admiralty. On exceptions to taxation of costs.</p>

<p>Admiralty Appeal.</p>

<p>Common Carrier — Warehouseman—Delivery—Perishable Cargo — Usage.</p> <p>Tlie decree of tlie district court in tlie same case (17 Fed. Rep. 695) affirmed.</p> <p>See the opinion, of the district court in tlie same case, (reported as Liverpool & Great Western Steam Co. v. Suitter and others,) 17 Fed. Rep. 695. —[Rep.</p>

<p>In Admiralty. ,</p>

<p>Demurrer to Plea in Abatement.</p>

<p>Removal ok Cause — Citizmnsiiip—Insolvent Corporation — Proceedings under Minnesota Statutbi — Riout ok Nkw Party to Remove Gash.</p> <p>Where an action has been brought, against an insolvent corporation under the special provisions of chapter 76'o£ the Minnesota General Statutes of 1878 in the state court, and a creditor, who is a citizen of another state, lias, by order of that court, obtained leave to be made a party to the suit, he must proceed by supplemental bill or complaint to become such party, and as this is not an original suit, but an ancillary and auxiliary proceeding, where the parties to the original suit are citizens of the state of Minnesota, he cannot remove the case into the federal court.</p>

<p>Removal op Cause — Corporation Created in Several States — Citizenship.</p> <p>A railroad corporation organized under the laws of Indiana and of Kentucky is a citizen of both states, and an action instituted against it in a state court in Indiana by a citizen of that state cannot be removed to the United States circuit court on the ground of citizenship.</p>

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

<p>1. Appropriation op Payments— Running Accounts.</p> <p>The rule for the appropriation of payments on running accounts is that the first item on the credit side of the account will be applied to extinguish the first item on the debit side of the account; but this rule has no force against an understanding of the parties to the contrary.</p> <p>2. Same — When Some Debts Due and Some not.</p> <p>In the absence of an agreement to the contrary, the law will applj' credits to extinguish debts which are due, in preference to debts which are not due.</p> <p>3. Same — Right Belongs Exclusively to Debtor and Creditor.</p> <p>The exercisfe of the right of appropriation of payments belongs exclusively to the debtor and creditor, and no third party can be heard for the purpose of compelling a different appropriation from that agreed upon by them.</p> <p>4. Same — Merchant’s Books may be Explained.</p> <p>A merchant is not estopped from showing an understanding or agreement inconsistent with the deductions the law would draw from the face of his books unexplained.</p> <p>See Nichols v. Knowles, 17 Fed. Rep. 494, and note, 495.- — [Ed.</p>

<p>Cont'ORATiON — Election of Directo its — Mismanagement — Rights of Stockholders.</p> <p>Where a corporation, by contract not impeached, acquires a majority of the capital stock of another corporation, and through tlie control thus acquired elects new directors, and tlio latter corporation fails t o ful fill its part of the contract, the stockholders of the former company, on 1lie sole ground that the acts of such directors are highly detrimental to the property and interests of the company, will not be entitled to an injunction against tlieir further acting as directors and officers, and the appointment of a receiver of the property.</p>

<p>1. Chattel Mortgage ~ Fraudulent Preference —Minnesota Insolvent Law.</p> <p>On examination of the evidence, held, that it does not show that the mortgagee had reasonable cause to suppose that the mortgagor was insolvent at the time rlie chattel mortgage sought to be foreclosed was given.</p> <p>2. Same —Elevator Built on Railroad Land under. License — Personalty.</p> <p>An elevator built on land owned by a railroad company, under a license allowing the owner to operate it for the mutual benefit of himself and the company,"and with a right to remove it, though the removal might injure the structure, is personal property, and a mortgage thereon a chattel mortgage.</p>

<p>■1. Fraudulent Conveyance — Chattel Mortgage — Mortgagor Retaining Possession, with Power of Sale.</p> <p>A. chattel mortgage, executed to a creditor on a stock of goods, providing that the mortgagor muy retain possession of the goods, and dispose of them in the ordinary course of trade, from time to time adding to the stock, under the Iowa statute is not void as to other creditors where it does not appear that the proceeds of sale were to be used for any other purpose than the payment of the mortgage debt.</p> <p>% Same — JBurden of Proof — Evidence of Fraud.</p> <p>The burden is upon the party claiming such a chattel mortgage is a fraud on the creditors of the mortgagee, to establish its invalidity. This may be done, either by showing that the provisions of the mortgage are such as to prove ’that the parties thereto intended to commit a fraud upon the rights of others, or by showing that the acts of the parties have been sncli that fraud is the necessary inference. Evidence held not to show a fraudulent intent, and mortgage sustained. ,</p>

<p>1. County Bonds — Negotiability—Failure of CONSIDERATION — Pleading.</p> <p>In an action against a county on negotiable bonds issued by its board of supervisors in payment for the capital stock of a railroad company, a pica setting up that the bonds were issued upon a promise that the company would build a certain branch road through the county, and that it had only built a part of such branch road, and refused to complete it, but failing to state that plaintiff had any notice of such failure and intention not to extend the road further, is demurrable.</p> <p>2. Same — Knowledge of Holder.</p> <p>A plea averring that, at the time said bonds and attached coupons were received by plaintiff, the railroad company did not intend to extend said road,, hut not averring that plaintiff knew that, said obligations were issued upon the condition that the road should be extended, or that it was not intended so to do, does not set up a valid defense.</p> <p>3. Same — Fraud—Covin—Misrepresentation.</p> <p>A plea alleging that the bonds were obtained by covin, fraud, and misrepresentation on the part of the company, must set out the facts constituting such fraud, covin, and false representations.</p> <p>4. Same — Validity of Issue — Number of Votes.</p> <p>A plea averring that county bonds are void because two-thirds of the qualified voters of the county did not vote at the election held to ascertain whether or not said bonds should be authorized to he issued, and that plaintiff knew when it received the bonds that two-thirds of the qualified voters did not vote in favor of their issuance, must also aver how many votes were cast in favor of, and how many against, authorizing the issue, so that the court may he enabled to decide from the face of the pleadings whether or not the defense is valid.</p> <p>5. Same — Requisite Number of Votes — Constitution and Statutes of Mississippi.</p> <p>Where a majority of two-thirds of the votes actually east at an election are in favor of the issuance of county bonds, this is a compliance with the constitution.and laws of Mississippi, and it is not necessary that two-thirds of the registered voters of the county should vote in favor of the issuance. Carroll Co. v. ¿Smith, 111 U. S. 556; S. C. 4 Sup. Ct. Rep. 539; and Hawkins v. Carroll Co. 50 Miss. 735, followed.</p>

<p>Principal and Agent — Contract to Procure Advertisement — Agent Personally Interested — Action for Commissions.</p> <p>A firm of brokers, as agents for defendant, undertook to have Ms advertisements inserted in countty newspapers, the proprietors of wliicli were willing to furnish the required space for the required time upon the faith of defendant’s written promise to sell to them from one to three feed-cutters, manufactured by him, at a reduced price, — the reduction in the price being the compensation which the publishers were to receive. The defendant was thus to advertise his implements and sell them at a profit, and agreed to pay the brokers five dollars per newspaper for insertions so made. Instead of carrying out this arrangement the brokers had the advertisements inserted in newspapers in which they owned at the time, by contract with the publishers, the required space, or in which they had procured the insertion of the advertisements solely by a consideration moving from themselves, and the obtaining the implements was no inducement to the newspaper proprietors. The agents intentionally prevented the defendant from receiving ail the benefits Which they undertook to obtain, and made only a nominal performance of their contract. On the refusal of defendant to pay the agreed commissions they brought suit therefor. Held, that they had not acted in good faith, and were not entitled to recover.</p>

<p>Life Insurance — Prepayment of Premium — Waiver by Agent — Validity of Policy.</p> <p>Although in the printed policy and the application for life insurance it is stated that no policy will be considered valid and binding until the premium is paid, a general agent of a foreign company may waive such condition and give credit, and as the evidence in this case shows that the delivery of the policy in suit was unconditional, and that the agent did in fact waive the terms thereof requiring prepayment, the policy should be held valid, and plaintiff allowed to recover the amount of insurance, with interest, after deducting the amount of premium due and unpaid.</p>

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

<p>Sale — Offer and Acceptance by Telegraph — Consummation of Contract.</p> <p>On December 30tli N. W T. Co. telegraphed to M: “ Are you prepared to make me price by telegraph to-morrow for 40,000 tons coal? Advise by wire, quick.” M. telegraphed next day: “ Quantity named, delivered afloat, Toledo or Cleveland, as most convenient for both, in about equal monthly installments during navigation, two eighty por ton, or two seventy if all taken by October 1st; both ninety days.” N. W. i\ Co. telegraphed: “ Telegram received. Price too high to secure trade. Want to bmr this coal of j’ou. Will give you until 6th to figure freights and do better.” On January 4th M. telegraphed : “ Two fiily-five, free on board vessels, Cleveland and Toledo, provided quantity named is taken before October 1st, in about equal monthly installments; terms, ninety days. Bulk would probably go via Cleveland, as undoubtedly most convenient to both; but portion would have to go from Toledo. A possibly slightly lower oiler from porfíes representing Sandusky, you can offset by unquestionably securing lower lake freights.” On January all) J5C VV. F. Co. answered: >“ Telegram received. You can consider the coal sold. Will be in Cleveland and arrange particulars next week.” Held, that there was no definite contract and acceptance thereof.</p>

<p>1. Taxation — Double Taxation — Constitution of California.</p> <p>Double taxation is prohibited by the constitution of California.</p> <p>2. Same — Taxing Property of Corporation and Stock.</p> <p>To tax the property of a corporation to the corporation, and also to tax the stock representing the property to the stockholders, would amount to double taxation.</p> <p>3. Same — Domestic Corporation — Property Taxable in Another State.</p> <p>The Constitution and Political Code of California exclude from taxation in California, through the medium of its stock, the tangible property of a California corporation situate and taxed in the state of Nevada.</p> <p>4. Same — Situs of Money and Credits.</p> <p>The situs of money and other solvent credits, for purposes of taxation, is, the residence of the owner or creditor, in the absence of statute.</p> <p>5. Same — Solvent Credits of Non-Resident.</p> <p>The money and other solvent credits due from citizens of California to a citizen of another state, and not secured by mortgage or deed of trust, are not liable to taxation in California.</p> <p>The constitution of California prohibits double taxation; hut even without a constitutional inhibition, it is sufficient if the legislature has prohibited it.1 As a general rule, taxation of the stock of a corporation may protect its property in which such capital is invested, and the taxation of the property may protect its capital stools. It is only the shares of stock of foreign corporations which may bo taxed in full to resident holders, irrespective of the taxation of the property where located; and although the whole stock and profit are subject to taxation in the state of their residence.2 The shares of stock of a corporation are personal property, and follow the rule that personal property follows the owner, and is taxable at the place of his domicile.3 Debts due are credits within the meaning of the revenue law, and are to be assessed as property.4 They are property independent of the fact that they may be secured by mortgage even upon land, and although the land is also taxed;5 and the situs of taxation is at the domicile of the creditor.6 The debtor is protected from double taxation by the provisions of the statute, which enable him to deduct his debts from the valuation of his property mortgaged therefor.7 — [Ed.</p>

<p>Railroad Company — Injury to Persons Walking on Track — Contributory Negligence.</p> <p>While a railroad company is held to the highest degree of care in operating its road, and is liable for all injuries that, result solely from a failure to exercise such care, persons who take the risk and perils of traveling upon railway tracks, and are thus brought into dangerous positions, voluntarily assumed, are not free from fault, and if injury results therefrom the company is not liable.</p>

Stipulation: Pittsburgh, July 26,1883. The death of Isaac Mills,' Sr., one of the defendants, on the-day of January, 1880, is hereby suggested, and it is agreed that his administrators, Isaac Mills, Jr., Charles Mills, and James K. Mills, appear as if to a, scire facias under the thirty-third section of act of February 24, 1834, relating to executors and administrators. P. L. 73.

Libel in rem. On the twenty-eighth of June, 1883, one Oscar Compton, agent, gave a written order to Messrs.

<p>Admiralty Appeal.</p>

<p>1. Collision — Vessels Descending and Ascending James River.</p> <p>Ascending vessels about to meet descending vessels in that part of James river above City Point, when the tide is in ebb, must steer close to one or the other edge of the channel, and leave as much room to the descending vessels meeting them as practicable.</p> <p>2. Same — Fault—Damages.</p> <p>When it is not clearly proved that an ascending vessel has thus given room to a vessel meeting her, and a collision occurs, damages will not be awarded to the ascending vessel.</p>

<p>Maritime Lien — Repairs on Vessel in Foreign Port — Contract—Libet, Dismissed.</p> <p>A.s there is no sufficient proof of the waiver of the terms of the contract under which libelant was to furnish the materials and do the work in repairing the vessel now libeled, the libel must bo dismissed.</p>

<p>1. Removal op Cause — Collusive Transfer — Remanding Case — Act of March 3, 1875, § 5.</p> <p>A plaintiff wlio lias been introduced into a controversy by an assignment or transfer merely that lie may acquire a standing and relation to the controversy, to enable him'to prosecute it. for the beneficial interests of the original party, is collusively made a party to the suit, and when the fact appears it is the duty of the court' to'remand the suit, under section ■> of the act of congress of March 3, 1875.</p> <p>2. Same — Credibility op 'Witness — Discretion op Court.</p> <p>Where an extraordinary transaction is disclosed, no satisfactory explanation of which is vouchsafed, and the evidence of the transaction, which it was in the power of the parties to produce, has been withheld, the court may disregard the testimony of the parties so far as it is improbable, and interpret the transaction in a way consistent with the ordinary conduct and motives of business men.</p> <p>3. Same — Cause Remanded.</p> <p>On further examination of the evidence and circumstances of the case the former order remanding the cause is affirmed, and a new trial refused.</p>

In Equity .2 The facts in this case, so far as they need be here stated, are substantially as follows: Abraham Oyster died testate in 1862, leaving four children, Margaret, Simon K., George, and David K., who were his only devisees. Letters of administration upon their father’s estate were taken out in Missouri by David K. and in Pennsylvania by-George.

<p>RAILROAD Bonds.</p> <p>Bill dismissed, because of defect of parties; following Morgan v. Kansas Pac. liy. Co. 21 Blatchf. 134; S. C. 15 Fed. Rep. 55.</p>

<p>Bill for Foreclosure of Mortgage.</p>

<p>1. Municipal Bonds — Fraudulent Issue —Bona Fide Holder — Burden of Proof.</p> <p>When it appears that municipal bonds were fraudulently issued, the burden is cast on the holder to show that he is a holder in good faith, and for value.</p> <p>2. Same — Credibility of Witness — Province of Jury.</p> <p>The jury are at liberty to reject the testimony of a witness as incredible, although he is not impeached or contradicted by direct evidence where there is some intrinsic improbability in his narrative, and ho has shown himself unworthy of credit by his attempt to falsify a collateral transaction involved in the suit.</p> <p>3. Same — Ijtew Trial Refused.</p> <p>Upon the evidence in this case, held, that the court properly submitted the question as to whether plaintiff was a bona fide holder of the municipal bonds in suit to the jury as one of fact, and that their verdict was sustained by the evidence, and that a new trial should not be granted.</p>

<p>Practice — Service on Foreign Go uto ration -Rev. St. § 739.</p> <p>A foreign corporation is not “found ” within a district, within the moaning of section 739 of the líevised SI atufes, for the service of process, when its president comes temporarily into such district upon the business of the corporation, such corporation having no oiiice or place of business therein, and not having transacted any business therein, except that which the president came to settle.</p>

In May, 1876, the defendant, then collector of internal revenue, seized the property of the plaintiff upon the pretense that he was unlawfully carrying on the business of a distiller. This issue was tried and resulted in a verdict for the plaintiff. The collector asked for a certificate of reasonable cause, under section 970, Eev. St., which was refused by the court. U. S. v. Frerichs, 16 Blatchf. 547; S. G. 1,06 U. S. 160; S. C. 1 Sup. Ct. Eep. 169.

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

On Demurrer to Information. Defendant was prosecuted by information of the district attorney for a violation of Eev. St. § 5485, in demanding and receiving a greater compensation for his services and instrumentality in prosecuting certain claims for pensions than was allowed by law. Defendant demurred upon the ground that the law fixing the compensation for snob services bad been repealed, and bence that there could be no conviction..

<p>Motion for New Trial and Arrest of Judgment.</p>

<p>1. Patents Eon, Inventions — -Novelty.</p> <p>Where it is shown that a prior invention was the same as that described in a patent, that it was complete, and capable of producing the same result, and was known in this country, the defense of want of novelty will be sustained.</p> <p>2. Same — Perches eok Dumping Cars — Patent No. 147,863.</p> <p>Patent No. 147,803, granted to George Richards, February 24,1874, for an improvement in perches for dumping cars, is void for want of novelty.</p>

<p>Patents eob Inventions — Reissue—Laches.</p> <p>Reissued patent No. 10,264, granted to John P. Wollensak for transom-lifters, luild void by reason of liis allowing eight years to elapse without applying therefor; following Miller v. Brass Oo. 104 U. 8. 850.</p>

<p>1. Patents bob Inventions -Setting Aside Patent Pkaudulkntly Obtained —Evidence.,</p> <p>Upon examination oí the evidence taken and filed by the United States, held, that the denials of the answer, unsupported by evidence on the part of the defendants, are overcome, and that a decree vacating and setting- aside llio patent thereunder bo granted</p> <p>2. Same — Costs.</p> <p>It appearing that defendant Ingersoll has not participated in the fraud, and is a bona fule purchaser of an interest in the patent decreed fraudulent and set aside, costs will not be decreed against her.</p>

<p>1. Patents fob Inventions — Fake -Register and Recorder — Novelty.</p> <p>Patent, No. 265,1.45, dated September 26, 1882, and granted to Newman A. Ransom, íor a fare register and -recorder, is not void for want oí novelty, and is infringed by tlie defendant.</p> <p>2 Same — Patent No. 260,526 — Public Use.</p> <p>The use of an invention for a fare register and recorder upon street-railway cars, in the only manner in which it could he conveniently used, for the purpose of actual experiment, to ascertain the host mode of construction, will not amount to a public use and invalidate the patent.</p>

<p>1. Patents for Inventions — License—Assignability.</p> <p>Generally, a license to make and use a patented invention is a privilege personal to the licensee, wbicli is incapable of assignment; but where the license reserves no royalty to the owner of the patent, and grants the right, not only to the persons named as parties of the second part, but also to their executors, administrators, and assigns, it is assignable.</p> <p>2. Same — Title in Severalty.</p> <p>■Where such a license runs to the administrators and executors of the parties of the second part, as well as to their assigns, it is apportionabie and divisible, by assignment, and may be transferred in severalty by one of the licensees.</p> <p>3. Same — Receiver Conveying Title to Patent.</p> <p>The rule that a receiver cannot convey title to a patent unless the owner of the legal title joins, does not apply to the transfer of a mere equitable title.</p> <p>4. Same — Defect of Party — Objection Raised on Hearing.</p> <p>A defendant who has litigated a case on its merits will not be permitted to-raise for the first time at the hearing the question of a defect of parties, unless indispensable parties are absent, and in that event the court will refuse to decree if the objection were not suggested.</p>

<p>Patents for Inventions — Patents JNos. 277,941, 277,943 — Iniounuement-—Li-cense — Preliminary Injunction.</p> <p>A preliminary injunction will not be gratitud where, upon the same proofs and allegations, final relief would not 'do granted. Injunction denied.</p>

<p>PATENTS FOR INVENTIONS — TATE QüILTING-MACHINES — THOMAS MACHINE — INFRINGEMENT.</p> <p>Tlie eighth claim of the patent granted August 22, 1871, to William John Tate, for an improvement in quilting-machines, is infringed by the Thomas machine.</p>

<p>1. SHIPPING — DELIVERY OP PERISHABLE CARGO— NOTICE — USAGE.</p> <p>A vessel is bound to give reasonable notice to the consignee of readiness to discharge perishable cargo, and sufficient opportunity to receive and remove the same without injury from the weather; and she is bound by all reasonable customs of the port designed to secure that end.</p> <p>2. Same — Readiness to Discharge.</p> <p>A vessel is not “ready to discharge” perishable cargo, within the meaning of that phrase in the bill of lading and under the usages of the port, when the weather is so cold that fruit cannot be discharged without injury.</p> <p>3. Same — Custom—Pruit—Frost.</p> <p>Where a custom was proved to discharge fruit cargo in the forenoon of \t.he day of sale previously advertised, and for the vessel to wait until the weather was mild enough to admit a discharge without injury from frost during the day, the sale being postponed accordingly, and the vessel having a large cargo which could not all be removed in one forenoon, commenced discharging about noon the day before the sale, and continued discharging till night, without notice to the consignee of intended discharge, and the fruit was injured by frost during the night, held, that the vessel was liable for the injury, because the discharge was not warranted at the time by any certainty as to the weather, and because it was without notice to the consignee, and a departure from the usual custom. Advertisement alone is not legal notice.</p> <p>4. Same — Stevedores—Servants op Ship — Negligence.</p> <p>A charter of affreightment provided that the “ s'tevedore was to be named by the charterer and consignees, and to be employed under the captain’s supervision.” Held, that the stevedore who discharged the ship upon appointment of the charterer’s agents was the servant of the ship, and that the ship was liable for lijs negligence in discharging the goods at an improper time.</p> <p>5. Same — Evidence—Commercial Documents.</p> <p>Courts of admiralty, where justice requires it, may take notice of matters not strictly proved according to the rule of the common-law courts, and where points arise incidentally and unexpectedly upon the trial, the evidence of which is found in commercial documents executed abroad, such documents may be considered without strict proof when the res gestee afford the highest practical guaranties for their authenticity and correctness. But this practice should not be extended so as to justify any laches in obtaining full proof, the necessity of which could have been reasonably foreseen.</p>

<p>1. Tug and Tcrw — Use of Several Boats — Lien.</p> <p>Upon a contract with the owner of a line of several tug-boats, for towage, by separate stages, the contract not specifying the use of any particular tug-boat, and several being employed at the different stages of the trip, held, that the one last appropriated to this service was not liable in rem for any previous delay before she was assigned to her particular part of the service.</p> <p>2. Same — Ice—Negligence.</p> <p>Though on a contract for towage through ice a tug is liable only for negligence in executing the contract, and not for starting upon such an undertaking, yet, where a contract does not contemplate the special dangers from navigation amid ice, the tug-boat is answerable as for negligence if she starts at an improper time, and in the face of known danger from ice; and where both captains concur in such an undertaking, without the consent of the owner of the tow, both are answerable for the loss.</p> <p>3. Same — Joint Negligence.</p> <p>The tug and tow in this case being unable to go through a pack of ice in the Raritan river, having returned and met a large field of thin meadow ice, which both concurred in undertaking to go through, without previous breaking up, held, negligence in both, for which both were liable.</p>

<p>1. Negligence — Raising Yessel on Dry-Dock — Approval op Blocking — Agent.</p> <p>Tlie owners of a large steamer, who were making repairs on her, in the course of which they desired to put some bolts through her engine keelsons, applied to the owners of a floating dry-dock to take the steamer out of the water on their dock, on blocking high enough to allow of putting in bolts seven feet long without bending. This was an extraordinary height to raise a vessel on such a dock. The employes of the owners of the dock arranged the blocking, making a single tier of blocks, each pile of blocks being fastened together by iron dogs, and between some of the piles they put cross-braces. The steamer was then taken on the dock and raised out of the water, but before the raising was complete the blocking gave way, the steamer falling backwards, and she was seriously injured. Held, that the evidence did not show that the blocking was prepared according to the directions of the steamer’s agent, but at most that it was approved as of sufficient height.</p> <p>2. Same — Condition op Yessel — Notice.</p> <p>That the fact that the steamer was in a condition needing repair was not shown to have caused her fall; that the contract of the owner of such a dock is, in the absence of representation or special agreement, to raise the vessel as she is, — the care and skill required of him in each case depending on the condition of the vessel he undertakes to raise; that in this case there was no representation, and it was practicable to raise the steamer safely in her actual condition, and therefore, if her condition had caused her fall, the dock-owner would not thereby have been relieved from responsibility, because there was in the facts shown abundant ground to put the dock-owner on inquiry as to her condition, and therefore ignorance of her condition would have been negligence.</p> <p>3. Same — Degree oe üesponsibility op Owner op Dry-Dock.</p> <p>That the nature of the employment of an owner of such a dock and the character of the service are abundant reason for holding him to a high degree of responsibility as regards tho sufficiency and management, of the dock; and that such responsibility must extend to a warranty of tho sufficiency of the blocking which ho employs.</p> <p>4. Same — If alt. oe Steam-Boat on Dry-Dock — Negtjgenoe—Damages.</p> <p>That even if the liability of the dock-owner was only for negligence, still ho would he liable in this case, because the unusual height in this case required unusual care, and by cribbing the blocks instead of laying them single, (the method of cribbing blocks, though never resorted to on this dock for many years previous, being a method well known in raising vessels,) all danger of the steamer’s fall would have been avoided, and tho choosing the less safe of two methods for performing this work was negligence; that there having been a sag in the iloor of the dock, by reason of which it retained a body of water, some 15 or 20 inches deep at the deepest part, if, as it seemed not un-warranlod to infer, a jar sufficient to topple the steamer over was given to the dock by some movement of that body of water upon it, the dock-owner would be liable on account of the unsafe condition of the dock for raising this steamer as she was raised; that the dock-owner was liable for the damages sustained by' the si earner.</p>

<p>1. Shipping — Through Bill of Lading — Construction.</p> <p>A ship’s contract is to be strictly construed in favor of the shipper, in respect to the vessel designated to carry the goods, and any change of vessel not permitted by the bill of lading will be at the risk of the carriers.</p> <p>2. Same — Transhipment—Change of Vessel.</p> <p>The respondents gave a bill of lading at Marseilles for goods shipped on the steamer B. for London, to be there transhipped for New Y ork “ on the steamer C., or by other steamer, or following steamer of this line, for which the goods shall arrive in time; * * * and if said steamer be prevented, from any cause, from proceeding in the ordinary course of her voyage, to have liberty to tranship the goods by any other steamer; * # * the carriers not to be liable for any loss or damage done while the goods are not actually in their possession.” On the arrival of the E. at London, the 0. had left three days before, and the respondents, having chartered two of their other vessels to the government, would have no steamer ready to sail for New Y ork for three weeks, and they accordingly transhipped the goods upon a steamer of a different line, upon which the goods were injured. By the usage in London it was understood to be obligatory to send goods by vessels of another line if there was likely to be a detention of more than a week after the ordinary sailing days. Held, that transhipment on the vessel of another lino was justifiable under the terms of the bill of lading, though the 0. sailed on her usual voyage some two we^eks afterwards; and that the defendants were not liable for the damage.</p> <p>3. Same — Construction.</p> <p>Particular clauses of a bill of lading should be construed with reference to its general purposes, as indicated by its various clauses, taken together, as well as the surrounding circumstances and the usages and customs of business.</p>

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

<p>Collision — -Tug and Perry-Boat — Signals.</p> <p>A ferry-boat, in approaching her slip on the Hew York shore of the Hudson . river, observed a steam-tug lying nearly at rest in her way, and whistled to her, but no answer was given, and she continued on her course, but did not check her speed in time to prevent a collision. The steam-tug had been temporarily disabled by the breaking of her rudder chain, but bad nearly repaired it.. Had the tug- observed the ferry-boat coming she might have moved forward somewhat out of her way and avoided the collision, held, that hotli were in fault; the tug, for neither answering the ferry-boat's signals, nor giving any signals of danger, and for not keeping a lookout and not moving somewhat, as she might have done; the ferry-boat, for unnecessarily running upon the tug, there being plenty of room to avoid her.</p>

<p>1. Equity Practice — Creditors’ Bill — Priority — Tennessise Code, §§ 4288, 4290.</p> <p>A plaintiff filing- a bill in beliall of himself and other creditors, to set aside a fraudulent conveyance, under sections 4288 and 4290 of the Tennessee Code, is entitled to priority of satisfaction, unless the other creditors become parties to the suit before the final decree, by giving the bond required; and they will not be admitted, as under tho general equity practice of the federal courts, 1o share in the fund at any time before tho final distribution.</p> <p>2. Same — State and Federal Practice — Removal on' Causes — Enlarged Remedy.</p> <p>Where a cause begun in the state court to enforce an enlarged equitable remedy in favor of general creditors having no judgments and nulla bona returns is removed to tho federal court, a statutory rule of state practice, which operates as a condition attached to the right given by the statute, will be enforced after the removal, in order to preserve the liens of tho creditors as they aro fixed by the statute.</p> <p>3. Insolvent Debtor — General Assignment — Tennessee Act, 1881, Cu. 121— Attachment Lien — Preferences.</p> <p>A statute, enumerating certain conveyances and judgments, which are to bo avoided by a general assignment of an insolvent debtor as preferences, will not be extended to include preferences not of the character of those enumerated. Therefore, the Tennessee Act of April (i, 1881, e. 121, does not affect tho lien of a hill, the attachment or judgment of a creditor proceeding- under the Tennessee Code, § 4288, to set aside a fraudulent conveyance, which has been followed hv a tren eral assignment by the debtor of all his property for the benefit of all his creditors.</p>

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

<p>In Equity. Appeal from the clerk’s taxation of costs in favor of George N. March* one of the defendants.</p>

<p>Rational Banks —Rev. St. $ 5242 — Insolvency — Transfer of Property to Indemnify Sureties.</p> <p>TRe Pacific National Bank, of Boston, suspended November 18,1881, Rut after examination resumed March 18, 1882, with the consent of the comptroller of the curreney, and continued to transact business until May 22, 1-SS2, when it again failed. Between March 24, 1882, and April 28, 1882', certain creditors,whose claims had been disputed and placed in a suspense account, attached the property of the bank, whereupon the bank gave bond with the president and a directov as sureties, and tlie attachments were dissolved. The bank transferred to ihe sureties, March 22, 1882, a certifloate of deposit for $100,000 on another bank, which, on A.pril 13, 1882, was exchanged for other property. Held, that such transfer was not made after the commission of an act of insolvency’by the bank, or in contemplation thereof, and with a view to a preference or to prevent the application of the assets as prescribed by the banking act.</p>

<p>On Exceptions to Rulings of District Court,</p>

<p>Extradition and Certiorari.</p>

<p>1. City cw Portland- — Power to Regulate.</p> <p>Tlie power granted to the city of Portland “to regulate” wash-houses includes the power “ to license ” as”a means to that end; but it does not include-the power to tax the business.</p> <p>2. Same — -License Pee.</p> <p>The power “ to license ” as a means of regulating a business implies the power to charge a fee therefor sufficient to defray the expense of issuing the license, and to compensate the city for any expense incurred in maintaining such regulation.</p> <p>3. Same — When Deemed a Tax,</p> <p>Whenever it is manifest that the fee for the license is substantially in excess of what it should be, it will bo considered a tax, and the ordinance imposing it held void.</p> <p>4. Same — Case in Judgment.</p> <p>The council of Portland was authorized “to regulate” wash-houses, and-thereupon ordained that the proprietor of such a house should take out a license quarterly, and pay therefor the sum of five dollars, or twenty dollars a year, and in default thereof should be liable to fine and imprisonment. Held, that, while the council had power to require the license as a means of regulating the-business, the sum charged therefor was manifestly so far in excess of what was necessary or proper for that purpose that, it must bo considered a tax, and the ordinance imposing it is therefore so far void.</p> <p>5. Jurisdiction oe National Courts in Case oe Imprisonment by a State without Due Process oe Law.</p> <p>Grounds of it stated, and reflections thereon.</p>

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

Motion to Quash Indictment. Section 3894 is in these words: “STo letter or circular concerning lotteries, so-called gift concerts, or other similar .enterprises, offering prizes, or concerning schemes devised and intended to deceive and defraud the public for the purpose of obtaining money under false pretenses, shall be carried in the mail.

Information. After the evidence was concluded, the court was asked to explain the law of the case to the jury, and the court said:

<p>1. Plea of Pending Suit — Action to Enforce Contract — Action to Rescind.</p> <p>A pending suit for the rescission of a contract cannot be pleaded in abatement, or bar of a subsequent suit in another court in enforcement thereof. The complainant in the second suit is dot bound to file a cross-bill in the first suit, although he might thereby obtain the desired relief.</p> <p>2. Same — Suit Pending in State Court as Bar to Action in Federal Court.</p> <p>The pendency of a prior suit in a state court is not a bar to a subsequent suit in a circuit court of the United States, although between the same parties and for the same cause of action.</p> <p>3. Patents for Inventions — License—Fraudulent Practices oe Licensor— Payment of Royalties — Injunction.</p> <p>Where an application for a preliminary injunction, by a licensor against a licensee, in alleged default in payment of patent royalties, is met by affidavits charging the complainants with secret and extensive sales of the paten ted article below agreed rates for the government of both parties, in fraud of and to the prejudice of the licensee, and counter-affidavits charge similar misconduct upon tile defendant, alleging that any under sales by the complainants were purely in self-defense; and which party commenced cutting schedule rates, is .fairly disputable under the conflicting affidavits; and it appears that the complainants have already, lo a large extent, lost control of the market by reason of unrestrained sales by infringers; held, that a preliminary injunction should be denied, but upon terms as to security, etc.</p>

<p>1. Patents for Inventions — License—Royalties.</p> <p>A licensee, bolding under a license containing acknowledgments of the novelty and validity of the patent, and binding him to defend against the same, is estopped from denying the validity of the patent, and so long as he continues to manufacture and sell, during the life of the license, he must pay royalties.</p> <p>2. Same — Prato on Licensee — Injunction.</p> <p>As the owner of the patent in this case has been guilty of fraud in concealing its arrangement with another licensee, from defendant, and allowing other parties to enter the market and reduce the profits of defendant, and at the same time exacting from him full royalties, his application for a preliminary injunction should be refused.</p>

The three eases named above wore tried and argued together. In the first case (Insurance Go. of North America v. Liverpool & Great Western Steam Co.) the court (Blatchford, Justice) made and filed the following findings of fact: The respondent, the Liverpool & Great Western Steam Company, Limited, is a corporation organized under the laws of Great Britain, and in the month of March, 1880, and for a long time prior thereto, was the owner of the steamer Montana.

<p>Practice — Amendment of Pleading — New Allegations — Appearance—Admission of Jurisdiction — Appeal.</p> <p>After the decision of these cases on the merits, (see ante, 715,) a motion, was made in the circuit court by the respondent for leave to amend its answers so as to qualfiy its appearance in these actions, and its admission of the jurisdiction of the federal courts, and to set up and prove a law of Great Britain alleged to be applicable to the cases, by which the liability of the respondent for the losses would be limited. Rule 4 of the circuit court provides that an appeal shall “ state whether it is intended, on the appeal, to make new allegations, to pray different relief, or to seek a new decision on the facts, and the appellants shall be concluded in this behalf, by the appeal filed.” The petition of appeal in these cases stated that the respondent, on the appeal, intended “to have the cause heard anew on the pleadings and proofs in the district court, and other proofs to be introduced in the circuit court.” Held, that the respondent was concluded from making new allegations in the circuit court on the appeal; that, having appeared unreservedly'and admitted the jurisdiction of the district court, the respondent could not, in the circuit court, be permitted to change that to a qualified appearance and admission.</p>

<p>1. Seamen’s Wages — Advance Wages — Act of June 26, 1884.</p> <p>Tlie act of June 26,1884, forbidding advances of wages to seamen, is not applicable to the shipment of seamen in foreign ports.</p> <p>2. Same — Making Acts of Ship-Masters in Foreign Jurisdiction Criminal.</p> <p>Though congress may possibty make acts done by American ship-masters within a foreign jurisdiction criminal, though legal by the laws of the port where the acts are committed, such an intention is not to be presumed from general language merety, which may be fully satisfied by its application within the jurisdiction of the United States, but should only be inferred from specific indications of an intention to include acts done in foreign territory. j</p> <p>3. Samis — Construction of Act op Congress.</p> <p>The general purposes of the above act, as well as some of its specific provisions and its necessary results, indicate a contrary purpose in this ease.</p> <p>4. Same — Vouchers—Witnesses Discredited.</p> <p>A master in Antwerp, having unsuccessful!}' endeavored to procure necessary seamen without an advance of wages, subsequently shipped several seamen, agreeing through the consular office to pay their back board bills, on account of their wages, by their consent, and upon vouchers signed by them; and such bills were paid. ■ Upon arrival at this port some of the seamen refused to allow the deductions under the above act, and libeled the vessel, and also denied their own vouchers. Held, their testimony being discredited, that the bills paid were valid offsets to their wages.</p>

<p>J. Collision — Steamer and Sailing Vessel — Change oe Course — Rule 23-Sailing Vessel in Fault — One Course.</p> <p>■Whore a sloop was beating up the East river past Blackwell’s island, and the steamer R., coming down, undertook to keep out of the way by passing very-near the westerly shore, leaving abundance of room for the maneuvers of the sloop, and the sloop, when upon her starboard tack, ran into the steamer, being, at the time, at least from three to five points off her course, which was by the wind, held, that the sloop was wholly to blame for the collision, for either intentionally changing her course by paying off in the direction of the steamer, or for negligently allowing the sloop to pay off much in excess of what was necessary in tacking, and that this fault was the direct cause of the collision.</p> <p>2. Same — State Statute.</p> <p>The state statute requiring steamers to keep in the middle of the East river ■ does not apply above the southerly end of Blackwell’s island. The course of the steamer close to the westerly shore held prudent and justifiable.</p>

<p>CoiiiiTSxoN — Rule 23 — Change of Course — Departure Immaterial.</p> <p>Whore a steamer ran into a yacht sailing on the wind, the steamer having first proposed to go astern oí the yacht, but afterwards changed and undertook to go ahead of her, alleging that the yacht changed her course by luffing, and the libel also stating that the yacht did what she could to keep out of the way, held, upon the facts, that the yacht did not luff, but paid off'; that though this was a departure by the yacht from rule 23, requiring her in such a case to keep her course, yet .such departure was, in this case, immaterial, because it did not, contribute to Hie collision, but tended to avert it, and that the steamer was wholly in fault, through lack of promptness in taking measures to keep out of the way.</p>

<p>1. WHARVES AND SlTPS — NEGLIGENCE.</p> <p>Persons in possession oí a wliarf and collecting wharfage are answerable to vessels, coming there in the usual course of traffic, for damages arising from obstructions or defects in the wharf that are known or ought to be known to the lessees.</p> <p>2. Same — Damage—Jurisdiction.</p> <p>Where bolts projected from the wharf, in consequence of th® timbers which they had held in place getting torn away, and the wharf was left without proper repair, and injuries to the libelants’ boats were caused by the projecting bolts, held, that the damage arose from negligence that constituted a maritime tort, of Which the admiralty has jurisdiction, and J'or which the respondents, as lessees, were liable.</p> <p>3. Same — Tort, when Maritime.</p> <p>A tort is maritime where the injury is received upon a vessel afloat, though the negligence originated on land.</p> <p>4. Same — Duty to Repair Wiiarp — Lessor and Lessee.</p> <p>Though the lessor be bound to repair, the lessee in possession is answeraoie to the vessel from which he collects wharfage for injury caused by the wharf’s being negligently left out of repair.</p>

<p>1. SALVAGE — DISTRIBUTION— Release.</p> <p>Where a claim of salvage lias been settled amicably, and the moneys distributed among the owners, captain, and crew, and a release under seal executed by the seamen for their various shares, a. libel filed four years afterwards by some of the crew to obtain a larger sum will not be sustained, in the absence of any actual or constructive fraud, or of any grossly- -wrong’ or unfair distribution.</p> <p>2. Same — Deviation of Salvinh Vessel — Increase of Risk.</p> <p>The increase of the owners’ risk through the deviation of the vessel, having a large and valuable cargo, in order to effect, a salvage service, is an important element; in (he apportionment. In this case, that risk being large, and the salvage service being of a very low order of merit, the allowance of two-tliirds to the vessel held not unreasonable.</p> <p>8. Same — Distribution Sustained in Part.</p> <p>The libelants being at the time of settlement fully informed of the mode of distribution of 85,000 among the master and crew, and not in the libel complaining in respect to that part of the salvage distribution, held, that that part, of the distribution would not. bo considered or disturbed.</p>

<p>In Admiralty. Exceptions to libel.</p>

<p>1. Whare — Mooring Vessels — Pounding.</p> <p>A vessel moored outside of another in an exposed situation, whore, in case of a storm, she is liable to do damage by pounding, is bound to use reasonable diligence in watching for the approach of danger, and when danger is imminent to take all effective and prompt means that may be at hand to avert damage.</p> <p>2. Same — Gale—Precautions—Damages.</p> <p>The bark L. M. V., being thus moored at Weehauken, the captain knowing the danger from a north-east gale, held liable for damages done in the forenoon in a gale of extraordinary violence, there being means in the morning ol‘ removing the vessel to a safe place, or of stretching a warp to diminish her poundhig against, the libelant’s vessel, although, in the height of the gale, it was to«) late to do either.</p>

<p>1. Jurisdiction — State Boundaries — Maritime Lien.</p> <p>Under the boundary agreement, of 1833, between the states of NewYork and New Jersey, although the state of New York has exclusive jurisdiction over the waters of the bay of New York, to the low-water mark on the westerly, or New Jersey, shore, except the wharves, docks, and improvements made on the shore, and vessels aground or fastened to such wharf, etc., the state of New Jersey has exclusive jurisdiction over such wharves, and vessels so fastened.</p> <p>2. Same — Maritime Lien — Repairs and Supplies.</p> <p>Sails were sent by the libelant from New York to a vessel at Keyport, New Jersey, “ lying at a brick-yard at the dock,” and her owners resided there; held, that the vessel was within the jurisdiction of the state of New Jersey, and not within the jurisdiction of the state of New York; and that no maritime lien existed for supplies delivered there, and the libel was therefore dismissed.</p>

<p>Collision — Damages—Rep aibing — Intervening Yoyages.</p> <p>While indemnity for the loss is the rule of compensation in collision cases, where the actual cost of repairs is relied upon as the proof of the damage, such repairs should be made at once. If made at different times, and in part, after intervening voyages calculated to aggravate the injury, a reasonable deduction made by the commissioner from the actual cost of repairs will be sustained.</p>

<p>1. Removal or Cause — Time or Application — Iowa Code, § 2744.</p> <p>Section 2744 of the Iowa Code defines the term at which a cause can be first tried, as that phrase is used in the act of 1875, and limits the right of removal in law actions to the first term after due and legal service has been had, even though the issues therein have not then been made up, or the cause has not been actually reached for trial. Ailee v. 1J otter, 4 Dill. 559, followed.</p> <p>2. Same — Act op 1875 — “Term.”</p> <p>The words “before or at the term at which the cause could be first tried,” in the act of 1875, refer to the term at which the cause could, under the provisions of the state statute, be legally brought to trial, and not the term at which the case is actually put in position for trial.</p> <p>3. Same — Wiiex Application Too Late — How Determined.</p> <p>The true test, in determining when the application for removal must he made, is the question whether the case belongs to a class of cases which, under the Iowa Code, are triable at the first term after service, or to the class which, by reason of some provision of the Code, cannot be forced to trial until the second term. If the caso belongs to the former class, the application must be made before or at the first term, even though it may he apparent that by reason of some special fact the case may not be actually in a condition to be tried.</p>

<p>1. Jurisdiction oe Circuit Court — Amount in Dispute- — Aot oí? March 3, 1875, § 5 — Dismissing Cask.</p> <p>Where the complaint or declaration alleges a claim within the jurisdiction of the circuit court, and the trial develops a substantial controversy or dispute over such claim, the jurisdiction will not be defeated by proof of partial payment of the demand, especially if there is an issue upon sueli payment,; hut where the plaintiff, by written statement of the facts presented at the trial, admits that before suit brought the claim was paid, except a balance less than §500, the case will be dismissed for want of jurisdiction, on motion of defendant, or by the court sun sponte.</p> <p>2. Same — Remedy in Other Courts.</p> <p>The want of remedy in other courts constitutes no reason for affording a remedy in the circuit court.</p>

<p>1. CORPORATIONS — Ultra Vires.</p> <p>The powers of a corporation are only such as are conferred by law. Everything done by a corporation in excess of such authority is voidable at the in- . stance of the parties interested in and injuriously affected thereby.</p> <p>2. Same — Charter a Contract — Legislature cannot Impair — Transfer of Eranchise.</p> <p>Where the charter of a railroad corporation did not authorize the transfer of its franchise and other property to another corporation, upon the assumption by the latter of all the duties and obligations of the former, and upon issuing to the stockholders of the former an equal amount of the stock of the latter corporation, held, that it was not competent for the legislature, by authorizing such transfer, to do more than to waive the rights of the public. It could not divest or impair the rights of the stockholders as between themselves, as guarantied by the company’s charter, without their consent.</p> <p>3. Same — Voidable Conveyances — Laches.</p> <p>In this case there has been no such laches as to preclude the assertion of the dissenting stockholders.</p> <p>4. Same —Ultra Vires Conveyances — Subsequent Mortgage — Innocent Bondholders.</p> <p>Where a corporation unauthorizedly made a conveyance of its property, and the transferee subsequently mortgaged the same to secure certain bonds which were sold for value without actual notice of llie defect in the title, held, that they are charged with notice of such defect, it being apparent upon the face of the first conveyance; and the first conveyance being set aside, the mortgage will be removed as a cloud upon the title. But in this case an account is ordered between the parties to said conveyance', and the transferee will be entitled to a lien for any balance found due, and to a sale of the property, the proceeds to be subject to such disposition in favor of the trustee under the mortgage as the court may think equitable.</p> <p>5. Same — Substitution oe Stockholders.</p> <p>The transferee under the conveyance thus avoided, having issued its own stock in place of some of the stock of the grantor surrendered as stipulated in the conveyance, it is entitled to bo substituted to the rights of the surrendering stockholders.</p>

<p>VENDOR AND VENDEE — RECORD OV AGREEMENT — ENTRIES IN INDEX — -NOTICE.</p> <p>C. and the American Emigrant Company owned certain inlorosts in swamp lands, under the Iowa swamp-land act, and U. entered into a written agreement with the company, which was, in effect, a conveyance of Ms interest. The agreement was duly recorded, and in the index O.’s name was written in the grantor column, the company’s name in the grantee column, in the column headed “ character oí instrument ” was written “ agreement,” and in tlie description column was t-lie entry “with regard to swamp and overflowed lands.” Subsequently, S. purchased a portion of the lands. Held, that, the entries upon tiie index were sufficient to put him on inquiry, and that lie was hound thereby.</p>

In Equity. Exceptions to master’s report on the intervening petition of Mer-riwether & Go. The claim, of the petitioners is for ties, piling, and other timber furnished from time to time from the fourth day of November, 1881, to December 18, 1883, for services in loading ties on cars, and for money paid for repairs on an engine belonging to said road.

<p>1. Libel — Mercantile A ghnov.</p> <p>A corporation, carrying on the business of a mercantile agency, Is not exempt from legal responsibility, and is subject to the same rules of law as other persons who have a just occasion for making statements which are charged to be libelous.</p> <p>2. Same — Publications Injurious to Mercantile Credit — -Privileged Communications.</p> <p>Every willful and unauthorized publication, written or printed, which irri-putes to a merchant or other business man conduct which is injurious to his character and standing as a merchant or business man, is a libel, and implies malice; but whenever the author or publisher acted in the bona fide discharge of a public or private duty, legal or moral, or in the prosecution of his own rights and interests, that which is communicated in writing under such circumstances is a privileged communication, unless actuated by malice.</p> <p>3. Same — Privilege a Question of Law.</p> <p>Whether an alleged libel is within the protection aSorded to privileged communications is a question of law. v</p> <p>4. Same — Communication, when Privileged.</p> <p>A communication is privileged, within the rule, when made in good faith, in answer to one having an interest in the information sought; and it will be privileged, if volunteered, if the party to whom the communication is made has an interest in it, and the party by whom it is made stands in such relation to him as to make it a reasonable duty, or at least proper, that he should give the information.</p> <p>5. Same — Actual Malice.</p> <p>If a communication is privileged, then, although the statements are defamatory, actual malice must be proved to entitle the aggrieved party to recover damages.</p> <p>6. Same — Information Furnished by Mercantile Agency, when Privileged.</p> <p>Written information as to the standing of a merchant or business man, furnished by a mercantile agency to its subscribers voluntarily, or in answer to inquiries from them, is a privileged communication.</p> <p>7. Same — Question fob, Juey — Character of Communication.</p> <p>It is for the jury to determine whether such a privileged communication is defamatory and actuated by malice, or not.</p> <p>8. Same — Evidence of Malice.</p> <p>In determining whether actual malice existed, the jury can take into consideration the alleged libelous publication, in connection with other testimony tending to show the falsity of the charge and the want of probable cause, and thus determine if malice is proved.</p> <p>9. Same — Agency, when Liable.</p> <p>Where the published statement was calculated to affect injuriously the character of a merchant or business man, and was false, and the mercantile agency, without exercising ordinary care and caution in collecting it, unfairly and without ¡reason to believe its truth, imparted the information to others recklessly, it will be liable.</p>

This was an action by the plaintiff, Begina Singer, as widow of Ferdinand Singer, and as beneficiary in a policy of life insurance for $5,000, taken out in the defendant company by her husband, and made payable to her. The policy was dated April 25, 1866, and was on the 10-year plan; that is, after payment of fixed premiums for 10 years it was a paid-up policy, payable to the beneficiary on death of the assured.

<p>Petition for Removal of Case to Circuit Court.</p>

<p>In Equity. Sur plea.</p>

<p>1. Patents von Inventions — CoiiN-lbtAiíTKRS—•Jíjürubx Patent, No. 46,629 — Claim 6 — Public Use.</p> <p>An automatic scraper, precisely as described in Bergen’s patent, No. 46,629, for an improvement in corn-planters, was well known and in public use for at least three ye.ars before the date of the Bergen patent-, and such patent cannot be sustained.</p> <p>2. Same — Reissue No. 1,935 — Int'jítivgkm'knt.</p> <p>The first, second, third, and eighth claims of reissued patent No. 1,935, granted to George I. Bergen, April 18, 1865, for an improvement in corn-planters construed, and held not infringed by the device used by defendants.</p>

<p>1. Patents von Inventions — Paint-Gans—Infringement—Patents Nos. 209,-070 and 225,499.</p> <p>Patent No. 209,070, granted to Edwin Norton, October 15, 1878, for an improved paint-can having a top with an annular disk, with an upward projecting bead, presenting a round, smooth surface to the brush, compared with patent N"o. 225,499, issued to Francis A. Walsh, on March 16,1880, for a paint-can having a top with a similar annular disk, but with a sharp upturned inner edge, and held not infringed thereby.</p> <p>2. Same — Anticipation—Clark Dredge-Box.</p> <p>Patent ]No. 209,070 did not differ substantially from the patent granted to H. j\1. Clark. October 1, 1872, for an “ improvement in dredge-boxes,” and was not a patentable invention.</p>

These are demurrage cases. On the twenty-fifth day of October, 1883, the libelants, as owners of the barges Mills and Sherman made a contract through Warner & Becker, ship-brokers, of Cleveland, Ohio, the special agents of Mary J, Poole, the respondent, to convey a quantity of lumber from Pene-tanguishene, on Georgian bay, Ontario, to Buffalo, New York.

<p>1, Collision — Unlicensed Pilot at Wheel — Fault.</p> <p>While the moro fact that, an unlicensed pilot was at the wheel at the timo of a collision will not of itself fix the responsibility therefor, yet that circumstance may well be taken into consideration in determining the question of which party was at fault. ,</p> <p>3. Same — Conflicting Evidence.</p> <p>In a conflict of evidence as to the exact position at the time of a collision of a fleet of flat-boats, moored at an abutment at the libelants’ landing,' greater weight should be given to the testimony of the witnesses who, by reason of their connection with the fleet, liad the better opportunity of knowing what the fact was.</p>

<p>1. Admiralty Practice — Verbal A&reement to Discontinué — Jurisdiction.</p> <p>A verbal agreement between the parties, after libel in admiralty filed, for the settlement and discontinuance of the suit, about the terms of which, however, they soon differed, and which was not set up in the answer afterwards filed, cannot at final hearing, after full proofs taken, bo insisted on as having ousted the jurisdiction of the court, even if originally such effect might have been given to it.</p> <p>2, Same — Costs.</p> <p>Although on account of the voluni ary reparation by the respondents for most of the libelant’s damages from a collision, and for other reasons, the court inclined to deny him costs, yet, in view of the absolute denial of responsibility coniained in the answer, held, that the respondents were justly chargeable with full costs, they having chosen to litigate that question unsuccessfully.</p>

<p>Practice in Admiralty — Amendments—Diíoretion c® Court.</p> <p>Particular facts necessary to be stal ed in libels in rem, the character of amendments and conditions on which they may be made, proscribed by admiralty rules 23 and 24; the design of the rules being to secure certainty and uniformity in pleading and practice.</p>

<p>Removal of Cause — Federal Question — Ferry Privileges — Invasion by Owners of Licensed and Enrolled Vessels.</p> <p>Plaintiffs filed a bill against defendants, alleging that they are entitled to enjoy the exclusive right to establish and mainlain ferries between New York and the opposite shore of Sortli river, including Staten island, and that defendants have established and maintained a ferry between Pier 18 and various places on Staten island, and praying for an injunction and an accounting. Defendants denied plaintiffs’ right to the exclusive privileges claimed, and asserted that the}^ were not operating a ferry, but were engaged as common carriers in transporting persons and freight on the navigable waters of the United States, and that all of their boats and vessels were duly enrolled and licensed for carrying on the coasting trade, under the laws of congress. Held, that no federal question was involved, and that the cause was not removable from the state court into the United States court.</p>

<p>1. Judgment of Another State — Action on — Defense.</p> <p>Judgments of a court of one state can, in an action thereon in another state, he inquired into only in respect to the jurisdiction over the person or subject-matter embraced in the judgment, and in respect to notice to the defendant.</p> <p>2. Same — Extent of Inquiry — Record.</p> <p>Such inquiry can be made, although the record of the judgment shows a service upon or an appearance by the defendant.</p> <p>3. Same — Judgment against Several — Alabama Code.</p> <p>Under the Alabama Code a judgment against two or more is several as well as joint, and, in the event of the death of one of the joint obligors pending the suit, a judgment may be rendered against the survivors. It seems that an omission to suggest the death of one of the parties upon the record does not make the judgment void against the survivor.</p> <p>4. Same — Judgment against Survivors not Named.</p> <p>In Alabama a judgment against the parlies named therein, “ or such of them as are now surviving,” is a valid judgment against the survivors.</p> <p>5. Same — Service on Member of Law I’irm after Dissolution.</p> <p>The more fact of the dissolution of a law firm does not necessarily dissolve the agerny of each member, and the service of a notice of appeal, after such dissolution, on a member of the firm, who was both attorney and counsel, and who equally with his partner was charged with the management of the suit, will be sufficient to bind the client.</p> <p>6. Same — Judgment Obtained through Negligence of Attorney.</p> <p>The laches or the negligence of an attorney, when there Is no fraudulent combination or collusion with the opposing counsel, will not render void a judgment in favor of the successful party.</p> <p>7. Same — 'Errors in Record — Jurisdiction.</p> <p>In an action on a judgment obtained in another state, it is of no avail to show that there are errors in the record, unless they be such as prove that the court had no jurisdiction of the case, or that the judgment rendered was beyond its power.</p> <p>8. Same — Allowance of Interest.</p> <p>Tn an action on a judgment, the amount, of which was doubled by 8 per cent, interest, a portion of which was compounded, the court may refuse to allow interest on the judgment.</p>

<p>1. Railroad Companies — Fires Caused by Sparks — Bureen op Proof — Presumption OF UlOOIilGENOK'- Gbn. St. Hinn. 1878, Ck. 34, § 60.</p> <p>In an action under the Minnesota statute against a railroad company to recover damages for destruction of property, caused by lire set out by sparks or coals from an engine, tlie burden of proof is on tlie plaintiff to show that the hre was caused as alleged, but when this is proven, & prima facie case of negligence is made out, and the burden is shifted to the company to rebut, the presumption ol' negligence thus raised, by proof that it performed its whole duty in tlie premises,'and did not use a defective engine, or manage it in an unskillful maimer.</p> <p>2. Same — Contributory Negligence.</p> <p>When tlie railroad company fails to overcome the presumption of negligence • thus raised, the plaintiff will be entitled to recover, unless the company prove that he was himself guilty of negligence which contributed to the destruction of his property.</p>

The plaintiffs sued the defendant for a balance due by account, and the answer of the defendant sets up that the balance arose out of contracts for gambling in cotton futures. The plaintiffs were commission merchants, doing business in New York city, and members of the New York Cotton Exchange. The defendant was a country merchant, doing business in Wilmington, North Carolina.

<p>1. Trade-Mark — Injunction—Laches.</p> <p>When delay of tlie owner of a trade-mark to prosecute infringers has been of a tendency to mislead tlie public, or the defendant sought to be enjoined, into a false security, and a sudden injunction would result injuriously, it ought not to be granted summarily, but tlie complainant should be left to his relief at final hearing.</p> <p>2. Same — Use of Trade-Mark by Others.</p> <p>Where the extensive use of a trade-mark by others, with the implied acquiescence of the owner, has contributed to give a reputation and create a demand for the article to which it has been applied, which it would not otherwise have acquired, equity should not by any stringent intervention assist the owner to secure these fruits.</p> <p>3. Same — Complainant Guilty of Fraud.</p> <p>A. complainant who has refused to recog’nize the rights of the original foreign proprietor of a trade-mark until he thought it would be more profitable to purchase his rights in this country, and thus obtain a monopoly, reserving the right to annul the contract at his discretion, will not be entitled to a preliminary injunction against alleged infringers of the trade-mark, but be left to his rights at final hearing.</p>

<p>1. Tbade-Mauks — TxraixGEiiBHT—Ijw rowvmw.</p> <p>Complainant was the owner of two trade-marks, registered tinder the act of congress of .March 3,1881, which he used in commerce with foreign nations, as applied to a preparation of corn-flour for food, by printing them upon the packages in which tile corn-flour was put up for sale. The first consisted of the word “ Maizena,” and the second of an allegorical picture representing the cultivation of the com, and the preparation and cooking of the flour, by Indians. Complainant had used these trade-marks for many years. Defendant, wiio.se mark had also been registered, used, in the same manner, in the sale of his cornstarch in foreign countries, the word “Maizhariua,” accompanied with a pictorial representation of a man carrying a quantity of maize in his arms. Held, that defendant was guilty of infringement, of complainant’s trade-marks, and should ho enjoined from further violation of complainant’s right to the exclusive use of his trade-marks.</p> <p>2. Same — Riírkmklaitce.</p> <p>To enable the proprietor of a trade-mark to relief against an illegal appropriation, it is not necessary that the imitation should lie so close as to deceive persons seeing the two marks side by side; it is suflivienl if there is such a degree of resemblance that ordinary purchasers using oi'dinary caution are likely to be deceived.</p> <p>3. Same — Manner. of Using Word.</p> <p>Whether a defendant has colorably imitated a trade-mark consisting of a word is not to be solved merely by considering the resemblance between the words themselves; and if defendant has dressed his word in such accessories that it may be mistaken for complainant’s word, that circumstance is to be considered.</p> <p>4. Sa“me — Effect of Registration.</p> <p>Under the act of 1881 the registration of a trade-mark is only prima facie evidence of ownership, and is not conclusive or binding on the courts as to the right of a party to its exclusive use.</p>

<p>Patents foe Inventions — Claims—Consteuction—Enlarging—Reissue.</p> <p>Where a patent does not cover all that the inventor intended, he must surrender it, and obtain a reissue; for, where the language of the claim is plain, the court cannot by construction enlarge it.</p>

<p>1. Patents for Inventions — Reissue—Allegations.</p> <p>It is not necessary, in a suit for infringment of a reissued patent, to aver specifically the ground on which the original patent was surrendered and a reissue obtained.</p> <p>2. Same — Effect of Reissue of Patent by Commissioner of Patents — Infringement.</p> <p>Where the commissioner of patents accepts the surrender of an original patent and grants a new patent, his decision is final and conclusive, in a suit for infringement, unless it is apparent on the face of the patent that he has exceeded his authority; that there is such a repugnancy between the old and new patent that it must he held as matter of legal construction that the new patent is not for the same invention as that embraced in the original patent.</p>

<p>Patents for Inventions — Use of Patent after Expiration os' License — Damasks.</p> <p>While ordinarily the amount of damages to ho paid by a party who has continued to use a patented machine after the expiration of a license granted to him, would be what such party would have been willing to pajr as a license fee for the use of the machines, where it appears that the machine embodies other patented devices, it should be shown what portion of the license fee was paid for the part covered by the patent in controversy, and this portion would be the proper measure of damages.</p>

<p>1. Evidence —Wipe as Witness for Husband — U. S. Rev. St. j 858 — Rev. Laws Vt. {} 1001, 1005.</p> <p>A wife is not a competent witncss'for ¡her husband, in cases where.he is interested, under the statutes of the United States or of Vermont.</p> <p>2, Patents for Inventions — Anticipation—Wooster Cabinet Creamery.</p> <p>Upon examination of the evidence, held, that Daniel B. Wooster is entitled to a patent on such part of his claims in his application for a patent as describe a cabinet creamery as an improvement upon the box creamery of Hill and Prentice, as shown in patent Ho. 207,738, granted to them September 3, 1878.</p>

<p>1. Patents fob Inventions — ItMissuR8—ENr,AKGEsnaNT of Claims — When ALLOWABLE.</p> <p>An inventor may, after two or three months have elapsed since the issue of an original patent to him, proceed to obtain by a reissue enlargement of claims to cover parts of the invention described but not claimed in the original, especially when this does not appear to be done to cover the progress of other inventions; but an inventor cannot, at any ti>n$, take out a valid reissue for an invention not. shown in the original, in some manner, so as to be discernible therein. i</p> <p>2. Same — Rktssue No. 3,119, Claims 3 and 4 — Preservation of Meats, Fruits, Etc . —Y a nun T Y.</p> <p>The invention described in the third and fourth claims oi reissued letters patent Bo. 3,119, dated Sept ember 15,1803, granted to William Davis, assignor, for improvement in preserving meats, fruits, etc., the original of which wras No. 7s 932, dated Juno Hi, ls(i8, is a difierent invention from that described in the original, and to that extent, the reissue is void.</p>

<p>Patents for Inventions — Preliminary Injunction — Validity of Claims Doubtful — Expiration of Patent.</p> <p>A motion for a temporary injunction is not designed for the adjudication of doubtful questions which have not previously been discussed, and in this case the construction of the second claim of reissued pateutiTo. 3,810, dated January 25,1870, granted to the Gold & Stock Telegraph Company, as assignee of Edward H. Calaban, for an improvement in telegraphic printing instruments for registering gold, stocks, etc.; and its infringement by the Steven D. Eield patent cannot be passed upon, notwithstanding the fact that the life of the patent is rapidly approaching its close.</p>

<p>Patents for Inventions — Anticipation—Shingle-Machine—Claim 1 op Patent No. 216,344.</p> <p>The first claim in .patent No. 216,344, dated June 10,1879, issued to Benjamin F. Penney, and his assignee of one-half interest, was anticipated by the machines invented by Porter and Webber and in public use before the issue of the patent to Penney; and such claim is void. ,</p>

<p>Patents egr Inventions — Eosenwasser Percoi.atou — Patent No. 256.504 — Invention.</p> <p>Patent No. 256,504, granted to Nathan Rosenwasser, April 18, 1882, for improvements in percolators for filtering purposes, or for making fluid extracts from drugs, is void for want of invention.</p>

<p>1. CARRIERS OB’ PASSENGERS — SEPARATION OB’ PASSENGERS ON ACCOUNT OB’ RACE or Color.</p> <p>On a night stoam-boa,t, plying on the Chesapeake hay, colored female passengers may be assigned a different sleeping cabin from white female passengers.</p> <p>2. Same — Accommodations must re Equal.</p> <p>The right, to make such separation can only be upheld when the carrier, in good faith, furnishes accommodations equal in quality and convenience to both alike.</p>

<p>1. COLLISION — Fair-Wat.</p> <p>A fair-way, in the sense of the tenth rule of navigation, is navigable water on which vessels of commerce habitually move. As to vessels of light draugnt, it embraces water inside of buoys, where sail-vessels of light draught usually navigate, and not merely the ship-channel.</p> <p>2. Same — Schooners—Light—'Watch.</p> <p>A small schooner well loaded and lying deep in the water, with her stern up stream, in a line with the course of sail-vessels, and anchored in 12 feet of.water, 125 yards inside of a buoy, whh no light in the rigging and no watch on deck, was run into and sunk at If /clock at night by another schooner sailing under a breeze from shore, as close to shore as practicable, all the latter vessel’s crew being on deck, two of them in her bows, and no one seeing the schooner at anchor. Held, that the moving schooner was not, and that the one at anchor ivas, in fault.</p>

<p>1. River Navigation — Passing Vessels — Well and Suction.</p> <p>A steam-boat passing in the vicinity of other craft in shallow water is bound to use all reasonable precautions to avoid doing them injury from the known suction and swell she causes. Other boats are also bound to avoid places dangerously near the usual track of such steamers.</p> <p>2. Same — Case Stated.</p> <p>The libelant’s barge was moored along spiles near the eastern side of the Hudson, at Oastleton, in shallow water, where the bottom was stony. The usual practice was to move such boats before the time of the passage of large steamers, but, having got aground, the libelant’s barge could not be removed. The steamer £),, coming down about 9 p. m., and perceiving signals by shaking lanterns and other evidence of difficulty ahead, slowed, but did not pass any further to the westward, which she might easily have done, and, when abreast of the barge, she resumed her former speed; and the suction and swell from her passing caused a break in the bottom of the barge. Held, that the D. was chargeable with fault in not doing all that was reasonably within her power to avoid doing injury, and that the barge was also in fault in being allowed to ground and remain in a place known to be dangerous; and the damages were therefore divided.</p>

<p>3. Cot/liston — Steamer and Sailing Vessel.</p> <p>A collision between a steam-vessel and a sailing vessel in a fog cannot be justified on the pica of inovil able accident, unless it appears that both parties have endeavored by all means in their' power, with due care and a proper display of nautical skill, to prevent the collision.</p> <p>2. Same — Duty or Steawkk.</p> <p>A s!earner is bound to make all available use of her helm, ot her engines in backing, and of an alert lookout, and a moderate speed, in a fog, to avoid collision, together with special care, when known to be in the vicinity of the sailing vessel’s course.</p> <p>3. Same — Duty op Sailing Vessel.</p> <p>A sailing vessel is also bound, under rule 24, to change her course if she is in Immediate danger and can thereby avoid collision, and is in fault for not doing so when she lias sufficient time and opportunity after the course of the steamer is clearly fixed and visible.</p> <p>4. Same — Dase Stated.</p> <p>The steamer 1ST., oil: Cape May, upon a course N. % B.,in a fog, at about 1:30 p.m., passed the schooner L. T., sailing JS\ hi. E., about 300 yards eastward of her. Each was seen from the other, and' their horn and whistle were heard. I-Ialf an hour afterwards the steamer, heaving cries of distress abeam, put about, until she headed S. S. 115., and shortly after heard the horn of the schooner, and at about the same time saw her sails about 300 yards distant, a little on her own starboard bow. She had been going- half-speed all the time, making from 6 to 7 knots. She immediately reversed her engines. The schooner was struck on her port quarter, about 10 feet from the taffrail, and sunk a few moments after-wards. The steamer’s lookout was not produced.. He did not report the schooner at all, and the steamer’s helm was not changed. Held,, that the steamer was liable for not observing specially the precautions required by the known-proximity of the schooner, for excess ol' speed, for want of proof of an alert lookout, and for not making any use of her helm to avoid the collision.</p> <p>5. Same — Mutual Fault — Damases Divided.</p> <p>It appearing that on the schooner there were 14 men below, including the officer in charge of the watch, and only two men on deck, viz., one at the wheel, and one forward doing double duty as lookout and blowing the horn, held, to-bo short-handed and negligent navigation in a fog. Amd it being clearly perceptible to those on the schooner, had the captain been on deck, that the-steamer was going astern and not ahead, in time to have enabled the schooner by porting to have avoided the collision, held, that the schooner was also in, fault for not porting, and the damages were divided.</p>

<p>1. Maritime Lien — Limitation oe Actions — Stale Claim.</p> <p>Where no claims of subsequent purchasers, lienors, or incumbrancers are involved, a maritime lien for damages will not lie deemed stale or barred by lapse of time, through a delay of two years in filing the libel, merely on the ground that some witnesses have in the mean time been lost by the respondents.</p> <p>2. Collision at Pier — Projecting Boat.</p> <p>Whore a bark fastened to spiles along a bulk-head within the slip was sought to be pulled out of the slip astern, but owing to some neglect in clearing her head-lines her bows stuck fast and her side was swung round by the tide so as 1,o collide with and injure the libelant’s boat, which projected about 30 or 40 feet across tlie end of a short pier a little outside of the bark, held, that the bark was wholly at fault, and the projection beyond the end of the pier was not, under the circumstances, negligence in the libelant.</p>

<p>Seamen's Wages — Forfeiture—Improper Language — Insubordination—Arrest — Discipline—Desertion, when Justifiable.</p> <p>Where the second mate reported a seaman for disobedience to the captain, at the same time telling the captain that, if the seaman was not discharged he would leave the ship, and the captain thereupon ordered the mate to go to Ids room, and consider himself under arrest, for mutinous language, held, that the master’s order was not cruel or oppressive treatment, but legitimate and proper correction mildly administered, and that the second mate, in afterwards deserting the ship, left without, justifiable cause, and that his wages -were forfeited.</p>

<p>1. Admiralty Practice — Counter- Claim -Answer.</p> <p>In a suit for materials furnished and repairs made to a steam-tug, the owners may sot up, in their answer, as a counter-claim an indebtedness due them by the libelants for pulling oil of a marine railway belonging to libelants a steamship, and conveying to such railway a hawser, for that purpose, at tlicir request.</p> <p>2. Same — Admiralty Rum 53 — Oiioss-Libeus.</p> <p>Such a counter-.claim cannot he set up by cross-libel under admiralty rule 53, as that rule applies on .y to counter-claims arising out of the samo cause of action for winch the original libel is filed.</p>

<p>1. Equity Jurisdiction of the National Courts — State Laws.</p> <p>The equity jurisdiction of the national courts, and the mode of procedure therein, exists independently of state laws, and cannot be limited or restrained by them.</p> <p>2. Right Given by State Law.</p> <p>A right given by a state law, that is properly the subject of a suit in equity, may be thereby enforced or protected in the national courts.</p> <p>3. Certainty in tiie Description of Premises in a Bill.</p> <p>One-eighth of an undivided tract of land is not distinguishable from another, and in a suit to determine an adverse claim to three such eighths, there cannot, in the nature of things, be any more certain or definite description of them than that.</p> <p>4. Burr to Determine an Adverse Claim to Real Property.</p> <p>In a suit to remove a certain cloud on the title to real property, it must appear from the bill that there is such a cloud, and in what it consists; but in a suit brought under section 500 of the Oregon Code of Civil Procedure to determine an adverse claim to such property, whether it casts a cloud thereon or not, it is not necessary to slate the nature or circumstances of the defendant’s claim, but it is sufficient to allege that the defendant wrongfully makes such claim, and call upon him to set it forth in his answer, and submit its validity to the judgment of the court.</p> <p>5. Person in Possession Merely.</p> <p>A person in the mere possession of real property cannot maintain a suit to determine an adverse claim thereto, but it must also appear that he is in possession under some claim of right or title.</p> <p>6. Statement of Plaintiff’s Case.</p> <p>Generally, it is sufficient for the plaintiff in such suit to allege his possession, and the nature of his estate or interest in the premises, together with the source of his right or title; but when, as in many cases, there is reason to believe that the rightfulness of the defendants’ claim depends on the validity or effect of some link in the plaintiff’s chain of title, it is convenient, and may be necessary, to state the circumstances thereabout fully and in detail, so as to prevent the necessity of future amendments, and to promote the progress and dispatch of the case.</p>

<p>Collateral Security — A gent Indorsing Notes for Principal — Insolvency —Transfer op Security — Rights of Holders op Notes.</p> <p>C. & Co. made M. Ihoir agent to sell lumber by contract, stipulating, among other things, that C. & Co. piaeed their stock of lumber in M.’s hands, at rates and on commissions stated, and “ that all stock, and accounts or notes outstanding or thereafter made, and all future shipments, shall be and are collateral security to M. for any and all notes or acceptances heretofore given by him to 0. & Go., or any notes or acceptances hereafter given by him to them.” M., under this arrangement, made his note to C. & Co. for $1,000, which they indorsed to W., andón the same day a note for $500 was made and indorsed to P.; M., though in form the maker, being in fact the surety for C. & Co., for whose accommodation the notes were made. , On the same day, C. & Co , with M. as surety, made their notes to S. for §2,000, payable in equal installments, in 60, 75, 90,.and 120 days after date. Subsequently, M., as agent of C. & Co., by writing, reciting the indebtedness t.o S., transferred to him certain of the lumber, etc.; said S. to soil said lumber, etc., and to apply the proceeds to the payment of the noies. At the time of the transfer, O. & Co. and M. were insolvent, as S. know. S. realized $2,000 from the sale of the property. Held, that the property in the hands of M. was impressed with a trust in favor of the holders of the notes, and could not, after the insolvency of C. & Co. and M., bo transferred to one of the eestuie que trust to the prejudice of the others, and that S. should account to W. and P. for a proportionate amount of the sum realized from the goods so transferred.</p>

The original bill seeks to quiet the title of the railway company, - complainant, to a portion of lots 5 and 6, in block 219, in the city of Omaha, Douglas county, in the state of Nebraska, now occupied and used by the railway company for a passenger station.

In pursuance of written stipulation this case was tried by the court without the intervention of a jury.

The suit was for $1,650, balance due Davis for bis salary at the time he resigned from the company and turned the management over to the new parties who purchased his interest.

This ease is submitted without a jury, under the statute. The criticisms of some of the proof by counsel of both parties is plausible enough, but it is unnecessary to consider the evidence with any detail in reference to that criticism. Probably each party has stated his testimony, as is usual with interested witnesses, in the most favorable light possible for his side.

<p>Authors — Contract to Bell Books by Subscription — Sale by Agents to Publisher at Reduced Rate — Injunction.</p> <p>In the absence of notice of the terms of the contract between an author and the agents employed by him, for the sale of his books by subscription at a certain price, a publisher may buy or contract to bu3r such books from agents who have lawfully obtained them by'purchase from the author or his publishers, and may advertise for sale and sell them at any price he may see fit. Prince Albert v. Strange, 1 Macn. & G-. 25, distinguished.</p>

<p>1. PATENTS — Fire-Proof Safes — Mobler’s Rounded Corners.</p> <p>Claims J and 2 oí patent No. 281,640, for an angle-bar for safes, consisting of a right-angled iron bar, one of the sides of which is cut away (the cuts being curved and meeting a right-angled cut) leaving a curve facing the uncut side, whereby said uncut side may be bent to form a rounded corner, are void, said device not being now.</p> <p>2. Same — Claim for Process of Benton© Ancilk-Irons Void.</p> <p>Cutting an opening in one web of an angle-bar to permit tho beading of the bar to an angle or curve was known and used before the date claimed by complainant’s assignor, and determining the lines of the cuts and the shape of the opening hv the use of a templet or pattern of flexible material is no exercise of the inventive faculty.</p> <p>3. Same — Combination Claims— Aggregation of Ot,d Parts.</p> <p>The combinations claimed in patent No. 273,585 and in claim 3 of patent No. 281,640, are composed of parts which are old, excepting the precise linos of outs and shape of the openings, (which are not materia!,) and, as they produce a result which is the mere aggregate oí separate contributions, are not patentable.</p>

<p>1. Colwsion — Vessei, at Anchor — Lights--Admtkai/ty Rum: 2.</p> <p>The purpose oí admiralty rule 2 was to have at least one bright white light set on a vessel at anchor so high as to be clearly visible from all directions, and which from its comparative height and the tact that it was stationary would in-dicat e at once that it was upon a vessel at anchor; but having another light, even, in the rigging or upon the hull or in the cabin windows, would not contradict such indication, or mislead an approaching vessel, and violate this rule.</p> <p>2. Same — UmnsrnoN op Tough.</p> <p>It is not necessary lor a vessel at anchor to show a torch when its lights are properly set and burning, and an approaching vessel, by a vigilant and proper lookout, can see her without a torch.</p> <p>3. Same — Lookout—Competency—Use oe Night-GtIjAss.</p> <p>A man who needs a night-glass to enable him to discover lights in time to avoid a collision is until, lor a lookout. His own natural vision should be sufficient to perform all the duties of a lookout.</p> <p>4. Same — Steam-Pkopki,t,eií ash Anchored Barge — Night— Lights — 1Torch— Lookout— Faui.t — Damages.</p> <p>Upon examination of the evidence, held, that it is not shown, as claimed by the respondent, that the collision between the steam-propellor Avon in the niglit-time, on Lake Michigan, oil the harbor of Milwaukee, with the barge Thomas A. Scott, while lying at anchor, was caused by the barge being anchored in an unsafe and improper place, or bjr a violation of admiralty rule 2 by her in displaying- two lights, or by her failure to exhibit a torch when those in charge of her saw the Avr~ approaching; hut that the collision was caused by the negligence of the captain and lookout of the Avon, and that the Avon should bear the loss occasioned, thereby.</p>

<p>Salvage — Vessel oh Fire — Award.</p> <p>A steamer coming up tlie Atlantic coast loaded with cotton, about 6 p. ir., found her cargo in the lower hold on fire. Her hatches were battened down, and her passengers put on board a bark, and she headed for the Delaware breakwater, where she intended to submerge her hold in shallow water. She arrived there about 7:30 next morning; and, on signals, a wrecking tug and schooner at work there came to her assistance with a steam-pump, the captain designing to use it in an attempt to throw water directly into the compartment where the smothered fire was. Through want of sufficient length of hose, and of sufficient” power in the engine, it was found impossible to throw any water directly into the compartment where the fire was, but only into the between-decks, where it ran aft. Upon finding that no water could be thrown directly into the compartment where it was wanted, the master ordered the two sea-cocks in the ship opened, for the purpose of flooding her, as originally designed, and that the ship, which had previously anchored in about 25 feet of water, be taken by the pilot into 19 feet of water, which was done by the libelant’s tug. This was accomplished by about 10 a. m. From that time, the tug resumed tlie pumping, and continued it till about 6 :30 p. jr., when the ship was grounded on an even keel, and the fire extinguished, having put into the steamer’s hold during that time about one-fourth of the water necessary to submerge the hold. During 36 hours following, the ship was pumped out by other means, and then came to ífow York. On arrival,it. was found that, tlie fire had destroyed part of tlie 'cotton, and charred the under side of the deck, in that compartment. The steamer, with cargo and freight., were worth «:51S,300. Held, that the time saved in submerging the hold by the amount of water put in by the salvors' pump could not have exceeded two or 1hree hours; that, owing to the insufficiency of their apparatus to throw water directly on tlie tiro, considerable time was lost in tlie abortive attempt to do so ; that, as it turned out, probably no great difference would have resulted from the absence of the salvors’ services, since the other means employed by the ship would have extinguished the Are a little later; that, under these circumstances, ^3,500 are a sufficient and liberal salvage compensation for the various incidental services rendered by the libelants.</p>

This libel is filed by the Pennsylvania Railroad Company, owners of the barge The Delaware & Raritan Canal No. 8, against Benjamin Atha & Co., to recover damages for inj uries to the said barge whilst lying at the wharf of the respondents at Newark, on the Passaic river, under the following circumstances.

<p>1. Salvage — Amount, now Determined.</p> <p>What is a proper allowance for salvage is a question for the sound discretion of tiie court, to be determined by a consideration of the time, labor, expense, and risk expended and incurred by the salvors, and the value of their services.</p> <p>2. Same — -Steamer near Burning Pike — Compensation oe Tugs.</p> <p>An iron steam-sliip, with about 30 men on board, and 45 pounds of steam on her donkey-engine, was lying next to a pier that caught fire, endangering the steamer, and, as a precautionary measure, the captain summons two tugs to render assistance, and they remained by her for several hours. The steamer could have moved, but not without some risk. Held, that the service rendered by the tugs was a salvage service, but that, under the circumstances, $1,300 would be sufficient compensation therefor.</p> <p>3. Same — Excessive Claim — •Costs.</p> <p>Although a vessel lias been arrested for an exorbitant claim, costs may be allowed libelants where the respondent has made no offer of compensation whatever for the services rendered.</p>

In Admiralty. On the fourteenth day of June, 1884, the libelant shipped on the respondent’s barge as cook for a voyage from Buffalo to Bay City and return, “if not sooner discharged.” The libelant testified that the words quoted were inserted in the shipping articles without her knowledge or consent. The vessel reached Bay City on the twenty-first of June.