Volume 23 — Federal Reporter

<p>Action to Recover Money.</p>

<p>Equity Practice—-Reperrisíg Issues op Fact to Jury—Rev. St. 5 648.</p> <p>Tlie United States circuit court may send issues of fact, properly raised by the pleadings in an equity ease, to a jury for trial.</p>

<p>In Equity. Final hearing upon pleadings and evidence.</p>

<p>Application for Temporary .Restraining Order.</p>

<p>1. Assignments for Benefit of Creditors—Mow Far Valid.</p> <p>A deed of assignment may be valid as to bona fide debts which it secures, and void as to fictitious and fraudulent debts attempted to be secured thereby.</p> <p>2. Same—Partnership Assignment.</p> <p>An insolvent partnership makes a deed of assignment of specific property to a trustee, which provides for the payment equally and without preference of certain alleged creditors named in Schedule A, with the amounts purporting to he due them, and provides that, after the payment in full of the creditors in Schedule A of the amounts stated to be due them, certain creditors in Schedule B shall be paid the amounts therein stated to be due them. Held: (1) That the deed conveyed integral amounts to a series of integer creditors, and its provisions were several by the 1 erms of the grant; (2) that as it did not provide for the contingency of some of the debts in Schedule A being fictitious, which they in fact proved to be, the amounts which were intended for them were not disposed of by tlie deed, remained in the grantor as to attacking creditors, and were subject to.tlieir claims.</p> <p>ó. Same—Preferences—Construction of Assignment.</p> <p>That deeds of assignment giving preferences are to be construed strictly, and courts of equity will not interpolate phrases to carry out a possible intent to give preferences otherwise than as expressed.</p> <p>4. Same—Setting Aside Assignment—Effect.</p> <p>That a successful attack by creditors upon a deed of assignment does not enlarge its operation as to those who claim under it.</p> <p>5. Same—Attacking Creditor Entitled to Benefit.</p> <p>Creditors attacking a deed of assignment and uneartiling a fraud intended to be consummated thereby, are entitled to the rewards of their vigilance.</p> <p>6. Same—Virginia Bole.</p> <p>Wallace v. Trcable, 27 Grat. 479, followed as to such attacking creditors.</p>

<p>1. Practice in Circuit Court—Motion for New Trial—Settled Case.</p> <p>As no writ of drror lies to the action of a circuit court in granting or overruling- a motion for a new trial, and tlie only use of a case settled or stated in the state court is to prepare the case for review in an appellate court, a motion for a new trial may be heard in. the circuit court without such settled case.</p> <p>2. Same—Argument before Circuit Justice at Washington — Judgment, when Rendered.</p> <p>Although a circuit justice who has tried a case while on the circuit may hear argument on a motion for a new trial in Washington, he cannot there, without consent of the parties, render a judgment setting aside the one entered in the circuit court, but the motion may be continued from time to time until ho can attend the court and make the necessary order.</p> <p>3. Same—Verdict—Evidence—Contributory Negligence.</p> <p>Evidence of contributory negligence held sufficient to justify setting aside verdict for plaintiff.</p>

<p>1. Constitutional Law—Statute with Defective Title—Tennessee Act of 1873, Ch. 118; Constitution of 1S7U, Art. 2, $ 17—Tax Sales.</p> <p>A tax sale uuder tlie Teuaessee act of 1873, e. 118, for the assessment and collection of taxes, is void, because the act contains legislation not expressed in its title, relating to state and county taxation, in which the subject of municipal taxation is not properly included.</p> <p>2. Same Subject—Tennessee Code, § 612 et seq.</p> <p>A proceeding to sell land for taxes, under the unconstitutional act of 1873, cannot be sustained as a proceeding under the Code, (sections 612 et seg.,) because tlie two methods of procedure for the sale of lands for taxes are radically different.</p>

<p>1. Action on Judgment Obtained in Another State—Authority op Attorney to Appear pob Dependant.</p> <p>In an action in a circuit court on a judgment obtained in another state, the record of the appearance of attorneys of the court for the defendant is not conclusive upon him, and he may show that the}' had no authority to act in his behalf.</p> <p>2. Same—Rendition op Personal Judgment — Knowledge op Dependant— Taking Deposition—Paying Counsel.</p> <p>Taking the deposition of a defendant, who is a citizen of another state, by the plaintiff, in an action under the Kansas statute to enforce the liability of stockholders, will not render the judgment obtained personally binding on such defendant, although he contributed to the common defense afterwards by furnishing funds to pay counsel.</p> <p>3. Practice—Rendition op Judgment—Death op Dependant.</p> <p>When the whole case is in the hands of the court, and before its decision is rendered the defendant dies, a judgment may he entered as of the day in the term when the last of the evidence was submitted.</p>

<p>Motion for Production and Filing of Certain Papers.</p>

<p>District Attorney’s Dees—Section 838, Kev. St., Construed.</p> <p>Expenses and services of district attorneys, in examining revenue reports upon ■which no actions are thereafter instituted, fall within the rule for compensation prescribed by section 838 of the Devised Statutes.</p>

<p>1. Enlistment of Minor in Army—Discharge on Habeas Corpus.</p> <p>A minor who has been enlisted in the army without the written consent of his parents or guardians entitled to his custody and control, will be released on habeas corpus issued on petition of such parents or guardians.</p> <p>2. Same—Jurisdiction of Court-Martial—Desertion.</p> <p>In such case, a court-martial cannot retain jurisdiction of the enlisted man under charges of desertion. —</p>

<p>1. Extradition—Treaty with Great Britain of 1842—Holding Fugitive-Crime.</p> <p>Under the treaty of 1842, between tlie United States and Great Britain, an extradited fugitive' may be held by the receiving government on his prior conviction and sentence for a non-extraditable crime.</p> <p>2. Same—Defense—Good Faitii of Extradition Proceedings.</p> <p>In the tribunals of his own country the surrendered fugitive cannot question the good faith of the extradition proceedings.</p>

On Rehearing of Demurrer to Information. Defendant was prosecuted by information of the district attorney for a violation of Rev. 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. A demurrer was interposed, upon the ground that the law fixing the compensation for such services had been repealed, and hence that there could be no conviction.

<p>Patents for Inventions—Novelty—Steele Sand-Box for Carriage Axles.</p> <p>Letters patent No. 62,231, granted to John S. Steele, February 19, 1867, for an improved sand-box upon carriage axles, examined, and held void for want of novelty.</p>

<p>Patents fob Inventions—Celluloid Covering fob Piano Keys—Infringement—Patent No. 210,780.</p> <p>- Defendant covered piano keys in the following manner, after the service of the injunction granted in Celluloid Manuf’g Co. v. Pratt, 21 Fed. Rep. 313: Two strips of muslin were glued to the upper surface of a sheet of celluloid. The sheet having been turned over, was fed into a machine, the knife of which partially cut and severed successive keys of the proper width as the sheet progressed over the table of the machine. By pressure, which was applied successively to each partially severed key, each key was broken and entirely separated from its fellows, but not from the muslin, which adhered to the row of keys and kept them in place so that the row could be easily handled. Cement was then spread upon the undersurface of the keys, and the whole row was laid upon the key-board at the same time and subjected to pressure, as when an uncut sheet is fastened to the board. Reid, not an infringement and a viola'tion of the injunction.</p>

<p>1. Patents eor Inventions—Apparatus eoii Obtaining and Washing Sand.</p> <p>Letters patent ISTo. 206,514, for an improvement in apparatus for obtaining and washing sand, granted July 30,1878, to David C. Williams, construed, and held to be limited to a combination having as one of its elements a vessel of water in which the screen is immersed, and therefore not infringed by defendants’ apparatus, the screen of which works in the unconfined water of the river.</p> <p>2. Same—Construction oe Claims.</p> <p>It is beyond the province of judicial construction to eliminate from a claim an explicitly declared constituent of a combination merely because it is in fact unnecessary in effecting the desired result.</p>

<p>Patents for inventions—Reissue No. 10,155—Corn-Planter.</p> <p>Reissued letters patent No. 10,155, issued to the Farmers’ Friend Manufacturing Company as assignee of Michael Runstetler, on July 11, 1882, is not for the same invention covered by the original letters, and is invalid.</p>

<p>In Admiralty. Action for personal injuries.</p>

<p>1. Admiralty—Personal Injury—Beating a Deck Hand or Roustabout.</p> <p>The officers of a steam-boat are liable for injuries caused, by severely beating a deck band or roustabout.</p> <p>2. Same Subject—Discharge—Improper Time and Place.</p> <p>A deck band cannot, for mere inefficiency, be driven from a steam-boat at an inhospitable place on a dark, cold nigbt, whereby be was subjected to unnecessary suffering and discomfort, without rendering the officers liable to damages for such treatment.</p>

<p>1. Equity Practice—Costs—Final Hearing in Equity or Admiralty — Section 824, Kkv. St.</p> <p>To constitute “ a final hearing in equity or admiralty,” within the moaning* of section 824, there must be a bearing of the cause on its merits; that is, a submission of it to the court, in such shape as the parties choose to give it, with a view to a determination whether the plaintiff or libelant has made out the case stated by him in his bill or libel as the ground for llie permanent relief which his pleading seeks, on such proofs as the parties place before the court, be the ease one of pro eonfesso, or bill or libel and answer, or pleadings alone, or pleadings and proofs.</p> <p>2. Same—Several Trials—Docket Fee.</p> <p>The statute does not forbid the allowance of a docket fee on or for each trial before a jury, where there is a verdict, or on or for each final hearing iii equity or admiralty, if there are two or more final hearings, such as are above defined, in the same cause.</p> <p>3. Same—Depositions Admitted tn Evidence by Stipulation—Taxable Fees,</p> <p>Whore, on llie hearing of one of several suits heard at the same time, brought by the same plaintiff against different defendants, for the infringement of the same patent, llie depositions of a number of witnesses, taken in others of said suits, are admitted in evidence by virtue of a stipulation that all the evidence taken for the final hearing on both sides, in the 'other suits, may be read on the final hearing herein with the same force and effect as if taken herein, a solicitor’s fee of §2.50 for each deposition in each one of the cases is not taxable.</p> <p>4. Same—Cortes of Papers.</p> <p>Copies of papers obtained for use on interlocutory or preliminary or incidental motions or hearings are not obtained for use on trials, within the meaning of section 983.</p> <p>5. Same—-Traveling Expenses of Messengers and Attorneys.</p> <p>The traveling expenses of attorneys to take evidence and attend court, and the expenses of messengers, are no part of taxable costs. Such expenses were never taxable before or since the act of 1853.</p> <p>6. Same—Machine Exhibits.</p> <p>The expense of copies of models in the patent-office, properly procured for use as a part of the evidence in the suit, may bo allowed for as part of the taxable costs; but the expense of other models and machines are not allowed to be so taxed.</p> <p>7. Same—Photolithographic Exhibits.</p> <p>Photolithographic exhibits, not being drawings from the patent-office, but sketches introduced by witnesses in giving their evidence, fail under the rule as to machine exhibits, and are not taxable as costs.</p> <p>8. Same—Witnesses’ Fees not Paid.</p> <p>. Where witnesses are paid in one or more cases, and not in others, the evidence is strong that they aie never to be paid; especially where the lapse of time is great between the rendering of the service and the taxation.</p> <p>9. Same—Depositions of Witnesses Sworn in More Oases than One.</p> <p>Where the deposition of a witness was taken and entitled in several suits, he being sworn in each, but his deposition was written down only once, and there was no agreement that the solicitor’s fee of §2.50 should be taxed but once for the group of cases, such fee is taxable for the deposition, in each case.</p> <p>10. Same—Fees Paid the Same Witness in More than One Gase.</p> <p>In the absence of any rule of court, or special order, or stipulation of parties, a witness is entitled under section 848 to his fee for each day’s attendance in court in each suit in which he attends.</p> <p>11. Same—Certified Copies of Papers Put in Evidence.</p> <p>Where, under section 983, copies of papers necessarily obtained foruse are put in evidence, and no order is made rejecting them as evidence, it is the duty of the clerk to allow, on taxation, the disbursements paid for the various copies put in evidence and forming part of the record for final hearing.</p> <p>12. Same—Incompetent and Immaterial Testimony.</p> <p>Where, upon an appeal from the taxation of costs, a party for the first time ■ applies to the court to declare certain depositions to be incompetent and immaterial, it is a sufficient ground for denying the application that the party did not, at or before the final hearing, or before the taxation of costs, move to strike out the evidence in question.</p>

<p>Corporation—Issue and Exchange of Stock for Other Property by Trustees—Fraud—Account.</p> <p>Whore tlio statute under which a company is incorporated authorizes the trustees to issue stock and exchange it for property, and declares that when exchanged such stock shall be taken to be full-paid stock and not liable to further calls; and the trustees, being the only members of the corporation, exchange the whole capital stock in payment for the purchase of mining property owned by themselves, and, after division and distribution of the stock among themselves, sell it as full-paid stock to innocent purchasers,—such purchasers cannot, maintain a suit to compel the trustees to account to the corporation for a fraudulent disposition of its capital stock.</p>

<p>Action to Recover Money.</p>

<p>Action for Damages for Injury to the Person.</p>

<p>1. Excessive Compensation in Pension Cases—Repeal oe Act oe Makch 8, 1881—Eeeeot oe, on Pending Peosecutions.</p> <p>A pending prosecution for receiving excessive compensation for prosecuting pension claims in violation of the act of «Tune 20, 1878, is not aileclcd by the repeal of the clause of the general appropriation act of March 3, 1881, relating to act of June 20, 1878, by the act of July 4, 1884, although the repealing act contains no saving clause as to pending prosecutions. Section 13, l^ev. St., operates to save prosecutions, generally, upon repeal of statutes upon which they are founded, unless the contrary is expressly provided in the repealing act. U. S. v. Van Vliet, 22 Fed. Rep. 641; U. S. v. Hague, 22 Fed. Rep. 706, not followed.</p> <p>2. Repeals—Saving Pending Peosecutions—Section 13, Rev. St.</p> <p>Section 13, Rev. St., which provides that “the repeal of any statute shall not have the effect to release or extinguish any penalty, forfeiture, or liability incurred under such statute, unless the repealing act shall so expressly provide, and such statute shall be treated as remaining in force for the purpose of sustaining any proper action or prosecution for the enforcement of such penalty, forfeiture, or liability,” held to cover a prosecution under a statute which authorizes imprisonment as well as fine. U. S. v. Ulrici, 3 Dill. 532, followed.</p>

In Equity. Bill for discovery, and an account brought by plaintiff, Gordon McKay, as owner and licensor of certain patents against the defendants Charles Mace and others, as licensees. .By the license, dated April 29, 1872, the plaintiff leased to'the defendants— “The McKay sewing-machine Mo. 1278 for uniting the soles of boots and shoes to their vamps or uppers, constructed according to the specifications, and embodying the invention contained and set forth in letters…

<p>1. Patents—Reissue.</p> <p>Reissued letters patent granted to Enoch Osgood, assignor, etc., July 30, 1872, for an improvement in process for rendering leather, etc., soft, ilcxiblc, and impervious to gas, are for the same invention described in the original, granted April 16. 1818, and valid.</p> <p>2. Same—Inmunoi'ment.</p> <p>Bucli reissued patent is not infringed by the compound of glycerine, soap, borax, and sulphate of iron, as used by defendants in manufacturing their gas tubing; tlie function of the glue in suck compound being to make tbctube gas-proof, of the glycerine to make it flexible, and of tbe other ingredients to cure the glue and glycerine so that they will not melt when subjected to heat.</p>

<p>Patents—Bill of Discovery—Action at Daw for Infringement—Corporation Defendant.</p> <p>A bill in equity may be maintained in the United States circuit court against a corporation to compel a discovery in aid of an action at law brought against i to recover damages for the infringement of a patent.</p>

<p>1. Patents—Agreement and License—Assignment of Patent—Injunction.</p> <p>A party who purchases a patent and takes an assignment thereof, with knowledge of an existing agreement and license granted to another, will be bound thereby, and may be restrained from violating the terms of the agreement.</p> <p>2. Same—Specific Performance.</p> <p>■ Equity does not generally decree specific performance of contracts relating to personal property, but will do so when the subject is the exclusive right to manufacture and sell a patented article, and in such'a case will also enjoin the breach of a negative covenant.</p>

<p>1. Insurance—Subrogation—Negligence—Parol Evidence.</p> <p>A cargo of wheat, from, the west to New York, was laden at Buffalo, through M. & Oo., forwarders, on the canal-boat W., and insured by them as part of the price of freight agreed upon. At the beginning of the season, M. & Oo. had taken out an “ open policy ” with the libelants “ for whom it may concern,” which required that each transaction under it should be entered in an aecompanjdng policy book, or indorsed on the policy, stating the persons on whose account it was effected. A certificate payable to order was issued on this transaction to M. & Oo., in their names, without the words “on account of whom it may concern,” or equivalent words, and their names only were entered in the policy book. M. So Oo. delivered the certificate, indorsed by them, along with the bill of lading signed by the captain of the W., which they also signed, to the agents of the owners, paying some $200 prior charges, and also making further advances to the captain for the trip. They took from the master a separate bill of lading in which they were described as shippers, and in which the boat and cargo were consigned to their own New York agents, for their own protection. While the Worden was coming down the Hudson, in charge of the Sidney, both vessels belonging to the same owner, a steam-flue on the Sidney burst; the vessels drifted and stranded upon an island and the W.’s cargo was lost. The owners abandoned to the insurers, who paid them as for a total loss, and, claiming to he subrogated to the rights of the owners against the carriers, filed a libel against the S. and W. to recover for the loss. Reid, that the consignees, the carrier, and M. & Co. had each an insurable interest in the cargo to its whole value; that a policy “ for whom it- may concern ” assures all persons, having an insurable interest, that are intended to be covered by it, whether known to the insurers or not; that the conditions of the policy and the certificate in this case limited the general words of the policy, and that only M. & Oo., the persons named, were “the assured” under the policy; and that tire persons and interests assured could not be enlarged by parol evidence, and that the libelants, on paying the owners, as indorsees of the certificate, were subrogated to tbe rights of M. & Co. only.</p> <p>3. Same—Carriers—Agency—Benefit of Insurance.</p> <p>M. & Co., in procuring freight and making advances on account of the carrier, acted as his agents. The insurance effected by M. & Co. was intended for the benefit of the shipper, the carrier, and for themselves, and was effected upon the request and authority of both, there being no express reference to subrogation in the policy. Reid, that such subrogation is a mere equity, depending on the actual relation of the various parties to one another, and is therefore subordinate to the equitable rights existing between a principal and his agent, who effects the insurance for the benefit of both; that the payment by tlio insurers in this case to the owners, was, m effect, the same as a payment to M. & Go., and by tlie latter to tlie owners; that on payment of the insurance to M. & Go., the carrier, as principal, could have compelled a payment by M. & Go , as his agents, to the owners, in discharge of their joint liability under the bill of lading; and therefore that no equitable right of Subrogation existed through M. & Go., against the carrier, in favor of the insurers.</p> <p>3. Same—Voluntary Settlement—ÍTegiíICenoh—Uurdkn on’ Proof—Privies.</p> <p>The policy excepted loss through “want of ordinary care and skill in navigating said boats.” Held, that if the case were one of doubt whether tito loss happened by negligence or not, and if the carrier were not equitably entitled to the benefit of tlie polity, the insurers might have paid the owners of the goods with an assignment ‘of all claims for damages to themselves, and then have prosecuted the carriers for indemnity, and recovered on proof that the loss was in fact due to negligence of the carrier; but that as the company iias once paid the owner upon a voluntary settlement, as upon a loss under the policy, and tlie carrier being equitably entitled to the benefit of the policy, he is entitled to the benefit of the settlement made under it; and that such a settlement cannot be set aside except for duress, fraud, or mistake, and that llio burden of proof, in an action to recover back the money from the carrier, was upon the libelants to show the fraud or mistake, and also that the loss was within the exception of the policy, and not a valid claim.</p> <p>4. Same—Loss not Covered by Policy.</p> <p>And as the libel charged negligence, and the answer denied it, and averred that the stranding of the boat occurred under such circumstances as negatived the charge of negligence, and no proof being offered by either party on Hits point, or that there was any fraud or mistake in the settlement, held, the libel-ant could not recover on the claim that the loss was not covered by the policy.</p>

<p>1. Carriers by Water — Seaworthiness—Charter-Party—Overloading Fruit Cargo—Ventilation—Proximate Cause of Injury.</p> <p>Where a vessel was chartered to take a specified cargo of fruit, after loading with other cargo, and the contract contained a clause that the hatches should be taken off, “whenever practicable, as usual, for the ventilation of green fruit, ’ ’ and the master overloaded the ship,'in consequence of which the hatches could not be removed, as usual, on the vovage, held: (1) that the charter-party obligated the ship to furnish the usual ventilation for a cargo of fruit, to the extent of which her ordinary facilities would permit, in view of the perils of the voyage; (2) that there was a breach of this obligation by overloading the ship so that it was not practicable to open the hatches as usual; (3) that the charterer was entitled to rely upon the contract, and was not precluded from recovering, because he had reason to apprehend when he delivered his cargo that the ship would be overloaded.</p> <p>2. Same—Degree Affirmed.</p> <p>tlpon examination of the evidence, the decree of the district court (18 Fed. Rep. 380) in favor of libelant is affirmed, with costs.</p>

<p>1. ExcTTHSKwr Boats—-Oaketeks ob’ Passexgebs—Duty to Passejtgeks.</p> <p>The owners ol excursión boats used lor night excursions are bound to use proper precautions to guard against the natural mistakes of passengers while on board.</p> <p>2. Same—Neglect to Sui'PicrEHTLY Light a Staik-way.</p> <p>Whore there was an open door-way from which steep stairs descended to llio hold, which was in such a location that it was likely to be mistaken by a passenger for the stairs which ascended to the upper deck, held, that the owners of the boat were guilty of negligence in not having it so effectually lighted as to warn a passenger making such a mistake as soon as ho faced, and was about to step into the opening.</p>

<p>Carriers of Goods—Loss of Goods—Evidence.</p> <p>Decree of district court, 21 Eed. Hep. 590, affirmed.</p>

<p>1. REPBF.SKNTAT10NS—FkAUD—MuTUAJ, MISTAKE.</p> <p>Tlic owners of Uie brig I), tiled a libel against the charterer to recover a balanee oí charter money. The charterer answered that “ at tho time of the execution of tiie charter-party it was represented, warranted, and agreed by the master and agents oí the brig that she was of 247 tons register, and would carry 2,700 barrels, or from 290 to 300 tons of logwood, on the faith of which the charter was accepted, but which agreement was by mistake inadvertently omitted from the charter; ” and that the vessel brought home only about 225 tons of logwood. Tho written charter contained a clause that the vessel was of 247 tons register, which was true; and it was proved that she carried on her outward voyage 2,900 barrels, and on the homeward voyage brought only 225 tons of logwood, because so bulky that more weight could not bo got under deck.</p> <p>2. Same—Evidence.</p> <p>Evidence in support of the allegation of tho answer as to the representations was taken under objection to its admissibility, and contrary evidence was offered in behalf of the brig.</p> <p>Held, that if the answer had charged fraud, the evidence would have been admissible under recent authorities, (contra, Baker v. Ward, 3 Ben. 499,) and so if a mutual mistake of fact wore charged ; that on tho evidence there was no mutual mistake of fact, or any sueli representations as were meant or understood as a warranty that the brig would carry 290 or 300 tons of logwood.</p> <p>3. Same—Evidence must be Satjsfactoby.</p> <p>If tho rule which makes the writing the highest evidence of the contract, and excludes evidence of prior conversations to vary it, or to attach to it new conditions or obligations, is to be relaxed in cases of fraud, actual or constructive, or of mutual mistake, the evidence showing such fraud or mistake must lie entirely clear and satisfactory, and in cases of doubt the writing must prevail.</p>

<p>Salvage—Erma in Cotton—Towage.</p> <p>A fire broke out during a westerly gale among the cotton hales which composed the cargo of the lighter Baker, tying along-side the Servia. The slip was filled with boats, which were imperiled by the lire, and the fire could not be extinguished there. Upon, signal from llie superintendent of the wharf, the tug L. towed her out from the slip into the river, and played upon the fire with a small hose until the arrival of two city fire department tugs. The L. then towed the three vessels to a place convenient for taking out tile burning cotton. Tlie value of the cotton saved and sold was 829,000,' the value of the lighter about $3,000, and the tug L. was worth about $14,000. There were no special circumstances of danger to the salvors or their tug, and the service was completed in about two hours. Held, that §750 was a proper salvage award.</p>

<p>Pilotage—Refusal to Acoevt—Aotk® by Pilot to Recovf.b.</p> <p>To justify recovery of a claim for pilotage by a pilot whom a vessel has refused'to receive, the court must be fully satisfied that the respondent refused or neglected to take such pilot, as provided by the statute.</p>

<p>1. Limitation of Liability—Injunction.</p> <p>In proceedings to limit tbe liability of a vessel, an injunction may issue to restrain the prosecution of suits in a state court.</p> <p>2. Same—Personal Injury.</p> <p>Claims for damages for personal injuries arising out of the stranding of a vessel are within the provisions of the statute limiting liability.</p>

<p>1. Federat. Jurisdiction—Suits Against State Oiwiners—Mandatory Injunctions.</p> <p>Although a state, without, its consent, cannot be sued as an individual, yet where a plain official duty, requiring no exorcise oí discretion, is t,o be performed by a state officer, and the performance is refused, any person who will sustain a personal injury by such refusal may have a mandamus to compel performance; or, where mandamus is not available, may have a mandatory injunction for that purpose; and when such duty is threatened to be violated by some positive official act, aiy person who will sustain personal injury thereby, for which adequate compensation cannot be had at law, may have an injunction to prevent it.</p> <p>2. Same.—A federal court has jurisdiction over a state officer, in questions arising under the constitution, laws, etc., of the United States, where the law lias imposed upon him a well-defined duty in regard to a specific matter not affecting the general powers or functions of government, but in the performance of which one or more individuals have a distinct interest, capable of enforcement, by judicial process; and when it shall be necessary to enforce the rights of the individual, a court of chancery may, by a mandatory decree, or by injunction, compel the performance of the appropriate duty, or enjoin the officer from doing what is inconsistent with that duty and with the plaintiff's rights in the premises.</p> <p>S. Same—Virginia Coupons—Case at Bar.—A non-resident holder of Virginia coupon bonds makes arrangement s with sundry tax-payers to purchase ami use in payment of license taxes duo the state the coupons out by him from his bonds, by which arrangement ho would receive payment in largo part for his coupons; the tax-collecting officers, as required by state laws, have in various ways published that coupons would not be received in payment of such taxes; the state law allowing tax-payer to sue for purpose of verifying coupons had been repealed as to license taxes, and the writ of mandamusl\a,& been taken away from tax-payer in all coupon cases. The bondholder brought, his bill in equity in the United States circuit court against the state auditor and the collecting officers of Richmond city to enjoin them from refusing to receive his coupons, and to have a specific performance of the state’s contract to receive them, as evidenced on their face; the genuineness of the coupons was not denied in the answer, nor put in issue. Held: (1) The court has jurisdiction of the case and the parties, and may grant the relief prayed for. (2) A court of equity lias power to award mandatory injunctions as part of its general jurisdiction. (3) A tender of the coupons was not necessary to entitle the complainant to bring his bill, the state having in numerous ways published that they would not be received. (4) Section 114 of the Virginia assessment act of March 15, 1884, by repealing section 3 of the act of January 14,1882, took away the right to verify coupons when ottered in payment of license taxes, which had been pronounced an adequate remedy in Antoni v. Greenhow, 7 Va. Law J. 218; S. 0. 2 Snp. Ot. Rep. 91, and left the tax-payer without power to use coupons in paying license taxes, and without remedy against the state. (5) The genuineness of the coupons not being put in issue, must be taken as admitted by the defendant. (6) In making the contract of the tax-receivable coupon, the state virtually waived the benefit of plenary proceedings in suits against her officers to enforce it, iu cases wherein the genuineness of the coupons is not put in issue; and it would seem that the slate, in agreeing to receive the coupons, has waived the right to a plenary defense in all suits for specific performance of the contract in which she does, not deny the genuineness of the coupon.</p>

<p>1. Railroad Mortgage—Lease—Rolling Stock.</p> <p>¿1 contract, whereby ears and locomotives are leased to a railroad company, that agrees to pay for every car and locomotive so delivered an annual rent, equivalent to one-sixth of the original cost thereof, for the period of ten years, at the end of which the cars and locomotives are to become the property of the railroad company, with a proviso that upon default in payment of the annual rent, or failure to observe any of the covenants of the lease, the rights of the railroad company shall be determined, and the properly reclaimed by tlie lessors, is a mortgage, and not a lease.</p> <p>2. Same—Failure to Comply with State Law—Gen. Laws Colo. 1877, f. 124 —Lien—Rights oe Creditors.</p> <p>Whore such an instrument is not acknowleged and recorded as required by the law of the state where the rolling stock is situated, it will'not establish a lion, on sucli property in favor of the mortgagee as against creditors of the railroad company proceeding by attachment and execution, or purchasers from-the railway company in good faith.</p> <p>3. Same—Liens—Interest Acquired by Mortgagee.</p> <p>Mortgagees of property to be acquired by the mortgagor, take only the interest of the mortgagor therein, and if the property is already subject to mortgages or other liens, the general mortgage does not displace them, though they may be junior to it in point of time.</p> <p>4. Same—Seller Retaining Lten.</p> <p>This rule applies to the seller of property who retains a lien on the property sold, or the title thereto, as security for the purchase money.</p> <p>5. Same—Receiver—Payment of Claims—Order Modified.</p> <p>Order directing receiver to pay principal and interest falling due under the contract, under which rolling stock was furnished to the railroad company, modified so as to postpone payment of principal until other claims are paid.</p>

<p>1. County Bonds—Coupons—Demand of Payment—No Funds.</p> <p>That there were no funds in the oounty treasury available for their payment, is a sufficient excuse for not presenting- and demanding- pajunent of coupons payable “on presentation.”</p> <p>2. Same—Ur,'tba Vires—Hate of Interest—Payable. Semi-Anntjally.</p> <p>County commissioners were authorized to issue bonds “bearing interest at six per centum per annum.” Jleld, that bonds bearing that rate,payable semiannually, are within the authority vested in the commissioners,</p> <p>3. Same—Construction of State Statutes—Decisions of State Courts.</p> <p>In construing statutes of a state the United States courts follow the decisions of the courts of that state.</p> <p>4. Samk—Ohio—County Auditor should Issue Warrants for Payment of Boyds.</p> <p>Under the statutes of Ohio it is not necessary that the holders of county bonds should apply to the county auditor to issue his warrant upon the treasurer for the payment of either principal or interest. It is the auditor’s duty to issue the proper warrants and deliver them to the treasurer without request of f-lie bondholders.</p> <p>5. S.AME—-Interest on Interest.</p> <p>Holders of county bonds, issued under the laws of Ohio,, which stipulated for the payment of interest semi-annually, part, only of the bonds having- coupons therefor attached, and the semi-annual installments of interest not being paid when duo, are entitled to recover interest upon all such semi-annual installments from the date they became due.</p>

<p>Internal Revenue—Retail Ltquor Dealer’s License.</p> <p>A party having paid special tax as retail liquor dealer at a particular town, who Alls orders received by mail to ship liquors in retail quantities to another town, there to he delivered to the party so ordering upon payment of the price of the liquor, together with the express charges, is liable to the payment of special tax as retail liquor dealer at the place where such delivery is made.</p>

<p>1. Criminal Law and Procedure—Witness—Convict in State Penitentiary —Application for Subpcena or Attachment.</p> <p>A United States district court will not grant a process by subpcena, attachment, or otherwise, on application of the United States district attorney, for a party confined in a state penitentiary for assault with intent to murder, whose testimony it is desired to have in a criminal prosecution pending in such court.</p> <p>2. Same—Competency of Witness—Statute of Texas—Rev. St. U. S. § 858.</p> <p>It would seem that such a witness could he excluded as a witness both under the laws of Texas and under those of the United States, if objected to by defendant.</p>

Criminal Information for violation of section 10 of act of June 26, 1884.

<p>In Chancery. Hearing on bill and answer.</p>

<p>1. Equity Practice—hearing on Demurrer and Plea—Rule-Day.</p> <p>Complainants filed their bill ^November 10, 1884, and on January 3,1885, one of tlio defendants filed a demurrer, and the other defendant filed a plea to part of the bill and an answer to the residue, the December term of court not having adjourned. On January 21st complainant liad the demurrer and plea set down for argument, on rule-day, and served written notice on defendants. Held, that the demurrer and plea could be disposed of on the rule-day.</p> <p>2. Patents—Infringement—Assignment nr Infringer for Benefit of Creditors—Static Insolvent Law—Mui/hfariousness.</p> <p>A bill averring the infringement of a patent by a corporation and its assignee under a stale insolvent law, and that such assignee is about to distribute the assets of the insolvent corporation among its creditors without regard to the rights of complainant, and praying for an injunction, and for a decree to account for and pay over all such gains and profits as have accrued or arisen from the sale and use oí complainant’s patent, is not multifarious.</p> <p>3. Same—Jurisdiction of Oirouit Court.</p> <p>Such a suit is properly brought in the United States circuit court.</p>

<p>Patents for Inventions—Metal Tenon for Blind-Slats—Patent Mo. 76,491.</p> <p>Letters patent Mo. 76,491, issued to William. McFarland and John H. Campbell, April 7,1868, for a metal tenon for blind-slats, held valid, and infringed by defendants.</p>

In Equity. Suit for the infringement of letters patent No. 238,703, granted to Peter H. Mellon for an improvement in metallic spring-beds.

In Admiralty. - On March 14, 1884, Taylor Harlan, the libelant in this case, was hired by the mate of the steam tow-boat Pacific as a deck hand on said tow-boat while she was lying at the port of Pittsburgh, Pennsylvania, without any shipping articles being signed. The tow-boat Pacific was upwards of 50 tons in burden, and was engaged in navigating the Monongahela and Ohio rivers.

<p>Sufficiency of Dunnage—Peril of the Sea.</p> <p>The bark C., laden with nitrate of soda, in bags, while on a voyage from Pisagua to Hampton Boads, under a charier of affreightment which exempted her from liability for losses from perils of the seas, encountered heavy weather, and was thrown on lier beam ends, in which position she lay for about 48 hours. She was finally nearly righted. On arrival she was found badly strained and unsearworthy; and about 200 tons of the soda had been dissolved in washed-out spaces, 30 feet long by about 6 wide, along the bilges on each side, abreast of the main hatch. The dunnage was so placed gs to be held in position by the bags only. On arrival, the dunnage along the washed-out places was found to have fallen down. In all the rest of the ship it was in proper place. No specific negligence in respect to the dunnage was alleged in the libel; and no evidence was given of any custom to fasten the side dunnage. The respondents proved that the vessel was dunnaged in the usual manner. Held, that the water was admitted through the straining of the vessel when thrown on her beam ends, which dissolved a portion of the cargo, by reason of which the dunnage fell before the pumps could be made effective; and the dissolving of the cargo, after the dunnage was down, continued for the rest of the voyage. Held, also, that the weight of proof showed that sufficient open spaces were left by the dunnage to conform to the custom, and that, as the bark was dunnaged in the usual manner at the place of shipment, the court had no right to assume that it was negligence on the part of the bark to rely upon the cargo to keep the dunnage in its place, there being no contrary evidence on that point; that the damage, therefore, resulted from a peril of the sea, and the vessel was not liable.</p>

<p>1. Equity- Pleading—Complainant non Compos Mentis—Plea.</p> <p>A ploa alleging that complainant “ was at the time of the commencement of the suit non com/pos mentis and incapable to sue,” but failing to allege that he has been so found by inquisition or that any committee has been appointed, is had.</p> <p>2. Same—Phaotice—Motion to Sthike Bill ebom Pii.es—Stay.</p> <p>The proper practice in such a case is by an application to the court to strike the bill from the flies because filed without authority, or to apply for a stay of proceedings until a committee or next friend may be appointed.</p>

<p>1. Mortgage—Reformation and Foreclosure — Mistake in Description of Property.</p> <p>Where the uncontradicted evidence, in a suit to reform and foreclose a mortgage, shows that there was a mistake made in describing the property intended to be covered by it, the mortgage will be reformed so as to carry out the intention of the parties.</p> <p>2. Same—Usury—Agent Retaining Commission.</p> <p>When an agent who negotiates a loan, secured by mortgage, bearing 10 per cent, interest, which is legal at the time, retains as a commission 10 per cent, of the amount of the loan, the transaction will not be held usurious when it appears that the mortgagee did not share in the commission retained, or agree to do so, and that the agent was acting solely as agent of the mortgagor.</p>

In Equity. On July 24,1878, Knowlton and wife made their promissory note to the order of Anna North for $700, with interest at the rate of 9 per cent, per annum, with coupons attached, payable at the office of Corbin Banking Company, unpaid interest drawing 10 per cent.; and on failure to pay interest witliin five days after due, the holder may collect principal and interest at once.

<p>Vendor and Vendee—Negotiable Bond Secured by Mortgage—Assignment —Payment by Purchaser—Fraudulent Satisfaction of Becord—Foreclosure by Assignee.</p> <p>B. and wife executed a negotiable bond to S. for 0500, payable in five years, at the National Bank of Chester County, Pennsylvania, with interest, payable semi-annually at the same place, for which coupons were attached, and to secure payment, executed a mortgage on 1G0 acres of land in A Hen county, Kansas. S. recorded the mortgage, and sold and transferred the bond and mortgage to H., who transferred and sold tliom to W. Immediately after the execution of the bond and mortgage, and before the assignment of the morí gage was recorded, 13. sold and conveyed the land to A. subject to the mortgage, and A. sold and conveyed to B., who sold and conveyed to I). S. S. represented that he was still the" owner and holder of the bond and mortgage, and before D. S. accepted a deed from L. lie paid S. the amount of the bond., and S. satisfied the mortage of record. The bond and mortgage were not in the possession of S., nor had he any authority to satisfy the record. YY. brought an action to foreclose the mortgage. Held, that 1). S. took the land subject to the mortgage, and that W. was entitled to foreclose.</p>

<p>In Equity. Bill for specific performance of contract for exchange of lands. The opinion states the facts.</p>

<p>1. Promissory Notes—Action against Guarantor — Sale oe Machines—Peeense on' Breach oe Warranty.</p> <p>A breach of warranty by the principal in a transaction cannot be set up by a guarantor when sued on his contract of guaranty.</p> <p>2. Same—Counter-Claim—Failure oe Consideration eor Original Contract.</p> <p>A mere counter-claim growing out of a broach of warranty is not available to a guarantor or surety, whether lie be an indorser for value or merety an accommodation indorser'; bui if there is any fact from which a total failure of consideration for the original contract arises, the guarantor or surety has a right to avail himself of that fact.</p>

<p>Banks and Banking—Clearing-House—Payment under Mistake.</p> <p>C. deposited certain collaterals with P., K. & Co., bankers and members of tlie Chicago Clearing-house, with the understanding that he should have a right to draw checks on them to within 10 per cent, of the value of the securities. On August S, 1881, C. drew his check for $4,000, which was deposited with the defendant bank, also a member of tlie clearing-house, to his credit, and wont into the exchanges for collection through the clearing-house on the morning of August 6t.h Under the rules of the clearing-house each member was required to pay its balances to the clearing-house by 12 o’clock, and any check which was found not to be good when returned from the clearing-hou.se to the bank against which it was drawn, was to bo returned to the bank which collected it through the clearing-house by half past 1 o’clock of the same day. When C.’s chock came from the clearing-house into P., K. & Co.’s bank, his account was examined and the collaterals deemed sufficient to pay that cheek and others drawn on them by him, and they were handed over to the book-keeper to bo charged into his account. At 42 minutes past 1, P., K. & Co. hoard that C. had failed, when a second examination was had and it was found that a mistake had boon made, whereupon the check was sent to defendant bank and payment demanded at 15 minutes before 2 o’clock and refused. P., K. & Co. brought suit against defendant to recover the amount of tlie check as money paid under mistake. Held, that they were not entitled to recover; distinguishing Merchants' Nat. Bank v. National Nagle Bank, 101 Mass. 281.</p>

<p>1. Patents foe Inventions—Sky-Lights and Ventilators—Infringement.</p> <p>Held, on rehearing, that claims 2 and 3 of reissued patent JSTo. 8,688, and claim 3 of 8,689, are valid, and have been infringed by defendant. 8. O. 21 Fed. Rep. 567.</p> <p>2. Same—Costs.</p> <p>Held, farther, that as complainant prevails, on account oí a disclaimer filed since suit brought, and fails as to a largo part of his ease, he is not entitled to costs.</p>

<p>Patents fob Inventions—Aspiration of Fokeion Patent—Kmv. St. § 4887— Hkcitaes in Letters.</p> <p>A patent granted for an invention winch lias ticen previously patented in a foreign country is not void because not limited on its face to expire at the expiration of the foreign patent, but will be valid for the town oí the foreign patent only.</p>

<p>Patents eoe Inventions—Mosaic Flooes—Kappes’ Patent—Invention.</p> <p>Patent No. 87,853, granted to J. George Kappes, March 16, 1869, for an improved mosaic floor, held void for want of invention.</p>

<p>Patents iron Inventions—Day BNmv-Pr.o'W—Invention.</p> <p>The fourth claim of reissued patent Ko. 8,388, granted to Augustus Day, August 27,1878, for a horse rai1 way track-clearer, or snow-plow, held void for want of invention; folio wing Hollister v. Manufacturing Co. 5 Sup. Ct. Rep. 717.</p>

<p>Patents nor Inventions—Bungs and Bushings—Reissue Ho. 10,368—Patent No. 107,473.</p> <p>Reissue patent No. 10,368, granted to the Now York Bung & Bushing Company August 25, 1883, for an improvement in bungs and bushings, compared with palent Ho. 107,473, granted to Vincent Fountain, Jr., September 20,1870, for an improvement in bungs, and held void for want of invention, and not infringed by defendant.</p>

<p>Patents eor Inventions&emdash;Reissue&emdash;Yaudity.</p> <p>Electric Cas-Ughting Oo. v. Tillotson, 21 Fed. Rep. 568, followed, and the fifth claim of reissued patent No. 9,743, for electrical apparatns for lighting street lamps, held void.</p>

<p>1. Salvage—Replevin off Salved Property by Owners—Libel to Enforce Lien—Jurisdiction .</p> <p>"When a cargo of iron, on board a vessel that has been pumped out and brought into her port of destination by salvors, has been replevied by the owners in a state court, for the express purpose oí melting it. up and putting it beyond the reach oí any court, and the control oí the stale court over it was a fiction, tlio district court of the United States will have jurisdiction of a libel to enforce the lien of the salvors, and the iron may bo seized by the marshal under monition issued by the court.</p> <p>2. Same—Amount of Award.</p> <p>The services rendered in this case considered, and the sum of $350 allowed to libelants as compensation, with costs.</p>

Libel in ran. The libel is filed in this case against the ferry-boat Kingston, to recover for materials furnished and work done upon the said steamer while she was in the course of construction at Newburgh, in the state of New York, and after she was launched and removed to Weohawkon, in the state of Now Jersey.

<p>1. Collision—Miscalculation on Pilot—Lookout.</p> <p>Tlie ferry-boat P. was approaching her New York slip on the North river on a strong flood-tide, which compelled her to go below her slip and swing into it as the tide swept her up. The ferry-boat W,, running on a different ferry, at this moment came out of her slip, 744 feet below that of the P. It was tlie custom of the W. to go to the right' of the P. on such occasions, if the P. were “well out” in the river, otherwise to go to the left. On this occasion, the pilot of the W., judging that the P. waswell out in the stream, attempted to go to the right, when the P. was already swinging in, and in about 45 seconds after leaving her slip struck the W. on her port side. Tlie pilot of tlie P. was giving his entire attention to making Iris slip; the deck hand who should have acted as lookout was under the hood, and did not see or report the W. until a few seconds before collision, when the P., too late, reversed full speed. Held, that the W. was in fault in misjudging- the distance of the P. and in attempting to go inside and across her bows; and that the 1-*. was in fault in not having aYookout besides the pilot properly stationed and attentive to his duties ; and that the damages should he divided.</p> <p>2. Same—Ferry-Boats—Necessity on Lookout.</p> <p>Tlie legal obligation of ferry-boats to maintain an efficient lookout has been repeatedly declared, and can never be relaxed.</p>

<p>1. Collision rktwi-ien Steamers—Crossing Courses—Signals.</p> <p>As tlie tug M, will) three boats lashed to her sides, was coming out of tlie Kills into Now York bay with tlie ebb-tide, she came into collision with the barge Sweepstakes, in tow, on a hawser, of the tug 8., bound down the bay into tlie Kills. Previous to tlie collision, the 8. gave two whistles, indicating that she would pass to the left, to which the M. responded with two. Bui the S., after signaling, did not change her course t,o correspond, or slacken her speed, but with her tow kept a perfectly straight course. The M. changed her course in accordance with her whistles, but very slightly, and stopped and hacked, but not in time to avoid collision. Held, that ho1h vessels were in fault,—the 8., because, having the M. on her starboard hand and being bound to keep out of the way, she did not change her course to correspond with her whistles; tlie M. for not changing her course earlier than she did, and for not seasonably stopping and backing.</p> <p>2. Same—Miscalculation of Pilot.</p> <p>The ebb-tide out of the Kills and tlie ebb down the bay meet near the place of collision; and each vessel, as she approached, had the tide in her favor. Held, that both pilots doubtless miscalculated tlie rapidity with which the boats were approaching. But both were familiar with the tides, and both are chargeable for such miscalculation, and for neglect in not taking measures sufficiently early to avoid each other; and consequently tlie damages must be divided.</p>

<p>Removal oe Cause—Federal Question—Section 3477, Ilmv. St.</p> <p>Complainant brought suit in a state court to subject» judgment,obtained by the defendant against the United States in the court o£ claims, to the payment, of a judgment he had against defendant, and for in junction to restrain defendant from collecting, transferring, or otherwise disposing of said claim against the government, and for the appointment of a receiver 1o collect and hold the fund. The suit was removed to the United States court, and upon motion to remand, held, that the suit involved the construction of section 3177, Rev. St., which declares that all “transfers and assignments made of any claim upon the United States, * « * shall be absolutely null and void, unless they aro freely made, and executed in the presence of at least two attesting witnesses,” ete., and the motion was therefore denied.</p>

<p>1. Circuit Court—Jurisdiction—Suit on County Warrants.</p> <p>County warrants, signed by the chairman of the county commissioners and county clerk, directing the county treasurer to pay to bearer a certain sum, for certain services stated therein, are negotiable and pass from hand to hand and not by assignment, and therefore do not come within the restriction of jurisdiction in the first section of the act of congress of March 3, 1875.</p> <p>2. Same—Citizenship—Defenses.</p> <p>The holder of such warrants, being a citizen of another state, may sue thereon in this court, although the original payee is a citizen of this state but subject to all defenses which existed against them in the hands of the first holder.</p>

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

<p>National Banks—Individual Liability of Stockholders—Voluntary As* sessmknt—Increase of Capital.</p> <p>The Pacific National Bank of Boston was organized in October, 1877, with a capital of $250,000, with the right to increase it to $1,000,000. In November, 1879, its capital was raised to $500,000; September 13, 1881, the directors voted to increase the capital to $1,000,000. On November 18, 1881, the bank suspended. On December 13, 1881, the directors voted that as $38,700 of the increase of capital stock had not been paid in, the capital be fixed at $901,300, and the comptroller of currency was notified to that effect, and lie notified the hank, under liev. St. § 5205, to pay a deficiency on its capital stock by an assessment of 100 per cent. At the annual meeting the assessment was voted, and on March 18, 1883, with consent of the comptroller and the approval of the directors and the examiner, the bank resumed business, and continued until May 20,1883, when it again suspended and was put in the hands of a receiver. Prior to May 20, 1882, $742,800 of the voluntary assessment had been paid in. Complainant was the owner of 25 shares of stock on September 13, Ibfel, and after the vote to increase the stock, took 25 shares, for which he paid $2,500, on October 1, 1881, and received a certificate. He voted for the assessment at the annual meeting, and in February, 1882, paid the assessment on the old and new stock, and subsequently sought to enjoin the suit at law against him by the receiver, to enforce Ins individual liability as a stockholder, under liev. St. § 5151, on the ground that the increase of capital was illegal and void, and that the voluntary assessment under liev. St. § 5205, relieved the stockholders of individual liability. IZeld, that he was not entitled to relief, and the sill should be dismissed.</p>

In Equity. Baldwin, Starr & Co. filed their bill in 1868 against McGriff, as trustee of Sarah M. Byan, to subject her trust estate to a debt in their favor. The pleadings showed that her trust estate was created under a marriage settlement by which Mrs. Sarah M. Byan was made tenant for life of certain property, with remainder to her children.

<p>1. Tirade Name—Foreign Oorbo ration— Corporation Assuming Same Name— Injunction.</p> <p>A United States circuit, court cannot interfere by injunction, at tile instance of a corporation organized under the laws of another state, and prevent any necessary step from being taken, under the statute of the state in which such court is located, in the creation of a corporation bearing the same name as the foreign corporation.</p> <p>2. Same—Reuieí', when Granted.</p> <p>Whether relief could lie granted after the creation of the corporation, and use of the name of the foreign corporation in fraud of its rights, is not determined.</p>

<p>INSOTWENOY— ILLINOIS STATUTE—FRAUDULENT PkFJj'BRBNCTS—ACTION TO SET Aside.</p> <p>No suit can be brought ag-ainst the assignee of an insolvent, and a creditor to whom ho has made a conveyance in fraud of his other creditors, until a demand has been made upon the” assignee to sue, and ho has refused so to do.</p>

<p>1. Jurisdiction—Liability of Stockholders—Rev. St. Mo. §§ 736, 745._</p> <p>A creditor who recovers judgment in a state court against a corporation cannot, under the Missouri Statutes, while the corporation remains undissolved, maintain an action at law in this court against a stockholder in the corporation to recover an amount due from him on unpaid stock.</p> <p>2. Same—Equity.</p> <p>In the absence of any statutory proceedings such matters are only cognizable in equity.</p>

<p>Exemplary Damages—Willful Refusal of County Commissioners to Levy Tax to Pay Judgment.</p> <p>In an action against county commissioners to recover damages for a willful refusal on their part to levy a tax on taxable property in a township to pay oil a judgment held by plaintiff against such township, in obedience to a peremptory writ of mandamus from the United States circuit court, plaintiff will be entitled to recover exemplary or punitive damages, although the actual damage sustained by him was merely nominal.</p>

<p>Action on Covenant in Lease to Recover Rent.</p>

<p>1. Fire Insurance—Increase of Hazard—Tenant Making Alterations.</p> <p>Where a fire insurance policy provides Unit any change increasing the hazard, either within the premises or adjacent thereto, within the control of or known to the assured, and not reported to the company and agreed to by indorsement thereon, will render the policy null and void, to defeat a recovery in action for loss, the company must affirmatively prove that changes made by a tenant, which increased the hazard, were made by the consent of the owner or his agent,</p> <p>■¿. Same—Prqob’s of Loss—Fame Statements.</p> <p>A false statement in the proofs of loss, to defeat a recovery, must be false to the knowledge of the assured, and made for the purpose of defrauding the company.</p>

<p>Customs Duties—Tin Cans Containing Lobsters—Act of February 8, 1875.</p> <p>Tin cans containing lobsters imported from Prince Edward’s island and from Halifax, Nova Scotia, are subject to dutj under the act of congress of February 8, 1875.</p>

<p>1. Patents for Inventions—Patent No. 227,061—Infringement.</p> <p>The first claim oí complainants’ patent, viz., in a flanging-machine the extension of the lower roll beyond the end of the upper roll for the support of the píate at the point of bond and to prevent tlu formation of a ridge or bead, held to be infringed by a machine which, before set to work, lias the outer face? of tlic two rolls flush,"but is so organized that, as the table upon which lies the plate to be flanged is raised to a perpendicular, the upper roll is pushed back the thickness of the plate.</p> <p>2. Same—Anticipation.</p> <p>The defense of anticipation considered, and AM that the evidence show» a failure to reduce the conception to practical use and its abandonment, tk\ -a leaving the field oi invention open to others.</p> <p>3. Same—Invention.</p> <p>Held, further, that the patented improvement here involved more than the employment of mere mechanical skill, and may fairly he ascribed to the exercise of the inventive faculty.</p> <p>4. Same—Defense of Want of Utility.</p> <p>Parties who employ a patented device ought not to expect a defense resting upon an alleged want of utility to find much favor with the court.</p>

<p>Patents for Inventions—Patentability—Anticipation—Baby Carriages— Movable Tops—Infringement.</p> <p>Unissued patent No. 10,363, granted to Horatio Gr. Parker, trustee, August 7, 1883, for an improvement in children’s carriages, compared with the patent issued February 11, 1868, to Bein & Ulrich, and the patent issued June 9, 1868, to Eliphalet S. Scripture, and the first claim of said reissue held valid, and infringed by sales by defendant of carriages having a canopy top, rigidly secured to two rigid arms, one depending- on each side of the carriage, and pivoted at their lower ends to standards rigidly fastened on each side of the carriage body by means of friction-plates and a thumb-screw, which causes the pla'te to which it is attached to relax or renew its grasp, so that the top can be moved in any position, and may drop in front of the seat or behind it, or may be held in an upright or intermediate position.</p>

<p>1. Seamen—Completion oe Voyage—Shipping Articles.</p> <p>Libelants shipped as seamen on board tbe bark JB.,and signed articles for “a voyage from lquiqui, So. Am., to Hampton Heads, for orders, and to any port or ports wherever the master may direct in tbe if. S. of America * * ; tho voyage not to exceed eight calendar months.” At Hampton Hoads tho vessel received orders for New York, where, on arrival, she discharged all her cargo. The libelants then loft the vessel, and wore entered in the log as deserters by tbe captain, who refused in consequence to pay the balance of wages up to the time they left.’ Raid, that had there been other parts of cargo to bo delivered at other ports, under orders received at Hampton Roads, the voyage would not have terminated until the delivery of the residue of the cargo. As it was, the voyage provided for by the shipping articles terminated at New York; tho libelants were there entitled to their discharge, and could not be treated as deserters.</p> <p>2. Same—Rate oe Wages.</p> <p>One of tho libelants shipped as second mate, but was afterwards justifiably disrated. Ildd, that lie was entitled only to the same wages as the other able seamen for the remainder of the voyage.</p> <p>3. Articles Bold to Seamen.</p> <p>Articles sold to seamen by the master during the voyage are allowed as an offset to wages, at a rate not above 10 per cent, over the cost to the master. A charge in excess of that held unreasonable and oppressive. Act June ¿tí, 1884,</p>

<p>Motion for Injunction pendente lite.</p>

<p>1. Mortgage — Minino Corporation—Contracts of Directors—Sheriff’s Sale.</p> <p>In view of the facts clearly established by the testimony in this case, held, that the sheriff’s sales set out in the complaint, had and brought about as they were, and the contract made by the directors, were, in effect, a mortgage for the purposes set out in the contract.</p> <p>2. Same—Parol Evidence.</p> <p>Equity, to determine whether a written instrument is, in effect, a mortgage, hears parol evidence, not to contradict or vary the terms of the instrument, but to raise an equity superior to it, and give it effect according to the true intent and purpose of the parties.</p> <p>3. ’ Same—Personal Obligation of Mortgagor.</p> <p>A mortgage may be created as well without as with an accompanying personal obligation of the mortgagor to pay the debt secured or attempted to be secured thereby. In the one case the property alone is charged with the lien,— is looked to solely by the mortgagee out of which to make his lien; in the other, lié has the additional security of the personal obligation of the mortgagor.</p> <p>4. Same—Debt Chargeable Only against Certain Property—Measure of Security.</p> <p>A debt chargeable only against certain property is, in effect, simply a debt with limited means Of satisfaction or enforcement; the value of the property charged with the indebtedness is the measure of the security afforded. ■</p> <p>5. Same—Conditional Sale or Mortgage.</p> <p>In cases of doubt whether a transaction was a conditional sale or a mortgage, equity will hold it to be a mortgage, as by so doing the rights of each party are preserved; the mortgagor is permitted, upon fulfillment of his contract, to save his property, and the mortgagee receives his just. dues.</p> <p>6. Same—Tender.</p> <p>Under the circumstances of this case, considering the whole transaction as a mortgage, a tender upon the exact day was not strictly necessary to preserve the rights of the parties under the contract.</p> <p>7. Same—Decisions of State Court—State Statute.</p> <p>Where, under the statutes of a state, a contract would be considered a mortgage, a United States court, in such state, in carrying such contract into effect, will be guided by the decisions of the supreme court of such state.</p>

<p>1. Trade-Mark—Name of New Article—Right to Use of.</p> <p>When an article is made 1hat was theretofore unknown, it must be chris- ‘ tened with a name by which it can be recognized and dealt in; and the name thus given to it becomes public property, and all who deal in the article have the right to designate it by the name by which alone it is recognizable.</p> <p>2. Same—Name, when not a Trade-Mark.</p> <p>A name alone is not a trade-mark when it is applied, to designate, not the article of a particular maker or seller, but the kind or description of thing sold.</p> <p>3. Same—Imitation of Labels—Injunction.</p> <p>Although the name applied by a complainant to his goods may not afford protection as a trade-mark, where others are guilty of imitating the labels used by him in making sales thereof, the3 will be enjoined.</p>

<p>In Equity. Opinion of court on request of the examiner for instructions.</p>

<p>1. Public Lands—Mexican Grants—Confirmation and Patent.</p> <p>The confirmation and final location of a Mexican grant is conclusive against the United States, in the absence of fraud, and to set aside a patent the fraud must be extrinsic and collateral to the matter determined, and not matter upon which the decree was rendered.</p> <p>2. Same—Fraud—Evidence.</p> <p>The evidence to sustain charges of fraud against a number of government officers must be conclusive. Evidence held insufficient.</p> <p>S. Same—Review by Court.</p> <p>The courts cannot review mere errors in location of Mexican grants by the proper officers.</p> <p>4. Same—United, States as Suitor.</p> <p>When the United States enters a court as a litigant, it waives its exemption from legal proceedings and st ands upon the same footing witli private individuals, and if, on a consideration of all the circumstances of the case, it be inequitable to grant the relief prayed against a citizen, such relief will be refused.</p> <p>5. Same—Laches as Defense.</p> <p>Although, on grounds of public policy, no statute of limitations runs against the United Slates, and no laches in bringing a suit can lie imputed to them, yet the facility with which the truth could originally have been shown by them, if different from the finding made, the changed condition of the parties and the ’ properly from lapse of time, the diiijculty from tills cause of meeting objections which might, perhaps, at the time have been readily explained, and the acquisition of interests by third parties upon faith of the decree, — are elements which will be considered by the court in determining whether it be equitable to grant the relief prayed. All the attending circumstances of each case will be weighed, that no wrong be done to the citizen, though the government be the suitor against him.</p> <p>6, Same—Patent Sustained.</p> <p>As, under the circumstances of this case, it would be inequitable to vacate the patent, and impossible to place the parties in statu quo, the patent should not be annulled.</p> <p>'7. Same—Rights of Stockholders.</p> <p>After a great lapse of time strangers purchasing stock in a corporation without actual notice of frauds committed before the creation of the corporation, and to which the corporation, as such, was no party, affecting title to lands held by the corporation, ought to be entitled to rely on the decrees of the United States tribunals affirming such titles.</p>

<p>Libel in rein.</p>

<p>Demurrage—Vis Major—Obstruction by Fire Department—Custom.</p> <p>A canal-boat, laden witli lumber, was sent to discharge at the wharf of S. & Co., who had bought the lumber of the shipper’s agent,. When she had been discharging there about two hours a fire broke out in S. & Co.’s lumber yard, adjoining, and two fire department boats, coming up along-side the canal-boat, laid hose across lior, so as to prevent the further discharge of the cargo. This continued some four or five days, after which the residue of the cargo was discharged. The owner of the canal-boat libeled the lumber for demurrage. No bill of lading was put in evidence, but it was proved that., by the custom in the lumber trade, four or five lay days upon such cargoes were allowed, and that it was the duty of the captain of the boat to put the lumber on the wharf, the obligation of the receiver under the custom being only to furnish a proper berth and room on the dock to receive the lumber, so that it might be (lis‘charged within that period. Such hertli, facilities, and room were furnished by S. & Co. Held, that the burden was upon the libelant to prove that some fault of S. & Co. caused the delay; that when it became necessary for the fire department to use the position where the canal-boat lay, it was the duty of S. & Co. to provide means to discharge elsewhere, and they would have been liable had it appeared that the subsecpient delay was caused by their inability to do so. But the evidence showed that the firemen would not allow the boat to be moved, and that the libelant was unable to move her; held, that the obstruction caused by the fire department was in the nature of a superior force, for which S. & Co. were not responsible; and that the loss must remain where it fell.</p>

<p>Admiralty Practice—Appeal—Offer of Testimony Withheld Below.</p> <p>An appellant will not be allowed to produce testimony upon appeal which he has deliberately withheld in the court below.</p>

Motion to Dismiss. The bill of complaint is filed by a corporation, citizen of Illinois, against defendants to enjoin them from using a trade-mark belonging to the complainant, or an imitation of it calculated and intended to deceive the public,' and advertising that they kept on hand and were the sole agents for the sale of such axle-grease indicated in trademark.

In proceedings pending in the circuit court of the United States for the district of Ohio, Western division, at Toledo, brought by the Central Trust Company of New York against the Ohio Central Railway Company, for foreclosure of mortgage, etc., an intervening petition was hied by the Columbus, Hocking Valley & Toledo Railway Company against the receiver, John E. Martin, by leave of court first obtained, in which it claims that there is due to it a large sum of money from…

<p>X.. National Banks—Pledge to Secure Depositor—Act of Insolvency.</p> <p>Ji tlie officers of a national bank, at the time of pledging a note to secure a depositor wlio had been allowing- the bank to use his money and who was apprehensive of a loss thereof, saw that the bank was approaching failure and made the pledge to keep the note out of the assets to be distributed, such pledge would be void; but if they made it to prevent failure, and expecting to prevent, failure, by retaining and using the deposit to pay other depositors, it would be good.</p> <p>2. Same—Pledge Held Good.</p> <p>On examination of the circumstances of this case, held, that the pledge should bo sustained.</p>

<p>Vendor and Vendee—Attachment on Writ oe ¡sequestration — Notice to Subsequent Purchasers—Kev. St. Vt. §) 874, 875.</p> <p>Attachment on a writ of sequestration, by leaving a copy of the writ with a description of the estate attached in the town cleric’s office, pursuant to Kev. Laws Vt. § 874, held valid against subsequent purchasers without actual notice, without the entry in a book kept for that purpose by the town clerk of the names of the parlies, date of the writ, nature of the action, sum demanded, and officer’s return, as required by section 875; distinguishing Burchard v. Fair Haven, 48 Vt. 327.</p>

<p>Action to Recover Damages.</p>

Action for the Wrongful Exclusion of a Passenger from a railroad ear. Logwood and wife are colored people living at Huntsville, Alabama.

<p>Action in Ejectment. The opinion states the facts.</p>

<p>Judgment—Execution to Preserve Ltkn—Rev. St. III. On. 77, § 1.</p> <p>An. execution is not “issued,” within the moaning of section 1 of Chapter 77 of the Revised Statutes of Illinois, so as to keep the lien of a judgment on real estate alive unless it is delivered to an officer authorized to execute it, and for the purpose of having it executed. The handing of an execution to a United States deputy marshal with the express direction'not to execute it until further instructions, and giving no such instructions during the life-time of the writ, will not preserve the lien.</p>

Demurrer to- Amended Petition. The amended petition differs from the original (17 Fed.

<p>1. Chinese Immigration—Merchant Temrorariby Absent—Right to Return without Certifícate.</p> <p>The sixth section of the Chinese restriction act of 1882, as amended by the act of 1884, is not applicable to a Chinese merchant, one of a firm residing and doing their principal business in the United States, who temporarily departed therefrom before the passage of said act to attend to a branch of the said iirm’s business in British Columbia, and who returned to the United Slates after the passage of said act; and lie may re-enter the United States without producing the certificate required thereby.</p> <p>2. Same—Construction of Restriction Acts.</p> <p>Section 6 of the restriction act is not applicable to Chinese subjects, residents of the United States, who left the United States for foreign countries for temporary purposes, intending to return before the passage of the amendatory act of 1884, having a right to return at the time of their departure, and who did not return till after the passage of the act, nor to Chinese subjects, residents of the United States, departing for temporary purposes of business or pleasure since the passage of the act.</p>

<p>1. Criminal Law'and Procedure—Writ of Error to District Court—Stay of Sentence—Act 1879, $ 1.</p> <p>Under section 1 of the act of 1879 a writ of error is not a writ of right, but to be allowed in the discretion of the circuit judge, and if he allows it, it is also in his discretion whether he will stay the sentence.</p> <p>2. Same—Writ and Stay, when Granted.</p> <p>If, upon the errors complained of, there be any doubt, or room for fair debate, the accused should not be denied an opportunity to take the deliberate judgment of the circuit court upon the rulings of the district court, if those rulings have aifected the judgment and sentence of that court; and in such a case the proceedings under the sentence should be stayed. Writ of error allowed, and proceedings stayed.</p>

<p>X. Patents eor Inventions—Calahan Reissue for Telegraphic Printing Instruments por Registering Stocks— Validity—Inekingemknt.</p> <p>Reissued letters patent No. 8,810, granted to plaintiff as assignee of Kdward A. Calalian, January 25, 1870, for an improvement in telegraphic printing instruments for registering prices of gold and stocks, construed, and tin; second claim thereof held infringed by the Pield instrument used by defendants.</p> <p>2. Same—Poreign Patent—Lipe op United States Patent.</p> <p>Where a foreign patent is published after the isuie of a patent in the Unilcd States, although it bears date previous to such issue, the life of the United States patent will not be affected.</p> <p>3. Same—Second Claim op Calahan Patent.</p> <p>The second claim of the reissued Calaban patent does not enlarge the original claim, and is valid.</p>

<p>1. Patents rn Inventions—Infringement—Morley and Lancaster Button-Sewing Machines.</p> <p>Letters patent No. 236,350, granted to James H. Morley, on January 4, 1881, for improvements in button-sewing machines, construed, and held not infringed by the Lancaster machine.</p> <p>2. Same—Construction of Patent—Rule as to Infringement.</p> <p>When an invention is simply an improvement on a known machine by a more change of form or combination of parts, the inventor is only entitled to the specific form of the device which he produces, and ho cannol. invoke .the ' doctrine of equivalents to suppress other improvements which are not color-able invasions of his .own. But where an inventor precedes all the rest, and his machine performs a function never performed by any earlier machine, the court will treat as infringers all who accomplish the same result by substantially the same or substantially equivalent means. In the one class of inventions slight differences may avoid infringement. ,In the other class, there must be substantial differences to escape such a charge.</p>

<p>Patents for Inventions—Grain- Drills— Gonrtruotton—Infringement.</p> <p>Letters patent No. 176,719, granted to J. M. 'Westeott, April 25, 1876; reissued patent No. 4,091, granted to Thomas and Mast, August 2, 1870; patent No. 66,578, granted to j. P. Fulgham; and reissued patent No. 6,274, granted ■to E. O. Patrie, for improvements in gram-drills,—construed, and held not infringed.</p>

<p>Admiralty Appeal.</p> <p>For opinion of Brown, J., in district court, see 15 Fed. Rep. 276.</p>

<p>Circuit Court—Jurisdiction— Citizenship— How Pleaded.</p> <p>An averment in the introductory part of a hill that “ W. S., of the city of Virginia, state of Novada, anda citizen of the state of Nevada, brings this, his bill against S. A. H., of the oily and county of Ban Francisco, state pf California, and a citizen of the state of California,” * * « is a sufficient averment of citizenship of the parties to give the United States circuit court jurisdiction.</p>

Motion of Henry H. Porter to have the court docket and take jurisdiction of case.

<p>Trust—Payment of Purchase Money for Land, and Title Taken in Name of Third Party—Kev. St. N. Y. $$ 51, 52.</p> <p>M.s D., W., and K. entered into a verbal agreement to purchase from J., for their joint benefit, certain land, each of them to advance one-fourth of the purchase money, and the title to be taken in the name of K. The money was advanced, the land purchased, and an absolute deed executed to K., wiio immediately delivered to M., D., andW. a written memorandum acknowledging the receipt of the purchase money, and that each of the co-purchasers was the joint owner of one-fourth part of the land. K. became insolvent, and made an assignment to V., and V. assigned and deeded to S., as assignee in bankruptcy of K., all of the property assigned to him. S. sold the land under order of the court. Held, that the purchaser at such sale acquired a good title as against M., D., and W.</p>

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

<p>Information in rem to Condemn Smuggled Opium.</p>

<p>1. Patents fob Inventions— Celluloid Coklabs and Cuffs—Invention— rstF-IUNSK’VIBNT.</p> <p>Letters patent No. 200,939, granted to Rufus IT, Sanborn, Charles O. Kanouse, and Albert A. Sanborn,” March 5, 1878, for anew and improved fabric for collars and cuffs, held, not void for want of novelty and invention, and, infringed by use of such fabric by defendants around the button-holes and edges of the collars and cuffs made by them.</p> <p>2. Same—■'What Constitutes Inpbingement.</p> <p>Where there is a valid patent for a fabric, any one who uses the fabric without a license is an infringer; and it is no defense to urge that he might have used more, or that he uses less than the patentee in making similar articles. If he uses any of the fabric lie,uses enough to make him an infringer.</p>

<p>1. Patents for, Inventions — Infringement of Recent Patent—Valtdits— Preliminary Injunction.</p> <p>When the validity of a recent patent has not been judicially decided, a preliminary injunction may, nevertheless, be granted in a clear case of infringement.</p> <p>2. Same—Design Patent for Jewelry—Novelty.</p> <p>Design patents No. 15,049 and 15,050, for designs for jewelry pins, held not void for want of patentable novelty.</p>

<p>1. Possession—Juiusdiotton.</p> <p>In possessory actions a court of admiralty will not take cognizance of or enforce a merely equitable right as against the legal title of a defendant, in possession ; although it may decline, in its discretion, to enforce oven a legal title, as against a meritorious equitable title accompanied by possession, or may give redress against a maritime tort upon an equitable vendee in possession.</p> <p>2. Same—Title to Vessel—Shmiuff’s Sale—Secret Trust—Cash Stated.</p> <p>The libelant B. claimed tille to nineteen thirty-seconds of the bark Q-. It., under a sheriff’s sale on an execution issued out of a state court on a judgment against one 0. He also claimed that possession was wrongfully withhold from him by li„ master of the bark, and filed this libel against the bark, and against Li. and 0. to obtain possession. li. appeared and denied tlie libelant’s title; showed that he had possession of the bark, and exhibited a complete paper title in himself to t wenty-six thirty-seconds, including the nineteen thirty-seconds claimed by libelant,. Thereupon the libelant offered to prove that at the time of the sheriff's sale under the execution and during the year preceding, the defendant K. held the nineteen thirty-seconds of the bark sold on execution upon a secret trust for the benefit of 0.; also that 0. had bought the nineteen thirty-seconds with his own money, and had caused the title to bo taken in the name of li. in order to avoid the claims of O.’s creditors. Held, that as C., a judgment debtor, never had a legal title or possession, a sheriff’s sale upon execution against him did not of itself make a legal title in the vendee. Before such a title could be recognized as a legal one, there must be established some secret trust in the holder of the legal title for the benefit of the judgment, debtor that is fraudulent as against creditors. Whether such a secret, trust and fraud existed in this case were the only questions herein litigated. Held, that such a matter is not a proper subject of inquiry in an admiralty court; and the libel must be dismissed for want of jurisdiction.</p> <p>3. Same—Tiie Yacht Amelia.</p> <p>The decision of Johnson, J., in the case of The Amelia, affirming C Ben. 475, and unreportod elsewhere, appended.</p>

<p>1. Towage—Evidence-—Towage Receipt—Casting Ope in Gale.</p> <p>Tile steam-tug C. A. took in tow the bark E., bound to sea from the loo of Staten island, to low her down the bay of New York. The wind was high at, the lime, and the pilot of the tug, before starting, told the pilot, of the hark that if the wind increased the tug would lie obliged to cast off before reaching buoy No. 8, at the upper end of the Swash channel, and that the bark’s pilot, should he on the lookout for that contingency, to which the latter assented. The -wind did increase until the tug was in imminent danger of swamping; whereupon she gave several short whistles, to indicate that she was about to leave the bark, and then cast oil the hawser. The bark attempted to make sail and get to sea, hut grounded on the Romer shoal. This suit was brought against the tug for not having taken the bark “ to sea,” as it was alleged she agreed to do, and for negligence in abandoning her in an improper and dangerous place. A towage receipt, reciting that the bark was to be taken “to soa for $20,” signed by one G., who procured the towage for the bark, and delivered to the master of the bark, was put in evidence. The $20 was not paid. Held, that no authority'-was shown on the part of G. to bind the bark, and, moreover, that the receipt was superseded by the subsequent conversation between the pilots.</p> <p>2. Same—Negligence—Peril op the Sea—Error op Judgment.</p> <p>Two courses were open to the bark in the place where she was cast off: to anchor, or to att empt to get to sea. She chose the latter, and events proved that it was an error of judgment on the part of her pilot. Held, that the tug was liable only on proof of negligence; that is, the want of such reasonable care and skill as the circumstances demanded. No negligence could be attributed to her for starting at the time she did. She continued to tow the bark up to the very last moment that her own safety would permit, and she east off under an undoubted compulsion from perils of the seas, and in a position where the bark had a fair option to continue under sail or to anchor; and the libel was therefore dismissed.</p>

In Admiralty. This libel in personam was filed to recover damages for the respondents’ broach of a charter-party, in refusing to load tho ship Podesta Bazzoni, on the alleged ground of unseaworthiness. The vessel belonged to Trieste.

<p>1. Collision — Negligence op Pilot Acting as Master — Injury to Deck Hand—Fellow-Servants.</p> <p>A dock hand who was not on duty, and had no part in tho navigation oí the vessel, may recover i'or an injury caused by a collision due to tho negligence of a pilot who was at the time in command; following Chicago, M. & S. P. Ry. Co. v. Ross, 5 Sup. Ct. Rep. 184.</p> <p>2. Same—Lookout.</p> <p>It is only when a lookout would have been of no service in guarding against a collision that his absence can be excused.</p> <p>3. Same—Presumption as to Observance of Rules of Navigation.</p> <p>While ordinarily a vessel has a right to assume that another vessel is not derelict in the observance of the rules of navigation, this presumption is not to be carried so far as to exonerate her from ordinary precautions on her own part, or to excuse her from the consequences of a mistake, when, by slight exertion and without any peril to herself or other vessels, she could certainly avoid hazard.</p> <p>4. Same—Lights—Observation.</p> <p>The rule requiring lights may as well be disregarded altogether as to be only partially complied with, and in a way which fails to be of any real service in indicating to other vessels the position and course of the one carrying them.</p>

<p>1. Hemoyal of Cause—Allegation of Citizenship.</p> <p>As a party may be a resilient o£ a state without being a citizen thereof, a simple averment that a party seeking to remove a cause is a resident of a certain state is not sufficient.</p> <p>2. Same—Key. St. § 639, Cl. 2.</p> <p>Jiev. St. § 639, cl. 2, has been repealed by the act of March 3, 1875; following Hyde v. Ruble, 104 U. S. 407.</p>

<p>1. Equity Practice — Bill for Discovery and General Relief—Adequate Remedy at Law—Removed Case.</p> <p>Complainant filed a bill in the state court, alleging tliat defendant had been granted a license to make and sell bird-cages, patented by him, and praying that defendant be compelled to disclose the amount of license fees due, and the number of cages made and sold since a date named, and that complainant be granted such other and further relief as his case might require. The case was removed to the circuit court, where defendant demurred to the bill. Held, (1) that, so far as the bill was one for general relief, the court had no jurisdiction, as there existed an adequate and complete remedy at law; and (2) that, so far as it was a bill of discovery, it was open to the objection that it contained no allegation that a suit at law had been brought, or was about to be brought, in which the discovery was material.</p> <p>2. Removal of Cause—Practice on Removal—Case at Law or in Equity— Repleader.</p> <p>Where the suit in the state court unites legal and equitable grounds of relief or of defense,' as authorized by the state statute, it may, in the federal court, be recast into two cases, one at law and one in equity, and in such a case a re-pleader is necessary.</p>

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

<p>1. Fraudulent Conveyances—Preferring Certain Creditors in Assignment.</p> <p>At the common law an insolvent debtor lias tlie light to make an assignment in trust, for tlie benefit of his creditors, and he may give a preference to bona fide creditors to whom lie fools under special and honest obligations for previous favors conferred, or for any other honest and meritorious consideration.</p> <p>2. Same—Rule in North Carolina—Evidence—Question for Jury.</p> <p>The courts in ¿North Carolina have always been very cautious in finding fraud in a written instrument as a 'matter of law, and where presumptions of fraud arise upon the face of the deed they have uniformly held that tlie parties are entitled to introduce evidence to explain suspicious transactions and rebut presumptions of fraud; and in cases at law such questions must bo determined by the jury.</p> <p>3. Same—Deed of Trust Fraudulent as ¿Matter of Law, when.</p> <p>To render a deed of trust fraudulent as matter of law, there must appear upon its face some plain and express provision for the personal benefit of the grantor, or some stipulation which is wholly irreconcilable with an honest and legal purpose of paying, within a reasonable time, the debts of the grantor.</p> <p>4. Same—Retention of Possession with Power of Disposition Renders Deed Yoid, when.</p> <p>If there-is a provision in a duly-registered deed of trust that the property conveyed shall remain in the possession of the grantor, and that he shall have the control and disposition of the same, the questions whether the deed is fraudulent on its face, or is presumptively fraudulent, depend upon the purposes and facts that clearly appear from a fair construction of tlie express terms of the deed. If provisions are made in the deed for the continuance of the possession of the property in the grantor for an unreasonable time, or Cor the express benefit of the maker or Ms family, or for any other purpose which is manifestly wrong or inconsistent with the honest exercise of Ms legal right of making preferences among liis creditors, then the deed is fraudulent in law on its face. Where the dishonest purposes of the grant or are not expressly declared in the deed, or cannot bo clearly inferred from tlie terms and acts set forth, but tlie terms and acts altord reasonable ground to suspect an evil and unlawful intent, then the parlies interested in sustaining the (leed must rebut the presumptions of fraud which arise from a fair construction of the instrument. If the provisions of the deed manifest a real purpose! of making satisfaction to bona fide creditors, in the order mentioned, in a reasonable time, in a convenient manner, with no unlawful intent towards other creditors, and without any substantial benefit to the grantor, then no presumption of fraud can arise on the face of the deed,</p> <p>5. Same—Character of Business.</p> <p>There is nothing suspicious or inconsistent with honesty and fair dealing, or prejudicial to the legal rights of creditors, in a provision in a deed of trust allowing the grantor of a stock of miscellaneous merchandise, which is not consumable in !he use, to remain in possession and continue to sell the goods for cash, and deposit the proceeds under the supervision and control of the trustee, with a view to wind up the business in a convenient time, to the best advantage of the creditors.</p> <p>6. Same—Suiumus to be Paid Grantors.</p> <p>A provision in a deed directing the surplus, after payment of debts, to bo paid over to the grantor, is not fraudulent, and does not give riso to a legal presumption of fraud, as sucii rights would arise to the grantor by implication of law.</p> <p>7. Same—Preference.</p> <p>• An insolvent debtor, or ono so greatly embarrassed that an immediate sale under execution would necessarily result in injury to m my of Ms creditors, who executes a deed of trust for tho benefit of all of his creditors, or to give a preference to his sureties, to prevent one creditor by legal process from obtaining full satisfaction of his debt, to the injury of other creditors, commits no fraud.</p> <p>8. Same—Schedule oh Debts and Creditors.</p> <p>Under the statute in North Carolina, or at common law, it is not necessary for a grantor in a deed of trust to set forth a schedule of the property conveyed, where there is a sufficient general description of such property, or to attach to such deed a schedule of debts and creditors.</p> <p>9. Same—Relationship oh Parties.</p> <p>A person who assails a conveyance on the ground of the relationship of the parties must show that the debts secured are not bona fide, or that there is something feigned or simulated, or that the parties were influenced by some sinister motive.</p> <p>10. Same—Fraudulent Intent.</p> <p>The burden of proof is upon a party attacking such a deed to establish a fraudulent intent.</p> <p>11. Same—Concurrence as to Intent.</p> <p>To render a deed founded on a valuable consideration void for fraud, both parties must concur in a fraudulent intent, or the grantee must have notice of such intent, or must in some way be privy to the wrongful design.</p> <p>12. Same—Deed Sustained.</p> <p>Upon examination of the evidence and circumstances of this case, and upon a construction of the deed in controversy, held that the deed should be sustained.</p>

<p>Trade-Mark—Use by Assignee or Purchaser—Deception—Infringement-Injunction.</p> <p>An assignee or purchaser of a trade-marlc from the original proprietor must in the use thereof indicate that he is assignee or purchaser, or he will not be entitled to protection in the use of the mark so assigned.</p>

<p>1. Fraud on Creditors—Chattel Mortgage—Preferring Creditors.</p> <p>In Michigan an insolvent debtor has a legal right to secure one or more bona fide creditors in preference to others, where no fraud is intended; and the mere fact that a chattle mortgage given for that purpose operates incidentally to hinder and delay other creditors in collecting their debts does not affect the security.</p> <p>2. Same—Fraudulent Intent—Question of Fact.</p> <p>The Michigan statute declares that the question of fraudulent intent is one of fact and not of law.</p> <p>3. Same—Retention of Possession with Power of Sale.</p> <p>Provisions in a chattel mortgage that the mortgagor shall continue In possession of the property, and continue sales thereof at wholesale and retail, with an omission of a stipulation to apply the proceeds of sales to pay the secured debts, do not make out constructive fraud or fraud in law.</p> <p>4. Same—Conveyance when Void in Law.</p> <p>When a court says the law declares a conveyance void for fraud, or imputes to it fraud, what is meant is that the law will not sanction a conveyance, against the claims of creditors, when its provisions are illegal or are not reconcilable with an honest purpose, and then declares it void upon its face because no evidence could change its character; as, in case of a deed made by a debtor for his own support or benefit, or for the benefit of those dependent upon him for support, or without consideration, and the like.</p> <p>5. Same—Attachment Dissolved.</p> <p>Chattel mortgage executed by a manufacturing corporation to secure indorsers of its paper, most of whom were its directors, containing a provision that the mortgagor should Retain possession of the property and sell it at wholesale and retail, construed, and held not fraudulent as matter of law, and ground for an attachment.</p>

<p>On Habeas Corpus.</p>

<p>In Bankruptcy.</p>

<p>Patents fob Inventions— Gbain- Cab Doobs — Patents Nos. 208,226, 78,188— IlNF RINCxEMENT.</p> <p>Patent Ño. 203,226, granted to Ohauncoyli. Watson, on April 30, 1878,_ for an improvement in grain-ear doors, construed and compared with patent, No. 78,188, issued May 26, 1868,1,o Martin IVI. Orookor; and held, that defendants were not guilty of infringement.</p>

<p>Patents for Inventions—'Violation of Injunction—Suit for Infringement.</p> <p>Where a def endent lias infringed a patent after the granting of an injunction in a suit by tlie patentee, the fact that the patentee might, if lie chose, proceed against him for contempt, in violating the injunction awarded in the former suit, will not affect his right to sue for such infringement.</p>

In Admiralty. Collision. The above cross-libels were filed by the respective owners of the steam-ship Nereus and the ferry-boat Jamaica, to recover their damages arising out of a collision between these boats in the East river, about opposite North Second street, Williamsburg, at about half past eight o’clock, on the evening of June 6, 1883. The ferry-boat was crossing from Grand street, Williamsburg, to Houston street, New York, nearly directly opposite.

<p>Shipping—Liability of Ship for Damage to Cargo — Bill of Lading—Excepted Perils.</p> <p>On examination of the evidence, held, that tlie vessel was liable for the damage to tbe cargo.</p>

<p>Shipping — Injury to Cargo — Measure of Damages—Berate at CustomHouse.</p> <p>Where a cargo has been injured by Hie negligence of the vessel, the measure of the damages is the differ once between the market value of the damaged goods at the time and place of delivery and what their value would have been if uninjured, less any rebate allowed at the custom-house.</p>

<p>In Equity. Foreclosure suit. Demurrer to bill.</p>

In Equity. Suit for injunction. This cause came on to bo heard on the bill and answer thereto, and the affidavits of plaintiff and defendant, upon motion for a preliminary injunction to compel the defendant to furnish the plaintiff express facilities over its lines of railway northward between Portland and Tacoma, and eastward between Wallula junction and St. Paul.

<p>1. Bankruptcy—Schedule—Creditors’ Bill—Wife’s Property.</p> <p>In his schedule the bankrupt included his .life-interest in lands inherited by his wife from her father. There was a question whether this was a life-interest by the curtesy, or a fee acquired by transactions which occurred between the administrator of the decedent and the bankrupt before the bankruptcy, and the co-heirs of the bankrupt’s wife. After the commencement of the bankruptcy proceeding, certain creditors of the bankrupt filed a general creditor’s bill in a state court, making the bankrupt, his wife, and his assignee in bankruptcy parties defendant.; and therein sought to" settle the title of the land received by the wife as her share in her father’s estate. During the progress of this suit in the state court the wife was, while under moral duress and pressure, induced to sign an agreement jointly with her husband and the attorney of creditors that she would by deed relinquish her interest in three-fourths of her lands, and acknowledged it before the person who was to be her trustee in the other fourth; but this agreement was never recorded as the deeds of married women are required to lie by the Code of Virginia; yet it was'ratified by decree of the state court. Meld, that the creditors’ suit in the state court was eorem non judies, and could not affect- the bankrupt’s estate, or the rights of any one having a “specific claim” upon it or any part of it, who, as this wife did, came into the bankruptcy proceeding asking protection.’ Held, that the bankruptcy court had exclusive jurisdiction to administer the bankrupt’s estate, and to adjudicate between the assignee and any person having such “ specific claim; ” especially if that person came voluntarily into the bankruptcy court and asked for such adjudication. Held, that the written agreement signed by the wife to convey away three-fourths of her interest to save the other fourth, was void (1) because not signed by the assignee ; (2) because the signing of it by the bankrupt was nugatory, he being civiliter mortuus as to the estate ; (3) because it was executory and of the nature of a power of attorney, which a married woman is not authorized to execute by the Virginia statutes ; (4) because it was acknowledged before an interested notary; (5) because it was not recorded in the manner required by statute. Held, that the assignee had no power to give consent to an extrajudicial decree of the state court, the laws of congress nowhere authorizing him to become defendant to a suit commenced in invidiam, towards and essentially in conflict with the jurisdiction which the bankruptcy legislation of congress gives to the bankruptcy court.</p> <p>2. Same—Wife as Witness.</p> <p>In proceedings in bankruptcy the wife of the bankrupt is a competent witness to facts affecting the estate in bankruptcy, and so is every party to any “trial or cause” arising under the bankruptcy act, (section 8, act June 22, 1874, amending section 26 of the general bankruptcy act.)</p> <p>3. Same—Husband as Trustee.</p> <p>Where a husband has by fraud or mistake been invested with the title in fee-simple of real estate inherited by his wife, equity will treat him as trustee of his wife, and a court of bankruptcy will refuse to subject the land to liens of' the creditors of the husband who is a bankrupt.</p> <p>4. Same—Limitations</p> <p>The limitation of two years to suits brought by or against assignees against or by persons in adverse interest, provided in section 4979, Rev. St., applies to suits at law and in equity brought independently of and separate from the bankruptcy proceeding proper, on the common law or equity side of the courts entertaining them; but does not interfere with or limit the jurisdiction of the bankruptcy court to “ ascertain and liquidate liens and specific claims,' and to adjust the various priorities and conflicting interests of all parties ” to the bankruptev proceeding proper. Ln these latter the bankruptcy court proceeds as directed”by section 4972, without reference to the two-years limitation.</p> <p>5. Same—Effect of Bankruptcy Proceedings.</p> <p>The proco ding in bankruptcy is equivalent to the general creditors’ bill in chancery, and is a plenary proceeding, its practice being prescribed by statute, and to that extent variant from the chancery practice obtaining in creditors’ bills. Bo far as not varied by statute, the practice should be the same. The collateral proceedings incident to and arising in the course of a bankruptcy proceeding, in the form of petitions and motions nisi, against persons already parties to the bankruptcy proceeding, are of the same character as like collateral proceedings incident to and arising in a creditors’ hill in chancery; and are summary, or not, only where they would he so in a creditors’ bill, except whore allowed by statute.</p> <p>6. Same—New Parties.</p> <p>A stranger to a bankruptcy proceeding may come ini o it voluntarily, by petition or other plenary method, and submit to the bankruptcy court his rights touching properly in the custody of the court, claimed as assets by the assigneee in bankruptcy.</p> <p>7. Same—Effect of Proceeding.</p> <p>The petition of such a party, filed collaterally in a bankruptcy proceeding, calling for an answer, which answer is filed, and under which depositions are then taken and a hearing had, on a formal making up of issues, is a plenary proceeding and binds all'parties to it.</p> <p>8. Same—Bankruptcy Rule 32—Equity Rum; 88.</p> <p>Under rute 32 in bankruptcy tlie practice in bankruptcy proceedings must bo conformed, when practicable, to tlie practice in equity; and therefore, under rule 88 in equity, petitions for review in cases where appeal lies must be brought within the term of the court in which the decree sought to be reviewed was rendered ; otherwise, petitions for review will not he heard by tlie bankruptcy court. Therefore, it is too late for a review of its own decree by a bankruptcy court when the petition for review is not tiled within the term of the court at which tlie decree is rendered, and when an appeal could have been taken.</p>

<p>1. Patents for Inventions—School Desks—Patent Ho. 86,440, Claim 2.</p> <p>The second claim of patent Ho. 86,440, granted to John Peard, February 2, 1869, for an improvement in school desks, construed, and held not infringed.</p> <p>2. Samf.—Combination of Old Elements—Validity.</p> <p>In a patentable combination of old elements, all the constituents must so enter into it as that each qualifies every other. It must form either a new machine of a distinct charad er and function, or produce a result due to the joint and eo-. operating action of all the elements, and which is not the mere adding together of separate contributions. Otherwise, it is only a mechanical juxtaposition, and not a vital union.</p> <p>3. Same—Patent Ho. 113,232.</p> <p>Letters patent Ho. 113,232, granted to John Peard, May 23, 1871, for an improved school desk, held, void.</p>

<p>Patents for Inventions—Hammocks—Ineiiingemknt.</p> <p>Letters patent No. 217,964, issued to James P. Travers, July 29, 1879, for an improvement in hammocks, held not infringed by the hammock manufactured under patents issued to Isaac E. Palmer, in January and February, 1883.</p>

Motion to Consolidate.. For a history of the original and 'cross hill filed here, see 22 Fed. Bep. 272. The bill was filed in the state court, because of doubts as to the jurisdiction of this court in the suit before it. The suit in the state court was removed, and the motion to consolidate made by the Wabash, St. Louis & Pacific Bailway Company.

<p>Jurisdiction—Bquitv—Set-Off—State and Federal Judgments.</p> <p>Tlie relation between the state and federal courts imposes a restriction upon the equity powers of either in setting off a judgment of the one against a judgment of the other. Where, therefore, a federal court of equity is asked to set aside the satisfaction of a state judgment at law or to determine equitable defenses to that judgment, as a preliminary to a decree of»set-off against a judgment of the federal court itself, the parties will be sent to a state court of competent jurisdiction to ’settle their controversy, and in the mean time the federal judgment will be stayed.</p>

Bill to Quiet Title. Motion to appoint a receiver. The bill states, among other things, that- the defendant has attempted to take forcible possession, and prays for an injunction, and the appointment of a receiver to take charge of the property in dispute, pending the proceedings herein, or until the further order of the court.

<p>1. Receivers—Ante-Receivership Debts—Attorneys’ Rees.</p> <p>A claim of an attorney against a railroad, for fees earned a year and a half before the appointment of a receiver, is not entitled to any preference.</p> <p>2. Same—Attorneys’ Salary.</p> <p>Whore the annual salary of the attorney of a railroad falls due only a short time before the road is placed in the hands of a receiver, his claim against the company is entitled to priority over that of mortgage bondholders.</p> <p>3. Same—Payment oe Judgment against Road.</p> <p>One who pays a judgment against a railroad company a few weeks before the appointment of a receiver, under an agreement that the amount, so advanced shall be repaid by the company, is not entitled to priority over bondholders.</p>

In Equity. Exceptions to master’s report. It appears that the intervenor paid the judgment referred to in the opinion of the court.

<p>Exceptions to Master’s Report.</p>

<p>1. Assignment sou Benefit ob' Creditors — How. St. Mien. U 8739, 8744 — HRAUDUDEm’ PREFERENCES.</p> <p>A creditor in Michigan inay take security by mortgage, or otherwise, from an insolvent doblor, with knowledge of his financial weakness, so long as the creditor has no notice or knowledge that the debtor contemplates making an assignment, but the security must be given at tlie instance of the creditor, be duly delivered, and he must have no notice or knowledge of any fraudulent purpose, within the meaning of the statute.</p> <p>2. Same—Chatted Mortgages Held Void.</p> <p>When an insolvent, at his own instance and convenience, voluntarily gives some of his creditors security, it is at once a suspicions circumstance, and if followed within a short time by an assignment, the conclusion will he justified, in the absence of other controlling circumstances, that both were contemplated, and should be deemed in law one transaction; and such securities will be held void. Chattel mortgages held void.</p>

<p>Petition for Instructions.</p>

<p>At Law. On demurrer.</p>

<p>Application for a Mandamus.</p>

In the Matter of the Order on Edward Doolittle and William Sehanbacher to show cause why they should not bo punished for contempt in interfering with property in the hands of the receivers of this court.

In Admiralty. At about 2 a. m. on the fifth of July, 1883, the steam-ship Penn-land, of the Eed Star line, bound from Antwerp to New York, when near Nantucket, in crossing the bows of the brig Stacy Clark, bound from the Kennebec river to Savannah, carried away the latter’s jib-boom, bowsprit, and head-gear, to recover damages for which this libel was filed.

In Admiralty. This was a libel for a collision, promoted by Elizabeth McClure, who was averred to be the owner of the scow Frank Morris, the injured vessel.

<p>Removal on Cause—Demurrer—Time oi? Application—Stipulation to Tile new Pleadings.</p> <p>Where a demurrer has been filed in a cause pending in the slate court, raising an issue that would be triable at the regular term of the state court, but a stipulation has been filed by which it is agreed to withdraw the pleadings and file a new declaration and plea making an issue of fact, the case cannot, alter the term at which the demurrer would' have been heard, be removed to the United , States court.</p>

<p>1. Removal of Cause—Record—Stipulation—Certiorari.</p> <p>Where by stipulation of the parties certain pleadings in the state court have been taken out of the case, the circuit court will not grant a certiorari to order the clerk of the state court to add such pleadings to the record.</p> <p>2. S-We—Evidence.</p> <p>Although such pleadings have been taken out of the record by stipulation, they may be used in the United States court, when property verified, to show-what has been done in the state court, with a view to showing that the application for removal was made too late. .</p>

<p>1. Removal of Cause—Citizenship—Corporation, how a Citizen of a State.</p> <p>Strictly speaking, corporations cannot be citizens, and in order to bold tliem amenable to federal jurisdiction, on the ground of citizenship, it is necessary to assume that all the stockholders are citizens of the state by which the corporation was created.</p> <p>2. Same—Business and Office in Another State.</p> <p>A corporation for jurisdictional purposes is a citizen of the state by which it was created, oven if all its business is transacted elsewhere, and all of its offices and places of business are outside of the state.</p> <p>3. Same—Consolidated Corporations—Suit ry Corporation.</p> <p>A consolidated corporation formed by the union of six corporations, three of which wore organized under the laws of Missouri and three under the laws of Kansas, will be presumed to be a citizen of both states, and, when sued in a state court in Kansas by a corporation organized under the laws of Missouri, camiot remove the cause to the federal court.</p>

<p>Jurisdiction op Circuit Court—Receiver Appointed tn Another State— Order op Payment op Claim—New Jersey Statute—Verdict—J udgmext.</p> <p>A verdict jefore entry of judgment thereon creating no lien on real estate in New Jersey, when a receiver for a railroad corporation, against which such verdict has been obtained, has been appointed before suck entry by the United Stales circuit court for tlic district of New Jersey, in a proceeding ancillary to a suit in the circuit court for Pennsylvania, the receiver will not he ordered by the court in New Jersey to pay such judgment; but the plaintiff will be compelled to make application for an order for payment to the court in Pennsylvania.</p>

<p>Equity Jurisdiction—Adequate Remedy at LAw—Rev. St. § 723.</p> <p>A bill in equity that asserts tliat plaintiff is entitled to certain property in tlie possession of the defendant, and prays that it be delivered up, and that defendant may be decreed to specifically perform his contract to deliver it, and may be enjoined from setting up any claim to it, and that if he has any lien thereon redemption may be allowed therefrom, does not state a case within the equity jurisdiction of a United States circuit court, as plaintiff has an adequate remedy at law by the action of replevin.</p>

<p>Suit to Enforce the Lien of a Mortgage.</p>

<p>Action to Recover Excess of Duties Paid to the Collector.</p>

<p>On Rule to Show Cause, etc.</p>

<p>Bankruptcy Appeal. For decision of district court see 12 Fed. Rep. 69.</p>

<p>Criminal Law and Procedure—Per;iury—Material Matter—Key. St. j 5392 —Cross-Examination before United States Commissioner.</p> <p>Where a party charged with counterfeiting, on examination before a United States commissioner, testifies, on cross-examination, in answer to a question, that he has never been in prison, when he has been in a state prison, simh false answer amounts to “material matter,” within the meaning of liev. St. § 5392, and an indictment, for perjury will lie.</p>

<p>1. Patents for Inventions—Wire Mattresses—Farniiam Patent—Reissue No. 7,704—Novelty.</p> <p>Reissued patent No. 7,704, granted to the Hartford Woven-wire Mattress Company, as assignee of John M. Parnham, for an improvement in bedstead frames, on May 29, 1877, held not void for want of novelty, and infringed by defendants.</p> <p>2. Same—Perkins Patent No. 109,4-16.</p> <p>Patent No. 109,446, granted George C. Perkins for an improvement in woven-wire fabrics for mattresses, dated November 30, 1869, held void for want of invention.</p>

<p>Patents for Inventions—Infringement—Preliminary Injunction—Laches.</p> <p>Where a patentee has known oí infringement by a party of liis patent, and acquiesced therein for a considerable length of time, a preliminary injunction will not be granted, without an explanation of such acquiescence.</p>

<p>1. Patents for Inventions—Infringement—Defense of Irregular, Tssue by Patent-Office.</p> <p>In. a suit for infringement a patent cannot be invalidated by sbdwing that {lie requirements of the statute, to be observed by tlie commissioner of patents in order to its issue, have not been regarded.</p> <p>2. Same—Duration of Patent—Improper Issue—Foreign Patent.</p> <p>Where letters patent have boon issued by the patent-office for a period of toss than 17 years, because of a reference to a supposed foreign patent, and the inventor has refused to accept them, and on further examination such letters are canceled and a new patent issued, the time intervening between the issue and allowance of the patent should not be deducted from the term of the ¡latent, but the patentee be allowed to enjoy his monopoly for the full term of 17 years.</p>

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

<p>1. Salvage—Rudderless Steamer.</p> <p>The steamer Alaska, of the Guión line, -while on one of her regular voyages from Liverpool to New York, encountered heavy weather, and when she was some 600 miles from New York, her rudder was found to be broken and unserviceable. She accordingly lay to, while her captain exhibited signals of distress, and attempted various expedients for steering- her, none of which proved available. At the end of two days the steamer Lake Winnipeg, of the Beaver line, observed the signals and came to her assistance. At an interview between the captains of the two steamers, it was agreed that, the captain of the Lake Winnipeg should assist the Alaska to Now York by allowing herself to be towed and to serve as a rudder for the Alaska, which was the faster steamer. Chains were passed from each stern-quarter of the Alaska to the bows of the Lake Winnipeg, distant some 90 fathoms, in such a manner-that the Lake Winnipeg, by altering the direction of her bow, would slue the stern of the Alaska to one side or the other, and thus keep her head pointed in the required direction. The vessels proceeded in this way to New Yoris, with the exception of some 149 miles, which the Alaska during 18 hours of one day ran alone, keeping- in the desired direction b3 means of her sails. On the fourth day they arrived in New York; and on the day after arrival, and without making a previous demand, the owner of the Lake Winnipeg filed a libel for salvage. The Alaska, with her cargo and freight, was valued at $1,041,542, while the Lake Winnipeg, her cargo and freight, were worth between 8325,000 and §350,000. Held, that 826,039, or 2J£ per cent, of the value of the Alaska, and cargo was a proper salvage award. The Great Eastern, 3 Moore, P. C. (N. S.) 31. The facts of her salvage case stated.</p> <p>2. Same—Amendment to Libel—General Rebates to Salving Vessel—Evidence.</p> <p>In addition to salvage, the libelant claimed a large sum for general damage to ihe Lake Winnipeg. After the return of this vessel to'Liverpool from New York, she was put upon a dock; and it was alleged that various injuries wore then discovered, which were claimed to have been the result of her service to the Alaska. The original libel was thereupon amended on the trial to take in this claim. Held, that such injuries, if proved, might he recovered; but that the evidence was insufficient to charge the Alaska specifically with the general repairs referred to. But in fixing a gross award full consideration was given to the Lake Winnipeg’s liability to general injury in such a service, and an allowance made sufficient to cover all such damage as might naturally and reasonably be deemed incident to her peculiar service.</p> <p>3. Same—Liability oe Yessbl eor Salvage Due by Cargo.</p> <p>A ship is not liable for the proportion of salvage due from her cargo.</p> <p>4. Same—Costs.</p> <p>Respondents claimed that costs should not be allowed (1) because there was no demand before suit; and (2) because excessive bonds for 20 per cent, of the value of the cargo were taken. Held, that the circumstances of this case were so peculiar, and a claim of salvage necessarily so indefinite,.that a previous demand was immaterial. It was necessary for the libelant to file its libel at once to enforce its claim against the cargo before it was delivered. Also, though stipulations were taken on account of the cargo to the amount of 20 per cent., there was no evidence of any objection to giving such stipulations, and they were taken upon the simple written obligation of the insurers, without, sureties. Costs were allowed, with the exception of the depositions taken in Liverpool as to the alleged general damages.</p>

<p>1. Commissioners’ Report — Evidence as to Value of Vessel—Best Evidence.</p> <p>A collision occurred between tbe steamer City of New York and tlie iron bark H., which resulted in the total loss of the bark and injury to the steamer. On the trial both vessels were found in fault, the damages were directed to be divided, and the matter referred to a commissioner to take proof of damage. In the testimony as to the value of the bark, it was shown that no sale of an iron vessel had ever taken place in New York, and market value could not he proved here. Libelants offered the testimony of one witness, an insurance inspector, who had seen the bark six years before; but they did not issue a commission to Dundee, where the bark was built, to obtain evidence, of her value, either from cost of construction or from known sales of similar vessels. Respondents’ witnesses, who were equal as experts to the witness of the libelants, put a lower value on the hark. Held that, as libelants had not produced the best evidence in their power, the estimates of respondents’ witnesses must be adopted.</p> <p>2. Same—Evidence as to Value of Stores.</p> <p>Testimony as to the ship’s stores was given chiefly by the mate of the bark, who made a list- of them from his recollection. No evidence was given as to the the actual purchase of stores. Held, that the estimate of the value of a vessel ordinarily includes her usual outfit. As there was nothing in the mate’s testimony to indicate how much of the stores of the bark was in excess of her usual outfit, some deduction must he made on this account.</p> <p>3. Same—Allowance for Supposed Stores.</p> <p>Stores which it was alleged such vessels as the IT. usually carried, hut which were not included in the mate’s list, and as to which there was no direct evidence, held, disallowed.</p> <p>4. Same—Depreciation of Cargo—Invoice Value tiie Standard.</p> <p>The cargo of the bark was sugar, laden at Havana. It was proved that on such a cargo as this there is a loss of weight, from Havana to New York, of from 3 to 5 per cent.; and, as the bark was lost within half a day’s sail of New York, the owners of the steamer contended that a deduction to that amount should 1)0 made from the invoice weight. Held, that the rule allowing’ the invoice value of the cargo at the port of shipment applies to the value of the cargo there as a whole, and that no dedueiion for natural loss or shrinkage in weight merely could be allowed.</p> <p>5. Same—Agency Commission.</p> <p>The steamer was obliged to put hack to New York for repairs, and part of her cargo was there taken out and si orod on the st earner’s wharf. A n allowance was made 10 the owners of the steamer for their expenses in unloading and loading again, and for storage; in addition to which they claimed an agency commission for care of cargo. Held, that such claim, in addition to storage, should be disallowed, it appearing that they had stored the cargo in their own buildings.</p>

<p>In Admiralty.</p> <p>This libel was filed to recover demurrage for the detention of the Norwegian bark Emigrant, in the loading and discharge of a cargo of iron ore, under a charter of that vessel from Gartliagena, Spain, to New York. The charter provided that she should take on board “say about 600 tons of iron ore, to be loaded and discharged at the rate of 70 tons per weather working day of 24 hours, Sundays and holidays excepted;” the cargo “to be received and delivered in turn, as customary, at the ports of lading and discharge,” and “delivered as directed by the consignees,” the charterers to have “the option of averaging the days for loading and discharging, in order to avoid demurrage ;” “lay days to commence at six o’clock in the morning, after the ship is reported and all ready to load or discharge, of -which the captain is to give notice in writing to the shippers and consignees;” “demurrage over and above the said lay days, ¡£8 per day of 24 hours, except in case of any hands striking work, frosts or floods, revolutions or wars, or any unavoidable accidents which may hinder the loading or discharge.” The number of lay days was not specified.</p> <p>The vessel took on board at Gartliagena 560 tons of ore, occupying 10 -weather working days, and arrived with it at New York on the twenty-second of January, 1881. After being first directed to go to Jersey City, to which objection was made by the captain, she was directed to Atlantic docks, Brooklyn, to be discharged in lighters. The discharge was commenced on the twenty-seventh of January, as soon as the bark was ready, but was not completed until the eleventh of February. Two days’ time having been lost at Carthagena, the libel-ants claimed that but six remained available to the claimants, leaving eight days’ detention, for which demurrage was claimed.</p>

<p>1. Corporations — Trust Relations between Officers and Corporation-Stockholders.</p> <p>While the officers ot a corporation occupy trust relations to it, and in 1ho faithful performance of such trusts they would indirectly subserve the interests of other stockholders, trust relations to the corporation do not, as to the stockholders, create trust relations inter seso.</p> <p>2. Same—Trust not Shown—Evidence.</p> <p>On examination of the evidence in this case, held, that no trust as between the parties is shewn, and that the fraud charged is not proven.</p>

<p>1. Constitutional Law—Act Discriminating between White and Black in Distribution of School-Fund Void. .</p> <p>Former opinion, 16 Fed. Rep, 297, adhered to.</p> <p>% Same—Mandatory Injunction.</p> <p>The United States circuit court for the district of Kentucky has no power to issue a mandatory injunction requiring a distribution of the money raised from taxation for public schools, under the acts of the Kentucky legislature passed in 1881, as there is no authority in said act for such distribution, and complainants have no contract which the court can enforce by affirmative relief.</p>

<p>Charge to Jury.</p>

On demurrer to a plea in abatement. " The action was replevin.

<p>1. Bond of a Gcakdian.</p> <p>Under section 10 of tho act of December 16, 1853, (Laws, Or. 739,) the security required of a guardian, licensed to sell the real property of his ward, is a writing obligatory or “bond” in a definite sum, and upon the conditions therein specified, and not amero “undertaking;” and such bond must be given in such sum as the county judge may direct, and with such sureties as he may approve.</p> <p>2. Same—Who may Question Sale on Account of.</p> <p>Wo one can question the validity of a guardian’s sale for want of sufficient security given by him, except tho ward or some one claiming under him.</p>

<p>Cotton Exchange—Sale—Margins—Custom.</p> <p>In the absence of a special agreement or proof of knowledge of a custom of the cotton exchange of New York, a broker in that city who sells cotton before maturity of the contract, because of a failure on the part of his pi’incipal to advance margins, cannot recover from such principal the amount of loss sustained by reason of such sale.</p>

<p>Customs Duties—Boxes of Tin Plates—Reappraisement—Examination of Boxes—Act of August 30, 1842.</p> <p>Plaintiff imported in 1853, from Liverpool, 1,300 boxes of tin plates of four different kinds, and of different value, and one box of each kind, being four boxes in all, were designated by tlie collector for examination and appraisal, and on appraisal increased duties and a penalty were imposed. Plaintiff paid, the penalty and increased duties under protest, and brought suit to recover the amount. Held, that the act of August 30,1842, §§ 16, 17, 21, under which the appraisal was made, required one in every ten boxes to be examined and appraised, and that no waiver of the statute being shown, the increased duties and penalty imposed were illegal, and that plaintiff was entitled to recover.</p>

<p>1. Customs Duties—Beans—Act oe March 3, 1883.</p> <p>All ordinary beans are subject to a duty of 10 per cent. 22 St. at Large, 488, 517, 520.</p> <p>' 3. Same—Verdict—Mistake as to Amount.</p> <p>In an action to recover excessive duties, wliere the jury, by mistake in calculating the amount of duties illegally exacted, render a verdict for too large an amount, such verdict may be sustained on remitting the excess, and a new trial refused.</p>

<p>Customs Buttes—Bone-Buack—Rev. St. § 2504.</p> <p>Bone-black is not included in tiio clause, “ bones crude, and not manufactured, burned, calcined, ground, or steamed,” in the free-list of section 2504 oí the Revised Statutes.</p>

<p>Bankruptcy—Statute of Limitations—Action by Assignee against Bankrupt Claiming Land as Homestead.</p> <p>' The limitation prescribed by Rev. St. § 5057, applies to a suit-by an assignee in bankruptcy against the bankrupt, to recover land fraudulently claimed and retained by the bankrupt as his homestead.</p>

On Application for Warrant of Eemoval and Habeas Corpus. The petitioner for habeas corpus in this case was, on the eleventh of September, 1884, at a term of the United States district court of Kansas, begun and held at Wichita, indicted for the crime of arson, in the Indian Territory.

<p>Patents for Inventions—Patent Obtained by Fraud—Motion to Reopen Case.</p> <p>Motion to reopen case for further proof denied, and former opinion (22 Fed. Rep. 6531 adhered to.</p>

<p>Admiralty Practice—Exceptions—Final Hearing—Costs.</p> <p>The liearing of exceptions to a pleading in admiralty, where the exceptions are in the nature of a special demurrer, or a motion to make more definite and certain, is not such a “ final hearing in equity or admiralty,” under section 824 of the Revised Statutes, as to entitle a party to a docket fee or costs.</p>

<p>Towage—Negligence—Injury to Canal-Boat in Look.</p> <p>On examination of tlie evidence in this ease, held, that negligence on the part of the steam-tug Nellie Flagg, causing the injury to the canal-boat William A. ltundell, was not shown, and that the libo! should be dismissed.</p>

Exceptions to Master’s Beport. The intervenors’ claim in this ease is for lumber furnished from time to time, between August 20,1883, and December 3, 1883. Default in the payment of interest took place September 1, 1883, and a receiver was appointed January 12,1884.

In the Matter of the Application of Messrs. Green, Burnett & Humphreys, for an allowance for professional services as attorneys for the petitioner in Wabash & St. L. & P. Ry. Co. v. Central Trust Co. and others.

<p>1. Assignment for Benefit of Creditors—Reservation of Exempt Property —Partnership Assignment.</p> <p>Where an assignment by a firm in Mississippi excepts from the property conveyed such portion of it as is exempt by Jaw from sale under execution, as provided by the laws of that state, without designating what property is claimed, and whether it is partnership property or individual property, the presumption will be that the exemption was intended to be out of the individual property of each partner, and the assignment will not be void.</p> <p>2. Same—Attorney’s Pees.</p> <p>A provision in an assignment that the assignee may, as part of the expenses of executing the trust, pay necessary attorney’s fees, will not invalidate the assignment, unless such fees are to be paid for defeating an attachment.</p> <p>3. Same—Payment of Pirm Debts—Payment of Partner’s Debts.</p> <p>That the asssignment appropriates all of the assets belonging- to the firm and to each individual member to the iiayment of the partnership debts, and, if any shall remain, then the remainder, whether arising from the partnership assets or that belonging to the individual members, to the iiayment of the individual debts of the assignors, will not render it void.</p> <p>4. Same—Intent to Defraud Creditors.</p> <p>On examination of the circumstances, as disclosed by the evidence in this case, held, that the assignment was intended to defraud creditors, and was fraudulent in fact.</p> <p>5. Same—Power of Assignor to Execute Assignment.</p> <p>It further appearing that the member of the hanking firm who executed the assignment in this case had no authority to do so, held, that it was void in ioto.</p>

<p>Injunctions—Scramble ron. Possession—Railroads.</p> <p>Where there is a dispute as to the possession and right of possession of a railroad track, which is not in the actual possession of either party to the controversy, this court will not interfere by injunction.</p>

Demurrers to Bills and Petitions. Tho demurrers in all the above-entitled cases were passed upon in the following opinion. The period within which suits of this character must be brought, under the Missouri Statutes, (section 3230,) is fivo years. The other material facts are sufficiently stated in the opinion of the court.

<p>1. Descent and Distribution—Alienage.</p> <p>The law existing at the time of descent east, governs the right of aliens to inherit realty.</p> <p>2. Same.</p> <p>Under the Missouri statutes existing in 1860, aliens could not inherit realty.</p> <p>3. Equity Practice in Removed Uase.</p> <p>Where a suit, embracing both an equitable and legal cause of action, is instituted in a state court and removed to this court, and the equitable cause of action stated is held bad on demurrer, the bill will be dismissed, aud the complainant left to pursue his remedy at law.</p>

Exceptions to Mastbr’s Report. The claim of the intervenor in this ease is for a balance of $2,861.91, due it for lubricating and illuminating oils furnished the Texas & St. Louis Railway Company, at various times from October 17, 1882, to January 10, 1884, inclusivo.

Motion, for Rehearing. For a statement of facts and opinion on exceptions to master’s report, see 22 Fed. Red. 769. In Central Trust Co. v. Texas & St. L. Ry.

<p>Verdict—Power of Court to Correct Mistake in.</p> <p>Where a jury, iu an action for services, returned a verdict for plaintiff for $3,500, and two days after, while counsel for both parties were present, the court directed the jury to be recalled, and they all, on being asked if that was their verdict, answered that it was not,—that their verdict was for $3,500, with interest,—held, that the court had power to cause the mistake to be corrected, and that the plaintiff should have judgment for $3,500, and interest.</p>

Plea in Abatement and Demurrer to the Evidence. The plea states that the defendant is a resident of Tennessee, and came into this district to attend the trial of a case in which he was plaintiff, and a necessary witness on his own behalf; that while attending the trial of said case he was served with a subpoena in another case then pending in the St. Louis circuit court, and while attending as a witness in the latter case, in obedience to said subpoena, was served with…

Motion to Set Aside the Yerdict and Judgment. Suit upon a fire insurance policy taken out by the assured through a broker. The policy contained among its conditions the following: “If any broker or other person than the assured have procured this policy, or any renewal thereof, or any indorsement thereon, he shall be deemed to be the agent of the assured, and not of this company, in any transaction relating to the insurance.

<p>Promissory Notes—Options—Notice—Reasonable Time.</p> <p>Where a demand note, given as security for a continuing option transaction, but valid on its face, was bought in the regular course of business and for full value, 23 days after date, by one who knew the payees of the note dealt in options, and suspected, but did not know, that it had been taken in some option deal, held, (1) that the note had been negotiated within a reasonable time; (2) that the purchaser was a bona fide holder without notice.</p>

<p>1. Accident Insurance—Alleged Injury—Question for Jury.</p> <p>In an action on an accident insurance policy the question whether deceased was injured by jumping from a platform as alleged, is a question of fact for the jury to determine from all the circumstances of the case as shown by the evidence.</p> <p>2. Same—“Accidental” Defined.</p> <p>,The term “accidental” as used in an accident policy is used in its ordinary sense, and means “happening by chance, unexpectedly, or not as expected.”</p> <p>3. Same—“ Accidental Means ” Defined.</p> <p>4. Same—“External and Visible Signs of Injury”—Internal Injury.</p> <p>An injuiy that is internal may afford external indications or evidences, which are visible signs of'the injury within the meaning of such term as used in an accident policy.</p> <p>5. Same—“Sole and Proximate Cause of Death.”</p> <p>In an action on an accident policy where it is shown that the deceased sustained an accidental injury to an internal organ, and that necessarily produced imflammation, and that produced a disordered condition of the injured part, whereby other organs of the body could not perform their natural and usual "functions, and in consequence the injured person died, the original injury will be considered as the proximate and sole cause of death; but if an independent disease or disorder, not necessarily produced by the injury, supervened upon the injury, or if the alleged injury merety brought into activity a then existing but dormant disorder or disease, and death resulted wholly or in part from such disease, the injury cannot be considered the sole and proximate cause of death.</p>

<p>Life Insurance—Knights of Honor—Changing Appointment of Benf.ficiary.</p> <p>A party to whom a benefit certificate has been issued by the order of the Knights of Honor may revoke the appointment of the beneficiary named therein, and appoint a new beneficiary, to whom the benefit will be payable on his death, “ in good standing.”</p>

<p>Practice—Order to Furnish List of Stockholders—Bev. St. Mo. j 737.</p> <p>Where a creditor of a corporation, has obtained judgment and had execution issued against it, and the execution has been returned nulla bona, without any demand having been made upon the officer in charge of the company’s books, for a list of the names, places of residence, etc., of the stockholders liable for unpaid balances upon their stock, this court will not make a peremptory order on such officer to’ furnish such list.</p>

<p>Motion to Withdraw Plea of Guilty.</p>

<p>Patents—Horse- Coll abs.</p> <p>Letters patent No. 157,367, issued to John M. Bright, for an "improvement in horse-collars,” held not infringed by a sweat-olotli, composed of a series of detachable sections.</p>

<p>Tug with Dredge in Tow—Yegligenor in Starting Suddenly.</p> <p>Set; liead-noto to same ease in the distriol court, 15 Bed. Hep. 924. The decision of the the district court in the same case affirmed.</p>

<p>1. Demurrage—Custom—Discharge into Lighters—False Kotice—Reasonarlic Diligence.</p> <p>It is the usage in the port of .New York for ships loaded with kainit to discharge into lighters. Under this usage it is the ship’s duty to wait for lighters a reasonable time before discharging on the dock. The master of the ship Cleopatra, loaded with kainit, sent word to the consignees on .January 11th that the ship was at the dock ready to discharge, and requested lighters to be scut at once. She did not reach the dock till the morning of the 12-th, which was Saturday. Ko lighter was sent till the 15th. The ship claimed demurrage for llio 12th and the 14th. The consignees claimed that she was discharged in a reasonable time. JIdd, that false notice of readiness to discharge was no notice, and therefore the ship was not entitled to demurrage for the 12th. But the notice was sufficient to have enabled the consignees to have a lighter alongside on the 14th, and therefore the ship was entitled to demurrage for that day. JIdd, also, that, under the usage to discharge into lighters, tlio ship had a right to demand that lighters shall be brought along-side with reasonable diligence, and to receive aboard as fast as the ship can deliver, in the absence of special circumstances preventing; no fixed rate of tons per day being obligatory.</p> <p>2. Same—Discharge on Dock in Absence of Lighter—Liability Therefor —Custom.</p> <p>The ship Carl, loaded with kainit, began to discharge into lighters. Having filled one lighter at 12 m., and no other being then along-side, she began at 2 i*. m. to discharge on the dock. Another lighter came the next morning. Held that, in view of the absence of any fixed usage to discharge a particular number of tons per day, the ship had no right to begin to discharge on the dock without reasonable and timely notice of her intention; and that the slight delay in the coming of the second lighter did not justify the Carl in discharging on the dock; and that the consignee was entitled to recover the extra expense thereby occasioned him.</p>

<p>1. Wharfage—State Statute—Demand—Double Wharfage.</p> <p>Tire statute of the state of New York (Laws 1877, <s. 315) provides that double wharfage may be recovered by a wharfinger from a vessel which leaves the pier without paying wharfage. Held, that to entitle the wharfinger to such double wharfage under that statute, there must be proof of a demand of single wharfage before the vessel departs from the pier, though the statute docs not require the demand to be made at the vessel.</p> <p>2. Same—Statutory Jaén—Limitation.</p> <p>A lien created by a state statute, which fixes no limit 01 lime within which the lien must bo enforced, is not lost by delay.</p> <p>3. Same—Pleading—Laches.</p> <p>The defense that a lion has been lost by laches, if not pleaded, must be ex-eluded. The decision, in The Francesca T. 9 Ben. 34, modified.</p>

<p>Bill of Lading—Indorsement for Yat/ue—Master’s Copy—Delivery of Cargo.</p> <p>Tlie decree oí tlie district court in the samo case (18 Bed. Hep. 189) affirmed.</p>

<p>Collision—Steam and Sail Vessels—Approaching Steamer—Torch-Light-Tug and' Tow—Lookout—Lights.</p> <p>Where a collision occurred on the ocean between a bark and a schooner which was in tow of a tug, and the tug’s lights were seen by the bark some two miles off, but the bark’s lights were not seen by the tug or the schooner till collision was inevitable, the night being dark, but a good night to see lights, and the vessels approached each other on such courses that the bark passed within 100 feet of the tug, held, that the hark was in fault for not showing a torch on her how, and the collision must be held on that ground alone to have been caused by her fault; that, as the hark had her side lights placed on the mizzen rigging she was charged with the burden of showing clearly that the lights so placed would not he obstructed by the sails, and that, the testimony failed to show this; that the tug was not in fault for having the lookout in the pilol-liouse, with the man at the wheel, when it was only 15 feet from the pilot-house to the stem, and a lookout stationed on the deck between the pilot-house and the stem would be in danger of being swept off by the sea; that the bark was liable for the damage arising from the collision.</p>

<p>Bill to Quiet Title—Life-Tenant and Remainder-Man.</p> <p>A remainder-man cannot maintain a bill against a life-tenant to prevent liis denying tlie former’s interest in the estate, and from making leases extending beyond the term of liis natural life.</p>

<p>Exceptions to Master’s Report. Intervening petition of Thomas Ingram.</p>

<p>Suit to Determine Estate in Real Property and for an Injunction.</p>

<p>1. Receivers—Interference of Strikers — Inducing Employes to Leave Service—Contempt.</p> <p>Where employes of a railroad company that is in the hands of a receiver appointed by the court, are dissatisfied with the wages paid by the receiver, they may abandon the employment, and by persuasion or argument induce other employes to do the same; but if they resort to threats or violence to induce the others to leave, or accomplish their purpose, without actual violence, by overawing the others by preconcerted demonstrations of force, and thus prevent the receiver from operating the road, they are guilty of a contempt of court, and may be punished for their unlawful acts.</p> <p>2. Same — Conspiracy to do Unlawful Act — Liability of All for Acts of Individual Conspirator.</p> <p>Where a party of men combine with intent to do an unlawful thing, and in the prosecution of that unlawful intent one of the party goes a step beyond the balance of the party and does acts which the balance do not themselves perform, all are responsible for what the one does. It is essential, however, that there should be a concert of action,—an agreement to do some unlawful thing.</p>

<p>Keceivers—Strike.</p> <p>Complaints of railroad employes considered, and duties of receiver and employes discussed, in regard to management of road.</p>

<p>1. Gabblers of Passkngebs — Limiting Liability fob Loss of Baggage — Printed Conditions on Ticket.</p> <p>The liability of a railroad company for the safe carriage of a passenger’s baggage is not limited by a notice printed upon the face of the ticket, issued by it, stating the terms upon which baggage will be carried, unless the passenger’s attention is called to it when purchasing the ticket, or unless the circumstances of the transaction aro such as to make the omission of the passenger to read the conditions on the ticket negligence per se.</p> <p>2. Samf.—Passengeb Unable to Bead—Explanation by Agent.</p> <p>Where the passenger is unable to read, and no explanation is made by the agent of the company selling the ticket, he is not bound by the special terms and conditions printed on such ticket.</p> <p>3. Same—Connecting Lines—Duty and Liability'—Special Contract.</p> <p>Where a railroad company, whoso road connects with othor roads, receives baggage for transportation beyond the termination of its own line, it is only bound, in tlie absence of a special contract, to safely carry over its own route, and safely to deliver to the next connecting carrier; but any one of-tlie companies may agree that its liability shall extend over tlie whole route.</p> <p>4. Same—Evidence of Special Contract.</p> <p>The sale of a through ticket is a fact that may bo taken into account in determining what the undertaking of the company issuing the ticket was; but such facts and'circumstances growing out of the negotiations of the parties, or otherwise arising, ought to be shown, as make it evident that it was the understanding and agreement on both sides that the company selling the ticket undertook to be responsible for the safety of the baggage over connecting lines through to its ultimate destination.</p> <p>5. Same—Damases—Kecoveby- Limited to Value of Baggage.</p> <p>A passenger, in the absence of special contract, will only be entitled to recover the valué for use of such articles lost, while in transit, as properly constitute baggage; and what articles come within the rule is to be determined according to circumstances. ' " .</p>

<p>Petition for a Rehearing of a Motion for a New Trial.</p> <p>For opinion upon motion for a new trial, see 22 Fed. Rep. 421.</p>

On motion of defendant to set aside an order of discontinuance, and for judgment against the plaintiff on report of referee. Plaintiff’s declaration was upon the common counts. Defendant pleaded the general issue and notice of set-off. The case -was referred to a referee, and the referee found and reported that the plaintiff was indebted to the defendant in the sum of $26,531.49.

At Law. This case was tried to a jury at the April term, 1885, of above-named court, Hon. John Baxter, circuit judge, and Hon. Martin Welker, district judge, presiding. The plaintiffs claimed that they had expended, for and at defendant’s request, $31,644.31, for which they demanded a judgment.

<p>Motion to Vacate Attachment.</p>

Laurie to pay over money collected for'C. S. Jeffries, administrator. On March 25, 1885, this matter was called up, and Judge Brewer said: “Evidently there has been some misunderstanding between the counsel and the court as to the status of this case, and I have been waiting for some days in the hope that counsel on both sides would be present, so that I could put the thing in proper shape for disposition.

<p>The petitioner was committed to jail for refusing to testify before the county attorney, and sued out a writ of habeas corpus. Further facts appear in the opinion.</p>

<p>Court-Martial—Trial of Soldier fob Murder— Jurisdiction of State Court—Act of March 3, 1863.</p> <p>A stale court in Tennessee lias no jurisdiction to try a party for a murder alleged to liave been committed on February 22, 1865, while the accused was a soldier in the United States army, as such offense is triable under the act of congress of March 3, 1863, by court-martial.</p>

<p>Patents for Inventions—Tap for Rubber Boots—Moveuty.</p> <p>Patent Mo. 103,594, granted May 31,1870, to Francis Flynn, for an improved tap for rubber boots, held void for want of patentable novelty.</p>

<p>Patents for Inventions—Novelty—Biscuit-Pans.</p> <p>Patent Mo. 96,605, for “ an improved mode of uniting small biscuit-pans together in clusters, consisting' in providing' the pans with horizontal flanges and riveting them,” held void for want of novelty.</p>

In Equity. This is a suit for the alleged infringement of four patents owned by the complainants, viz.: Letters patent No. 138,148, issued to J. H. Pattee, January 21,1873; reissue No. 6,080, dated October 6,1874, and being a reissue of original patent No. 124,218, issued to J. EL Pattee, March 5,1872; original patent No. 174,684, issued to T. W. Kendall, March 14,1876; and original patent No. 187,899, issued to Jj H. Pattee, February 27, 1877,—all for improvements in…

<p>1. Admiralty Jurisdiction-Locality as Test.</p> <p>In all cases of maritime torts the locality of tho act is the lest of admiralty cognizance: and whether the court has jurisdiction in any case depeuda upon whether tho wrong and injury complained of was committed on the high seas, or navigable waters.</p> <p>2. Same—Injury to Marine Railway—Libel Dismissed.</p> <p>The marine railway claimed to have been injured in this ease, as described in the libel, was not at the time of the injury a floating structure, and within the admiralty jurisdiction. The Plymouth, 3 Wall. 20, followed, and The Arkansas, 17 Fed. Rep. 383, distinguished.</p>

In Admiralty. On libel and eross-libel fora collision between the steam-barge John M. Osborn and the Canadian steam-sbip Alberta, which occurred about half past 9 o’clock in the evening of July 27, 1884, from eight to ten miles to the northward of Wbitefish Point light, in Lake Superior.

<p>1. Stranding oe Vessel—Non-Production oe Witnesses—Presumption.</p> <p>Tlie steam-slúp A., while on a voyage from Inagua, Bahama islands, to New York, was stranded on tlie coast of Maryland. In actions brought on her bills of lading to recover for the loss and damage to cargo resulting, held, that the non-production, without sufficient excuse, of any one of the numerous persons who were on board as crew and passengers at the time of the stranding, as witnesses, to explain tlie circumstances of the stranding, except the chief engineer, who was below at tlie time, warrants a presumption that, if they had been produced, they would have shown the'stranding to have been the result of negligence in tlie navigation of the ship.</p> <p>2. Same—Negligent Navigation—Failure to Sound.</p> <p>That when it appeared that on January 19th the master supposed himself to be in latitude 36 deg. 40 min., longitude 74 deg. 10 min., and the next day, at 1:25 a. m. , was on a bar four miles north of Green Run inlet, the weather being thick, and no explanation was given of the vessel’s course meantime, held, that if her course was directly between those two points, it was clearly negligence ; and that if tlie master supposed himself on the 19tli to bo in that latitude and longitude, it was his duty to verify his supposition by sounding; and that the failure of the ship to deliver her cargo -was caused by this negligence.</p> <p>3. Lex Loci Contractus.</p> <p>Where the lex loei contractus is neither pleaded nor proven, it is presumed to be the same as the law of the United States.</p> <p>4. Average Adjustment—Arbitration.</p> <p>The making of an average statement by average adjusters is not an award by arbitrators.</p>

<p>Salvage—Owner of Cargo on Salving Vessel and Care-Takers of Cargo not Entitled to Salvage or Damages—Public Policy.</p> <p>Tlie owner oí cargo shipped on board a vessel which, by reason, of rendering a salvage service to another vessel on the voyage, is delayed, and whose cargo is thereby damaged and deteriorated, is not by that mere fact made entitled to a salvage remuneration from tlie vessel to,which the service was rendered. Such an allowance would be against public policy. Nor is he entitled to recover damages from the salved vessel, either for a tort or for a breach of contract. Men employed by the shipper as care-takers of such cargo (which consisted in this case of live-stock) are not entitled to a salvage award, when they took no part in the actual salvage service, but merely were compelled to perform the duties for which they had been hired during the time the voyage was delayed.</p>

<p>Damage to Cargo on Lighter—Negligence—Custom in Stowage—Peril op the Sea.</p> <p>A lighter was loaded at Havana with bales of tobacco, to be taken to a steamer lying out in the harbor. The bales were piled three high above the gunwale, and were not secured in any manner. On the way a sudden gust of wind caused the lighter to careen, and some of the bales fell into the sea. Though damaged by water, they were afterwards received on board the ship, and a clean bill of lading given for them, reciting them to have been received in good order and condition, both parties having' knowledge of the facts. On the arrival of the ship in the port of New York, suit was brought against her for the damage to the bales. Held, that assuming, but without deciding, that the goods taken by the lighter were in the possession of the ship, it was incumbent on the libelants, under the exception of “ perils of the sea ” in the bill of lading, to show negligence on the part of the lighter; that the evidence showed that the cargo was stowed in conformity with the established usage of the port, and that the bales slid oft in consequence of a sudden gust of wind, which was extremely rare; and that, therefore, the loss was by a peril of the sea, and no negligence upon the evidence could be imputed to the lighter, and consequently none to the steamer, even though the lighter were in the steamer’s employ, and the loss must be set down to the exceptions in the bill of lading.</p>

<p>Towage—Negligence—Breach op Contract—Deviation.</p> <p>A. canal-boat, sprang a leak while in tow of a tug, and thereafter sank. Held that, although the leak was probably caused by the boat’s coming into contact with a floating piece of ice, still, as the proofs did not show a failure on the part of the tug to use due care and skill, the tug could not be hold liable for the boat’s sinking. It was not a breach of the towing contract for the tug to take another barge in tow, and land her at another place, during the same voyage, since it appeared from the circumstances that this was in accordance with the parties’ understanding of the contract, and was, therefore, not a deviation. The libel against the tug for the sinking of the boat was therefore dismissed.</p>

<p>Collision—Steameb and Babk—Mistake as to Lights—Flake-up—Blue Light —Pilot Signal.</p> <p>Wliere a steamer was approaching a hark in the night, and the bark exhibited a flare-up light, which was seen on the steamer, and those on the steamer supposed the other vessel to be a pilot-boat desiring to put a pilot on board, and the steamer showed a blue light, to which the bark replied by a flare-up, and the steamer did not discover her mistake until too late to avoid a collision, held, that, besides the fact that the green light of the bark was proved to be so dim as to render it invisible to the steamer at a distance sufficient to enable her to avoid the bark, which of itself was sufficient to prevent a recovery by the bark, it was also a fault on the part of the bark to exhibit the flare-up after the steamer had burned the blue light; and as there was no fault proved on the part of the steamer, the bark’s libel against the steamer was dismissed.</p>

<p>IvEMOVAL OF CAUSE—ASSIGNMENT FOR BENEFIT OF CREDITORS—FEIGNED ISSUF. to Try Validity of Judgment—Pennsylvania Statute-Citizenshit.</p> <p>A i'oignod issue granted at the instance of an assignee for the benefit of creditors in Pennsylvania to try the validity of a judgment recovered by a creditor, which it is claimed was fraudulent as to the other creditors, is removable into tlie circuit court when sueli judgment creditor is a citizen of another state.</p>

<p>Circuit Court—Jurisdiction—Act of March 3, 1875, Cii. 137, 5 5—Dismissal of Suit.</p> <p>Wlien, during tlio trial of a caso in tlie circuit court, it appears from the testimony that the controversy in the suit is not one between a citizen of a state of the United Slates and a citizen of a foreign state, as alleged in the declaration, but one between two aliens, and no question arising under the constitution or laws of the United States is involved, a motion, after verdict, to dismiss for want of jurisdiction will be granted.</p>

<p>Jurisdiction of Circuit Court—Foreign Corporations—Attachment—Pub. St. Mass. Ch. 105, § 28.</p> <p>Defendant corporations, organized under the laws of Maine, but having their principal place of business in Massachusetts, where a majority of their officers and directors resided, were sued in the circuit court for the district of Massachusetts ; the writs being served by attachment of corporate property within the latter state, and by service on the corporate officers. Meld, on pleas to the jurisdiction, that the court had no jurisdiction.</p>

On twenty-seventh October, 1884, the plaintiffs presented to the court a petition, in which they represent themselves to be the chief supervisor of elections for this district, appointed by this court under title 26 of the Revised Statutes of the United States; several of the ward supervisors of election in the city of New Orleans, appointed at the request of the Democratic party; and a number of canvassers appointed by the Democratic party,—for that joart of the parish of…

<p>In Chancery. Buie for an injunction.</p>

In Equity. Foreclosure suit. Motion for leave to file an answer. A receiver was appointed in this case, with the consent of the defendant, January 12, 1884, and all succeeding steps in the case have been thken without any opposition on the defendant’s part.

In Equity. Prior to 1875 the Burlington, Cedar Rapids & Minnesota Railroad Company had constructed a main line and three branches, the latter known, respectively, as the Milwaukee Division, the Muscatine Division, and the Pacific Division. Upon the main line and upon each of its branches, separately, it had placed a first mortgage. The trustee in the mortgage on the Pacific branch was the Farmers’ Loan & Trust Company.

Consolidated Cases. In equity. Application of Henry B. Plant for leave to sue the receiver.

In Equity. On application to tax a docket foe of $20, in favor of the plaintiff. Defendant demurred to the bill, and the demurrer was overruled. Leave was given to answer over, and an answer was filed. Plaintiff then applied for the taxation of a docket fee of §20, upon overruling the demurrer, as upon a final hearing.

Consolidated Cause. In equity. On the twentieth of March, 1885, the report of Solon Humphreys . and Thomas E. Tutt, receivers of the Wabash, St. Louis & Pacific Railway Company, was filed herein.

<p>1. Trade-Mark—Article Not Manufactured by Owner of Mark,</p> <p>The word “ La Favorita,” as applied to flour, may bo a valid trade-mark although the flour is not made by the party using the trade-mark, but is selected and classified by him, such selection requiring skill, judgment, and expert knowledge.</p> <p>2. Same—Laches—Injunction—A (¡counting.</p> <p>When a complainant has allowed a party to go on for 14 years using his trade-mark without taking any proceedings to protect his rights, an injunction to prevent further infringement may be granted, hut an accounting will not be decreed.</p> <p>3. Same—“La Favorita” Flour.</p> <p>The right of complainants to the use of “ La Favorita ” as a trade-mark applied to flour sustained.</p>

<p>TMADE-MaTUC— ÍnEEINGEMENT— PllINTTNG AND SELLING IMITATION LABELS TO Turan Paeties.</p> <p>.Printing and selling labels in imitation of a trade-mark, with the purpose of enabling the parties to whom the labels are sold to palm oil' their goods upon the public as the goods of the owner of the trade-mark, is a violation of the rights of such owner.</p>

At Law. Motion for a new trial and motion for rehearing. The record of election offered in evidence in this case shows upon its face that on January 26, 1871, the special election in question was ordered for February 7, 1871, and was held on that day, only 12 days after the order was made.

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

<p>On Habeas Corpus.</p>

<p>Appeal in Bankruptcy.</p>

<p>1. Federal Elections—Rev. St. M 5511, 5514—Fraudulent Attempt to Vote at Election for Representative in Congress—Indictment.</p> <p>An indictment charging a party with a fraudulent attempt to vote in the name of another person at an election for a representative in congress had and conducted under the laws of the state of New York, by which state officers and representatives to congress are voted for on separate ballots, which are deposited in separate ballot-boxes, that fails to allege that such party Attempted to vote for a representative in congress, is insufficient.</p> <p>2. Same—Construction of Rev. St. j§ 5511, 5514.</p> <p>The essence of the crime created by section 5511 of the United States Revised Statutes is an attempt to vote unlawfully for a representative in congress, and not merely an attempt to vote unlawfully at an election at which a representative may be voted for.</p>

<p>Patents for Inventions—Baby-Carriage Top—Infringement.</p> <p>Bo-issued patent No. 10,363, granted August 7, 1885, to Horatio Q-. Parker, trustee, for an improved baby-carriage top, held valid, and infringed by the device used by defendant; following Parker v. Stow, 23 Fed. Rep. 253.</p>

<p>1. Patents fob Inventions-—Novelty.</p> <p>Tliore is nothing patentable in the application to a horizontal steam-engine and boiler of old devices in I he precise combinations in which they had previously existed in steam-engines with vertical boilers, the result obtained being the same in character with the original result.</p> <p>2. Same—•Patent No. 269,329.</p> <p>i Letters patent. No. 269,329, granted December 19,1882, to Keinhard Schoidler, relating to a combined bed-plate and heater for portable steam-engines with horizontal boilers, held to be invalid for want of novelty.</p>

<p>1. Patents fob Inventions—Novelty—Patent No. 68,426.</p> <p>Claims 2 and 12 of patent No. 68,426 granted to Hiram B. Everest, on September 3, 1867, for an improvement in apparatus for distilling petroleum, held void for want of novelty.</p> <p>2. Same—Disclaimer.</p> <p>After the term of a patent has expired, it is too late to file a disclaimer.</p>

<p>3. Patents for Inventions—Or,atm fob Machine and Process fob Using It. There cannot be in the same patent a claim for a machine and a claim for the process of using that machine.</p> <p>2. Same—Reissue Void—Enlargement of Claims.</p> <p>Reissued letters pateni No. 8,615, dated March 1,1879, .and granted to William B. Pisher for an improvement in seed-steaming apparatus, expand the claims in the original patent, .and are void.</p> <p>3. Same —Infringement.</p> <p>Reissue No. 8,615 compared witli defendants’ machine which is used to moisten meal, and not to dry or clean the seed for storage or shipping, and held not infringed.</p>

<p>1. Patents eok Inventions—Degree by Consent—Bus Judicata.</p> <p>When a decree has been entered by consent in a prior suit declaring a patent valid, and that complainant is the solo owner thereof, such decree will he considered binding, as to all questions determined thereby, in a second suit between tiie same parties.</p> <p>2. Same—Design Patents— Ineiungement—Beskmblance.</p> <p>It is not necessary that a design patent should be copied in every particular to constitute an infringement. It is sufficient if the resemblance is such that an ordinary purchaser would bo deceived, although the infringer has deviated slightly"in details, or lias omitted something which an expert could discover.</p>

<p>Patents for Inventions—Infringement—Fourth Obatm. oe Patent No. 101,931.</p> <p>Tiie fourth claim of patent No. 101,931, dated April 12, 1870, granted to N. J. Simonds for a leather-cutting press for shoo stocks, construed, and held not infringed by defendants in the use of a revolving block and cutting-die, without the cutting-press described in me specifications and drawings of the ¡áimonds patent.</p>

<p>Patents for Inventions—Hyslop Machine for Making Shoe-Shanks—Infringement.</p> <p>Patent No. 159,577, dated February 9, 1875, granted to John Hyslop, for an improvement in machines for making shoe-shanks, held valid, and infringed by defendant’s, machine, having a forming die, flanged table, and vibrating arms.</p>

<p>COLLTSTOV—DAMASES FOB DEATHS OF RELATIVES.</p> <p>Relatives of persons whose lives have been lost by reason of a collision upon the high seas are entitled to recover, under the general admiralty law, from the offending vessel damages for the loss of the society and support of their deceased relatives, and for the value of their personal effects.</p>

<p>Seamen’s Wages—Kev. St.' $$ 4577-4586.</p> <p>Tlio general maritime law, which, in a case of seminaufrargium, or where the vessel was condemned and ’sold as too unseaworthy to be repaired, gave discharged seamen passage home and wages up to the time of reaching homo, is modified by the statutes of the United States which provide for all cases of discharge of seamen in foreign ports, and, in case of destitute seamen, their return home, by the consular agents of the United States, at the expense of a fund derived from the one-third'of the three months’ extra wages collected by the consuls or agents from all American ships discharging seamen in foreign ports, except where ships are stranded or wrecked, or condemned as unfit for service. See sections 4577-4586, Kev. St.</p>

<p>Admiralty Appeal.</p>

<p>1. Salvage Service.</p> <p>When a vessel at sea answers signals of distress from a steam-ship whose machinery has been disabled, and goes to her assistance, and supplies provisions, and takes an officer of the steam-ship, by request, to a place where he can summon assistance for the steam-ship, such services are salvage services.</p> <p>2. Same—Distribution of Award.</p> <p>Where valuable services were rendered by the ship and her machinery, the master and crew doing only their ordinary duty, for which they were paid by the owners, on principles of salvage the men must receive a share of the reward.. No amount of reward to owners and machinery will so stimulate and encourage efforts to save life and property in peril on the high seas, as will moderate rewards to masters and crews who are on hand to control the ship and machinery, and are the effective agents to set the machinery in motion.</p> <p>3. Same—Salving Ship under Charter.</p> <p>In this case, where a salvage award has been made to the owners of a ship and her crew, and where it was shown that at the time the salvage services were rendered the salving ship was under charter and in possession of the charterer, the court first allowed to the charterers, out of the salvage award, their actual outlay in rendering the services,—that is, for the hire of the ship, and for the pay-roll, and fuel consumed during the delaj,—and divided the balance of the award equally between the charterer, the owner of tho ship, and the. crew. The Alfen, Swab. 189, and The Waterloo, 2 Dod. 433, distinguished.</p> <p>4. Costs.</p> <p>Wliejre claimants have made no tender, pain no money into court, brought in no parties, and have done nothing to facilitate the cause save to admit a contract made with a salving vessel, the costs should be borne by them.</p>

<p>1. Collision—Brie Canal—Inevitable Accident—Fault.</p> <p>■Where a collision occurs, on a bright starlight night, between two boats going ' in opposite directions at a speed of less than three miles an hour, upon the sluggish waters of a canal, it cannot lie attributed to inevitable accident, and especially so, when they see each other in ample time to execute all necessary maneuvers.</p> <p>2. Same—Duty on Boat in Unusual Position.</p> <p>Where a boat is in an unusual position, whore she has no right to be, she must take adequate and necessary means to inform others of the fact.</p> <p>3. Same—Neglisence.</p> <p>In order to hold the injured vessel responsible, she must not only bo at fault, but the fault must in some way contribute to produce the accident.</p>

<p>1. Admiralty Practice—Misnomer—Waiver—Appearance and Answer.</p> <p>After a respondent lias appeared generally, and answered upon the merits, it is too late to move for a dismissal because of a misnomer in tlie libel and monition.</p> <p>2. Carriers oe Goods by Vessel—Dill oe Lading—Transhipment—Delay-Damage to Cargo oe Prunes.</p> <p>On tlie twenly-tliird, thirtieth, and thirty-first of March, 1881, L. shipped on board respondent’s three steamers 600 casks of prunes at Trieste, to be delivered in New York, unto order, and took therefor bills of lading, in which respondent stipulated that said si earners were bound for New York, and reserved the right to tranship any part of said cargo to another steamer. Two of the steamers proceeded to Palermo, Sicily, and discharged the prunes, where they remained for 55 dai's, when they were shipped on another of respondent’s steamers,” brought to Now York, and delivered in a damaged condition, owing to the delay that ensued in their transhipment, and the want of proper care in their handling and storage at Palermo. Held, that respondent was not bound to tranship in other vessels than his own, under tlie bill of lading, but that lie was obliged to use diligence and care that adequate facilities were furnished to comply with its agreement to ti'anship without unreasonable delay, and that he was liable for tlie damage caused by his neglect to provide for tho more direct transportation of tlie prunes to New York after their arrival at Palermo.</p>

<p>1. Maritime Lien—Ship’s Credit—Case Stated.</p> <p>The ship S., belonging to American owners, arrived with cargo at Greenock, Scotland. She was a stranger there, and the captain designated 0. IS. & Co. as her collecting and disbursing agents, who collected the inward freights and held a large balance for the ship. It appearing that she was in need of remetaling, C. N. & Co. ordered the necessary metal of the libelants, it being understood that the bill should be “paid by C. N. & Cor when the ship’s accounts were adjusted,” in cash, “under discount.” Thereafter the ship remained in the vicinity for four months; but no demand for payment was over made of the captain, and no inquiries were made of him about any of their dealings. The bill, audited by the captain, was rendered to C. N. &”Co. The latter, on settling their accounts with the captain, included the bill as paid by them. After the ship had finally sailed, demands were made of C. 1ST. & Co., hut before payment they failed: and about a year after furnishing the supplies inquiries were first made after the owners. This action was thereafter brought to enforce an alleged lien upon the ship for the supplies, and, by consent, the liability of ship and owners was submitted. The judge found that the goods were not ordered or furnished on any intended credit of the ship. Held, that under the vrell-settled rule that, no lien arises for a vessel’s supplies except in case of necessity for the credit of the ship to obtain them, as.large funds of the S. in the hands of C. if. & Co. were shown to have existed, which was known to the libelants, or would have become known to them on reasonable inquiry, there was no necessity for credit, and that no lien attached,</p> <p>2. Same—Owner’s Liability—Principal and Agent—Inquiry eor Responsible Party—Foreign Principal.</p> <p>The libelants contended that the ship’s owners were liable in personam, for the supplies. It was shown that the libelants did not know who the owners ■were when the supplies were furnished; that they made no inquiry in regard to them until after the failure of O. N. & Co.; and that they evidently relied on the latter firm for payment. Held,, that by the English law the credit of a foreign principal is not presumptively pledged by the dealings of an agent resident in the kingdom; that the maritime law also affords no prima facie presumption of authority in mere ship-brokers having funds of the ship, to bind her owners for supplies ordered by them, and there was no proof of any actual authority, that as C. N. & Co. were only agents in a limited capacitjq did not know or have correspondence with the owners, and had in their hands sufficient funds of the ship, their ordering of supplies for the ship did not bind the owners by implication, and that the circumstances negatived any such authority; that the libelants were bound to make inquiries of the master of the ship, or take the risk of the actual authority of C. N. &> Co. Not having done so, they could not now hold the owners responsible; and the libel was dismissed.</p>

<p>Tea and Tow—Negligence—Order to Start.</p> <p>B was not part of the duty of a tug, which started to tow a vessel hy a hawser away from a pier, to see that the vessel was ready to move, when she received the order from the ship, “All right; go ahead!” and the tug was held not responsible for damage to a lighter made fast to the ship, which could not cast loose soon enough to avoid injury from the yard of the ship.</p>