Volume 24 — Federal Reporter

<p>Chattel Mortgage — Delivery—Two Mortgages Executed on Same Day— Recording — PRIORITY—PREVIOUS AGREEMENT.</p> <p>When a party, to secure an indorser oí his notes, in pursuance of a previous agreement, executes and flies for record a chattel mortgage on his stock in trade, and at (he same time executes another mortgage on the same goods, to secure a creditor, hut does not file it for record until the next day,in order that the iu-"dorser may have a first lien on his property, and neither of the mortgagees knows at the time of the execution of the mortgages, or at the time of their filing for record what has been done, but both of them, on learning what has been done, accept them, the mortgage first recorded will be a first lien on the goods.</p>

<p>1. LEGISLATIVE POWERS.</p> <p>Where there are two classes of creditors with already existing debts, a legislative act could not, by transferor appropriation of a debtor’s property, give to one class a preference, to the exclusion of the other class, to such a degree as to give to one class an immediate and annual source of payment, and postpone to the other all payment for, possibly, a period of 40 years. See Succession of Taylor, 10 La. Ann. 510; Milne v. Schmidt, 12 La. Ann. 553. It is no more in the power of law makers than of debtors to effect an unequal distribution of the debtor’s estate by making an application or transfer thereof among creditors already existing. Alehafalaya Co. v. Bean, 3 Rob. (La.) 415.</p> <p>2. Municipal Bonds of the City of New Orleans — Acts of La. No. 58 of 1882, and No. 67 of 1884, Construed.</p> <p>AVhatever provisions are contained in the act of 1882 subjecting any property or means of payment, which could be lawfully appropriated, to the payment of the extended bonds or coupon certificates, having been assented to on the part of the holders by accepting of the extension, is a contract which cannot be varied by any change or substitution, no matter how minute, and will continue in its operation upon whatever has been so appropriated till the obligations thereby secured shall have been fully paid. If the language in the act of 1882 did include the excess of the premium bond tax and the other property included in the grant under the act of 1884, while it would he valid as a contract between the complainants, the holders of the new obligations, and the city, it would be void so far as concerns the judgment creditors whose judgments are for debts existing antecedently to the passage of the act of 1882, under which the complainants claim, up to the point of the said judgment creditors being-admitted to a proportionate or ratable share of such excess and other property.</p>

<p>1. Bums oe Ladino and WaRehouse JIhckitts.</p> <p>The acts of Louisiana, Ho. 150 of 1868 and Ho 72 of 1876, mean that the hills of lading and warehouse receipts for property shipped or warehoused shall fully represent the property, so that a transfer of those paper titles shall vest in the transferee the property as fully as the delivery of the property itself.</p> <p>2. Lien ok Vxntjok ok Agmcultuuai, Pboducts.</p> <p>Article 3227 of the Civil Code of Louisiana gives the right to the vendor to seize the things sold in whatsoever hands or place they may he found, and to enforce his lien for the price with preference over all other claims, as well against those who hold under title acquired through hills of lading as against those whose title is evidenced by actual delivery.</p>

<p>At Law. Un trial ot interventions.</p>

<p>At Law. Demurrer to petition filed by Justina Kahl, intervenor.</p>

<p>Customs Duties — Additional Duty on Goods in “Warehouse More than- One Year — Date or Original Importation.</p> <p>Held that, as to goods which have been transported from an exterior port on first arrival to an interior port of transportation, the words “date of original importation” (section 2970, Rev. St.) mean the date of arrival of the goods at the interior port of destination.</p>

<p>Customs Duties — Uniianupactuiucd Tobacco.</p> <p>Certain tobacco, known to the trade as “ scrap tobacco,” composed of fragments or pieces broken or cut oil in the manufacture of cigars, held to be dutiable as unmanufactured tobacco.</p>

<p>1. Customs Duties.</p> <p>Section 7, act March 3, 1883, as to dutiable value of merchandise, construed.</p> <p>2 Same — Seal-Skins, Duty on.</p> <p>Certain skins bought “undressed,” or “in salt,” brokerage, commissions, and packing' charges on, not part of dutiable value.</p>

<p>1. Customs Duties--Merchant Api>ratsvl under Section 2930, Rev. St.</p> <p>Tin; appraisement of the merchant appraisers shall bo final, and deemed 1o oe the true value, and the duties shall bo levied thereon accordingly, and an importer is not estopped from going below his entry value on any single item of liis invoice; and duty should be assessed upon‘the value returned by the met chant appraisers.</p> <p>2. Same — Additional Duty on Twenty Feu Cent.</p> <p>Under the circumstances of this case penal duty was improperly assessed.</p>

<p>Customs Duties — Spectacle Lenses op Brazil or Scotch Pebble, with Bough Edges, Duty on.</p> <p>Spectacle lenses manufactured from Brazil or Scotcli pebbles, imported with, rough or unfinished edges, and commercial!}'known as “pebbles for spectacles, rough,” are free goods.</p>

<p>1. Patents for Inventions — Glidden Barbed-Wire Fence — Invention.</p> <p>The patent granted in Novembor, 1874, to J. W. Glidden, for barbed wire, examined, and held valid.</p> <p>2. Same — Anticipation.</p> <p>On examination of the evidence in this case, and a comparison of the Freeman, Merrill, Stone, Schone, and Delhi Pair fences with the Glidden patent, held, that the Glidden patent was not anticipated thereby, and is valid.</p> <p>3. Same — Machines fob Making Babbeb Wire — Infringement.</p> <p>On comparison of the Putnam and Penny machines i'or making barbed wire, held, that the Putnam machine is not infringed by Penny’s invention.</p>

<p>FORFEITURE — BREACH OF NEUTRALITY LAWS— HEY. Si’. § 5283 — TRADE TOU Belligerents — Law of Nations.</p> <p>Tlie steamer City of M. was chartered to a reputable merchant at New York to cany some arms and munitions of war from New York to the port of Sav-anilla, United States of Colombia, in fulfillment of an order for them from a merchant at Baranquilla. She also took lumber and specie to procure a return cargo of fruit for another New York merchant from Bocas del Toro. Sav-anilla was at the time in the possession of insurgents against the regular government of the state of Bolivar, to whom belligerent rights had been accorded. The warlike material was probably intended for their use, as an agent of the insurgent government brought the order and aided in expediting the business. After arriving at Savanilla and delivering this part of the cargo, the captain of the City of M. contracted with the insurgents to transport about 250 passengers from Savanilla to liio Hacha. The latter port was in possession of the regular government; but it appeared that the captain was informed and believed that it was held, like Savanilla, by the insurgents. A bout 150 passengers came aboard under this contract, who turned out to he soldiers of the insurgent government. When the steamer arrived at Bio Hacha, the collector of the port and some of his men came along-side the steamer and were seized by the soldiers, against the earnest remonstrance of tlie captain and officers of the City oí M. The following morning an armed schooner, belonging to the lawful government, was descried at a distance, to capture which the insurgents attempted to make use of the City oí M., but abandoned the project on tlie solemn protest of the captain, officers, and crew of the steamer, the chief engineer refusing 1o work the ship, and thereupon the captain steamed immediately to Savanilla, where the defacto government disavowed the acts of the soldiers, and the collector and his men were released. On the return of the City of M. toKowYork, proceedings were had to forfeit her for violating tlie neutrality laws, on the ground that she had been fitted out for the purpose of committing hostilities against, a state with which the United States were at peace, Rev. St. § 5283. The court found that the trip from Savanilla to Iíio Hacha was not intended when the vessel left New York. Held, that section 52S3 prohibits warlike or hostile voyages only, — not commercial ventures; that the carrying of arms for the use of a belligerent to a port in its possession is not against our municipal law or the law of nations, but merely subjects vessel and goods to search and seizure by the other belligerent; that the voyage of the City of M. from New York was purely commercial and peaceable in intention; that the trip to Bio Hacha was an independent diversion undertaken by the captain oil his own responsibility, and, whether hostile in intent or not, was"not within section 5283, because not planned “within the limits of the United States; ” that the shipment, moreover, being made on the order of a Baranquilla merchant, and no evidence appearing that lie was not the immediate principal, the transaction could not he treated as one directly with tlie insurgents; and that, in cither view, neither tlie shipment of arms from New York, nor tlie independent diversion by the captain in the trip to Bio flacha, infringed section 5283, and the vessel was accordingly discharged.</p>

<p>Objection to Deposition — Laches.</p> <p>A cause being called for trial, the libelant offered in evidence a deposition, which was objected to. The libelant submitted to the objection on being allowed a continuance of the cause and leave to examine the witness anew. Three years after, the cause being again called, the libelant appeared by another proctor, and offered the same deposition. Held. that ihe libelant could not be allowed to question the validity of the objection; and, as no other evidence was offered, the libel must bo dismissed.</p>

<p>1. Collision — Tug- and Tow — Descending and Ascending Boats in Narrow Channel.</p> <p>A tow-boat, incumbered with a coal-tow, descending the Oliio river, and passing through a narrow channel, has the right of way, and it is the duty of an ascending boat -to remain below the channel until the descending tow has emerged therefrom.</p> <p>2. Same — Duty oe Pilot of Descending Boat.</p> <p>The pilot of the descending tow-boat was not culpable in not warning the ascending boat against entering the channel, both boats being plainly in sight of each other. Each of two approaching vessels may assume that the other will reasonably perform its duty under the laws of navigation.</p>

<p>Admiralty -Appeal.</p>

<p>1. Removal of Cause — Suit Ahisino- undek a Law of tiie United States.</p> <p>A suit- by a vendee of tlie state under the act of October 2G, 3870, providing for the selection and sale of the swamp and overflowed lands granted to the state by the act of March 12, 18(50, to enjoin the commission of a nuisance on tiie land so purchased, involves the question of whether said land was granted to the state by said act at the time of its selection by the state under said act of 1870, and therefore arises under said act of March 32, I860, and is removable into this court under section 2 of the act of March 3, 1875, without reference to the nature of the other questions that may be involved in it.</p>

At Law. On exception to jurisdiction. This suit was an action at law against the state of Louisiana by a citizen of said state for the recovery of the amount of certain coupons held by him representing the interest upon the “consolidated bonds” of said state, which fell due January 1, 1880.

<p>Suit by a Bill in Chancery to Quiet Title. The facts appear in the opinion.</p>

<p>.Equity — Laches—Title under Fraudulent Transfer oe Land Certificate —Trust.</p> <p>The delay on tlie part of complainants in asserting tlieir alleged claim to the lands in controversy in this case held fatal to their prayer .for relief.</p>

<p>Pedigree — Evidence.</p> <p>After a full consideration of the evidence in this ease, held, that complainant has not proved himself to he the son and sole heir at law of the deceased owner of the real estate in controversy, and that the bill must be dismissed.</p>

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

<p>1. Customs Duties — Philosophical Instruments.</p> <p>Anemometers, hygrometers, Rulimkorf coils, barometers, stereopticons, galvanometers, Geissler tubes, Grenat batteries, radiometers, held to be dutiable, as “ philosophical apparatus and instruments,” at the rate of 35 per cent, ad valorem.</p> <p>2. Surveyors’ Compasses.</p> <p>Held to be dutiable at 45 per cent, ad valorem.</p>

<p>Customs Duties — Opera-Glasses Composed op Metal, Glass, and Shell, Duty on.</p> <p>Certain opera-glasses composed of metal, glass, and pearl or shell, and of which the pearl or shell was the component material of chief value, held to be dutiable at the rate of 25 per cent, ad mlorem.</p>

<p>Customs Duties — Rubber Bags for Manufacture of Tor Balloons— Duty on.</p> <p>Certain bags or pouches composed wholly of India rubber, held to be dutiable as “manufactures of India rubber not specially enumerated,” at the rate of 25 per cent, ad valorem.</p>

<p>Customs Duties — Wool Knit Hoods.</p> <p>Certain wool knit hoods held to be dutiable at 30 per cent, ad valorem,, under act March 3, 1883.</p>

<p>Patents for Inventions — Practice—Ineringejient or Several Patents— Consolidation of Suits — Extending This to Answer.</p> <p>D. filed a bill on May 25, 1885, alleging an infringement of two of the patents issued for improvements in grain-binders, both relating to the cord-binding mechanism; and on June 1, 1885, he filed another bill against the same defendants for an infringement of five patents relating to grain-binding and harvesting machines, — all of the devices alleged to be infringed being used in one machine. Defendant on June 18, 1885, moved to consolidate the two suits, and that the time to answerboth bills be extended to the first rule-day in September. Meld, that the motion should be granted.</p>

<p>1. Collision — Running near Piers.</p> <p>Ferry-boats passing up and down the East river, and having no call to go in the immediate vicinity of piers S to 7, appropriated by law to the special uses of canal-boats, will be held in fault for a collision resulting from attempting to pass between tugs lying oif those docks waiting for canal-boats, within 2Ü0 or 300 feet of the shore.</p> <p>2. Same — Dissenting Signals.</p> <p>A signal of two whistles given by a ferry-boat to indicate that she would pass inside," but not assented to, does not relieve her from fault.</p> <p>3. Same — Fault.</p> <p>A tug in waiting as above, not over 200 or 300 feet from shore, hearing a signal of two whistles, replied with one, and proceeded towards the shore, but, observing that the ferry-hoat continued her course inside, backed. Held, that the tug was not in fault, and that the ferry-hoat was solely responsible for the collision that ensued.</p>

<p>Collission — Pubuio Service — Municipal Corporation — Commissioners op Charities and Correction.</p> <p>The corporation of tlie city of Yew York having been held by tlio stale courts not liable to respond in damages for injuries to persons or property arising from the negligence of the employes of the commissioners of charities and correction while in the discharge of tlieir separate functions, held, that a libel to recover damages against the city for a collision between a schooner and a steam-boat owned by the municipality, but in the exclusive uso and control-of the said commissioners, and while navigated by a pilot employed by the commissioners, could not be sustained, though the collision was solely through the fault of t-lie pilot of the steamer</p>

<p>Collision — Principal and Agent — Discharge of Boats.</p> <p>A canal-boat loaded witli coal was consigned to the dock of respondents, who were bound to unload her. They employed shovelers, paying them by the ton. The captain was in charge of the boat and bound to move her as required, so that the different hatches in turn should come beneath the stationary derrick. A scow being in the way so as to prevent the canal-boat’s moving far enough astern to bring the fore-hatch under the derrick without being wound round, to avoid the trouble of the latter course, the shovelers, at the captain’s request, got permissionfromthose.in charge of the scow, which was at the time unattended, to move it ahead. The scow was moved ahead and fastened by the shovelers, the captain of the canal-boat, supervising it. Afterwards a passing steamer caused the scow to surge back and forth so 1hat she struck the canal-boat and injured her. Reid, that the respondents were not liable for the acts of the shov-elers in their imperfect fastening of the scow, nor for the consequent dam-</p>

<p>1. Collision — Damages—Repairs—-Depreciation.</p> <p>Where a small injury, occasioned by collision, such as the cracking of the gunnel streak, can be repaired by bolts and braces at slight expense, so as to bo, for all the practical purposes of use and durability, as good as new, damages should be allowed on that basis only, and not the comparatively large cost of putting in a new beam, especially where during a long interval no repair has been made,</p> <p>2. Same — Master’s Estimate.</p> <p>In a conflict of evidence as to depreciation, the low estimate of the master at the time, as shown in his claim then made, with knowledge of all the facts, was adopted.</p>

Bill of Interpleader. The dispute in this case is as to the right to receive a fund paid into court by the Masonic Mutual Benefit Association, a benevolent association organized under the laws of the state of Missouri. This fund'consists of insurance money due from said association, by the terms of a certificate of membership issued to T.L. Funkheuser, now deceased. M. D. Lewis, the administrator of the assured, claims as such. M. L. Funkheuser claims under an assignment.

<p>1. Equity Practice — Consent—-Mortgages—Equitable Liens.</p> <p>Where, in a foreclosure suit, a claimant intervenes, and the master, to whom, his claim is referred, reports that the demand has not been contested aud should he allowed, and that the intervenor is entitled to a lien for the amount due him superior to that of mortgage creditors, and no exceptions to the report are filed, and all parties in interest assent, the report will be confirmed.</p> <p>2. Mortgages — Equitable Liens — Surety on Appeal-Bond.</p> <p>Semble, that where a judgment is rendered against a mortgagor before the appointment of a receiver and an appeal is taken, and after the appointment of a receiver in foreclosure proceedings the judgment is affirmed, a surety on the appeal-bond, who has to pay the judgment, is not entitled to any lien, unlfess the judgment creditor would have been entitled to one in case his demand had remained unsatisfied.</p>

<p>1. Equity Practice — Demurrer.</p> <p>A defendant cannot "be permitted, after a demurrer has been overruled which goes to the whole bill, and leave has been given him to answer, to avail himself a second time of the demurrer.</p> <p>2. Same — Compelling Defendant to Answer Interrogatories.</p> <p>A complainant cannot, by motion, compel a defendant to answer certain interrogatories annexed to the bill, but if the answer is insufficient he must present exceptions stating the charges in the bill, the interrogatories applicable thereto1 to which the answer is responsive, and the terms of the answer verbatim, so that the court may see whether it is sufficient or not.</p> <p>3. Same — Sight of Defendant to Refuse to Answer Interrogatories — Equity Rules 39, 41.</p> <p>A defendant is at liberty to decline to answer any interrogatory, from answering which he might have protected himself by a demurrer, notwithstanding he answers other parts of the bill; and although he submits to answer, he is not compellable to discover other matters than lie would be compellable to discover upon filing a plea in bar and an answer in support of such plea.</p> <p>4. Same — Extent of Interrogatories — Exceptions.</p> <p>A complainant cannot interrogate as to matters which he has not put in issue, although he may expand'his interrogatories so as to cover every incident of the facts as alleged. If interrogatories are propounded as to facts beyond the scope of the inquiry to which the bill is legitimately addressed, the defendant may omit to answer and have their propriety tested upon exceptions to his answer, as he might by a demurrer to such interrogatories.</p> <p>5. Same — Life Insurance — Right of Insured — Interrogation as to Dividends.</p> <p>Parties to a contract of life insurance do not contemplate that the policyholder is to he permitted to participate in the management of the company, or dictate the amount of the dividend it shall declare, or question the result after the discretion of its managers has been exercised in this behalf. The contract is that the policy-holder shall have the benefit of such dividends as are appropriated, not such as the policy-holder or the court may think might have been discreetly appropriated by the company.</p>

<p>Equity Practice — Piling Cross-Bill Setting Up Discharge in Bankruptcy -Delay.</p> <p>Leave granted defendants to file a cross-bill, setting tip their discharges in bankruptcy, unless complainants elect to amend the prayer of their bill so as to waive any recovery against defendants for a debt which was not created by fraud, or while they were acting in a fiduciary character.</p>

<p>Mutual and Dependent Covenants.</p> <p>The covenants in the agreement of December 14, 1882, made between the Northern Pacific Torminal Company, of the first part, and the .Northern Pacific, the Oregon Railway & Navigation, and the Oregon & California Railway Companies, of the second part, whereby the former undertook to furnish the latter terminal facilities at Portland, for which they agreed to pay, in certain proportions, the interest on the terminal company’s bonds and the expense of maintaining such facilities, and keeping up its organization, as rent for the use of such facilities, are mutual and dependent, and therefore the terminal company, having failed to furnish said facilities, is not entitled to the payment of said interest and expenses, and the receiver of the Oregon & California Railway is instructed to act accordingly.</p>

<p>1. Municipal Bonds— Count* Bonds Irregularly Issued — Bona Fide Holder.</p> <p>Where the authority of a county to make subscription and issue bonds in aid bf a railroad company is given by statute, and the bonds are issued and put in circulation, and come into the hands of a bona fide, purchaser without notice that all the steps have not been taken as required, such holder will not be affected by any failure in making the subscription, or in the delivery of the certificate of subscription; the bonds reciting that they are issued in pursuance of the constitution and laws of the state.</p> <p>2. Same — Interest—Requirements op Statute. '</p> <p>Where the rate of interest which bonds bear does not exceed that provided b3r the statute authorizing- the issuance of the bonds, though the time of payment may vary from that provided in the statute, yet the bonds will be held valid.</p> <p>3. Same — Bonds Taren in Payment op Pre-Existing Debt.</p> <p>The fact that bonds were taken in payment of a pre-existing debt renders the holder thereof none the less a bona fide holder for value.</p> <p>4. Same — Bonds Issued on Condition — Knowledge op Holder.</p> <p>Knowledge on the part of the holder of bonds and coupons at the time of their reception that it was agreed between the railroad company and the county that the bonds should become null and void if used for any other purpose than the construction of a branch road between certain points in the county, and that the bonds and coupons were used for a different purpose than that agreed upon, will defeat a recovery by such holder in an action on such bonds.</p> <p>5. Same — Election—Mississippi Constitution.</p> <p>Where two-thirds of those voting at an election vote in favor of the issuance of county bonds in aid of a railroad, such bonds may be lawfully issued, although two-tliirds of the registered voters of the county have not voted for such issue. Carrol Co. v. Smith, 111 U. S. 526, S. C. 4 Sup. Ct. Rep. 539, followed.</p> <p>6. Same — Construction of Statute by State Court.</p> <p>Where the subscription for capital stock and the issuance of bonds was authorized by the voters of the county, no subsequent construction of the constitution by the supreme court of the state can annul the authority thus given.</p> <p>7. Same — Pleading Want' op Consideration..</p> <p>A plea averring that bonds in suit were issued without anjr consideration valid in law, and are null and void, as plaintiff well knew when he received them, and that the consideration therefor had failed; but failing to aver any facts constituting such failure, — is insufficient.</p>

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

Tort for a Failure to Transmit and deliver a telegraphic message seasonably.

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

<p>Civil Action to Recover Land.</p>

Roberts, president of the Augusta Bank, had been arrested by executive warrant of the governor of Georgia, issued on the requisition of the governor of New York. While in the custody of the agent of the latter state, the writ was sued out by the prisoner.

<p>ENLISTMENT OP MINOR — CONSENT OF GUARDIAN — PAUSE AFFIDAVIT AS TO Affi<¡.</p> <p>A minor oyer 16 years of age, wlio, at the time of his enlistment, makes affidavit. that he is 21 years of age, will not, on his own application, he released on habeas corpus, on the ground that he was a minor at the time of his enlistment, and that the written consent of his guardian was not obtained.</p>

<p>Customs Duties — Dress Goods Composed in Whole or in Pakt of Wool.</p> <p>The distinction between goods composed wholly of wool and other purely animal products and such as are only in part so composed, maintained; following treasury department decision No. 6,331.</p>

<p>In Bankruptcy.</p>

<p>1. Patents for Inventions — Patentability—Spirau Sfuings — Use of Heat.</p> <p>Patent, No. 116,260, dated June 27, 1871, and granted to Alanson Cary, held a patentable invention.</p> <p>2. Bamk — Inphxnsement.</p> <p>Patent No. 116,266 held infringed by defendants by their use of the Cary process for the same purpose, and with the same result, although they use a higher degree oí heat.</p>

<p>Patents non. Inventions — Infringement — Preliminary Injunctioh — Previous Adjudication as to Validity OB’ Patent.</p> <p>Upon a motion for a preliminary injunction, where infringement is clear, the court will accept and follow an adjudication sustaining the patent made in another circuit, on a final hearing, and after full consideration.</p>

<p>Patents for Inventions — Evidence—Anticipation—Peptone-Pepsin.</p> <p>Anticipation will not bo established by evidence of publications that were nothing more than suggestions and speculations of scientific writers who had never tested the practicability of their suggestions or demonstrated the truth or value of their speculations.</p>

This suit was commenced in the district court of Washington county, Minnesota, and is removed to this court. The complainant is the surveyor genera] of logs and lumber, appointed by the governor of the state of Minnesota for the First lumber district, and charges that the defendants have conspired and confederated together to prevent him and his lawfully appointed deputies from discharging the duties enjoined by law.

In Equity. Demurrer to evidence tending to prove the allegations of the cross-bill and answer of Josiah Fogg.- For opinion upon demurrer to answer and cross-bill, see 22 Fed. Rep. 86. See, also, Fogg v. St. Louis, H. & K. R: Co. 17 Fed. Rep. 871.

<p>Trade-Mark— (rKOGRArinoAR Name — “St. Louis Lacier, Beer'Fraudulent Simulation of Labels — Injunction.</p> <p>Oomplainanl, a brewer in St. Louis, Missouri, made, and exported to Panama and South American porls, beer in bottles, willi a label bearing the words, “St. Louis Lager Beer.” Defendant, a shipper of beer from New York city, and a competitor of complainant in trade in Panama and South America, labeled his bottles “St. Louis Lager Beer.” Held, that although complainant could not have an exclusive property in tlie words “ St. Louis,” as a trade-mark, or the exclusive right to‘designate his beer by the name of “ St. Louis Lager Beer,” yet, as his beer had always been made at that city, his use of the designation upon his labels was legitimate; and that defendant, whose beer was made in ]\!ew York, should be enjoined from diverting his trade by simulating his labels, or representing, in any other way, his products as those of complainant.</p>

<p>1. Railroad Mortgages — Foreclosure Suit — Delay in Answering — Expenses of Receivership.</p> <p>Where a foreclosure suit, was instituted against a railroad company and a receiver was appointed, and intervening demands were adjudicated and receiver’s certificates issued for the preservation of the property, which was run at a loss, — a 11 with the defendant’s consent, — and about 16 months after the appointment of a receiver, and when the case was about to be closed, the defendant, without producing any ailidavits excusing the delay or explaining its original consent, and without offering to provide for the interest due and expenses incurred, and which might thereafter be incurred by the receiver, requested leave to file an answer which set up irrelevant issues: held, that the application must lie denied.</p> <p>2. Same — Jurisdiction—Good Faith — Receiverships.</p> <p>He/ribU, that courts have the right, where their interposition is invoked, to hold that the proceedings are instituted in good faith; and that, where a court takes possession of property in foreclosure proceedings, it, should not hold possession and administer it through its receivers for other than the original purpose disclosed in the suit.</p>

In Equity. Tlie course followed by tlio defendant heroin is explained in the opinions delivered upon applications for leave to file an answer, reported in 23 Fed. Rep. 846, and ante, 151.

<p>1. Suit to Quiet Title — Parties.</p> <p>Where a number of persons claim undivided interests m real property adversely to one in possession of the same, the latter may maintain a suit to quiet his title against any or all of such claims, and neither of said persons or adverse claimants is a necessary party to a suit for that purpose against the other.</p> <p>2. Plea in Abatement for Defect of Parties to a Bill.</p> <p>A plea to a bill for a defect of parties consists of new matter, and is called a pure plea, and therefore need not he supported hy an answer; by it the defendant admits tlio case made by the bill, but objects that for want of parties the plaintiff cannot have the relief to which he may be otherwise entitled.</p>

On the tenth day of September, 1881, tbe defendant insurance company issued its policy of insurance, No. 105,844, by which it insured the life of Peter Salentine in the sum of $2,000, thereby agreeing to pay that sum to the plaintiff, the wife of the insured, within 90 days after due notice and satisfactory proof of the death of the said Peter Salentine.

<p>Master and Servant — Railroad Collision at Crossing — Negligence of Employes of Both Roads — Right of Employe to Recover — Doctrine of Fellow- Servants.</p> <p>Where a fireman on a railroad train is injured by a collision at a crossing of two roads, brought about by the concurring negligence of the engineer oil liis train, and of the employes of the other road, his right to recover damages for such injury from the other .road will not be defeated by reason of the negligence of the engineer.</p>

On Motion for a New Trial. This was an action upon a policy of insurance upon the steamer Manitoba, whereby the plaintiff was insured in the sum of $10,000 against total loss and general average only. On the sixth of November, 1883, the steamer left Port Arthur upon Lake Superior, bound for Sarnia, and in the course of her voyage reached the harbor of Southhampton on Lake Huron, November 11th. The wind was then blowing from the south-west.

On February 12,1858, the legislature of the territory of Kansas incorporated the Leavenworth, Lawrence & Fort Gibson Railroad Company, and authorized it to construct a railroad from Leavenworth via Lawrence to the southern boundary of the territory. On the third of March, 1863, the congress of the United States passed an act granting lands to the state of Kansas to aid in the construction of certain roads.

<p>Patents for Inventions — Scope of Invention.'</p> <p>A pate at for a mere improvement in tlie department of mechanics to which it belongs, must be limited to the arrangement of the device claimed as new, and cannot he so expanded as to embrace different substituted devices that perform some of the functions of the patent, or produce the same general effect.</p>

<p>Patents for Inventions — Track-Drills.</p> <p>Tlie combination covered by letters patent, No. 205,927, issued to P. J. Underwood lor an improvement in railroad-track drills, is not infringed by the use of the device described in letters patent No. 186,225, by the addition of a vertical screw with a thumb-piece, for the purpose of holding the sliding block in position.</p>

<p>Patents for Inventions — Unconditional Sale oe Patented Article in 'Foreign Country — Eight oe Purchaser from Vendee to Use or Sell in United States.</p> <p>Tlio owner oí a patent in tlie United States for an invention, who lias sold the patented article in England without restriction or conditions, cannot, treat as an infringer one who lias purchased the article in England of the vendee of the patentee, and restrain him from using or selling the article in the United States.</p>

<p>Patents foe Inventions — Infringement—Costs—Expense of Model.</p> <p>The expense of obtaining a model of an infringing machine cannot be deemed i taxable disbursement in favor of the prevailing party.</p>

Motion,for New Trial. This action is brought to recover damages occasioned by the negligence of the defendants in failing to tow property the plaintiff’s canaU boat Minnie P. Howe from Newburgh to New York on the evening of October 4, 1881. In the last tier, directly behind the canal-boat, was a spile-driver, which became disengaged and was forced by the-winds and waves violently against the stern of the canal-boat, causing the loss and injury complained of.

<p>1. Towage — Exemption prom Negligence.</p> <p>An understanding that a tow-boat should not he responsible for damages to the tow upon a contemplated trip, would not exonerate the tow-boat from the consequences of actual negligence in the performance of the service undertaken.</p> <p>2. Same — Damages.</p> <p>The general rule is that the damages recoverable for injury to a vessel by a collision should not exceed her then value.</p>

<p>Purchase of Vessel — Notice of Limit — Estoppel.</p> <p>While respondents were negotiating for the purchase of a steam-boat, a lion-creditor notified them of his claim, and warned thorn not to buy until it was settled; but subsequently informed thorn that it was settled, at the same time remarking that they ought to see that they got a good bond; thereupon the respondents completed the purchase, and paid the price, taking the customary bond of indemnity against liens generally. Held, that such creditor was es-topped from asserting that said claim was a lien against the boat in the hands of tire respondents, to the prejudice of the respondents and their surety in said bond.</p>

<p>Motion to Remand.</p>

<p>Removal on Cause — Time op Removal — Repeal op Rev. St. § 639, cl. 2.</p> <p>The second clause of section 639 oí the Revised Statutes was repealed bv the act of 1875.</p>

<p>Motion to Remand.</p>

<p>1. Public Lauds — Action by United States to Annul Patent.</p> <p>The United States has the same remedy in a court of equity, to set aside or annul a patent for land on the ground of fraud in procuring its issue, -which, an individual would have in regard to his own deed procured under similar circumstances ; following U. S. v. Minor, 5 Sup. Ct. Rep. 836.</p> <p>2. Same— Proceedings before Land-Office — Effect of Judgments and Decrees.</p> <p>The doctrine of the conclusiveness of judgments and decrees of courts as between those who are parties to the litigation, is not applicable to the United States in regard to the proceedings before the land-officers in granting patents for the public land.</p>

<p>Suit to Enjoin Collection of a Tax.</p>

On motion (1) to confirm sale made to Charles H. Shattuck, March 17, 1885; (2) for a decree against J. N Camden, personally, for the difference between his bid of $173,050, October 1, 1884, and that of Shattuck, March 17, 1885, of $119,100; (3) to set aside order entered November 3, 1884, canceling the bond of Thompson and Payne and Chancellor, and directing a return of the deposit of $10,000.

<p>Receiver — Interference of Strikers — Contempt—Punishment.</p> <p>A writer, signing himself chairman, sent the following notice to the various foremen of the shops of the Wabash Railway Company during a strike organized to resist a reduction of wages, the railroad being at that time in the hands of a receiver appointed by the United States circuit court:</p> <p>“Ofstoe oe Local Committee, Juno 17, 1885.</p> <p>“-, Foreman; You are requested to staj^ away from the shop until the present difficulty is settled. Your compliance with this will command the protection of the Wabasli empkq-es. Rut in no case are you to consider this an intimidation.”</p> <p>Held, that this was an unlawful interference with the management of the road by the receiver, and a contempt of court, for which the writer should be punished.</p>

These were two suits upon promissory notes, one for $2,121, and the other for $1,123.59, both dated January 1, 1884, due 3 2 months after date, and payable to the order of Washburn & Moen Manufacturing Company, at the First National Bank of Joliet, Illinois. The plaintiff in each case is a banking corporation, organised under the laws of the United States, and located in Massachusetts.

<p>1. Collision — Overtaking Vessel — Exhibition Touch — Rev. St. $ 4234.</p> <p>Section 4234, Rev. St., requiring the exhibition of a lighted torch, is designed to furnish an additional safeguard against collision, not to dispense with any of the previous obligations of diligence on the part of an overtaking vessel to keep out of the way of a vessel ahead. Though the latter fail to exhibit a torch, as required, the burden is still upon the former to show that she used all reasonable diligence to avoid the vessel ahead, as required by rule 22, j 4233.</p> <p>2. Same — Bükden op Pttootf — Negligent Lookout — Apportionment.</p> <p>About 1 o’clock on the morning of the eleventh of April, 1883, the night being overcast and dark, but without fog, the steamer City of M., bound to New Y ork, was some 60 miles north-east of Cape Ilatteras, and going about 10 knots an hour, on a course N. by 13. At the same time, the schooner AT. J. R. was sailing by tlio wind on a course varying from N. N. E. to JST. E. by N., aiul making about 4 knots an hour. The lookout of the schooner testified that he saw only the steamer’s green and mast-head lights about a point oil the schooner’s starboard quarter. No torch was exhibited by the schooner; her master supposing, as he said, that the steamer would pass astern of him. The schooner was not seen by those on the steamer till the vessels were a short distance apart, when the wheel of the steamer was ported and her engine stopped, notwithstanding which her stem struck the schooner aft on the starboard side, causing injuries which rendered the schooner a total loss, and compelled the steamer to put in towards Norfolk, where she was beached to prevent sinking. Tliis action was brought against the steamer by the owners of the schooner. The testimony as to the navigation of the two vessels was in irreconcilable conflict. Held, that, faults on the part of both vessels caused the collision; that if, as alleged by the schooner, the green light of tlio steamer was visible for some nine minutes prior to the collision, bearing continually in the name direction, the schooner’s men should have known from that fact that the steamer ivas circling round and overtaking them, instead of crossing- astern, and should have exhibted a torch; that the steamer was also in fault, as tlio fact that no torch was shown her did not lessen her obligation, as a following vessel, to use a 11 reasonable diligence to keep out of thewayof the vessel overtaken, and fault on the part of the schooner did not relieve her from the obligation of proving that she was not in fault, or that the ease was one of unavoidable accident; that this burd(m abe had not sustained, if the schooner was seen as far distant as was alleged, because her porting was, in that case, error, since a starboarding of her wheel would easily have carried her under the schooner’s stern ; nor was the error one in extremis, considering the distance between the two vessels, and the moderate speed at which the steamer was gaining upon tlio schooner. Moreover, on the whole evidence, it was most probable that the real error of the steamer was neglect in the lookout in not seeing the schooner until the vessels were much nearer than they admitted, and so near to each other that there was no time to avoid the schooner, and that there was negligence in not observing her in time. The damages were therefore divided.</p>

<p>1. Wharf — Lessee to Repair.</p> <p>A lessor who has let a wharf and slip, and delivered exclusive possession to a lessee who covenants to repair, is not liable for damages that happen through obstructions that arise subsequently, of which the lessor has no notice.</p> <p>2. Same — Damage to Barge.</p> <p>A barge loaded with coal having been sunk by a concealed pile near the shore end of the slip, held, upon the proofs, which were insufficient to show with certainty how the pile came there, that it was probably a water-soaked log which had become imbedded in the mud, and was not there when the city, 10 years before, leased the premises to the defendant company, and that the” city was not, tlieretoro, liable. Held, further, on the same grounds, that the defendant company was not liable, because that part of tlie premises where the barge was sunk had been underlet several years previously, and exclusive possession given to another company not sued, that had covenanted to keep the premises in repair; and it not being proved and not being probable that the obstruction was there when the under-lessoes took possession, and tlie under-lessors, defendants, having no notice of the obstruction prior to the accident.</p>

<p>Wharves — Damage from Sewer — Obvious Danger.</p> <p>Where a canal-boat moored at a wharf belonging to the corporation, directly along-sido and beneath the opening of a large main sewer, and during the following night was submerged and sunk from the great outpouring of water consequent upon a summer shower, held, that there was no negligence in the corporation, either in the construction, repair, or maintenance of the sewer, and that it was no nuisance to navigation. That liability to sudden danger of a discharge of water being visible and sufficiently obvious to a man of ordinary intelligence, held, that the owner could not recover of the city for the loss.</p>

<p>Removal of Cause — Sepakate Controversy.</p> <p>The pleadings and record in this ease, as they stood at the time of removal, show that it involves but one indivisible controversy, and the cause is remanded to the slate court.</p>

<p>Riparian Rights — Diversion of Water — Injunction.</p> <p>On examination of the evidence, held, the complainant has not established its exclusive right to the water alleged to have been diverted from its mine and land by defendant, and that ail injunction restraining defendant should not be granted.</p>

<p>1. County Bonds — Suit Against County — Political Code Cal. $ § 4000, 4002, 4003.</p> <p>A county in California is a corporation, and liable to suit.</p> <p>2. Same — Statute on Limitations — Resignation op County 'Supervisors.</p> <p>That the supervisors of a countjr all resigned for the purpose of evading service of summons in a suit against the county, will not prevent the statute of limitations from running.</p> <p>3. Same — Suit, how Commenced.</p> <p>Suit may he commenced in such sense as to stop the running of the statute of limitations by the filing of the complaint.</p> <p>4. Same — Coupons—Statute Runs prom what Period.</p> <p>The statute of limitations runs upon coupons from the date of their maturity.</p> <p>5. Same — Interest on Bqnds — Civil Code Cal. § 1917.</p> <p>Where no provision is made for interest, both bonds and coupons hear interest after maturity at the legal rate, whether the coupons are detached or not.</p> <p>6. Same — Oonstitutionauty oh1 Speciat, Statutes ow Limitations.</p> <p>_ It is competent for a state legislature to pass special statutes of limitations applicable to a particular county indebtedness.</p> <p>7. Same — Action, when Bahked.</p> <p>If an action on the bonds would be barred in a certain number of years after their maturity, an action on the coupons will bo barred in the same number of years alter their maturity.</p>

<p>1. Attachment — Fraudulently Disrobing of Property — Intent must Exist at Time of Making Affidavit.</p> <p>The fraudulent act of a debtor, made the ground of an attachment, must have accrued before or exist at tlie time the affidavit for the attachment is made by the creditor.</p> <p>2. Same — Insufficiency of Bond — Allowing Additional Security to be Given.</p> <p>The insufficiency of a surety on the bond at the time the attachment was issued will not render it void, and entitle defendant to have it dissolved, but additional security may be required and taken by tlie court.</p>

<p>1. Conversion as Cattle — Bona Fide Purchaser — Notice.</p> <p>One wlio purchases for value and without notice, from a stranger, cattle that have strayed from their range and been taken possession of by such stranger, will be liable for conversion if he refuses to deliver them to tlieir owner on demand made by him.</p> <p>2. Same — Measuiie op Damages.</p> <p>The measure of damages for such a conversion will bo the value of the cattle with their increase to the time of demand, with legal interest thereon from the date of the demand.</p> <p>3. Witness — Credibility—False Testimony.</p> <p>The jury may disregard altogether the testimony of a witness who has willfully and knowingly sworn falsely in respect to any material matter in the case.</p>

<p>Sauk — Storpvge isf Transitu — Transfer of “ Duplicate Bill ok Tatung— JTotioe — Insolvency ok Ykndee.</p> <p>On .February 6, 1884, I). sold to T. 25 hogsheads of tobacco, and shipped them by rail to him, taking two bills of lading, one marked “ original,” and the other “ilindicate.” The “duplicate” bill of lading and invoice were transmitted to T., and tho “ original ” was attached to a 60-days draft drawn by D. on T., and sent through a bank for acceptance. T. on receipt of the “ duplicate ” transferred it by indorsement to 0., with whom he had contracted to sell the tobacco, and received payment therefor; and oil presentation of the “original ” and draft the next day, refused to accept the draft, and it was returned to D. On February 24,1884, T. failed, and D. ordered the goods, then in transit, to be stopped. On February 27 and 29, 1884, 0. demanded the goods of the railroad company, and was informed that they had been stopped in transit by D. and shipped bach to them; whereupon O. sued the company to recover the value of the goods, claiming to be an innocent purchaser for value. Held, (1) thatlhe transfer of the “ duplicate ” bill of lading for value did not carry with it necessarily the title to the goods; and (2) that O. liad notice before he paid for the goods, which should have put him. on inquiry as to what disposition had been made of the “ original ” bill of lading, and therefore did not acquire a legal title to the goods that would defeat the right of the consignor to stop them in transit.</p>

<p>Patents for Inventions — Effect of Decision upon Interference — INFRINGEMENT — Preliminary Injunction — Anticipation.</p> <p>A decision upon an interference is not conclusive in suits upon the patent granted in pursuance of it. But it is a sufficient adjudication upon the patent-ability of the invention, and the right of the successful party to a patent for it, to lay the foundation for a preliminary injunction against the losing parties and privies to prevent infringement of the patent; and neither alleged anticipation of the invention by others, known to them while they were 'seeking to obtain a patent for it themselves, nor their own alleged invention, will avail them to prevent the injunction, without being made clearly to appear.</p>

<p>Patents eor Inventions — Caps—Reissues Nos. 7,807, 7,808 — Infringement— Injunction.</p> <p>Preliminary injunction refused because of doubt as to tlie validity of the reissued patent.</p>

<p>PATKXTS T?OR IjUTONTlOKB-— SQUIDS E’OJB IjLASTIKG — NOVEUTY—-PRIOR USE.</p> <p>Tho prior uso of fuses embodying the essential features of the patents Nos. 8,361 and 134.128 being shown, held, that such patents are void for want of novelty.</p>

<p>Patents von Inventions — Plaques for Painting and Decoration — Infringement.</p> <p>The evidence failing to satisfy the court that the Deplanque Plaque is infringed by theplaque'of Itipka, the bill is dismissed.</p>

<p>1. Marine Insurance — Insurablf, Interest — Trust.</p> <p>When the legal title to a vessel is wholly in a party as trustee, he may insure her for the use of his beneficiary.</p> <p>2. Same — Right to Abandon — Loss in .Excess of Half Amount Insured — Stranded Vessel — Adding Expense of Repairs and Cost of Getting Vessel Afloat.</p> <p>When a vessel has stranded, the insured may add the eost of repairs to tlio cost of getting her off the beach, and getting her to a port of safety and repair, for the purpose of making such an amount as to equal or exceed half the amount insured.</p> <p>3. Same — Delay of Insured in Giving Notice of Abandonment.</p> <p>When tiie delay of the insured in giving notice of abandonment has not prejudiced the insurer, such delay will not impair or affect the rights of tlie insured.</p> <p>4. Same — “ Sue and Labor ” Clause in Policy — Underwriter Taking Possession — Const ruction — Total Loss.</p> <p>Where the underwriter takes possession of insured property under the “ sue and labor” clause in a policy, for the purpose of saving, and, if necessary, repairing the property, he must make reparation and return within a reasonable time, or he makes the property his own, and is liable for a total loss.</p>

<p>1. Damage to Cargo — Partial Loss — Subrogation of Insurers without Abandonment.</p> <p>This suit arose out of damage to cargo on board tho steamer Hadji in 1880. See The Hadji, 16 Fed. Hep. 861; affirmed 20 Fed. Rep. 876. Libelant was the assignee of insurers, who, having paid a partial loss, claimed to be sub-rogated to the rights of the owners. Respondent objected that, there was no subrogation because no abandonment; and hence no title, Held, (following The Frank (r. Fowler, 8 Fed. Rep. 360,) that the objection should be overruled.</p> <p>2. Same — Voluntary Payment by Insurer — Right op Carrier to Question Payment.</p> <p>As it was held in tlie case of The Hadji, supra, that tlie ship was unsea-worthy, respondent, contended that the payment by the insurer was voluntary, and therefore that the assignee was not entitled to recover in this action. Held, that a carrier who is liable for loss or injury is not entitled to raise that question as between insurer and insured, after the insurer has paid the loss.</p> <p>3. Bill oe Lading — Construction oi? Exemption Clause — “ Ship-Owners will not be Liable kor More Tuan Invoice Value.”</p> <p>The bill of lading was for 14 bales, three of which were damaged. It contained the clause that “in ease of damage, loss, or non-delivery, tho shipowners will not be liable for more than the invoice value of the goods.” Tho invoice value of the 14 bales was $2,692.16; the price obtained for the whole in the foreign market was $2,901.85., The invoice value of tho damaged goods alone was $571.05; the actual price received for them was $184.85. Respondent relied on the analogy of insurance policies, and the rule that where such policy contains the clause “ free from average, unless general,” under a certain per cent., the percentage of loss is calculated upon tho subject insured as a whole, and that there can be no recovery for loss of a part less than tho agreed percentage calculated on the whole. Respondent contended, therefore, that as the shipper realized on the whole cargo more than the invoice value, he could not recover the loss on the three packages. Held, that the liability of a common carrier is not, simply on contract, like the liability of an insurance company, but in tort as well, and arises separately for each item ol' loss. That tlie above clause in the bill of lading should be construed according to its natural import and evident intention, not as a condition of any liability at all, but as a limitation of the extent of the carrier’s liability, and as applying dislributively upon each article damaged; and that lie is to bo held liable, in the sense of being accountable, for no more than the invoice value of the goods damaged. For tlie same reason, also, held, that on a partial injury tlxe damage is to he computed on the basis of the inv'oice value of the goods damaged, and their net proceeds being credited against their invoice price and freight, the carrier is to be held for the difference only.</p>

<p>Purchase of Vessel — Liability for Outfit — Authority of Managing Owner —Supplies.</p> <p>By the terras of the contract under which the defendant T. was to acquire a oneleiglUh interest in tlio brig O., then building by one P., the title would not pass to T. until the delivery of tlie brig, completed according to such contract. Before such delivery, libelant, on the order of P., who was afterwards managing owner, and who informed libelant that T. was a part owner, furnished an outfit for tlie vessel, wliicli was charged to the brig and owners, and was delivered to the ship before the title passed to T. The purchase was made without the knowledge of defendant T., who afterwards paid to P. the price of his one-eiglith share. T. was afterwards informed, of the purchase, but not that it was made in part on his credit. The evidence left it doubtful whether the price agreed on between P. and T. for the one-eiglith interest was intended to cover the outfit. Held that, under the circumstances, P. had no authority to bind T. in the purchase of the outfit; that if T. was liable for the outfit it was solely to P.,and subject to the state of their private accounts; that for supplies furnished subsequently T. was liable, and a reference as to these was ordered.</p>

<p>Libel in rein, in Admiralty.</p>

<p>Steamer’s Swell — Damage Caused Thereby — Liability.</p> <p>VV here the swell from a passing steamer overwhelmed and sank a loaded canal-boat lying at a bulk-head, and it appeared that the canal-boat was lying in a proper place, well known to the pilot of the steamer, and also that the steamer was proceeding at a high rate oí speed, held, that the steamer was liable ior the damage.</p>

<p>Collision — Mid-Ocean—Mutual Fault — Steamer and Schooner.</p> <p>The steamer ia this case being guilty of negligence in running at full speed on a dark and foggy night, and the schooner also being negligent in not having on board and displaying a torch, held, that only half damagSs should be allowed, and that the costs should be apportioned.</p>

<p>Towage — Negligence—Contributory Negligence — Running Aground.</p> <p>On examination of the evidence, held, that the defense of contributory negligence is not made out, and that the libelant is entitled to damages. .</p>

<p>Collision — Schooner-—Barge at Anchor-Damages.</p> <p>Where a schooner runs into a barge at anchor the burden is on the schooner to rebut the presumption of negligence on her partv Schooner held liable.</p>

<p>Towage — Tug and Barge — Striking Sunken Wreck — Negligence—Damages.</p> <p>The tug ia this case was guilty of negligence, and should be held liable for the loss of the barge being towed, caused by striking a sunken wreck, the existence of which was known to the tug’s captain.</p>

<p>DEMURRAGE — Crowded Wiiaiif — Diligence in Unloading Vessel.</p> <p>"Whore a vessel loaded with wood was delayed several days by reason of the crowded condition of the wharf, and it appeared that due diligence was used to unload her, held, that her owner was not entitled to demurrage.</p>

<p>Carrier of Goods by Water — Damage to Cargo of Kairit — Delivery of Part Only.</p> <p>In tills case the vessel was held liable for the damage to the cargo and the failure to deliver the whole of the kainit taken on board.</p>

<p>On Motion for Rehearing on order to remand to the state court.</p>

<p>Municipal Corporations — Grant op Exclusive Privilege to Street Kail-wavs — Power op Kansas Citv, Kansas — Elevated Railroad — Injunction.</p> <p>In 1872 t.hq city of Kansas, in Kansas, passed an ordinance granting to the Kansas City & Wyandotte Street Railway Company “the sole right,for the space of 21 years, to construct, maintain, and operate their railway over and along all the streets in said city,” subject to restrictions as to grade and condition of road. In 1881 the company leased t.o the Jackson County l-Iorse Railroad Company a part of its road running through a certain street, and in 1883 the city passed another ordinance granting to the Interstate Rapid Transit Railway Company the right to construct and operate an elevated railroad through certain streets, including the street occupied by the Jackson County Horse Railroad Company, which hied a bill to enjoin tile building of the elevated road. Held, that so ranch of the ordinance of 1872 as purported to give exclusive privileges to the lessor or to complainant was beyond the powers vested in the city of Kansas and void, and that complainant had no right to challenge the validity oí the ordinance oí 1883. or to restrain defendant from building its road.</p>

On Exceptions to Master’s Report. On June 9, 1881, the defendant made a note to the order of the plaintiff, to pay, on the first day of July, 1886, the sum of §65,000, at the rate of 7 per cent, per annum, payable semi-annually. In the note was a condition that if the note was not paid at maturity it should bear interest at the rate of 12 per cent, per annum from the date thereof.

<p>In Chancery. On motion to appoint a receiver.</p>

<p>In Chancery. On writ of provisional seizure issued m a case of executory process.</p>

<p>Fire Insurance — Reformation of Policy.</p> <p>Where it appears that an insurance policy against loss by Are was issued to secure a mortgage of the insured property, but by mistake was made in the name of the owner of the property, instead of the mortgagee, who was the contracting party for the insurance, and the property was destroyed by lire during the term of the policy, it is against equity to permit the insurance company to set up its mistake and the actions of the owner to defeat the claim of insurance under the contract, and the conti act was reformed and judgment given against the insurance company in favor of the mortgagee for the amount of his mortgage.</p>

<p>In Chancery. On motion for an injunction.</p>

<p>In Chancery. S. C. 22 Fed. Rep. 422.</p>

<p>Conversion and Spoliation.</p> <p>In order to hold a party for an alleged conversion and spoliation, it is necessary to prove, either tliat lie or liis agents pitrticipated in the conversion, or received or benefited by tlie proceeds of the conversion, in whole or in part.</p>

<p>Corporations — Reduction or Capital Stock. .</p> <p>Under the laws of Louisiana authority to increase the capital stock of a corporation must be express. As the constitution and laws of Louisiana provide for the increase of the capital stock, but are silent as to a decrease, the power to reduce the stock of a corporation -was intentionally denied.</p>

<p>1. Negligence — “Vessel Passing through Draw — Duty op Bridge-Keeper —Failure to Open Draw — Signals.</p> <p>Semble, in cases where the draw of a bridge cannot be opened to an approaching boat promptly, the keeper of the bridge, by a proper signal, in answer to the boat’s whistle, should give notice of the fact; and again, when ready to open the draw, should give a signal of the fact.</p> <p>2. Same — Duty of Vessel.</p> <p>Where the only notice a boat approaching with a tow of barges has that a draw will not lie opened is seeing it closed, it is not negligence on the part of the boat, after giving the proper signals, and there is no apparent reason why the draw should not be opened, to drop down under the slow bell until reasonable prudence requires a different course.</p> <p>3. Same — Evidence—Contributory Negligence.</p> <p>On examination of the evidence in this case, held, that contributory negligence on the part of the boat is not shown, and that the managers of the bridge were negligent, and liable for the injury resulting therefrom.</p>

<p>Railroad Companies — Contract to Issue Bonds — Mortgage—Certificates— Lien for Material and Labor Used in Constructing Road.</p> <p>Rights of the holders of certificates entitling them to bonds secured by mortgage considered, and held not to entitle them to a first lien as against those who furnished labor and material for the construction of the road.</p>

<p>1. Liens and Privileges — Oivil Code La. Art. 3217.</p> <p>The privilege purporting to be given by paragraph 3, art. 3217, Civil Code La., “on everything which serves to the working of the farm,” should be construed to apply only to such things as serve to the working of the farm, but do not constitute a part of the farm itself; that is, to movables by nature and destination, — movables serving to the making of the farm, but not belonging t.o the owner.</p> <p>2. Same — Wages or Laborers on Plantation.</p> <p>The services of laborers on a plantation inure directly to the benefit of those having liens or privileges upon the crop, in preserving the thing on which their mortgage and privilege rested, and therefore were entitled to an equitable as well as a statutory lien on the proceeds of the crop, but they in nowise benefited the owner of the land, and their wages have no equitable lien whatever against him, and a very doubtful statutory privilege.</p> <p>3. Same — Movables and Immovables.</p> <p>The Oivil Code La. arts. 3253-3270, inclusive, contemplate that privileges bearing on both movables and immovables shall be first satisfied from the movables before resorting to the immovables; and this seems to be also the equitable rule in marshaling assets.</p>

The plaintiffs in these suits applied for and obtained writs of attachment against the defendants, A. Carriere & Sons, and under these writs seizure was made of various notes, bonds, and other securities. Subsequently, on the eighteenth of July, 1884, the defendants, A. Carriere & Sons, through E. L. Carriere and C. J. Carriere, surviving partners, made a cession of all their property to their creditors under the insolvent laws of the state of Louisiana.

<p>1. Liability of a Surety.</p> <p>Tho liability of a surety in an official bond is stridi juris; and lie is not to be held responsible for the conduct of his principal beyond the scope of his undertaking, reasonably construed.</p> <p>2. Assistant Secretary of the Treasury — Authority of.</p> <p>The assistant secretary of the treasury is not the deputy of the secretary, but only his aid; and his acts are not valid unless specially authorized by law or prescribed by the secretary, (sections 161,245, Kev. St.;) but a letter written by him to a collector of customs, concerning the deposit of money in his custody, will be presumed to have been written hv authority of the secretary until the contrary appears.</p> <p>3. Case in Judgment.</p> <p>In 1866 A. was collector of customs at Astoria, Oregon, when and where he received a letter, signed by the assistant secretary of the treasury, directing him to take $46,500 in gold coin, theretofore received by him. in payment of duties, and then in his custody, to San Erancisco, and deposit the same with the assistant- treasurer; in pursuance of which direction the collector sailed for San Francisco on the current steamer with said monejr in his trunk, and on the way $20,500 of the same was stolen therefrom, without any want of ordinary care and diligence on his part, a portion of which was afterwards recovered, so as.to reduce the loss to $12,696.28, for which the government sued the collector and his sureties on their bond. The defendants pleaded these facts in defense and claimed they were not liable on the bond, to which the plaintiff demurred. Held, (1) that the carriage of this money to San Francisco was no part of the duty of A. as collector, (section 3639, Rev. St.,) and therefore his sureties are not responsible for his conduct while so engaged; and (2) that in the transportation of said money, A. was simply acting as private carrier for the government, and is not liable on his bond for his conduct, or otherwise, except for the want of ordinary care and diligence.</p>

<p>1. Customs Duties — Action to Recover Excess of Duties — Conditions PRECEDENT.</p> <p>Under section 14 of the act of Juno 30, 1864, (13 St. at Large, 202; section 2034, Rev. St.,) it is incumbent upon the plaintiffs, in a suit to recover an alleged excess of duties paid by them on their importations of merchandise, as a oondii ion precedent to their recovery, to show — First, that they have protested; Berontfl;/, that they have appealed; and, thirdly, that thev have hi-murlit their suit within the time required thereby.</p> <p>2. Same — Decisions of Secretary of Treasury.</p> <p>Under this section it is not incumbent upon the secretary of the treasury to communicate to the appellant his decision on an appeal from the decision of the collector of customs.</p>

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

<p>Motion for leave to enter satisfaction of judgment. The opinion states the facts.</p>

<p>Patents fob Invention — Expiration of Patent — New Parties.</p> <p>On January 15, 1882, complainants filed their original bill, averring infringement of their patent, and praying for an injunction and accounting, and, after several amendments, on October 4,1882, the heirs at law of one of the patentees were made parties. The patent expired on July 28,1882. Held that, as the court could not have acquired jurisdiction until October 4,1882, when all the parties in interest were brought 'in, and the patent had expired before that time, the bill should be dismissed.</p>

<p>Patents for Invention — Foiíwbb Adjudication as to Pbiority op Invention.</p> <p>A contest between two patentees as to priority of invention, and a judgment that the junior patentee Wits or was not the first inventor of the thing patented to each, would he an adjudication affecting the title of the junior patentee; but, an adjudication that the senior patentee was not the first inventor of the thing claimed in his patent, which was not the thing claimed by the junior patentee, does not enlarge nor affect the estate of the latter, and is not a bar to a subsequent suit by the senior patentee against a licensee of the junior patentee, whose license was falten after the commencement of the first suit, and with notice thereof, although the junior patentee cannot make the thing which was the subject of his invention without using the claimed invention of the senior patentee.-,</p>

<p>Patents fob Inventions — Reiiearing on Condition Testimony Taken be Used.</p> <p>Motion for rehearing granted, on condition that in case there should he a decree in the cause for an accounting, the testimony already taken before the master shall stand for use in the case as if taken by the parties respectively upon such new accounting.</p>

<p>Admiralty Appeal.</p>

<p>Admiralty Appeal. Libel for advances. Cross-libel for damages for non-execution of charter-party.</p>

<p>Admiralty Appeal.</p>

<p>1. Collision — Signals—Delay in Observing — Steamer in Fault.</p> <p>A vessel’s delay in maneuvering in accordance witli her own signals is at her own risk.</p> <p>2. Same — Case Stated — Miscalculation by Pilot.</p> <p>The steamer G-., coming in from sea, stopped oif quarantine, and got headed somewhat down and across the channel. Afterwards, when she was backing and filling, in order to turn around, the tug Ifi. B., with the bark H. & T., under sail in tow, on a hawser of 00 fathoms, was seen coming down the channel, their course lying somewhat, astern of the steamer. When about 400 yards apart, the steamer, which was then heading S. E., with her engines hacking, gave a signal of. one whistle, to which the tug ’-eplied with oner The steamer at once stopped her engines, but did not at once order them full speed ahead. The tug observing that the steamer was moving astern, when about 150 or 200 yards oil, blew several cautionary blasts, to which the steamer again replied with one whistle. The tug and hark ported. The steamer’s engines were then ordered full speed ahead, but not in time to prevent her hacking enough to come between the tug and bark and striking the hawser. The hawser was cast oil; the bark starboarded and struck the steamer a glancing blow abreast of the bridge. Held, that t-lie steamer was solely in fault for delay in ordering her engines “full speed ahead ” in accordance with her own signal; and that miscalculation by her pilot was the cause of the collision.</p> <p>8. Same — Rule 21 — Risk op Collision, when Arises — Slowing Immaterial.</p> <p>A vessel is not required, under rule 21, to slacken speed, or stop and back, until the situation involves some apparent risk of collision. No such risk was, in this case, to ho reasonably apprehended when the tug’s course lay astern of the steamer, and the latter’s signal indicated that she would move ahead to the eastward, and the tug had a right to rely on the steamer’s doing so until it was too lato for the bark to avoid collision. Tho burden of proof is on the tug that fails to slow, to prove it immaterial. Held so proved in this case.</p> <p>4. Samis — Duty or Vessel.</p> <p>A vessel is not, bound to uso more than ordinary nautical skill and judgment in avoiding the consequences of another vessel’s fault.</p>

<p>Admiralty Appeal.</p>

<p>Pilot’s Lieu for wages.</p> <p>Where a steam-boat is engaged in a regular trade, making short and frequent trips, and a pilot is always necessary, in fact required by the laws of the United States, it is to the interest of the boat and the pilots that contracts shall be made for stated terms of reasonable duration, and as such contracts are lawful, both parties should be bound thereby, and if the boat is bound a lien necessarily results. The Wanderer, 20 Per. Rep. 655, followed.</p>

<p>Maritime Liens — Prioiuti on Liens — Distribution or Fund in Court — “Wages —Kkpairs and Materials — Towage—Salvage.</p> <p>The J. W. Tucker, 20 Fed. Kur. 129, The Grape Shot, 22 Fed. JRep. 123, and The Arctic, Id. I2G, followed as to tlio priority of the various liens in this case.</p>

<p>Equity Practice — Docket Fee — Ukv. St. § 824 — Final Heaiung.</p> <p>To constitute “a final hearing in equity or admiralty,” yvilhin the meaning of section 824, Kcv. St., there must he a hearing 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 hill or libel, on the ground for the permanent relief which his pleading seeks, on such proof as t he parties place before 1 he court, he the case one of pro confesso on bill, or libel and answer, or pleadings alone, or pleadings and proofs. Wooster v. Handy, 23 Fed. Rep. 50, followed.</p>

<p>Equity Jurisdiction — Adequate Remedy at Law — Injunction—Rev. St. § 723.</p> <p>Injunction to restrain defendant’s action at law denied, complainant having a full and adequate defense in that action, within the meaning of Rev. St. § 723.</p>

<p>1. Mortgage — Usury—Enjoining Foreclosure.</p> <p>When a mortgage given to secure a usurious contract contains a power of sale, a court of equity will not, at the suit of the maker of the usurious contract, enjoin the foreclosure of the mortgage, by notice and sale, for the amount, of the debt and legal interest.</p> <p>2. Bvmk — Stipulation to Ship Cotton to .Factor to be Sold on Commission.</p> <p>A stipulation, in a mortgage given to secure a pre-existing debt, drawing the highest conventional rate of interest, and containing no covenant for advances, that the mortgagor would ship the mortgagee, who was a cotton factor, 700 bales of cotton for sale on commission, and that the mortgagor would pay the mortgagee commissions at the rate of 81.25 per bale on the 700 bales, whether shipped or not, is without consideration and void; and if the cotton is not shipped tlie factor cannot charge commissions for selling it.</p> <p>3. Same — Question os1 Usury not Decided.</p> <p>The question whether this stipulation did not render the mortgage usurious is not decided, because its decision one way or the other would not affect the result in this case. The case distinguished from Cookie v. Flack, 93 II. S. 346.</p> <p>4. Factor — Fraud—Forfeiting Commissions.</p> <p>A factor who is guilty of fraud in the conduct of his principal’s business forfeits all claims to commissions.</p>

<p>Suit to Enforce Mortgage Liens.</p>

The ancestor of the plaintiffs was the owner of a large amount of real estate, estimated by the proof to be worth from $f 5,000 to $100,-000. On May 14, 1869, he executed to the ancestor of defendants the following contract: “Exhibit A to Answer. “This agreement, made this fourteenth day of May, 1869, by and between A. M. .Ferguson, of the first part, and II. (1.

The defendant’s testator, Joseph B. Williams, sold a lot in Memphis to C., M. Fackler, taking a deed of trust to secure the purchase money 1 Fackler settled the property on his wife and children by a deed of settlement, making the plaintiff and another trustees.

At Law. Plaintiffs sue as the heirs of Joseph Hall, who was, in 1880, a member of Harrisburg lodge, No. 1,714, of the Knights of Honor, and claim the sum of $2,000 as a benefit. The case was tried before the court, which found these facts: (1) That in July, 1879, Joseph Hall was duly admitted as a member of Harrisburg lodge, No. 1,714, Knights of Honor.

<p>1. Highway Tax — Wisconsin Towns — Authority op Electors — Rev. St. Wis. 1878, « 776, 1240.</p> <p>Tlie electors oí a town in Wisconsin have jurisdiction to raise money to build and repair roads, but they cannot in any town in the state raise more than 15 mills on the dollar, nor in any town having less than 500 inhabitants can they raise more than $1,000, nor in any town of two congressional townships, without regard to the number of inhabitants, can they raise more than $2,000, exclusive of the mill tax authorized to be levied by the supervisors.</p> <p>2. Same — Authority op Supervisors.</p> <p>The supervisors are required by Rev. St. Wis. 1878, § 1240, whether any taxes have been voted by the electors or not, to levy a tax of from one to seven mills on the dollar, and in addition thereto to assess any further amount which may have been ordered to be assessed by the electors, not exceeding in the whole 15 mills on the dollar, provided that the amount assessed in towns of less than 500 inhabitants shall not exceed $1,000 in all, and in towns of two congressional townships $2,000, exclusive of the mill tax.</p> <p>3. Same — Tax Held Yoid.</p> <p>Where the supervisors assess a road tax in excess of $1,000 in a town of but 300 inhabitants, they exceed their authority and the tax is void.</p>

At Law. On the twenty-ninth day of January, 1885, the defendants, Frayser, Mitchell & Co., merchants, made an assignment of their stock of merchandise and other property, for the benefit of their creditors, to L. N. Black, trustee.

<p>1. ARKANSAS Statute of Assignments — Possession of Assigned Property.</p> <p>Under the Arkansas statute, if the parties to a deed of assignment for the benefit of creditors agree, at the time of the execution of the deed, that the possession of the property assigned shall he delivered to the assignee before he has given the bond and filed "the inventory required by law, and that agreement is carried into effect, it avoids the deed, and is good ground for an attachment against the debtor.</p> <p>2. Hum as to Validity of Deeds Valid in Their Inception — Does not Apply, when.</p> <p>The rule that a deed valid in its inception will not be rendered invalid by any subsequent, fraudulent or illegal act of the parties has no application when the fraudulent or illegal act is the consummation of an illegal agreement made contemporaneously with the deed. In such case the illegal act is part of the original design, and the deed is void ab initio.</p>

On the seventh of June, 1876, the bankrupts above named made an assignment to Samuel W. Perry, pursuant to the statutes of New York, for the benefit of their creditors. The assignee duly qualified and entered upon the duties of his trust. On the twenty-second of August, 1883, Perry died. The petitioners are his executors.

<p>Patents for Inventions — Manufacture and Sale of One Machine — Use by Purchaser — Remedy oe Patentee.</p> <p>P. manufactured a single machine protected by complainant’s patent, and S. bought the machine and continued to use it in his saw-mill for disposing of the saw-dust and refuse of the mill, the purpose for which it was intended. Held, that the extent of the injury to complainant was the royalty or proper license for the use of the machine, that he had an adequate remedy by action at law, and that the hill for an injunction and accounting should be dismissed.</p>

<p>1. Salvage Service — Hell Gate — Towage—Award.</p> <p>On May 4,1884, the M. Vandercook was bound through Hell Gate to the city of New York, the tide running a strong ebb. When she reached a point in said Hell Gate abreast of Flood rock she broke her shaft and lost her propeller, by reason of which she became perfectly helpless, and was in danger of and would have gone ashore, and filled and sunk, as the channel of Hell Gate is dangerous, full of rocks, through which the tide rushes with great velocity, and she could not anchor therein. The tug Gratitude went to her rescue, and towed her safely to Jersey City; in so doing subjecting herself to the risk of getting ashore and sinking. Held, a salvage service, but one of low grade, and that the amount of $60 contracted to be paid was a fair compensation for the service rendered by the Gratitude.</p> <p>2. Same — Assignment of Claim for Salvage — Maritime Lien.</p> <p>The assignment of a debt (such as claim for salvage agreed to be paid) secured by a maritime lien will carry the security with the claim when the parties so intend.</p> <p>3. Same — Priority of Liens.</p> <p>A claim for salvage service has a priority of rank over claims for repairs and materials.</p> <p>4. Maritime Lien — Master’s Claim for Wages.</p> <p>A claim of a master for wages is not an admiralty lien.</p> <p>5. Same — Negligent Towage — Tort—Priority of Lien.</p> <p>A claim for damages to a vessel and her cargo, caused by the negligence of a tug while towing her in pursuance of a contract, has priority of payment over liens for repairs and supplies to the offending vessel.</p> <p>6. Same — Supplies—Repairs.</p> <p>Claims for supplies and repairs stand in the same grade, and in this case are to be paid pro rata out of the residue of the fund in court after payment of tho claims for salvage, and for the tort of the tug.</p>

Admiralty Appeal. Action for loss of a barge against a tow-boat towing same; barge having broken loose from tow-boat, and after-wards sinking by coming into collision with same.

<p>Admiralty Appeal. On exception of clerk to report of referees on motion to retax costs.</p>

<p>In Admiralty. S. C. 22 Fed. Rep. 347.</p>

<p>Admiralty Appeal. Libel on a draft for supplies furnished in foreign port.</p>

<p>Admiralty Appeal.</p>

<p>1. Collision — Navigation-— Wharves and Slips — Stay-Links.</p> <p>Reasonable prudence and caution in moving heavy boats about wLarius and slips in a high wind and strong tide require the use of stay-lines at bow and stern to prevent such boats from becoming unmanageable; and whore t coal-boat, for want of such lines, became unmanageable from a sheer, caused by striking another boat in the slip, and swung against the propeller blades of a large steamer, and was sunk, held, those moving her were responsible for not using such lines.</p> <p>2. Coal-Boats Consigned to Steamer — Custom: in Moving — Stevedores.</p> <p>The coal-boat J. K. W. was consigned along-sido the steamer B. E. with coal for her use. On arrival the B. E. was not ready to receive it, and the ,1. R. YV. lay by the wharf till the next day. The stevedore’s men then undertook to move the coal-boat along-sido, using a line to the steamer’s steam-winch, the captain of the J. R. W. being aboard; from want of bow and stern lines the J. R. W. became unmanageable and went under the B. E.’s propeller and was sunk. Held, upon the evidence, that, by the custom it was the duty of the stevedore’s men to aid in getting the boat along-side; that their aid was not merely voluntary; that taking, in fact, most of the control, but not sole control, nor ousting the captain from suitable directions, both wore answerable for want of proper caution, and the libelant recovered half his damages.</p>

<p>CoiJiisiosr— Steamers Crossing- — Puoht op Wat — Speed.</p> <p>A collision occurred in New York liarbor in the afternoon of a clear day, between the sleam-sliip 1’., bound to sea on a S. S. W. course, and a bark which was in tow of the tug lb, and proceeding from lied Hook towards Bedloo’s island, on a ST. H. w. course. Held that, as the vessels were on crossing courses, and the tug had the steamer on her starboard hand, the tug was charged, with the duty of avoiding the steamer, and that the collision was caused by the fault of the fug In attempting to cross the steamer’s bows; that on all the evidence there was nothing to charge the steamer with knowledge that the tug was intending to cross her bows until it was loo late, and that no fault could be ascribed to ilie steamer; that it was not a fault for the steamer to proceed at the rate of 15 miles an hour on a clear day, when the harbor was not crowded.</p>

<p>Collision — River Navigation — Tacking—Not Giving Wav.</p> <p>The schooner I. of P., in beating up the East river oil Gouverneur street, on her long tack passed close ahead of the tug JVIcM. with a tow, and then, after running 600 or 800 feet, tacked and ran straight across the river, designing to go ahead of the tug again, but collided in doing so. The tug had backed strong, to let the schooner go ahead at first, and had then hooked up her engines to go ahead strong; in order to get ahead of the schooner. Held, that both were in fault; the tug, for attempting to get ahead in the narrow space available; the schooner, for not heeding the tug’s evident intention, and not either porting or starboarding, as she might easily have done, and thus have avoided the collision</p>

<p>1. Collision — Negligent Navigation — Burden of Proof.</p> <p>In a suit to recover for damages caused by a collision resulting from careless and negligent navigation, the burden of proof is on tbe libelant.</p> <p>2. Same — Canal-Boats and Sloop — Improper Anchorage — Fault—Evidence.</p> <p>On examination of the evidence in this case, held, that the sloop was in fault in anchoring at the place where she did; that the evidence of negligence on the part of the canal-boats with which she collided was not sufficient to entitle her to recover; and that the libel should be dismissed.</p>

<p>1. CARRIERS OF GOODS BY WATER — DAMAGE TO CARGO — IMPROPER STOWAGE.</p> <p>On the evidence in this case, it cannot be said that, the damage to the cargo was caused by improper stowage, and was not the result of the rough weather experienced on the voyage.</p> <p>2. Same — Delivery—Shortage—Evidence—Bill of Lading.</p> <p>When the bill of lading acknowledges the receipt of 514 bags of canary-seed, . “ weight, contents, and value ” unknown, it will require more than naked proof that a weigher found some of the bags a few pounds short in weight to hold the vessel responsible for the shortage.</p>

<p>Towage — Negltgeiíce—Ioe—Damages.</p> <p>On yeview of the evidence in this case, held, that the towage contract was negligently performed, and that libelants are entitled to recover damages to the extent of the actual injury caused by such negligence.</p>

<p>Tug and Tow — Notice of Danger — Duty to Seek Harbor— Coal-Boats— Pumps out of Order.</p> <p>Respondent's tug, having several coal-boats in tow, on Long Island sound, when off Korwalk harbor, -was notified by the captain of outside boat, Ko. 99, that his boat could not stand an approaching thunder shower, and to go into Korwalk harbor. The tug kept on, and Ko. 99 was sunk in the shower that followed. Held, that after such notice, and the boat being old, and but 10 inches out of water, reasonable care and prudence in the tug required her to seek refuge from the coming storm, and that she was in fault in not availing herself of the harbor near at hand. But it further appearing that the boat nearly outlived the storm, and that her pnmps were choked up and not available, and that she might probably have survived had the pumps been in order, held, that she should recover but half her damages.</p>

<p>Tug and Tow — Salvage Award Recoverable as Damages in Collision.</p> <p>Several boots were being lowed along-side a tug, when the tug was run into by a steam-boat coming up from behind, and some of the towing lines wore broken by the collision, and others were cast oil by direction of the master of the tug, who thought the tug was sinking, and the boats went adrift towards the shore, and were in danger of destruction. They were saved by other tugs, for whoso services salvage was awarded against them by this court. Held, that, under ail the circumstances, the peril in which the boats were placed was the natural and immediate result of the wrongful act of thé steam-boatin running into the tug, and the owners of the boats were entitled to recover from the steam-boat the amounts they liad paid for the salvage.</p>

<p>Admiralty Jurisdiction — Tug Engaged in Towing Small Craft in Harbor of Buffalo — Libel for Seamen’s Wages.</p> <p>A tug of less than five tons burden, whose chief occupation is the towing of canal-boats and other small craft about the harbor of Buffalo and adjacent waters, occasionally running out upon lake Brie and the Niagara river, is engaged in aiding commerce upon navigable waters of the United States, and within the admiralty jurisdiction.</p>

<p>1. CARRIERS OF GOODS BY WATER — LIABILITY BEYOND ROUTE — TjIEN.</p> <p>Persons in charge of a steam-boat in Now York bound for Hudson, N. Y., gave a receipt for cotton shipped on board, which was marked, “ Canoe Cotton Mills, Yalatie, N. Y.,” with knowledge that it was intended to go from Hudson by rail to K., and that there full freight from N. Y. to K. was to bo paid, which was to be divided between the steam-boat and the railroad in accordance with an understanding between them. Held, that the duty of the steamboat. as carrier was discharged by delivering the goods to tho railroad at Hudson.</p> <p>2. Same — Evidence ob' Special Contract.</p> <p>There must be clear and satisfactory evidence of a special contract to extend the liability of a steam-boat to the transportation and delivery of goods by a railroad beyond tlie place of the boat’s destination, in order to charge tlie boat with a licn'for damages caused by the wrong delivery by tlie railroad. -</p>

<p>ADMIRALTY PRACTICE — STIPULATION FOR COSTS — OATH OF SURETY.</p> <p>.Until satisfactory proof is put in tliat tlie officer, in accepting abond, was deceived or did not properly perforin his duty, the court will assume that the security is sufficient, and when the surety has made oath that he is worth a sufficient sum over and above all his just debts' and liabilities the stipulation ia prima facie good.</p>

<p>Collision — Conflicting Evidence — Probability.</p> <p>Where the evidence in a collision case was conflicting, and one version of the accident made it necessary to suppose that the collision must have been intentional, while the other version did not, the latter was believed to be the truth.</p>

<p>Collision — Damage—Evidence of Unseaworthiness.</p> <p>On all the evidence in this case it was held not to have been proved that the libelant’s boat was so old and unseaworthy as to prevent his recovering against the tug B., towing his boat, the damages which his boat sustained by collision with another, by fault of the B.</p>

<p>Motion to Kemand.</p>

<p>1. Removal of Cause — Separate Controversy.</p> <p>As the bill in this case discloses a separate controversy between plaintiff and the removing defendant, the motion to remand is denied.</p> <p>2. Injunctions — Damages—Inadequate Redress.</p> <p>Injunctions to restrain breaches of negative covenants and mandatory injunctions to compel the observance of affirmative covenants are granted when the threatened breach of an existing contract is clearly shown, but only when the recovery of damages at law would inadequately redress the impending injury.</p> <p>3. Contract — Condition.</p> <p>Where an agreement is not to be deemed complete until certain parties have signed it, those who have signed it cannot, after they have shown by acting under it that they considered it complete, although not signed by the others, claim that it is not binding and merely inchoate.</p> <p>4. Injunction — Violation op Covenants. .</p> <p>Equity will restrain the violation of covenants by injunction, notwithstanding their nature is such that specific performance would not be decreed.</p> <p>5. Railroad Companies — Contract to Establish Dispatch Freight Line— Injunction.</p> <p>Contract between plaintiff and defendant railroad companies, whereby they agreed to establish a dispatch freight line for their mutual benefit and profit, construed, and held that a breach thereof should be enjoined.</p>

<p>1. Pledge — Duty of Pledgee.</p> <p>When negotiable instruments are pledged as collateral it is the duty of the pledgee, not only so to deal with them as not to destroy their value, hut he is to use ordinary diligence to make them available for the payment of the debt; and if he suffers indorsed paper to mature'without resorting to the necessary steps to charge the indorser, or fails to pursue reasonably the primary parties, he may become responsible for any loss that may ensue.</p> <p>2. Same — Duty, when Performed.</p> <p>When the pledgee has exercised ordinary diligence to secure the fruits of the pledge for the benefit of the pledgeor, in view of all the circumstances of the particular transaction, his duty has been fully discharged. '</p> <p>S. Same — Pledge of Bonds Being Part of Issue Secured by Trust Deed.</p> <p>Where bonds, part of an issue, all of which are secured by a fund to be realized. by a public sale of real estate upon public notice by a trustee for the bondholders and the grantors in a trust deed, are pledged, the pledgee owes no duty to the pledgeor of bidding at the sale of the land, and may lawfully bid and become a purchaser of the land himself.</p> <p>4. Same — Sale of Land — Purchase by Pledgee.</p> <p>Bo. borrowed of defendant on his note $27,500, and deposited as collateral 40 bonds, part of an issue of 100, secured by a deed of trust with power of sale on land in Illinois. B. failed to pay his notes, and the land was sold by the trustee pursuant to the torms of the trust deed, and was bought in by an agent of the bondholders, and part of it conveyed by him to the defendant. Jieid, that the defendant did not sustain such a fiduciary relation to B. as to preclude it from acquiring a valid title to the land, although the relation of pledgeor and pledgee existed between B. and the defendant at the time.</p>

<p>Equity Pleading — Pasties—Demueuer.</p> <p>In a suit in equity wliicli is, in effect, an application to the court to compel the executor of an executor to pay over to complainant a share of the estate bequeathed to one of the testator’s children, to which complainant alleges he has succeeded by operation of law, by virtue of certain attachment proceedings to enforce satisfaction of a debt due him, the defendant has a right to demand that such child be made a party defendant, and a hill that fails to do so will be held defective for want of proper parties, on demurrer.</p>

In Equity. Motion for new trial and rehearing. The fund in question in this case having been decreed to be paid to John P. Harman, guardian of Lillian Eunkheuser, a motion for a rehearing was filed by defendant Lewis, and a motion for a “new trial and a rehearing” by defendant M. L. 0. Funkheuser. The body of the latter motion was as follows: “How comes the defendant M. L. 0.

<p>On the seventh of October, 1882, the complainant delivered to the defendants Haggerty and Walden his valuable, trotting horse, “Howard Jay,” as security for a loan of $1,000, and received back from them the following agreement:</p> <p>“OCTOBER 7,-1882.</p> <p>“Article of agreepient between Dr. William Haggerty and Dr. J. S. Walden, parties of the first part, and B. F. Herrick, party of the second:</p> <p>“ The parties of the first part do hereby agree to resell the roan gelding, known as ‘ Howard Jay,’ for the consideration of one thousand dollars, lawful money of the United States, and legitimate expenses incurred for keeping of said horse; and it is further agreed by the parties of the first part and party of the second part that they shall share equally in all profits derived from said horse during the racing season of 1883.</p> <p>“And it is hereby further agreed that if the said horse be repurchased, a reasonable compensation shall be given to the parties of the first; the term of said horse to be for one year from date. Wn. IIagükiity,</p> <p>“Witness: W. II. SnydeR. J. 8. Walhex.”</p> <p>On the thirteenth of February, 1883, Haggerty then being in possession of the horse, the complainant signed, the following papers in the handwriting of the defendant Throop:</p> <p>“$3,000.</p> <p>“Ileo'd, Elmira, February 13, 1883, of B. II. Throop, three thousand dollars, in full for horse known as ! Howard Jay.’ 15. F. Herrick.”</p> <p>“Dr. Wm. Haggerty, Scranton, Pa. — •Dicab Sir: On payment of my indebtedness to you for advance of $500, and the keeping of horse, ‘ Howard Jay,’ now in your care, please deliver him to B. H. Throop, who has purchased said horse of me, and oblige, Yery truly,</p> <p>“Elmira, February 13, 1883. 15. F. Herrick. ”</p> <p>No consideration whatever was paid for those papers. The complainant was induced to attach his signature, believing that they were necessary to effect the removal of the horse from the possession of Hag-gerty, who was represented as being hostile to complainant’s interests. It is now alleged that the defendants Throop and Walden were engaged in a conspiracy to cheat and defraud the complainant, and that Throop had knowledge of and participated in the fraud by which complainant was persuaded to part with his interest in the horse. The defendant Throop maintains, on the contrary, that, having previously acquired the interest of the defendant Walden, he fairly and honestly purchased the complainant’s interest, as well as that of Haggerty, and thus became the absolute owner of the horse.</p> <p>Prior to the commencement of this action a demand for the horse, and an offer to pay all money advanced under the agreement of October 7th, was served upon the defendant Throop. The complainant contends that, the receipt and order being procured from him by fraud, lie is still at liberty to redeem the horse pursuant to the original, agreement; that Throop has only the rights which Haggerty and Walden possessed, having been subrogated thereto by his purchase from them, respectively. The defendant disputes the jurisdiction of the court, denies the fraud, and insists that he is the bona fide owner of the horse.</p>

Demurrers to amended petitions and bill. For opinion upon demurrers to original bills and petitions, The amended bills and petitions state, as excuses for the delay, that a receiver of the National Express Company’s property was appointed by the United States circuit court for the district of Virginia under a bill filed September 8, 1866; that said receiver gave bond, and that the decree was not annulled until December 11,1880, until which time it lay dormant; that the…

In Equity. Exceptions to master’s reports. The claims of the intervenors herein are all for compensation for rights of way over their land, and they all ask that they be decreed to have a first lien on the land claimed by them which the defendant occupies.

<p>Deposition De Bene Esse — Arresting- Proceeding — Attachment oe Witness.</p> <p>A party who has initiated proceedings to take a deposition de Tiene esse, has no power, alter a witness has been examined in chief and an adjournment taken, to withdraw the proceedings, and a party in interest may, by attachment, compel such witness to appear and submit to cross-examination.</p>

<p>1. Insolvency — Non-Resident Creditors.</p> <p>A creditor who is a non-resident, and in no way made a party to insolvency proceedings under a state law, is not affected thereby.</p> <p>2. Statu i-e op Limitations — Absence prom: State —Code Civil Proo. N. Y. §§ 38.', 401.</p> <p>A. executed a note that fell due, with grace, on January 4,1874, and being unpaid, suit was brought against him in New York, where he resided, on February 16, 1884. Prom the time he executed the note to December, 3877, lie stayed with his uncle in New Jersey, when he came to the New York Hotel in New York city. He was a gentleman of leisure, and until 1882 an unmarried man, without a permanent home or place or business. Between December, 1877, and the commencement of the suit, lie was not continuously absent from the state for the space of one year, but he spent his summers in New Jersey and a part of one winter in 'Washington, D. O. _ Held, that the action was not barred by the statute of limitations prescribed by Code Civil Proc. N. Y. §§ 380, 401.</p>

<p>Municipal Bonds — Sona Bide Purchaser, — Knowledge of Attorney as to Invalidity.</p> <p>M. and lier agent having acquired certain town bonds, with knowledge of facts which made them, invalid, placed them in the hands of her attorney, MacV., who sold them to 0. It appeared that at the time of the purchase by 0., MacV. was his legal adviser, and was one of the attorneys retained by him in the prosecution of the suit on the bonds against the town. líela, that 0. was not a dona fide purchaser of the bonds, and could not recover.</p>

<p>Fire Insurance — Pleading Performance of Conditions of Poi.ict — Answer —Evidence.</p> <p>Where, in an action on a policy of fire insurance, plaintiff alleges generally that holms fulfilled the conditions of the policy, and the insurance company answers generally that he did not observe all the conditions of the policy, without pleading specially the breach of such conditions, plaintiff is not bound to prove affirmatively "that he has fulfilled all of such conditions, nor can the company show that some of such conditions were not fulfilled.</p>

<p>1. Bankruptcy — Objections to Discharge — Failure to Keep Proper Books —Evidence—Cash-Book.</p> <p>Where the specification filed by creditors in opposition to a bankrupt’s discharge is in the exact language of Rev. St. $ 5110, it is too broad to sustain a finding withholding a discharge on the ground that the bankrupt’s cash-book was kept upon an incorrect theory.</p> <p>2. Same — Amending Specifications.</p> <p>After issue has been joined on the specifications, and evidence taken, without an intimation that the allegations are insufficient, it is too late to permit an amendment of the specifications which would introduce an entirely new ground of objection and present a separate and distinct issue for the consideration of the court.</p> <p>3. Same — Books, when Sufficient.</p> <p>Where a competent person, upon examination of the books and papers kept by a merchant, would be able to reach a substantially correct conclusion as to the state of the merchant’s affairs, such books will be held sufficient.</p> <p>4. SAME — AÍAMNER OF KEEPING GASH-BoOIC.</p> <p>A merchant who did a retail business of $40 to $50 per diem kept a memorandum ledger, order-book, and so-called cash-book, in which ho made-no entries of the goods sold for cash during the day or any particular time, but arrived at the amount of his cash sales by subtracting wliat money he had on hand in the morning, or at- the beginning of the period, from what money he had on hand at night, or at the end of the period. Held that, under the circuni-stances, this manner of keeping his cash-book would not prevent- his obtaining his discharge as a bankrupt.</p>

<p>Petition for Review.</p>

<p>Patents for Invention — Costs—Enforcing Payment — Receiver.</p> <p>When a bill for infringement of a patent has been dismissed, with costs to defendant, for -which an execution has issued and been returned wholly unsatisfied, a receiver will not be appointed, on motion of defendant, to take possession of the patents as equitable assets, to be disposed of for the satisfying of the decree.</p>

<p>Marine Insurance — Contract, where Made — Lien for Unpaid .Premiums— Maritime Lien.</p> <p>Aro marítimo lien exists in favor of underwriters for unpaid premiums of marine insurance. Opinion of district judge (22 Fed, Risp. 109) affirmed.</p>

<p>Injunction — Awarding Medal on Superiority to Owner of Machín ;.</p> <p>When the owners of machín os have submitted them to a comp -ulive examination and test before judges appointed by ati institute for the promotion of arts and manufactures, and the judges have determined that, one of such machines is entitled to a medal showing its superiority to the others, an unsuccessful exhibitor cannot, by injunction, prevent tlio delivery of such medal to his rival.</p>

<p>1. Constitutional Law — Monopolies—Louisiana Constitution.</p> <p>The Louisiana constitution forbids monopolies; the prohibition cannot be avoided directly or indirectly by stale or city laws.</p> <p>2. Same — Slaughtering Cattle in City of New Orleans — City Ordinance.</p> <p>The limits within which complainant’s lawful business — that of slaughtering cattle — may be carried on having been fixed by the city in pursuance of article 248, state constitution, the city is without power to pass an ordinance requiring her consent to be given complainant before he can proceed with his business at the place selected, and already built upon by him, within the said limits.</p> <p>3. Same — Fourteenth Amendment.</p> <p>The fourteenth amendment, Const. U. S., forbids any state to make or enforce any law which shall abridge the privileges or immunities of citizens of the United States, and prohibits a state from denying to any person within its .-jurisdiction the equal protection of the laws. The right assumed by the city in this case, to grant permission to A. to carry on his lawful business, carries with it the right to deny permission to 13. to exercise the same privilege. The power to deny permission to A., B., and 0. to carry on the slaughtering business at the several locations selected respectively by them within said limits would enable the city to allow the favored suitor to establish a monopoly.</p> <p>4. Same — Equity Jurisdiction — Remedy at Law.</p> <p>To forbid the interference of equity in a ease like this, it must appear clearly that complainant has a remedy at law which is plain and adequate, and as practical and efficient to the ends of justice and its prompt administration as the remedy sought for- in equity.</p> <p>5. Same — Right to Injunction.</p> <p>' The complainant, in the view of the city, has erected costly buildings for the purpose of carrying on his trade, and is now proceeding- to carry it on within said limits. He has complied with all the regulations. It would not now be a prompt or efficient administration of justice to allow the city, in the exercise of an unconstitutional ordinance, to stop him, and leave him to sue at law for compensatory damages. The act complained of is nqt a mere trespass upon property.</p> <p>6. Same — Sixteenth Section or Judiciary Act.</p> <p>The sixteenth section.,of the judiciary act prohibits suits in equity when there is a plain, adequate,, and complete remedy at law. This prohibition is merely declaratory on the subject of legal remedy; it does not appear that the adoption of that statute has impaired the jurisdictional powers of the equity courts of the United States for the protection of the property of individuals, or for the protection of the privileges that belong as a common right to all persons to whom the courts are open for the administration of juslice.</p> <p>7. Same — Depriving Citizen op Right to Exercise Lawful Trade.</p> <p>In a government like ours it may be said that any act which would deprive' a citizen of the power to exercise his lawful trade or privilege must be considered as working an irreparable injury, particularly when the wrong-doer is attempting to do an act clearly forbidden by the state and federal constitutions; and the protection of the writ of injunction should be allowed.</p>

<p>1. Mineral Land — Fraudulent Patent — Evidence.</p> <p>Before a court will set aside a patent to mineral land on the ground of fraud, it must appear, not merely that the applicant was mistaken asto the character of the land, but that the representations in regard thereto were falsely and fraudulently made; and this fact must clearly app. ar.</p> <p>2. Same — What Work is to be Considered in Estimating Amount Actually Hone.</p> <p>Work done for the purpose of discovering mineral, whatever the particular form or character of the deposit which is the object of ti.e search, is within the spirit of the statute.</p>

<p>1. National Bank — Contemplation oh Insolvency.</p> <p>A bank is in contemplation of insolvency when the fact becomes reasonably apparent to its officers that the concern will presently be unable to meet its obligations, ami will be obliged to suspend its ordinary operations.</p> <p>2. SAME — FRAUDULENT Preference — INTENT.</p> <p>The intent to give a preference is presumed when a payment 's made to a creditor by a bank whose officers know of its insolvency, and therefore that it cannot pa}' all of its creditors in full.</p> <p>3. Same — Motive for Gtvino Preference.</p> <p>Where property is transferred by a bank to a creditor to avoid paying him the amount due him, and thus postpone the failure of the bank, it is none the less fraudulent and void.</p> <p>4. Same — Roberts v. First National Bank Overruled.</p> <p>On rehearing, former opinion (23 Fed. Rep. 311) is overruled, and transfer held fraudulent and set aside.</p>

<p>1. INTERNAL 'REVENUE T AX — (NATIONAL BaNK — TaX IMPOSED BY STATE LAW ON Stockholders.</p> <p>When the taxes imposed by a state law are imposed upon the stockholders of a national bank, and not upon the corporation, the failure of the hank'to return or pay a tax upon such portion of its dividends declared within the year as was represented by the amount paid for such state tax, will not entitle it to exemption to that extent from the internal revenue tax imposed bv the act of congress of July 13, 1866, (14 St. at Largo, 138.)</p> <p>Same — Dividends—Mistake—Defalcation op Cashier.</p> <p>When a bank has declared a dividend as of earnings for the current year, and paid it as such to stockholders, whether in money or in scrip, proof, for the purpose of avoiding the tax, that no earnings had, in fact, been made, because of a defalcation by the cashier that was afterwards discovered, is not admissible.</p>

<p>1. Statute of Limitations — Code Civil Proc. New York, H 91,100 — Absence from State.</p> <p>When a collector of customs has departed from and remained out of the state of New York, where he lias been sued to recover certain duties illegally exacted, for several successive periods after some of the causes of action for duties accrued, and before the commencement of the suit, which, taken together, amount to 12 months, such period of 12 months is to he added to the six-years limitation prescribed by the New York Code of Civil Procedure, §§ 91, 100, within which the action is barred.</p> <p>2. Action to Recover Customs Duties Illegally Exacted — Former Action for Part of Demand.</p> <p>A plaintiff cannot split up a single and entire cause of action, and make it the subject of different suits, liartells v. tichell, 16 Fed. Rep. 341; Secorv. titurgiss, 16 N. Y. 548; and Baird v. U. S. 96 U. S. 430, followed and applied.</p>

<p>1. CONTRACT — Effect of Death of Party.</p> <p>Where a contract creates between the parties merely a personal relation, the death oí either party dissolves that relation.</p> <p>2. Same— Case Stated.</p> <p>A written contract' between a sewing-machine company and W. recited a sale by the former to the latter of 100 Howe sewing-machines, for the price of which AY. had given a series of notes; the company stipulating to accept, on or before their maturity, the amount due thereon in notes oí sub-purchasers drawn to the order oí AY. and guarantied by him. The company was to ship to AY. a specified number of the machines monthly, and W. agreed to sell them within a specified territory at the regular retail prices established by the company, and to deal only in its machines. After 15 machines (which have been paid for) were delivered, AV". died. Held, that his undertaking was personal to himself, and the duty of further performance did not devolve on the administratrix of his estate.</p>

<p>Contempt — Violation of Injunction — Evidence.</p> <p>An adjudication that a party is in contempt for violating an injunction is in its nature somewhat criminal, and the proof of such violation must be clear.</p>

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

<p>1. Patents for Inventions — Invention—Change in Old Device.</p> <p>A change in an old device which produces a new and useful result, involves tho exercise of invention.</p> <p>2. Same — Reissue—Defective Description.</p> <p>A patent that is invalid or inoperative for want of a proper description may be corrected by a reissue.</p> <p>3. Same — Infringement—Difference in Structure.</p> <p>A structural difference in the form and size of an alleged infringing machine will not avoid infringement, when the same work is done in the same manner and by substantially the same means.</p>

<p>1. Patents for Inventions — Novelty—Patents Nos. 200,078 and 210,797 — Infringement.</p> <p>Patent No. 200,078, dated February 5, 1878, and patent No. 210,797, dated December 10, 1878, issued to James W. McDonald for machines for unhairing and scouring hides and skins, held valid, and infringed by defendants.</p> <p>2. Same — Use of Infringing Machine by Superintendent — Partnership.</p> <p>When an infringing machine is used by a father and son, and it is not shown that they were partners, but it appears that the son was a superintendent in the shop where the machine was used, no action for infringement will lie against the. son.</p>

<p>Patents for Inventions — Pocket-Comb Gases — Patent No. 181,310 — Kovravry.</p> <p>Patent No. 184,310, granted to diarios W. Walker, November 14, 1870, for an improvement in pocket-comb cases, held not void for want of novelty.</p>

<p>1. Patents for Inventions — Laches of Patentee — Right of Vendee to Recover Damages.</p> <p>The patentee’s previous laches and indifference in regard to the use of his patents by defendant corporation held sufficient to prevent the enforcement by a court of equity of the pecuniary claims of his vendee against it for infringements before the purchase of the patent.</p> <p>2. Same — Infringement by Corporation — Purchase by Former Directors— Right of Assignee to Damages.</p> <p>When the executive officers and managers of a corporation that lias been infringing a patent, having sold their stock, purchase the patent, their assignee will not be allowed In equity to make the corporation pay the profits created by their own acts of infringement.</p>

<p>Charter-Party— Construction— “The; Season of 1882” — Prior Contract BY TBLKORAMS — EVIDENCE.</p> <p>"Where a complete contract for the charter of a vessel was made by telegram “for the season of 1882, ending October 81st,” and the vessel made one voyage under the contract at lower rates than for single vo3'agos, and a formal charter was then drawn up, and was signed by the capt ain, in the charterer’s ofliee, ior “ the season of 1882,” omitting the words “ ending October 31st,” and the evidence shotted that no new or different contract was intended from that already partly executed, held, that the prior contract by telegram was competent evidence of the intention of the parties, and of the meaning of the phrase “ season of 1882,” although, in tlie absence of such evidence, the expression by custom, would hind the vessel until navigation was closed by ice; accordingly held, that the captain was justified in refusing to run under the charter after October 31st.</p>

In Equity. In 1876 the plaintiff and Charles II. Carlton jointly purchased, and paid for, the plantation in controversy. The deed for the plantation, which was recorded, was made to Carlton alone, who gave the plaintiff a written paper stating ho held the legal title to an undivided half of the plantation in trust for the plaintiff. This paper was not acknowledged or recorded.

<p>1. Taxation — Exemption on Property of Corporations from Taxation — Validity — Impairment of Contracts.</p> <p>legislatures, unrestrained by some constitutional limitation, have full power to provide, in an act creating a corporation, for an exemption of its property from taxation; and such a provision in the charter of a corporation constitutes a contract which the state may not subsequently impair.</p> <p>2. Same — Exemption Granted by Reference to Prior Acts.</p> <p>By its charter and other acts to which it refers, the property of the Cincinnati, Cumberland Gap & Charleston Iiailroad Company was exempted from taxation; and by force of the legislative and judicial action, detailed in the opinion, said exemption passed with the property and became vested in complainant.</p> <p>4. Same — Judicial Sale of Vested Franchise.</p> <p>The legislature of Tennessee had constitutional authority, after 1870, to provide by law a remedy whereby an outstanding vested franchise, including, among other privileges, an immunity from taxation, could be subjected to a judicial sale for the payment of the just debts of its owner, and for the transfer of the same, in connection with a conveyance of the property, to which it was appurtenant, to a purchaser.</p>

<p>1. Fire Insurance — Mistake in Policy — Negligence or Agent —Reformation.</p> <p>Where a policy oí insurance, which has been drawn up by the agent of the insurer and merely accepted by the insured, does not represent the intention of both parties because of the fault or negligence of the agent, it may be reformed so as to express the contract as it was intended to be made.</p> <p>2. Same — Evidence—Knowledge op Agent.</p> <p>On examination of the evidence in this ease, held, that the agent knew at the time what interest was intended to be insured, and that the policy should be reformed to properly show such interest.</p> <p>3. Same — Occupancy op Elevator Insured.</p> <p>Where the property insured is an elevator, and it appears, although a part ol the time it was not actually used, and there was no steam up or men working there, men were around the place all the time, and the insured kept his papers there, it will not be considered that the elevator was vacant in a sense that would avoid the policy.</p>

<p>At Law.</p> <p>The plaintiff is receiver of the Hot Springs National Bank, appointed by the comptroller of the currency. This suit is on a note, the facts relating to which are as follows: The Hot Springs National Bank owned $500 of its own stock, which was “laid on the counter and counted as $550 cash” and carried on the books as that much cash. On the second of January, 1884, Andrew Bruon and the defendant, B. E. Jackson, then the president and the cashier, respectively, of the bank, on the suggestion of Bruon, and for the purpose, as be said, of taking the stock out of the list of cash items of the bank, signed the name of a fictitious person, as maker, to a negotiable promissory note, due in 90 days, for $550, payable to their own order, and indorsed this note to the bank. In consideration for their note they took from the bank, and placed to their own account, the $500 of stock, which they duly transferred to themselves on the books of the bank. How the bank acquired this stock, and how long it had belonged to the bank, is not shown; but it had evidently belonged to the bank several months. The note was renewed one or more times. About the time the bank closed its doors, Bruon and Jackson transferred the stock back to the bank, and destroyed their note, — the note bore sued on. The stock of the bank is worthless. There is no evidence tending to show the directors had any knowledge of this transaction.</p>

<p>Brokers — Commissions—Express Agreement — Compromise.</p> <p>Plaintiffs, brokers in railway supplies, knowing of a party wlio wanted rails and fastenings, telegraphed to defendant, a manufacturer and seller of railway iron, for prices, to cover them 1 per cent, on rails and 2}4 per cent, on fastenings. Defendant gave prices, and a contract was made for t’ '> sale and delivery of the iron at ail agreed price, on that basis as to plaintiffs commission, but the contract fell through by default of the purchaser, and no rails were delivered or paid for under it. Afterwards, plaintiffs, in consideration of $1,000, canceled a contract with the purchaser, and waived all claim or interest in certain contracts, among them this contract, with defendant. In an action to recover commissions, field, that a verdict was properly directed for defendant.</p>

<p>1. Copyright — 1“ Quarts Sheets op Paper Containing Tabulated Information.</p> <p>The word “ chart,” as used in the copyright law, docs not include shoots of paper exhibiting tabulated or methodically arranged information.</p> <p>2. Same — Infringement by Agents — Right to Recover Penalty from Principal.</p> <p>The penalty or forfeiture given to a party aggrieved by the infringement of his copyright cannot be recovered "from a principal whose agents have, without his knowledge, been guilty of such infringement.</p>

<p>1. COPYRIGHT — Infringement—Damages — Profits on Sale of Second-Hand Books by Infringing Publisher.</p> <p>A publisher who, having published and sold books in violation of the rights of the owner of the copyright, purchases such hooks and resells them, may be charged with the profit realized from the second sales, in addition to that realized from the first sales.</p> <p>2. Same — Determining Selling Price of Infringing Reports Forming Part of Full Sets SpLD.</p> <p>M. owned the copyright of volumes 39 to 46 of the Illinois Reports, and the state reporter the copyright for the later volumes. O., who owned the copyright of volumes 1 to 31, inclusive, republished and sold volumes 39 to 46, in violation of the rights of M., in full sets made up of the volumes owned by him, the infringing volumes, and volumes purchased from the reporter. Held, that the selling price of the infringing volumes might be determined with sufficient accuracy by deducting from the amount received for a full set of reports the amount paid for the volumes purchased from the state reporter, and then dividing the balance by 46.</p> <p>3. Same — Expense of Infringers’ Business.</p> <p>The report of the master as to the general average expenses of the infrin-ger’s business, which should be deducted from the proceeds of the sales of the infringing volumes, affirmed.</p> <p>4. Same — Expenses of Stereotyping. <</p> <p>An infringer will not be allowed to charge tne cost of stereotyping the infringing volumes as a part of the expense of producing them.</p> <p>5. Same — Partners’ Salaries.</p> <p>When the infringers are partners, and under the partnership agreement each member is entitled to draw out of the business for his personal expenses and support a specific sum per annum, the amounts so drawn out by the respective partners cannot be included as part of the general expenses of the firm in conducting its business, in order to arrive at the percentage of such expenses-. Rubber Oo. v. Goodyear, 9 Wall. 788, distinguished.</p> <p>6. Same — Expense of Editorial Work.</p> <p>The amount paid by an infringer for editing the infringing volumes will not be allowed as an item of expense in producing them.</p> <p>7. Same — Cost of Unsold Volumes.</p> <p>Where the infringer has not been required by the decree of the court to surrender the unsold infringing volumes, but has been restrained from selling them, and has retained them in his possession, he cannot be credited for the cost of these volumes in order to determine the profits of those already sold.</p> <p>8. Same — Burden of Proof.</p> <p>While a court will not presume that all the money received by a piratical publisher on the sale of his books is profit, still, as the proof as to the cost of producing the work is wholly in the control of the defendant, the complainant makes a prima facie casé of right to recover by showing the selling price and the usual manufacturers’ cost.</p>

<p>1. Patents for Inventions — Damages for Infringement — License Pee.</p> <p>Where a patentee does not desire to retain a close monopoly of his invention, the amount of the license fee which he has fixed in his dealings with other parties may be considered a proper compensation in damages, where the character of the infringement does not justify exemplary damages.</p> <p>2. Same — Nominal Damages.</p> <p>Although the questions may be close, still it is manifestly wrong, his invention appearing to he valuable, that a patentee should only be allowed nominal damages against an infringer.</p> <p>3. Same — Agreement to Secure Introduction of Patented Machine.</p> <p>Agreements made to secure the manufacturer an introduction of a patented, machine are not to be considered as unqualified licenses fixing a royalty or license fee, which can bo accepted as establishing, within the language of the court in Seymour v. McCormick, 16 How. 480, the average of actual damages sustained by a patentee when his invention is used without license.</p> <p>4. Same — Rate of Royalty.</p> <p>Where a license under letters patent provides for the payment of a royalty of five dollars a machine, but subject to a reduction of three dollars if paid promptly, etc., it will, on the question of assessing damages against a third party, lie considered as establishing a royalty at the lower rate.</p> <p>5. Same — Revoked or Abandoned License.</p> <p>Where the question is close, a revoked or abandoned license may Lie considered as throwing light upon the value which an inventor has put upon the right to manufacture his patented machine.</p> <p>6. Same — Allowance of Interest.</p> <p>In this case the court reduces the amount reported by the master from five dollars to three dollars a machine, but allows interest from the date of the interlocutory decree establishing the patent and the fact of infringement.</p>

<p>Patents foe Inventions —- Infringement — Cooling and Distributing Apparatus — Keissub No. 7,643, Cl. 5.</p> <p>The fifth claim of reissued letters patent No. 7,643, issued to Moses J. Kelly, April 24, 1877, for an improvement in air cooling and distributing apparatus, when properly construed, is not infringed by the apparatus described in letters patent No. 226,281, granted to Joseph ,1. Coleman on April 6, 1880, for an air-cooling and refrigerating apparatus, the refrigerating effect being produced by the compression and expansion of air.</p>

<p>1. Patents for Intention — Eclipse Windmill — Noveltt—Infringement.</p> <p>Reissued patent No. 9,493, issued December 7, 1880, to William. H. Wheeler, and reissue No. 6,101, granted to E. & D. 0. Stover, on October 27, 1884, for improvements in windmills, held not void for want of novelty, and claim 1 of No. 9,493, and claims 3, 4, 5, and 6 of 6,101, infringed by the mill manufactured and sold by the Woodmanse Windmill Company.</p> <p>2. Same — License not Transferable.</p> <p>A license by a patentee to use his invention is personal to tho licensee, and not transferable to a third party.</p>

<p>Collision— Steam-Sun? and Bark — Atlantic Ocean — Fog- — Speed — FogHorn.</p> <p>A speed by a steam-ship of 10% knots an hour in a dense fog is immoderate even in mid-ocean. Steam-ship hold liable for collision with whaling bark.</p>

<p>COLLISION — VINEYARD SOUND — StBAMEB AND SOIIOONTSK — Fofi—TORCH—MUTUAL Fault — Damages.</p> <p>On examination of tlie evidence, held, that tlie steam-ship Pottsville was negligent in running at full speed in a dense log in sucli a thoroughfare for vessels as Vineyard sound, and in failing to stop and reverse when the fog-liorn of the schooner James U. Moore was first heard, and that the schooner was also negligent, in not exhibiting a torch, and that the damages should be divided.</p>

<p>1. Removal of Cause — Diversity op Citizenship must Exist When.</p> <p>A suit cannot be removed from a state court to a national court on the ground of citizenship, under the act of 1875, unless the requisite citizenship of the parties existed both when the suit was commenced and at the time of filing the petition for removal. Gibson v. Bruce, 108 U. S. 562, S. C. 2 Sup. Ct. Rep. 873, and Houston & T C. By. Co. v. Shirley, 111 U. S. 360, S. 0. 4 Sup. Ot. Rep. 472, followed.</p> <p>2. Same — Amendment op Petition.</p> <p>McNaughton, v. South Pac. C. R. Co. 19 Red. Rep. 883, followed as to right, to amend petition in circuit court to show diversity of citizenship, and held, that, where the state court has refused to order the, removal of a cause on defectivo petition, an amendment is not a matter of right, and will not he permitted.</p>

<p>Equity Practice — Docket Rev — Rev. St. § 824 — Case Discontinued.</p> <p>No docket fee is taxable in a suit in equity voluntarily discontinued by the complainant before any bearing, either interlocutory or final.</p>

<p>Injunction — Not Suspended by Supersedeas.</p> <p>A decree granting an injunction is not nullified or suspended by an appeal to the supreme court, though all the requisites for a supersedeas are complied with.</p>

<p>1. DECREE by Default — Not Set Aside, when.</p> <p>When a demurrer to the bill has been overruled, and, a final decree is after-wards regularly rendered by default for want of an answer, the decree will not be set aside without a satisfactory showing that the defendant has a meritorious defense.</p> <p>2. Inconsistent Defenses in .Equity — Effect of.</p> <p>It is a rule in equity that where a defendant sets up by his answer under oath two inconsistent defenses, the result will be to deprive him of the benefit of either; and this rule applies to an answer under oath read as an affidavit of meriis, on a motion to set aside a decree rendered by default, and the decree will not be set aside where the affidavit sets up two flatly inconsistent defenses, as, for example, where one defense relied on is a tax title, in the defendant, to the lands, and the other is that the lands are and always have ueen me property of the United States.</p>

In Equity. The complainant, as assignee in bankruptcy of F. W. Hezekiah, filed bis bill in equity against the defendant, Agnes Hezekiah, wife of the bankrupt, praying that a mortgage on certain real estate, executed by the bankrupt to his wife, might be declared fraudulent and void.

<p>1. Statutes — Runes fob Construction of Statutes.</p> <p>(3) When an act of the legislature admits of two interpretations, one of which brings it within, and the other presses it beyond, their constitutional authority, the courts will adopt the former construction. (2) In the construction of statutes the rules of grammar arc less important, than the intention of the legislature ; and the sense and spirit of a statute will prevail over the strict grammatical construction of its words. (3) A construction will not be put upon a statute which will render it nugatory, if it is susceptible of a construction that will give it a reasonable operation and effect.</p> <p>2. Same — Construction oe a Construing Statute.</p> <p>A statute which declares “that it was and is the intent and meaning” of a prior act to give redemption from sales of land under decrees of chancery courts, will not be construed to bo an invasion of the judicial function, but will be treated as a direct enactment that such prior statute shall, in future, apply to sales of real estate under decrees in chancery.</p> <p>3. Same — Mortgage—Right of Redemption — Rule of Property.</p> <p>The right of redemption given hystatute at, the time a mortgage is executed, enters into, and becomes a part of, the mortgage contract; it is a rule of property, as obligatory on the federal as on the state courts.</p>

<p>1. Life Insurance — False Answers as to Previous Disease —Application, now Construed.</p> <p>To the questions in an application for insurance whether the applicant had “ ever had any of the following complaints: * * * Pneumonia, * * * spitting or raising of blood, * * * or any disease of the lungs,” the answer . was, “ No; ” and to the question, “What sickness or sicknesses has the party had during the 10 years last past ? ” the answer was, “ None except fever — cure perfect:” and to the question, “Is the party now in good health l ” the answer was, “Yes.” Held, that the answers were true, within the meaning of the contract, although tbe insured had on one occasion “ spit bloodthe evidence showing that he had not liad the spitting in such form as to be called a disease, disorder, or constitutional vice; and that the question did not require him to state every instance of blood-spitting, but only such as amounted to a disease.</p> <p>2. Same — Evidence — Statements of Physicians in Proof of Death Privileged.</p> <p>Statements in the proof of death, made by the physician of the insured, as to the previous complaints and ailments of the insured, are privileged communications within the meaning of the Indiana statute, and not admissible to show that the answers made to certain questions in the application for insurance were false;</p>

<p>1. Tax Sale — Indiana Statute — Title Acquired by Holder of Certificate —Statute of Limitations.</p> <p>While the statute of-Indiana provides that a certificate of sale of realty for taxes shall entitle the holder to possession, such certificate does not confer the right of possession unless the sale was regular and valid. And when one takes possession under the invalid certificate, he is accountable for rents; and, after receiving rents enough to repay the amount of his bid, penalties, and interest, will not be considered as holding a certificate which, constituting in the beginning a mere lien, can grow by lapse of time, under a statute of limitations, into a title at law, or into a defense against such a title. Barton v. McWhinney, 85 Ind. 481, followed, and Mthel v. Batchelder, 90 Ind. 520, distinguished.</p> <p>2. Same — Merger.</p> <p>The lien of a purchaser at an invalid tax sale of realty will ho merged in the fee if that be obtained by the holder of the tax certificate; and if afterwards he lose the fee by failure'to redeem from a sheriff’s sale of the property, the tax lien will not be revived to such extent as to support a running of the statute of limitations, in respect to tax sales, during the time of the merger.</p> <p>3. Same — Purohase by Tenant in Common.</p> <p>Where a tenant in common, with his own money, purchases the interest of his co-tenant at tax sale, hut the sale is irregular and invalid, and vests him with a lien only upon the property, which by lapse of time may ripen into a title, hut before that occurs he receives rents sufficient to reimburse him, lie must apply the rents in that way and not permit the statute to run.</p>

<p>Sale of Business — Notice—Liability for Goods Sold.</p> <p>J. F. had for many years been engaged in business in Fort Wayne, Indiana, and in August, 1880, lie sold out to the wife of his son, who bore the same name as himself, and she transferred the stock to her husband, who published in two papers in Fort Wayne the fact that he had purchased the business. He continued to use the old letter-heads in his correspondence, kept the old signs up, and carried on the store in the name of J. F., as theretofore. In November, 1880, T., a commercial traveler in the employ of plaintiff, who was acquainted with J. F., (the father,) wont into the store and sold a bill of goods to the son, — the father being present,- — and these and other goods ordered by letter were duly delivered. Neither T. nor plaintiff knew of the transfer of the business at the time of these sales, and subsequently the son failed, whereupon suit was brought against the father. Held, no fraud or intention to deceive being shown, that the father was not responsible.</p>

<p>1. Lief, Insurance — Mutual Benefit Association Certifícate Construed— Debionation of Beneficiaries by Wii.i. — Failure to Make Will — Uioht oi' IIeiiis to Benefits.</p> <p>The Covenant Mutual Benefit Association issued a certificate by which it constituted B. a member of the association, with all the rights and privileges of the same, upon the following conditions and agreements: ‘ ‘ That at any time during the continuance and before the termination of this contract, upon due not ice’and satisfactory proofs of the death of the aforesaid member having been filed with tlie secretary of the association, lie having in all respects complied with the conditions of'this certificate, an assessment shall bo levied upon all the members holding certificates in force at the time of the death of tlie said member, for the full amount named in tlieir respective certificates: provided, however, that when the aggregate of such assessments would exceed the limit of liis certificate, then tlie assessment shall be levied ratably, according to the certificate held by each, for an aggregate amount not less than tlie limit of this certificate, and the sum so collected on such assessments (less all amounts which may bo added for expense and collection costs) the association hereby agrees well and truly to pay, or cause to be paid, as a benefit to liis devisees, as provided in last will and testament, or, in the event of their prior death, to the legal lieirs or devisees of the holder of this certificate, * * * within ninety days from the dale of the acceptance of said evidence of death, any assessment or "other indebtedness of said member to tlie association being first deducted therefrom; but in no case shall the payment under this certificate exceed $2,500. ” Held, that the certificate, fairly and reasonably construed, meant that if the insured should choose to make a last will in which devisees should be named, then such devisees were to become the beneficiaries, and entitled to receive and. recover the sum collected by assessment on account of the certificate, but that he might, if he chose, leave liis estate to bo divided among legal heirs, as tlie law should direct its division; and in that event, as no devisees would exist, tlie benefits of tlie certificate would accrue to his lieirs, and they would be entitled to enforce payment in a suit on the certificate.</p> <p>2. Same — Action by Heirs — Levy and Collection of Assessment.</p> <p>In order to entitle the lieirs of tlie insured to recover in an action at law on such certificate, they must allege and show that the association lias levied an assessment upon certificate holders to pay the death loss, and lias collected the amount of such assessment, and has failed to pay the sum so collected to such heirs, as the beneficiaries entitled thereto.</p>

At Law. This suit for recovery of duties arose upon facts similar to those stated in the case of U. S. v. Boyd, post, 692.

<p>The defendants were indicted under section 12 of the act of June 22,1874, for the fraudulent entry of 85 cases of imported plate-glass as free, by means of a false and fraudulent letter. The government had previously procured from the defendants a large quantity of their own plate-glass, for immediate use in the construction of the United States court-house and post-office building at Philadelphia, at a discount from the domestic price equal to the rate of duties, under an agreement with the defendants that they might import, free of duty, new glass to the same amount to replace that furnished to the government. The proofs tended to show that under this arrangement the defendants had previously imported, and entered free of duty, a much larger quantity of glass than sufficient to replace what they had thus supplied to tho government. The indictment charged, and the proof showed, that the defendants addressed to the supervising architect at Washington the following letter:</p> <p>“New York, May 29, 1884.,</p> <p>“O.M. Bell, Esq., Supervising Architect, Treasury Depart. — Sin: We arc informed that the steamer Alaska is bringing us 85 cases of plate-glass, marked E. A. JÍ., and numbered 1 to 85, imported to replace that furnished from stock for the U. S. court-house and post-office building at Philadelphia, Pa. This importation, and the 29 cases heretofore admitted, make 64 of the 81 eases furnished to said building, leaving a balance of 17 cases yet to be imported. We have the honor to request that the necessary instructions may be sent without delay to the collector of the port of Yew York to admit the above 85 cases free of duty, in the usual manner. The Alaska is expected to arrive to-morrow. Yery respectfully, E. A. Boyd & Sons.”</p> <p>By means of said letter, exhibited to the treasury department, the following free permit was obtained:</p> <p>“WASHINGTON, 1). C.. May 81, 1884.</p> <p>“Collector of Customs, New York — Sir: By request of the supervising architect of the treasury department, dated this day, you are hereby authorized to admit to entry, free of duties and charges, thirty-five (35) cases plate-glass, marked ‘ E. A. B.,’ numbered from 1 to 35, inclusive; said goods riving been imported at your port in the Alaska for the use of tlio court-luuse and post-office building at Philadelphia.</p> <p>“Yery respectfully, TI. E. French, Acting Secretary.”</p> <p>Upon arrival of tho glass this free permit was presented to the New York custom-house by the defendants’ brokers, and an order obtained from the collector for the free delivery of the glass to the defendants. Afterwards, and before the glass could he delivered from the ship, the delivery was stayed, and the glass subsequently seized for forfeiture. Tho defendants were also indicted for the fraud, and were found guilty by the jury, whereupon a motion was made for a new trial.</p>

<p>Patents foe. Inventions — Violation of Injunction — Gontewt—Attachment.</p> <p>Motion for attachment of defendants, for contempt of court in violating an injunction, refused; the affidavits not showing personal service of the motion on defendants, except upon one of them, and the evidence showing conclusively that the one so served had no control as agent over the parties alleged to have continued to infringe complainant’s patent after issuance of the injunction.</p>

<p>1. Patents for Inventions — -Design for Fringed Lace Fabric — Infringement.</p> <p>As the novelty of design patent No 10,448, for a fringed lace fabric having a fringe made of aseries of stems connected lot-lie fabric and not to each oilier, “ with loops at both sides of a central stem or rib along its entire extent,” appertains to the fringe alone, it is not infringed by nubias having such fringes in which the similarity arises from the body of the nubias and not from the fringe.</p> <p>2.~ Same — Lace Purling— Patent No. 218,032 — Anticipation-.</p> <p>Letters patent No. 218,032, for an improvement in lace purling, on examination of the evidence adduced, held valid.</p>

<p>Patents for Inventions — Steam-Heating Apparatus.</p> <p>On rehearing, former opinion (20 Jb’jsD. Hep. 633) adhered to.</p>

<p>1. Patents for Inventions — Novelty—Spooner Baby-Jumpers.</p> <p>Patent No. 138,209, granted April 22, 1873, to Alvalt Jb\ Spooner, for an improved baby-jumper, held valid.</p> <p>2. Same — Infringement—Spooner and Raymond Baby-Jumpers.</p> <p>Patent No. 138,209, granted April 22, 1873, to Alvali P. Spooner, for an improved baby-jumper compared with tlie device constructed under the Raymond, patent, and held infringed thereby.</p>

<p>Patents for Inventions — Interference— Effect of Decision of Patent-Office — Rev. St. § 4918.</p> <p>In a suit between inlerlering patentees under Rev. St. § 4918, Hie decision of the patent-office in favor of one of the parties is not res ndjudienta upon the question of priority of invention between them, and a bar to further litigation in the circuit, court.</p>

<p>Collision — Harbor Regulations — Improper Anchorage — Running into Obvious Hanger.</p> <p>Wliere th« schooner O. H. V. anchored nearer the Jersey City shore Ilian the harbor regulations permitted, and in a situation that involved clear and obvious danger of collision upon the backing out of the steamer W. in the strong ebb-tide, and the schooner, being notified in time and requested to drop astern, neglected to do so, though she might have done so without difficulty, and the steamer thereupon backed out, and a collision ensued, held, that both were in fault, and the damage and costs were divided; the schooner, for not dropping astern after seasonable notice ; the steamer, for running out into an obvious danger, instead of first- procuring the harbor master to enforce the regulations, or offering to assist the schooner astern.</p>

<p>1. Statutes of State — Construction by State Courts, how Followed by Federal Courts.</p> <p>In construing state statutes the United States courts will follow the construction adopted by the state courts, unless it conflicts with or impairs the efficiency of some principle of the United States constitution, an act of congress, or a rule of commercial or general law.</p> <p>2. Municipal Bonds — San Francisco — Montgomery Avenue Otening — Petition of Property Owners — Recitals in Bonds.</p> <p>The petition of property owners was essential to the validity of the proceedings to open Montgomery avenue, in San Francisco, under the act.of April 1, 1872; and to maintain an action on tho bonds issued, tho sufficiency of tho petition must be affirmatively shown, as it cannot be conclusively presumed from the recitals in the bonds.</p> <p>3. Same — Bonds Issued by Corporation Composed of City Officers Acting under Special Statute — Liability of Municipality.</p> <p>Tho city and county of San Francisco is not bound by recitals contained in tho Montgomery avenue bonds issued by the board of public works under the act of April 1, 1872, such board of public works being a distinct corporation composed of ofiicers of the city, acting independently of it, under the provisions of a special statute.</p> <p>4. Same —Right of Party Liable on Bond to Hearing before Judgment.</p> <p>A party liable on a bond is entitled to his day in court, in person, or by his representative, before a binding judgment, determining the validity of the bond as against him or his property, can be rendered.</p> <p>5. Same — Montgomery Avenue Bonds not City or County Bonds.</p> <p>The Montgomery avenue bonds are not bonds of the city or county of San Francisco, and the city and county cannot be sued thereon.</p>

<p>Habeas Coupiis — Appeal to Supreme Court — Rev. St. § 764 — Act oe March 3, 1885.</p> <p>The right of appeal to the supremo court in habeas corpus cases under Rev. St. § 764, fuTainendcd by the act of March 3, 1885, is absolute, and not dependent upon the discretion of the judge to allow or deny.</p>

On August i, 1885, before Field, circuit justice, and Sawyee, circuit judge, the examiner in chancery appointed in this case to take the testimony of witnesses, made the following report to the court: THE EXAMINER’S REPORT. Ill the Circuit Court of tlie United States, for the Hintli Circuit, and District of California. William Sharon v. 8. A. Hill.

<p>Patents tor Inventions — Invention—Parmelise Firm-Extinguisher.</p> <p>Letters patent No. 218,564, granted August 12, 1879, to Henry S. Parinelec, for an improved automatic fire-extinguisher, wherein the inventor made a sensitive extinguisher by placing the seal at the extreme order end of tlie water-pipe, and so near the distributer that, when the joint of the seal was moiled, the seal itself was forced into the distributor, and the water was left unobstructed, describe a patentable invention, and are valid.</p> <p>2. Sauk — Infringement.</p> <p>The defendants’ extinguisher is’ an infringement, it not being imperative that the seal should bo so constructed that the water should be below the joint.</p>

<p>Patents rob Inventions — Royalties—Jurisdiction in Equity.</p> <p>The licenser in a license under letters patent having a plain, adequate, and complete remedy at law, cannot maintain a hill in equity for an accounting of royalties accruing under the license.</p>

<p>PATENTS ROB INVENTIONS — JURISDICTION— INFRINGEMENT— PATENT ABOUT TO Expire.</p> <p>Where a bill filed 26 days before the expiration of the patent sets forth that plaintiff lias the exclusive right to make and sell the paten! ed article, and is exercising such right, and is able to supply the market, and that defendants axe making and selling' machines in large quantities embodying the invention, and threaten to put on the market, after the expiration of the patent, machines made before its expiration, and prays for an injunction restraining the sale, after as well as before the patent expires, of machines unlawfully made before it expires, it states a case within the jurisdiction of a circuit court and is not demurrable.</p>

<p>Patents for Inventions — Jurisdiction—Remedy at Law — Rev. St. 723.4921.</p> <p>A bill for infringement of a patent, and for an account of profits anddami ages, and for injunction, provisional and perpetual, but setting forth no special ground for equitable relief, is demurrable, where the patent will expire four days after the filing of the bill, and three days after the service of the subpoena, and where, by the rules of the court, a notice of eight days, of a motion for an injunction, is required.</p>

<p>PATENTS FOR INVENTIONS — ANTICIPATION—INVENTION—APPARATUS FOE COOLING and Drawing Beer.</p> <p>Patent jSTo. 248,646, granted to Charles Gordon, October 25, 1881, for an improvement in apparatus for cooling and drawing beer, held void as to claims 1, 3 and 4.</p>

<p>1. Tug AND Tow — Sudden Squalls — Cutting Adrift — Dropping Asteen.</p> <p>The tug A. & B., at South Amboy, New Jersey, took in tow two coal-barges, along-side, to go some 18 miles across the lower bay oí New York harbor, and thence about six miles up the shallow Shrewsbury river to lied Bank, on an established line lor towage. When about two-thirds of the distance to the Shrewsbury river, a sudden and violent squall raised a high sea that caused the boats to pound so much that they were cut adrift, after the captain’s refusal to remain aboard of them to steer if dropped astern on a hawser, for fear of being washed overboard. The evidence was that, without a helmsman aboard to steer, the barges could not have been saved in such a wind and sea even if dropped astern ; thatlhe A. & JE. was built to run upon this service; that she was competent to handle such barges in any weather ordinarily to be expected on such trips; and that the usual course, and usual precautions, wore observed. Held, that the tug was reasonably sufficient for the work undertaken, and not liable for tlie loss of the barges because she did not drop them astern when the squall was approaching.</p> <p>2. Same — Weather on Staeting — Baeometer—Cautionary Signals.</p> <p>A low but rising barometer, and cautionary signals displayed, arc not alone sufficient to make starting on such a trip negligence, in the absence of all other indications of had weather.</p> <p>3. Same — Reasonable Sufficiency for the Trip — Custom.</p> <p>Tugs, not being insurers, are liable only for lack of reasonable prudence, judgment, and skill; and as regards the adequacy of the tug, the fitness of the weather on starting, as well as regards seaworthiness in general, the question is a practical one of reasonable sufficiency for the particular trip in the judgment of skillful and prudent navigators, and on this question the customs of the time and place are competent evidence.</p> <p>4. Same — Reasonable Skill in Use of Customary Methods.</p> <p>Where a tow is sent to be towed upon an established line whose methods of towage are known, and these methods are not in themselves unjustifiable, the contract implied by law is for the use of all reasonable judgment and skill in the use of these methods; and if there is no fault in this respect,, the tug is not liable.</p>

<p>1. Collision — Steamers—Fog—Fault.</p> <p>A steamer moving south, on the western side oí the channel, at the rate of four and three-fourth miles an hour, with the tide, which rate is barely sufficient for steerage way, there being a dense fog at the time, is not moving so fast as to he in fault for a collision with an approaching steamer, which is moving at the rate of five and one-third miles an hour against the tide.</p> <p>2. Same — Suked.</p> <p>In a dense fog a speed of five and one-third miles an hour, against the tide, in a narrow channel, when the vessel is under full command of stenrave-way, is too rapid.</p> <p>3. Same — Whistle—Personal Injury to Crew.</p> <p>A steamer which runs through a dense fog with a whistle blowing so feebly and imperfectly that it gives no notice of her proximity to neighboring vessels, is at fault, and one of her crew, who has been injured in a collision with an approaching vessel not in fault, may recover of the steamer employing him damages for such injury. ' ,</p>

<p>In Admiralty. Libel for collision.</p>

<p>Collision — Sail-Vessel Approached by Steamer — Change oí? Course-Tacking.</p> <p>If a sail-vessel is tacking against the wind, whore there is suhieienl sea-room to keep on, she is not at liberty to change her tack or course when approached by a steamer which is trying to keep out of her way nothing but urgent necessity will excuso a sail-'vessel! for lulling and changing her course when on a tack, and approached by a steamer.</p>

<p>1. Marine Insurance- — Valued Policy.</p> <p>A valued policy is one in which the value of the property insured is fixed and agreed upon by both parties to the contract, and in case of total loss it is not necessary that proof should be made of the market value at the time and place of shipment.</p> <p>2. Same — Open Policy.</p> <p>Unless a certain amount is stipulated and expressed in the contract of insurance as the value of the property upon which the risk is taken, then it is necessary that proof should be made of the market value in case of loss, and such a policy of insurance is denominated an open policy.</p> <p>3. Same — Custom and Usage.</p> <p>Evidence of custom and usage cannot be received to change the contract of insurance.</p> <p>4. Same — Case Stated.</p> <p>An open cargo policy was issued by the Continental Insurance Company of New York City to its agents at Duluth, Minnesota, and they issued to the shippers of certain wheat a certificate as follows: “This certifies that M. & M. are insured under and subject to the conditions of open policy ISTo. 649, issued by the Continental Ins. Co. oí .New York city, at the Duluth agency, in the sum of $S,000 on 17,000 bushels wheat, in board cargo of schooner Carlihg-ford, at and from Duluth to Buffalo. $8,000 at 2.25 per cent, is $180, which is hereby acknowledged to have been received. Loss, if any, payable to M. & M., or order hereon, and return of this certifícale.” Held, that this was an open and not a valued policy.</p>

<p>J. Fraudulent Assignment of Like Insurance Policy — Bill by Creditors of Deck ask» Debtor to Set Aside.</p> <p>A bill in equity may be maintained by creditors of a. deceased debtor to sot aside a fraudulent assignment of a life insurance policy originally payable to tlie debtor, bis executors, administrators, and assigns, but fraudulently assigned by him to his wife while he ivas insolvent, and without valuable consideration, notwithstanding such creditors have not obtained judgments at law against the debtor in his life-time, or against his representatives after his decease; it appearing that the complainants had, prior to the death of the debtor, obtained a decree in equity against him and his wife in the circuit court of the United States for the Northern district of florida, in which the amount of the complainants’ debts was adjusted, and in which the said debtor was adjudged to be absolutely insolvent.</p> <p>2. Same — Injunction Pendente Lite.</p> <p>It appearing that the fund would be liable to bo placed out of the jurisdiction of the court, and beyond the i each of creditors in case they should be ultimately found to bo entitled, if the injunction should bo refused,' held, that an injunction pendenle lite should he granted to restiain the insurance company from paying over the money under the policies until the rights of the parties should be determined.</p>

<p>Fraud on Creditors — Premiums Paid to Life Insurance Company — Statute of New York.</p> <p>A bill in equity may be maintained by creditors of a deceased debtor to reacli premiums paid tó a life insurance company in fraud of creditors of the insured out of funds of the insured, and in furtherance of a combination and conspiracy between the insured and his wife to hinder, delay, and defraud the creditors of the deceased, notwithstanding the said policies were made payable to the wife of the deceased, and notwithstanding the provisions of the statutes of New York exempting such policies from the claims of creditors of the husband, where the premiums do not exceed $500. But the creditors have no claim upon the insurance in such case beyond the amount of the premiums and interest thereon.</p>

<p>Mortgage — Conveyance with Reservation of Life-Estate — Payment of Insurance Money — Renewal of Mortgage — Foreclosure.</p> <p>B. borrowed $ 1.9,000 from I., and gave his bond for that amount, and secured it by mortgage on certain real estate in Chicago. The mortgage provided that B. should keep the property insured against fire and assign the policies as collateral security, which was done. The mortgage provided that in case of loss the mortgagee and his assigns might collect the policies and apply the money iu payment of the loan. B. subsequently conveyed the property, in consideration of love and affection, to his children, reserving a life-estate therein to himself. I. sold and assigned the bond and mortgage to C., and the bond became due and remained unpaid until the buildings were destroyed by fire. C. collected §8,875 on the policies and gave B. credit on his bond for that amount. Subsequently, at his request, B. was allowed to renow the mortgage for five years, and to receive and expend the amount collected on the policies, less the interest duo on the bond, m restoring the burned buildings. IJeld, that the money paid to 0. did not extinguish the mortgage pro tanto; that the agreement between B., as life tenant, and C. was valid; and that C. was ontilled to foreclose the mortgage on default in payment thereof.</p>

<p>1. Fire Insurance — Increase of Hazard, Stipulation as to — Renewal.</p> <p>A policy of Are insurance provided that insurance once made might be continued for such further time as might be agreed on, certain conditions being-complied with, “ and it shall be considered as continued under the original representations, in so far as it may not be varied by a new representation in writing, which it shall in all cases be incumbent on the party insured to make when the risk has been changed, either within itself or by surrounding or adjacent buildings; otherwise said policy and renewal shall be void and of no effect.” During term of risk a building was erected within 41 feet of the property insured, hut the fact was not reported to the insurance company. At expiration of risk a renewal by a now policy was asked for and given, covering the same amount at, a slightly increased rate. Fire from the new building was communicated to the one insured, and that destroyed. Held, that the hew building was an increase of the hazard of the risk, and that the failure to notify the company thereof avoided the policy.</p> <p>2. Same — Permission “to Make Additions, Alterations, and Repairs.”</p> <p>Where a policy of insurance gave permission to the insured “ to make additions, alterations, and repairs,” held, that a now warehouse erected 40 feet away from the main building is neither an addition, an alteration, nor repairs, although connected with the main building by a bridge and an underground passage used for pipes.</p>

<p>PRACTICE — Bill OB’ EXCEPTIONS, WHEN SETTLED — ÜEV. St. § 700 — TjAW RULE 80.</p> <p>A bill of exceptions must be prepared and settled before tlie end of the term at which the cause was tried.</p>

<p>Contempt — Jurisdiction—Intebpebenoe by Strikers with Receiver — Diviion op District.</p> <p>'A proceeding in contempt for interfering with a receiver apppointed by a United States circuit court is criminal in character and cannot be heard, under the law, in a division of a district other than the one in which the acts amounting to a contempt were committed.</p>

<p>1. Patents for Inventions — Novelty—Kneppler Spring-Bed Bottoms.</p> <p>Patent granted July 27, 1869, to Alois Kneppler, for an improvement in spring-lied bottoms, held, void for want of novelty.</p> <p>2. Same — Boyington Spring-Bed Bottom.</p> <p>Patent granted May 24, 1881, to Levi C. Boyington, for an improved spring-bed bottom, held void for want of novelty.</p>

<p>Patents for Inventions — Reissue No. 5,648 — Anticipation.</p> <p>Tho first claim of reissue No. 5,648, granted to Charles Alden, November 11, 1873, for an improvement in processes and apparatus for preserving animal and vegetable substances, the original patent, No. 121,569, having been granted to him December 5,1871, held void.</p>

<p>Patents for Inventions — Reissue—Laches.</p> <p>No amendment can be imponed into a reissue t o effect a broadening of a claim in the original patent, after a lapse of eight years, in the absence oí very special circumstances. Hahn v. Harwood, 5 Sup. Ot. liep. 174, followed.</p>

<p>Patents eor Inventions — Inerin&emisnt—Tables eor Tilk-Maciiinks.</p> <p>Tlie fourth, fifth, and seventh claims of patent No. 279,259, granted to William F. Leach, on June .12, 1883, for improvement in tables for tile-machines, construed, and held, not infringed by machines made under patent No. 243,867, issued July 5, 1881, to Elihu Dodds.</p>

<p>1. Patents por Inventions — Amending and Enlarging Claims before Issue.</p> <p>An inventor may amend or enlarge liis claims from time to time before the issue of his patent, in order to embrace everything -which was specified at the start.</p> <p>2. Same — Patent No. 233,915, por Eare-Eegister.</p> <p>On examination of the original specifications of patent No. 233,915, dated November 2, 1880, for a fare-register, held, that the invention for which the patent was issued was sufficiently described therein, and that the attorneys of the inventor in the patent-office had authority to insert amended claims without having them verified by the oath and signature of the patentee.</p> <p>3. Same — Anticipation—Combination.</p> <p>A combination is patentable only when the several elements of which it is composed produce hy their joint action a new and useful result, or an old result in a cheaper or otherwise more advantageous manner.</p> <p>4. Same — Patent No. 233,915, for Pare-Kegisteh.</p> <p>Patent. No. 233,915, for a fare-register, granted November 2, 1880, is not void for want of novelty.</p>

<p>1. Patents for Inventions — Anticipation—Patent No. 65,267.</p> <p>Patent No. 65,267, dated May 28, 1867, and granted to William Hugh Pier-son, for an improved plastic material made from vegetable fibers, was not anticipated by tlie English letters patent, granted to Alexander Parkes, upon a specification enrolled in the British office, on April 17, 1856.</p> <p>2. Same — Abandonment—Poverty—Sickness— Insanity.</p> <p>Continued poverty, sickness, and mental alienation are sufficient excuses for delay in procuring a patent. Abandonment to public held not shown.</p>

<p>1. Patents for Invention's — Reopening- Decree to Admit New Defense— Newly-Disoovkbkd Evidence — Laches.</p> <p>Courts will not opon a decree and admit new defenses and newly-discovered evidence, unless it appear that the defendants could not, with reasonable diligence, have discovered the facts which aro sought to be introduced, when the pleadings were drawn and the testimony taken.</p> <p>2. Same-Decree Interlocutory — Application to Reopen, how Made — Evidence.</p> <p>When tile decree is interlocutory and not Anal, the court has power to open the same and allow a new defense on inotion, and without the formality o£ a bill of review; but when the application is in fact and substance for a rehearing on the ground of newly-discovered evidence, it must bo supported by Ihe same sort of proof as is required in order to give a party relief upon a bill of review, or a supplemental bill in the nature of review, after a final decree.</p>

<p>Patents for Indentions — -Equity Jurisdiction — Infringement—Expiration ob' Patent — Discovery—Account—JItsmedy at Law.</p> <p>A bill in equity brought for the infringement of a patent which lias expired previous to the bringing of tiie suit will'be dismissed for want of jurisdiction, notwithstanding it avers that defendants manufacture and use the infringing machines secretly, and that complainant is ignorant of the number of machines so used, and unable to estimate the amount of damages, and prays for an account of profits, the damages to complainant from said infringement, other than the profits, being sued for in a pending action at law.</p>

This was a suit for infringement of two patents on spoke-throating machines: the first granted Joseph R. Locke, April 17, 1877, No. 189,635, and afterwards assigned to complainant; the second granted complainant, as assignee of William H. Doane and George W. Bug-bee, March 9, 1880, No. 225,355. The first three claims of the latter patent were charged to be infringed.

<p>Patents for Inventions — Estoppel—Principal and Agent.</p> <p>A servant or agent sued separately for infringing a patent is not hound by a former decision against his principal upon the question of the validity of the patent.</p>

<p>1. Patents for Inventions — Infringement—Injunction.</p> <p>Parker v. Stow, 23 Fed. Rep. followed, and preliminary injunction granted.</p> <p>2. Same — Infringement by Partner.</p> <p>Where a member of a firm alleged to bo infringing a patent was formerly a part owner of tlie patent, he will be estopped from denjdng its validity, unless it is shown that the conveyance of his title to the plaintiff was wholly without consideration.</p>

<p>1. Jettison — Goods Valueless in Tmciu Situation.</p> <p>To recover contribution for jettison the sacrifice must be voluntary; if the goods have, through a sea peril, become practically irrecoverable and valueless, subsequently cutting them loose will not. sustain a claim for contribution.</p> <p>2. Same — Rumbee Washed Ovebboakd — Lashings Out.</p> <p>Where lumber on deck was partly washed overboard in a gale, but more or less of it remained attached to the vessel by its lashings, which were afterwards out loose, held, upon the evidence, that before the lashings were cut the lumber was practically lost by a sea peril: that it was of no pecuniary value in its then condition, and afforded no just claim for contribution as for jettison.</p> <p>3. Ojiaetkh-Paety — Subsequent Change op Master, when Valid.</p> <p>Under a charter-party executed by the master, who is described therein as “party of the first part,” which contains no express statement or covenant that he shall sail as master for the contemplated voyage, there is no implied warranty to that effect, when the evidence does not show that the master’s personal services were one of the inducements to the contract. Held, therefore, that in such a case the subsequent appointment of a new and competent master for t.lie voyage, without notice to the charterer, did not affect the obligations of the contract.</p>

<p>Admiralty Appeal.</p>

<p>COLLISION — Steam-Ship—Schooner—Fog—Speed—Cape Cod.</p> <p>On examination of the evidence in this case, held, that the steam-ship was not going at an immoderate speed at the time of the collision with the schooner, and that the libel should be dismissed, but without costs.</p>

<p>In Admiralty. Exceptions to answer.</p> <p>The facts in this case were these: The libelants were the owners of a steamer on which, at the port of Cephalonia, cargo was shipped to J. D. Nordlinger, at New York, via London, and through bills of lading were issued from Cephalonia to Now York. At London the libelants’ agents took the cargo and transhipped it on the steamer Egyptian Monarch, belonging to the respondent, and prepaid the transatlantic freight, under a second bill of lading by which the respondent was to deliver the cargo at New York to the libelants’ agents there; the plan apparently being that Nordlinger would thereupon receive the goods from libelants’ agents on his through bills, and pay the freight from Cephalonia to London. On arrival in New York the cargo was delivered to Nordlinger, and the respondent did not collect any freight from him. The libel was filed to recover from the respondent the amount of freight uncollected from Nordlinger. The defense as set up in the answer was that stated below in the opinion, and that the libelants must first exhaust their remedy against Nord-lingfer. The libelants excepted to the answer as insufficient and impertinent and irrelevant, etc.</p>

<p>1. Removal op Cause — Necessary Parties — Record — Injunction—Ferry Franchise.</p> <p>In determining tile right of removal of an action in equity on the ground of residence in different states, tire residence of the necessary parties only will be considered.</p> <p>2. Same — Motion to Hkaiand.</p> <p>Upon a motion to remand such an action before answer, where the averments of the complaint are so ambiguous as to make it doubtful whether certain defendant s residing in the same state witii the plaintiff are necessary parties, and especially where there are indications of a design to obstruct removal by the introduction of additional parties, the averments of the complaint should be rigidly scrutinized, and the whole record, including the plaintiff’s affidavits, which form a part thereof, be looked at; and if it therefrom appears probable that such defendants are not necessary parties, the cause should bo retained without prejudice to subsequent remanding, should tlicv afterwards appear to be necessary parties.</p> <p>S. Oasis Stated — Prior Injunction.</p> <p>The defendant company was organized in New Jersey to run steam-boats between Staten island and New York, touching at several intermediate points in New Jersey; and thereunder was operating its business and running the steamer D. li. M. The plaintiff claimed that this was a ferry, and was run illegally without plaintiff’s license, and brought suit for a perpetual injunction against the company, and made parties defendant also the master and engineer of the steamer, and the secretary of the company, and one S., who resided in New York, and liad been enjoined in the state court in a previous suit, but, as was alleged, had procured this company to be organized as a scheme for his own benefit, and was operating the ferry purporting to be operated by the company. Tiie plaintiff’s affidavits showed that S. sedulously avoided all ostensible and legal connection with the company. Held, that no fact was stated whereby it appeared that the defendant company was not the sole party responsible to third persons for its transportation business; that an injunction against the company would bind all its officers, agents, and employes, and stockholders; and as it did not appear that S. personally owned or controlled directly any part of the line, held, that the company alone was a necessary party, and that the cause should not at present be remanded. Whether the organization of the new company by 8. was in contempt of the prior injunction, qumre.</p>

<p>1. PRACTICE — ANSWER—IfiXCKrTTON TO InSUFFIOIENOY OF.</p> <p>Exceptions to insufficiency of parts or portions of an answer to particular allegations of bills in equity are confined to matters of discovery whore the complainant is compelled to rely on the defendant to prove his case.</p> <p>2. Same — Corporations, Infants, Etc.</p> <p>Such exceptions do not lie to the answers of corporations, infants, the attorney general, or when oath to the answer is waived.</p> <p>3. Baste — Eoundation for.</p> <p>The foundation for an exception for insufficiency consists of a sufficient allegation in the bill, and a sufficient interrogatory based upon it.</p> <p>4. Same — Bills of Discovery.</p> <p>Bills of discovery are not sanctioned by prevalent practice, and where discovery is asked for in a bill for relief, exceptions to sufficiency of answer will not be considered.</p> <p>6. Same — Impertinence.</p> <p>The court will only order that matters clearly impertinent be stricken out. Where there are hero and there useless or impertinent words, the court will remedy it in the adjustment of costs.</p>

<p>1. Equity Practice — Interpleader.</p> <p>An interpleader is proporly applied for where two or more persons severally claim the same thing under different title, or in separate interests, from another person, who, not claiming any title or interest therein himself, and not knowing to which of the claimants he ought of right to render the debt, is either molested by an action brought against him, or fears that he may suffer injury from the conflicting claims of the parties.</p> <p>2. Same — Injunction to Stay Proceedings in State Court.</p> <p>Section 720, Rev. St., expressly prohibits a court of the United Slates from issuing the writ of injunction to stay proceedings in any court of a state, except where the injunction may be authorized by any law relating to proceedings in bankruptcy.</p>

<p>SPECIFIC PERFORMANCE — CONTRACT TO CONVEY LAND — AGENCY—MEETING OF Minds — Evidence.</p> <p>On examination of tlie correspondence and other evidence in this case, held, that the alleged agency of the party through whom, plaintilf negotiated for the purchase of the land in controversy is not established; that there was no ratification of the acts of the alleged agent by the owner; that the contract, the specific performance of which'is sought, is not in terms the contract intended to be entered into by the owner, and that it cannot be enforced.</p>

<p>1. Guardian and Ward — Jurisdiction or County Courts in Illinois — Mortgaging Ward’s Land to Erect Improvements Thereon.</p> <p>A county court in Illinois has jurisdiction to pass an order authorizing a guardian to borrow money,’secured by mortgage on the ward’s land, for tlie purpose of erecting improvements thereon.</p> <p>2. Usury — Corporation Organized under Law or One State Charging Interest in Another State in Bxcess ob’ Legal Rate in State Where Chartered.</p> <p>A corporation organized and authorized to loan money by a special act in New York, wherein it is provided tliat no “loan or advance sliall lie made at a rate of interest exceeding tlio legal rate,” is not prevented from charging interest on a loan made in another state at, a rate in excess of that provided by statute in New York, but not in excess of the rate allowed by law in the state where the loan is made.</p>

<p>1. Practice — Nonsuit—Directing Jury to Find for Dependant.</p> <p>In the circuit court a nonsuit will not be granted at the close of plaintiff’s case; hut when the evidence fails to make out a prima facie case, the proper practice is to move the court to instruct the jury to find for the delendant.</p> <p>2. Same — Motion, when Granted.</p> <p>Where the evidence is such that the court would feel bound to set aside any verdict in favor of plaintiff, it should direct a verdict for defendant.</p> <p>3. Master and Servant — Assuming Risk oe Known Danger.</p> <p>An employe in a mining tunnel, who, knowing that the roof of the tunnel is in an unsafe condition at a certain point, while employed in making it safe sits down under the dangerous point during a suspension of the work, and is killed by the falling of the roof, is guilty of contributory negligence, and the owners of the mine will not bo liable.</p> <p>NOTE.</p> <p>1. Directing Verdict foe Defendant. See Buckley v. Gould & Gurry Silver Min. Co. 14 ÍHU. Rop. 833; Adams v. Spangler, 17 Eed. Rep 133; Washburne v. Pintsch, Id. 582; Brockett v. New Jersey Steam-boat Co. 18 Fed. Rep. 156; Randall v. Baltimore & O. R. Co. 3 Sup. Ct. Rep. 322; Schofield v. Chicago, M. & St. P. Ry. Co. 5 Sup. Ct, Rep 1125.</p> <p>2. Negligence, when Question for Jury. Huff v. Ames, 19 N. W. Rep. 623; El-dridge v. Minneapolis & St. L. Ry. Co. 20 N. W. Rep. 151; Taylor v. City of Austin, Id. 157; Goodale v. Portage Lake Bridge Co. 21 N. W. Rep. 866; Kaples v. Orth, Id. 633; Mares v. Northern Pac. R. Co. Id. 5; Abbott v. Chicago, M. & St. P. Ry. Co. 16 N. W. Rep. 266; Dahl v. Milwaukee City Ry. Co. 22 N. W. Rep. 755; Parish v. Town of Eden, Id. 399; Baker v. City of Madison, Id. 141; Hoye v. Chicago & N. W. Ry. Co. 23 N. W. Rep. 14; Cartwright v. Chicago & G. T. Ry. Co. 18 N. W. Rep. 380; Dickinson v. Port Huron & N.W. R. Co. Id. 553; Atkinson v. Goodrich Transportation Co. Id. 764; Rog-stad v. St. Paul, M. & M. Ry. Co. 17 N. W. Rep. 287; Luebke v. Chicago, M. <fc St. P. Ry. Co. Id. 870; McCorkle v. Chicago, R. I. & P. Ry. Co. 16 N. W. Rep. 714; Huff v. County of Poweshiek, 15 N. W. Rep. 418 ; Bohan v. Milwaukee, L. S. & W. Ry. Co. Id. 801; Williams v. Northern Pac. R. Co. 14 N. W. Rep. 97; Pool v. Chicago, M. & St. P. Ry. Co. Id. 46; Sorenson v. Menasha Paper & Pulp Co. Id. 446; Houser v. Chicago, R. I. & P. R. Co. Id. - 778; Milne v. Walker, ■ 13 N. W. Rep. 101; Brusberg v. Milwaukee. L. S. & W. Ry. Oo. 12 ST. W. Rep. 416; Michigan Cent. R. Co. v. Hasscneycr, Id. 155; Gibbs v. Chicago, M. & St. P. R. Co. 4 N. W. Rep. 819; Michigan Cent. R. Co. v. Smithson, 7 17. W. Rep. 791; Chicago & 3ST. E. Ry. Co. v. Miller, 9 R. W. Rep. 841 ; Atchison & N. R. Co. v. Bailey, Id. 50; Atchison, T. & S. F. R. Co. v. McCanclliss, 6 Pac. Rep. 587; Denver, S. P. '& P. R. Co. v. Coiiway, 5 Pac. Rep. 142; Hynes v. San Francisco & N. P. R. Co. 4 Rae. Rep. 28 ; Andrews v. Runyon, Id. 669 ; 'Weideldnd v. Tuolumne Co. Water Co. Id. 415; Davis v. Utah Southern R. Co. 2 Pao. Rep. 521; While v. Missouri Pac. Ry, Oo. 1 Pac. Rep. 611; Hart v. Town of Cedar, 24 NT. W. Rep. 410; Buckley v. Gould & Curry Silver Min. Co. 14 Fed. Rep. 833; Randall v. Baltimore & O. E. Co."3 Sup. Ct. Rep. 322: Schofield v. Chicago, M. & St. P. Ry. Co. 5 Sup, Ot. Rep. 1126; Myers v. Indianapolis & St. L. R. Co. 1 Ñ. E. Rep. 899.</p>

<p>Mandamus — Compelling City to Levy Tax to Pay Judgment.</p> <p>Mandamus to compel the city of Elizabeth, New Jersey, to assess and levy, in addition to the regular taxes, the amount of principal, interest, and costs due relators on a judgment obtained against said city, denied because of a want of competent proof of the facts justifying issue of the writ within the rule laid down in Wolff v. New Orleans, 1Ó3 IT. S. 358; Nelson v. St. Martin’s Parish, 311 U. S. 716; S. 0. 4 Sup. Ct. Ilep. 648; and Commissioners v. Sellew, 99 U. S. 627.</p>

<p>Customs Duties — Gloves in Cartons and Boxes — Market Value — Act of March 3, 1883, § 7.</p> <p>Whenever goods are sold in the markets of the country of exportation, whether usually or only occasionally in boxes, cartons, or coverings of any kind, which make the goods attractive and desirable, and the boxes, cartons, etc., enter into the price there of the goods as merchantable commodities, the boxes, cartons, etc., are accessories of the goods, and actual market value includes them as an element of the value of the goods in the condition in which they are purchased.</p>

<p>1. PATENTS B’OIl INVENTIONS — IÍVIDENOE—ORIGINALITY OF INVENTIONS.</p> <p>Wlion, in a suit for infringement of a patent, it is set up as a defense that complainant derived his idea of the patented invention from some third party who first conceived it, the burden of proof is on defendant, and any doubt respecting the evidence is fatal to the defense.</p> <p>2. Same — Patent No. 184,352 — Apparatus por Drying Hides.</p> <p>On examination of tlie evidence, held, that James 1ST. Duffy must be considered as the original and first inventor of the combined mechanism of the second, third, and fourth claims of patent JSTo. 184,352, granted to him November 14, I87(j, for “improvement for apparatus for drying hides.”</p> <p>3. Same — Infringement — Public Use — Construction or Purchase op Machine with Knowledge of Inventor — Kev. St. §§ 4886, 4899.</p> <p>Itev. St. § 4899,must be construed in connection with section 4886, andit may he said generally that, while section 4886 makes void every patent where it is shown that tlie invention was in public use or on sale for the period of two years before tlie application for tlie patent, section 4899, although allowing the letters patents to stand, excepts from liability to the inventor all persons who have used for less than two years any patented machine or article that has been purchased or constructed witli the knowledge and consent of the inventor prior to his application for tlie patent. Infringement not shown.</p>

<p>1. STEVEDORES — PERSONAL INJURIES.</p> <p>Vessels employing stevedores to work upon the ship are bound to provide ' reasonable safeguards against danger arising from peculiarities in the construction of the vessel.</p> <p>2. Same — Mutual Pault.</p> <p>The steamer M. M. employed the libelant as one of a gang of stevedores’ men to shovel coal at night. There was a “ lower bridge,” about 50 feet long, amid-ships, extending across from rail to rail, about six feet above the main deck, over which the libelant had to pass. He went up a ladder forward on the port side, through the opening in the guard-rail”, passed directly aft to an opening in the rail corresponding to that forward, except that the opening was four inches narrower. Supposing it to lead to a similar ladder, he went to step down, but, no ladder being there, he lost his hold, fell, and broke his collarbone, and was laid up three months. The latter opening had never been used for a ladder, and was not guarded. Held, that there was negligence on both sides: in the ship, because the opening was unusual and dangerous, and should have been guarded; in the libelant, for not using more caution in the nighttime upon a ship with which he was unacquainted.</p> <p>3. Same — Damages Allowed.</p> <p>Following The Wanderer, 20 Fed. Rep. 140, 72 days’ wages were allowed the libelant, notwithstanding his concurrent negligence, as within the discretionary power of a court of admiralty, and because demanded in the interests of justice and humanity, as well as of public polic}'-, to prevent the multiplication of accidents whereby the poor become a public charge through the concurring fault of others. Various classes of cases cited in which damages are divided in admiralty.</p>

<p>Motion to Remand.</p>

<p>At Law. Demurrer to plea to jurisdiction.</p>

<p>1. CONVEYANCE TO ASSOCIATION — PERSONS NOT NAMED.</p> <p>When land is conveyed to an association of persons without naming all of them, the court may inquire and determine what persons composed the association at the date of the deed, and the interest to which each would be entitled in the land.</p> <p>2. Same — Interests—Acts of Parties.</p> <p>The acts of the parties in disposing of the property may be considered as showing their understanding of their interests therein at the time the deed was made.</p> <p>3. Laches as Defense in Eqiuty.</p> <p>No formal pleading of the statute of limita'ions is necessary i o raise a defense of laches in equity. It may arise upon the bill or upon the evidence as produced by the complainant.</p> <p>4. Samis — Character of Property.</p> <p>Where the property in litigation is of a speculative and fluctuating value, the parties interested will be held to a greater degree of diligence in asserting rights therein than whore it is of permanent and fixed value.</p>

<p>1. Tax in Aid of Railroad — Res Adjudicata.</p> <p>Action to set aside tax sale and enjoin execution of tax deed, in so far as tlie validity of thé tax in controversy is concerned, held, barred by the former suit brought by complainant and others against the couuty treasurer to test the validity of said tax, and decided against them in the state court. See 55 Iowa, 553; S. O. 8 N. W. Rep. 425.</p> <p>2. Same — Effect of Repeal of Statute Imposing Penalty for Non-Payment —Redemption—Amount of Tender.</p> <p>The repeal of a statute under which a penalty is assessed against a tax-payer who fails to pay his taxes within a specified time is a remission of the penalty, and it cannot be collected after such repeal, and, when such penalty has not been collected of the delinquent tax-payer, he may redeem from tax sale without making a tender of the amount of the penalty in addition to the amount of. the tax properly assessed, with legal interest thereon.</p>

<p>1. Railroad Lands — Winona & St. Peter Railroad Company — Minnesota Central Railroad Company — Act op March 3, 1865.</p> <p>Under the decisions of the supreme court of the united Stiitos in St. Paul & S. C. R. Co. v. Winona & St. P. R. Co., 112 U. S. 720, S. C. 5 Sup. 01. Rep. 334, and Winona £• St. P. R. Co. v. Barney, 113 U. S. 618, 8. C. 5 Sup. Ct. Rep. 606, the grant of four sections made by the act of March 3, 1865, must he adjudged a grant of quantity, and not one of lands in place.</p> <p>2. Same — Deduction under Act op 1865, § 3.</p> <p>The term “ any hinds which may have been granted to tile territory or stale of Minnesota,” in the proviso of section 3 of the act of 1865, and which are to be deducted from the grant made by that act, includes all land the title to which had passed to the territory or state of Minnesota, whether these lands were lands in jilaceor indemnity lands.</p> <p>3. Same — Deduction, now Determined.</p> <p>As, within the overlapping limits of the Winona & St. Peter Railroad and the Minnesota Central Railway, neither company received anything like its quota of coterminous lands, the proper deduction to be made from the grant of 1865 can bo determined by ascertaining the amount of lands within those limits which had therof oforo passed to the Minnesota Central Railroad Company under the act of 1857.</p>

<p>1. Salk — Article Manufactured for Purchaser.</p> <p>Where, under a contract, an article is to be made and delivered which shall he satisfactory to the purchaser, it must in fact be, satisfactory to him, or he is not bound to take it.</p> <p>2. Same — Fraud on Part of Purchaser.</p> <p>Where the purchaser is in fact satisfied, but fraudulently and in bad faith declares that ho is not satisfied, the contract has been fully performed by the vendor, and the purchaser is bound to accept the article.</p> <p>8. Same — Steam-Engine—Committee to be Satisfied.</p> <p>Where a steam-engine satisfactory to a committee of a town is furnished, and after the contract is made, and before tender of the engine, the members of the committee are changed, the committee to be satisfied is the committee existing when the contract is performed and the tender made.</p>

<p>1. Practice and Procedure — Conflicting Claims — Code Policy.</p> <p>The general policy of the code system in this state aims to adjust in one action, when practicable, all conflicting claims.</p> <p>2. Same — Judoments—Marshal—Subsequent Levies — Priority of Liens.</p> <p>A marshal who has received and served one attachment may receive and levy a subsequent attachment on the property in his possession, where it issues from the same court, and the right of priority among creditors in having satisfaction of their debts depends upon priority of levy thus made, and not upon priority of judgment. But where the subsequent attachment and levy are made by a different officer, or issue from another court, such proceedings cannot be had.</p> <p>3. Same — Attachment—Appointment of Receiver — Effect.</p> <p>Where an attachment, has been sued out, and a levy made upon the property of the defendant, a receiver may rightfully be appointed to take charge of the property in the interest of the creditors of the defendant, and will hold the same subject to the attachment lien.</p> <p>4. Same — Receiver—Suit a&ainst — Contempt of Court.</p> <p>Where a receiver has been appointed to take charge of the property and effects of a debtor in the interest of his creditors, suit cannot he instituted against such receiver without first obtaining leave, and to do so without such leave is contempt of court.</p> <p>5. Exemptions — Attachment and Execution — Fraudulent Conveyance.</p> <p>The personal properly exemptions of an insolvent debtor cannot be reached by an attachment or execution, and his right to such exemptions is not forfeited by the fraudulent conveyance of his property.</p>

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

<p>Attorney at Law — Disbarment—Abducting- Insane Person — Fraudulently Obtaining Money.</p> <p>A weak-minded man, laboring under the hallucination that he had committed a crime, fled to Tennessee, and there concealed himself, but was discovered by certain detectives and officers, who, supposing he was in fact a criminal, had him arrested and committed to jail in the hope of obtaining a reward. They took an attorney at law into their confidence, and, acting with him, and under his advice, after learning that the supposed criminal was in fact innocent, procured his release fraudulently, and by preparing false and illegal papers; and after receiving and dividing large sums of money sent to their prisoner-by relatives, carried him in disguise to New York and shipped him to Liverpool, where he was found by his relatives and brought home. 1-Ield, that this conduct on the part of the attorney was sufficient to justifying striking his name from the roll of attorneys, and disbarring him from practice.</p> <p>As to right to disbar attorney, see Ex parte Wall, 2 Sup. Ct. Rep. 569, and In re Wall, 13 Fed. Rep. 814, and note, 820.</p>

<p>Internal Revenue — Forfeiture for Violation of Statute — Acts of Agent, how Far Binding on Principal.</p> <p>In an information for forfeiture of a distillery for violation of the statute, the acts and intents of the servants or agents ol' the claimant arelo he imputed to the principal, in so far as that they may work tlio forfeiture of the property used for unlawful purposes.</p>

<p>Grain Charter-Party — Construction oe Words “Now about Ready to Sail in Ballast.”</p> <p>Merchants in Baltimore, desiring a steamer for an August shipment of grain, signed a charter-party, in which it was stipulated that the steamer was “ now about ready to sail from the United, Kingdom, in ballastThe steamer at the date of the charter-party, Friday, August 8th, was in the dry-dock at Shields for repairs. She was let out of the dock the next day, and commenced taking-in ballast, coal, and stores for the voyage. She completed these preparations on the following Tuesday, when it was discovered that some of her valves had been misplaced while in the dock. This delayed her another day, and she sailed on Wednesday, 13th. She arrived in Baltimore one day too late for an August shipment of grain, and the charterers refused to load her. Held, that the steamer was not at the date of the charter-party about ready to sail in ballast, and that the charterers had a right to refuse her.</p>

<p>Insufficient Fittings of Cattle-Ship — Agreement to be Governed by English Law — Exceptions in Bill of Lading.</p> <p>Tlie libelant, a resident of Chicago, made with the agents of a line of British steamers a contract to carry cattle from Baltimore to Liverpool. By a clause of the contract it was agreed that any questions arising under the contract or the bill of lading against the steamer, or her owners, should be determined by English law in England. Cattle shipped under the contract received injuries by reason of the insufficient construction of stalls provided by the ship. The contract having been made in the United States with a British corporation, owner of a British ship, for the carriage of cattle to England, and the parties to the contract having expressly declared their intention that the contract and bill of lading should be governed by the law of England, the place of the performance of the contract of carriage, held, that the English law must govern as to its validity, obligation, and interpretation. Held, also, that the exceptions contained "in the bill of lading, stipulating that the shipper approved of the cattle fittings, and that the steamer should not bo held responsible for any injury to the cattle occasioned by the wrongful acts, default, negligence, or error in judgment of the owner, púlot, master, officers, crew, stevedores, or other persons in the service of the ship, were sufficient, under the rulings of the English courts, to exempt the ship from liability for the injuries complained of.</p>