Volume 25 — Federal Reporter

In Equity. Motion to dissolve restraining order against D. R. Francis, mayor of tho city of St. Louis, and others, in the matter of the St. Louis Transfer Company. The order restrained the mayor of St. Louis, and others, from tearing up certain tracks which, as it now appears, have been wrongfully laid by tho receivers of the Wabash, St. Louis & Pacific Railway Company on land dedicated to public use as a street.

In Equity. Foreclosure suit. Demurrer to intervenors’ petition.

<p>Specific Performance—Oral Contract as to Right to Plow Water.</p> <p>On examination of tlie facts in tins case, held, that the hill praying for the specific performance of a parol contract in regard to the right to flow water upon certain mill privilege owned by defendants should be dismissed.</p>

<p>1. Gift by a Wealthy Young Man, of Fast Habits, to an Agent, Upheld as against Hrs Wife Who was His Former Mistress.</p> <p>T. was an intimate friend of Ii.’s family, and was li.’s guardian. 11. luid utmost, confidence in and friendship for him. When li. became of age, T. settled liis accounts as guardian, 'out li. employed the firm of which T. was a member as his real-estate agents. T. thus liad the active management of most, of liis properly. Ii. made two wills in favor of T.’s children. ' lie afterwards married the complainant, whom he had long known as a prostitute. After the marriage, upon T.’s suggestion whether li. desired to carry out his former purpose, K. made a gift of property, amounting to $40,000, about half of his estate, t,o T., as trustee of his children, reserving the income for lift1. Mrs. Ii. filed her bill, after li.’s death, to set aside the gift, on account, of undue influence exercised by T. over Li., and of li.’s mental weakness caused by his dissipation. The gift was upheld, and the bill dismissed.</p> <p>2. Mental Weakness Arising from Intoxication Invalidates Conveyance, when.</p> <p>Where there is groat weakness of mind in a person executing a voluntary conveyance, arising from age, sickness, intoxication, or any other cause, though not amounting to absolute disqualification, the transaction will bo very closely scrutinized, and a court of equity will, upon a proper and seasonable "application, sot tlio conveyance aside. But where the evidence relied on to show such mental weakness arising from intoxication stows that the grantor had periods of sobriety in which he was able to attend to business, and fails to show that he was intoxicated at the time the conveyance was made, it is not sufficient to avoid tile transaction, although it appears that the grantor was a hard drinker, and that habits.of intoxication had affected his health and frequently rendered him unfit for business.</p> <p>3. Confidential Kelations—Gift by Principal to Auent.</p> <p>A gift by a principal to an agent is valid, unless the party who seeks to set it aside can show that some advantage was taken by the agent of the relation in which lie stood to the donor. If it appears that the conduct of the agent is fair, honest, and bona fide, it is immaterial that the deed of gift may have been drawn up by his solicitor without the intervention of a third party.</p>

<p>1. Trust—Credit Mobilter Company and Union Pacific Railroad Company —Releases.</p> <p>The agreements and releases set up in the defendants’ plea held a bar to this suit, and the bill dismissed.</p> <p>2. Equity Pleading—Duplicity.</p> <p>A plea may consist of a variety of facts and Circumstances, and if such facts and circumstances give as their result one clear ground upon which the whole equity of the bill may be disposed of, the plea is not bad.</p>

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

<p>1. Patents for Inventions—Reissue—Enlarging Claims—Mistake—Diligence.</p> <p>A patent cannot be lawfuRy reissued for tlie mere purpose of enlarging a claim, unless there has been a clear mistake, inadvertently committed in the wording of the claim, and the application for reissue is made within a reasonable time.</p> <p>2. Same—Question for Commissioner of Patents—Reasonable Time, Question for Court.</p> <p>Whether‘there has been such an inadvertent mistake is, in general, a matter of fact for the commissioner to decide; but whether the application is made in reasonable time is matter.of law which the court may determine by comparing the reissued patents with the original and, if necessary, with the records in the patent-office when presented for record.</p> <p>3. Same—What is Reasonable Time.</p> <p>What is a reasonable time will depend upon tlie circumstances in each case, but as tlie patentee is charged with notice of what his patent contains, the court will hold him to reasonable diligence.</p> <p>4. Same—Preliminary Relief—Doubt as to Validity of Reissue.</p> <p>Where a reissue is obtained, not to correct a mistake, but to secure broad claims that will ostensibly cover more comprehensive rights than belong to tlie patentee, a preliminary injunction will not be granted to restrain infringement of a good claim, if the defendant has acted in the honest belief that the reissue was wholly void.</p>

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

<p>1. Patents for Inventions — Improvement in Lamp Chimneys — Defective Claim.</p> <p>Where a patentee has not claimed as much as he is entitled to claim, he is bound to discover the defect in a reasonable time or lose his right to a reissue.</p> <p>2. Same—Reissue—Expansion.</p> <p>Where there is a substantial expansion in a reissue of letters patent, so as to include a combination not included in the original, such reissue is void.</p> <p>3. Same—Lamp Chimney—Reissue Void.</p> <p>Reissued patent granted to Frederick S. Shirley, assignee of Robert R. Crosby, May 8, 1S77, the original patent having been granted to Crosby, July 14, 1868, held void.</p>

<p>Patents foe Inventions—Invention—Hoof for Burial Vaults.</p> <p>Patent So. 244,224, issued to Hamline Q. French, July 12, .1881, for an improved roof for vaults for burial purposes, held void for want of invention.</p>

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

In Admiralty. This libel was filed to recover demurrage for the detention of the bark Spartan at various ports in the region of Arica and Callao, Peru, in the summer of 1880, arising out of the blockade of the Peruvian ports by the Chilian fleets during the late war.

In Equity. Sur motion on the part of the plaintiffs to remand the cause to the court of common pleas of Crawford county.

In Equity. • Petition of the Central Trust Company and James Cheney, trustees under the general mortgage of the Wabash, St. Louis & Pacific Railway Company, asking for an order on the receivers to pay the expenses of certain negotiations between the general mortgage and collateral trust bondholders of said railway company, having for their object the sale of the mortgaged property to the best advantage when the final decree of sale is made, and a reorganization of said…

In Equity. Creditors’ bill. Demurrer to bill; The bill states that the firm of Nordmeyer & Schoen,’the debtors referred to in the opinion of the court, were, on January 30, 1885, utterly insolvent; that 1:he3r owed more than $5,000; that their assets did not amount to more than half that sum, and that they had no individual assets; that, knowing they could not further prosecute their business and had not assets sufficient to pay all of their just debts in full, they…

<p>Petition for Instruction under the Hoult Act.</p>

Motion to quash an alternative writ of mandamus ordering the collection of a tax to pay an execution.

<p>1. Chinese Restriction Act—Detention of Chinamen—Habeas Corpus.</p> <p>Where a Chinese person is doiained on board of a ship and refused the right to land, whether by the authority of the master in pursuance of the provisions of tlio Chinese restriction act, or by the refusal of the collector to grant him permission to land, he is restrained of his liberty under or by color of the authority of the United States, and he is entitled as of common right to sue out a writ, of habeas corpas that the legality of his detention and restraint may lie passed upon by the court.</p> <p>2. Same—Production of Body in Court—Custody—Detention of Ship.</p> <p>When his body is produced in court in obedience to the writ, the control of his person remains with llie court, and he may be committed to the custody of the marshal, or be held to hail to await the decision of the court; and if on investigation the court should be of opinion that be had no right to land, it is its duty to remand him to the custody from which he was taken, if the ship bo in port and about to return to the country from which ho came; but the court has no right, nor color of right, to detain the ship.</p> <p>3. Same—Bight to Jury Triad.</p> <p>A Chinaman thus brought before the court has no right to a trial by jury in the investigation before the “justice, judge, or commissioner ” to ascertain and find out whether he is unlawfully within the United States.</p> <p>4. Same—Remanding Chinaman to Custody—Duty of Court.</p> <p>Where the “justice, judge, or commissioner” finds that the petitioner is a Chinese laborer, prohibited bylaw from landing or from being or remaining in the United States, and, if the ship were in port, and about to return 1o China, would remand him to the ship to be carried to the country from whence lie came, such a finding amounts to a finding in effect that he is unlawfully in the United States, and tlie court should order him to be remanded by the marshal to the custody from which he was taken, and when the marshal returns that the ship lias sailed, a supplemental order may be passed committing him to tlie custody of tho marshal to be held for a reasonable time to await the direction of the president.</p> <p>5. Same—Order of President as to Removal.</p> <p>The order of tlie president may be either general or special. It may be retrospeetive and prospective, and, inasmuch, as the law imposes on him the duty of causing the person to be removed to the country whence he came after he shall have been found to be unlawfully here by a “justice, judge, or commissioner,” but gives him no power to revise that judgment, and apparently confers on him no discretion in the matter, he may, by a general order, directed to the marshal, (or perhaps to the collector,) direct that all persons who shall thus have been found to be unlawfully here shall be removed, and he may instruct that officer to procure them tickets and effectuate their removal; and if there fee any difficulty from the want of appropriation or means at his command in fulfilling that duty imposed on him by law, it is for congress to remove it.</p>

<p>Bankruptcy—Fraudulent Conveyance—Evidence.</p> <p>On review of the facts and evidence, held, that the transfers of the properly in this case by the bankrupt to his wife were fraudulent as to his creditors, and should bo set aside</p>

<p>1. Letters Patent—Reissue—Expansion of Claim—Validity.</p> <p>Where the reissue of letters patent covers anj'tlimg not embraced ■within the original patent, the reissue is to that extent void.</p> <p>2. Same—Expansion of Description—Effect.</p> <p>The insertion in a reissued patent of the inventor’s opinion that his invention is one of a certain class, and reduced into form, accomplishing a successful result, where it does not in any way' aifcct or enlarge the claim of the original, does not invalidate the reissue.</p> <p>3. Saiie—Reissue Construed, and Held Vatajd.</p> <p>Reissue No. 9,143, dated April 13, 1880, given on original patent, No. 95,458, dated October 5, 1869, considered, and held to be valid.</p>

<p>Lettbus Patent—Reissue—■Infringement—Injunction.</p> <p>Reissue Ho. 6,113, dated November 3,1874, granted on original letters patent Ho. 123,927; granted February 20, 1872, considered, and preliminary injunction to restrain infringement denied.</p>

<p>In Equity. Sur demurrer to the bill of complaint.</p>

<p>In Equity. Sur demurrer to the bill of complaint.</p>

<p>Grain Charter-Party—Construction or Words “Now at Porman, about Ready to Bail, or Already Sailed.”</p> <p>New York agents of the British steamer March were authorized to charter her for a cargo of grain from Baltimore to a British or continental port. The steamer had some time previously sailed from Yenice to Porman for a cargo of mineral, and her exact situation was not known. The charter-party contained a stipulation that she was then at Porman, about ready to sail, or had already sailed. She did in fact have one-half her cargo on board, and with favorable weather could have completed her loading in a little over two days, but by unfavorable weather her loading was delayed seven das's. Held, that the steamer was not about ready to sail, within the meaning of the stipulation, and that the charterers were not required to load her.</p>

<p>Collision—Steam-Tug- anb Tow—Steam-Shu*—Fault.</p> <p>On examination of tlio evidence in this case, held, tiiat the steam-tug was alone at fault in the collision with the steam-ship whereby her tow was damaged.</p>

<p>Removal oe Cause—Motion to Remand—Collusive Joinder ov Parties.</p> <p>It, is good practice to raise in limine, by petition to remand, tlie question of tlie alleged collusive joinder of a party for tlie purpose of creating a case removable to the circuit court; and tlie right so to raise the question is not waived by reason of a prior unsuccessful motion to remand on jurisdictional grounds supposed to appear on the face of the record.</p>

<p>In Equity. Sur motion to rescind the order appointing a receiver.</p>

<p>1 Witnesses—Examination op Pakty to Suit—State Statute.</p> <p>The Pennsylvania statute providing for the examination of a party to a suit, when called by his adversary, as if under cross-examination, is not applicable to a suit in equity in a United States court.</p> <p>2. Removal op Cause—Collusion.</p> <p>If a party, by virtue of his citizenship and bona fide ownership of bonds prior to the commencement of litigation, and before it was contemplated, had the right to sue in the circuit court, or to intervene in a suit in a state court and remove the cause to the circuit court, his intervention in such pending suit, with a view to its removal, is not collusive, although there may have been an understanding between him and resident bondholders that he should pursue this course, and that they would co-operate with him in the litigation, and participate in and contribute to the expenses of the legal proceedings.</p>

<p>1. Witnesses—Examination of Party to Suit—Pennsylvania Statute.</p> <p>The Pennsylvania statute, wliicb provides that a party to the record, when called by the adverse party, may be examined as if under cross-examination, is not applicable to a suit in equity in a court of the United States.</p> <p>2. Same—Hostility of Witness—Impeachment—Contradiction.</p> <p>Where a party is called by the opposite party, lie stands in a different position from an ordinary witness: he is necessarily hostile to the party calling him, who is not bound by what he testifies. It may lie that he cannot he directly impeached by the party who called him, but he may be freely contradicted, even though this may incidentally discredit him.</p> <p>8. Same—Effect of Testimony of Party.</p> <p>But a party who has voluntarily put his adversary on the witness stand cannot insist that his testimony ho ignored if it happen to disappoint him. It is competent testimony in the case, and, unless seif-contradictoiy or inherently improbable, it must prevail in the absence of countervailing evidence.</p> <p>4. Deed—Effect of Delivery.</p> <p>By the law of Pennsylvania a deed takes full effect by mere delivery, without recording.</p> <p>5, Fraudulent Conveyance—Evidence.</p> <p>'The evidence in this case stated and discussed, and held, that it fails t.o sustain the charge contained in the bill, but denied by the answer, that certain deeds of conveyance were executed in fraud of the creditors of the grantor.</p>

<p>Contract—Specific Performance—Evidence.</p> <p>On examination of the evidence in this case, held, that plaintiffs are entitled to the speciiic performance of the contract on the part of defendants by acceptance of the deeds and creamery erected under such contract hy plaintiffs, and that plaintiffs are entitled to compensation for their labor and expense in erecting said creamery.</p>

<p>1. Trade-Marks—Infringement of.</p> <p>The complainant in a trade-mark suit is entitled to relief if the marks or brands used by the defendants sufficiently resemble the complainant’s marks or brands to be mistaken for them.</p> <p>2. Same—Injunction.</p> <p>An injunction should be granted if the defendants adopt their brand for the purpose of selling their goods as and for the goods of the complainant, or for the purpose of enabling others to do so, and the complainant has been injured or is likely to be injured thereby. In such case it will not be sufficient 1 or the defendants to show that no deception is in fact practiced on those witli whom they deal personally; but an injunction will be granted if consumers to whom the goods are intended to be resold are or may be deceived.</p> <p>3. Same—Using "Name of Place to Deceive.</p> <p>Where manufacturers at one place falsely mark or brand their goods as manufactured at another, for the purpose of inducing trade which would otherwise go to manufacturers at such other place, such false marking will be considered as fraudulent and a “ resort to a palpable trick,” and, the complainant being injured thereby, the infringing manufacturers will he enjoined from thus using the name of the place whore the complainant carries on its business.</p>

<p>Trade-Mark—Color op Label Apart prom Name or Device.</p> <p>The color of a label, apart from a name or device, cannot be the subject-matter of a trade-mark.</p>

<p>Assignment for Benefit of Creditors—Wisconsin Statute—Preferences —Exceptions in Pavor of Laborers.</p> <p>A statute of Wisconsin (1 Laws Wis. 1883, c. 349) provides that “ any and all assignments hereafter made for the benefitfof creditors which shall contain or give any preference to one creditor over another creditor, except for the wages of laborers, servants, and employes, earned within six months prior thereto, shall be void.” L., a manufacturer, entered into a contract with B., who was also a manufacturer, by which B. was to saw a quantity of lumber for L. at the stipulated price of $15 per thousand feet. The lumber was furnished by L., and the sawing was done at B.’s establishment. The work required the use of B.’s machinery and the labor of his employes. Held, that the relation of the parties was that of contractor and contractee; that in doing the work B. was not a laborer, servant, or employe of L. within the meaning of the statute; and that a preference in favor of B.,in an assignment made by by L., was illegal, and invalidated the assignment as to a creditor attacking it.</p>

<p>Motion for Judgment on the Answer.</p>

<p>Internal Revenue—Notes Used for Circulation as Money.</p> <p>In an action under section 19 of the act of February 8,1875, (18 St. 311,) in order to render the defendant liable it must be shown that he intended to put his notes in circulation as money and paid them out for that purpose, but in showing such intention, his declarations, when he paid out the notes is not the only proper evidence thereof, and it is not error to instruct the jury that paying out the notes, knowing that they would be used and circulated as money, is evi-' dence from which they may infer the intention to pay them out for that purpose.</p> <p>2. Same—Assessment of Taxes by Commissioner before Suit.</p> <p>In such an action recovery maybe had without an assessment of the taxes by the commissioner of internal revenue. '</p> <p>3. Same—Amount of Notes.</p> <p>That the notes were under the amount of one dollar each will not prevent their being taxable.</p> <p>4. Same—Notes Reissued Taxable.</p> <p>Where the notes when taken up are reissued, every such issue is a new issue thereof, and becomes a part of the amount of the notes so used for circulation, and subject to the tax.</p>

In these eases the United States attorney proposed to raise for final submission to the supreme court, if necessary, two important points relative to the jurisdiction of the court in habeas corpus eases under the restriction act.

<p>1. Interfering Patents—Case in Equity.</p> <p>After a decision by the commissioner of patents in an interference proceeding awarding letters patent to an inventor whose application was filed subsequent to that of another applicant who had obtained letters patent covering the invention in controversy, priority of invention constitutes the material issue between the parties when the defeated party files his bill in equity to have the patent of his adversary declared void.</p> <p>2. Same—Laches.</p> <p>In such case, the delay of complainant to file Ills bill for five years after the adverse decision by the commissioner of patents will be considered by the court as bearing upon tlie good faith of the complainant’s proceeding, no explanation of the delay being offered.</p> <p>3. Same—Decree for Injunction.</p> <p>Where the conduct of the complainant has been stubbornly litigious, the court may not only declare his patent void because of want of priority, but may enjoin him from threatening or bringing other suits where such litigation will produce damage irreparable at law.</p> <p>4. Same—Sawyer v. Miller, 12 Fed. Rep. 725, Followed.</p> <p>The decision of the circuit judge in the case of /Sawyer v. Miller, 12 Fed. Rep. 725, approved and followed.</p>

<p>1. Patents for Inventions—Infringement—Damages.</p> <p>Where infringement of a patented coal-washing machine was deliberate and without palliation or excuse, helO,, that the infringer was justly chargeable with the full established license fee for each infringing machine, although his use of two of them had been but for three years, and of four of them for eighteen months only.</p> <p>2. Same—Measure of Damages—Future Use of Infringing Machine.</p> <p>While the patentee may, if he choose, confine himself to a recovery for past infringement, and insist that the further use of tiie infringing machine be enjoined, yet, if he elect as his measure of damages the full license fee established by himself, the payment thereof operates to vest in the defendant, the right to use the machine during the life of the patent, or until that particular machine is worn out.</p>

<p>1. Collision—Master and Skamf.n—Personal Effects of—Half Damages.</p> <p>The claims oí master and seamen for loss oí personal effects through a collision aro affected with the faults of their own ship ; if both vessels are in fault, and one be lost, her crow recovers of the other vessel but half their damages.</p> <p>2. Same—Contribution to Cargo—Master Liable—Chew not.</p> <p>Seamen, being responsible to third persons for willful defaults only, are not liable to have their recovery for loss of personal effects applied to make up their vessel’s share of loss of cargo on collision through negligence. 8eeus, as to the master’s effects, for he is responsible to cargo-owners for all the negligences of his subordinates.</p> <p>8. Appeal—Suits in Rem and in Personam—Stay.</p> <p>After suit in rem by master for loss of vessel, cargo, and personal effects, insurers of cargo brought suit in personam for loss of cargo by same proctors. Both vessels being in fault, on recovery of half damages, the vessel lost not receiving enough to make good her own half of cargo, the claimants were adjudged to pay the whole loss of cargo, and one-half of seamen’s effects, for benefit of insurers, and, both desiring to appeal, a decree was entered in the suit in rem only, with stay of the suit in personam on all the respondents executing the bond on appeal in the suit in rem.</p>

<p>Collision—Schooners—Fault—Conflicting Evidence.</p> <p>Tlie collision in this case held duo to the negligence oil the schooner 'Wellington, and that the schooner Pardee was entitled to an interlocutory decree tor damages.</p> <p>S. C. reversed on appeal, post, 155.</p>

<p>Collision—Fault—Conflicting Evidence.</p> <p>On examination of tlie facts as disclosed by tlie evidence, held, that the collision between the schooner,s Alary B. Wellington and Annie J. Pardee, olí Cape Cod on October 8, 1884, about 7p.m., was due to the fault of the Pardee.</p>

<p>Lien for Repairs—Non-Resident Owner—Presumption.</p> <p>Tlie fact that the owner of a vessel was a non-resident of the state of New York at the time necessary repairs on her were made at New York, raised a presumption that they were done on the credit of the vessel. This presumption was strengthened by the fact that they were charged to the vessel at the time they were done, and is not overthrown by the fact that the libelants, when they undertook the repairs, did not know where the owner resided; nor by the fact that they were made at the request of the owner’s agent in New York; nor by the fact that 90 days were given the owner in which to pay for them ; nor by the fact that nothing was said about a lien. On the evidence it was held that the weight of evidence was that the repairs were not done in an unskillful manner, and the libelants, who had brought suit for the amount of the repairs, were entitled to a decree.</p>

<p>Admiralty Appeal.</p>

<p>Tug and Tow—Stranding—Negligence in Proceeding in Pog.</p> <p>A tug was held liable for tbe stranding of a boat in its tow, caused by tbe negligence of tbe master in proceeding in a fog on a course based upon a mere guess of the pilot as to their position, and in not anchoring.</p>

<p>1. Public Lands—Judicial Control of Official Action.</p> <p>As a means of controlling Hie official action of public officers, in a matter affecting private rights, the writ of injunction is the correlative of the writ of mandamus; and whenever in such case the latter will issue to compel affirmative action, the former may issue to restrain tlie same; but neither can be used to control or direct official judgment or discretion.</p> <p>2. Same—Injunction, when will not Issue to Restrain Rkoister and Receiver.</p> <p>An injunction wifi not issue to restrain the register and receiver from receiving and allowing applications to enter certain lands jvithin their district, although it may appear, in the judgment of the court, that the same belong to the plaintiff by legislative grant,' so long as there is room for difference of opinion on tlie question, or its determination involves the exorcise of official judgment.</p>

<p>National Banks—Insolvency—Assessment op Shares op Stock in Hands op Executor and Residuary Legatee.</p> <p>H. B., at tlie time of liis death, owned 430 shares of capital stock in a national bank, which he bequeathed to S. B. as residuary legatee. S. B. died, having bequeathed the shares to M. B. S. The executor, before the failure of the bank, on representation that there would be left for the residuary legatee, after paying debts and legacies, a large amount of real and personal estate, was ordered by the probate court to pay the legacies and turn over the balance to the residuary legatee. He transferred 400 of the shares to the residuary legatee. Afterwards he transferred 10 shares to another person without consideration, and in trust, leaving 20 shares standing in his own name as executor on the books of the bank when it failed. There were still claims against the estate which were in dispute, and the stock was not specifically mentioned in the will or the decree ordering it to be paid to the residuary legatee. Held, that the 400 shares turned over to the legatee were not liable to the assessment made by the comptroller of the currency upon the capital stock of the bank which were owned and stood in the name of H. B. at the time of his decease, but that the 30 shares m the name of the trustee and of the executor were liable to such assessment.</p>

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

<p>Subrogation — Administrator’s Sale — Mortgages—Homestead Rights of Wife—Notice.</p> <p>A. and wife borrowed $300 of scliool money from the county of Livingston, Missouri, and mortgaged their homestead as security. A. died being indebted to the county for other borrowed money besides the $300, and his wife, as administratrix, under order of the probate court sold all his right, title, and claim in the land to pay his debts in 1875, and B. became the purchaser and sold the land to 0., subject to the county mortgage. C. afterwards substituted his own mortgage for the one of B. and had the original mortgage of A. released, and later resold the land to B., subject to the county mortgage O. had given. B. then borrowed $400 of I)., applying so much of it as was necessary to pay the county debt in that way, and paying the balance to B., wlio gave a mortgage on the land in controversy. Under the law of Missouri, the right to the homestead of A. passed to the wife, but none of the parties knew this, and they all dealt with the land as if the whole title had passed b}r the administrator’s sale. The wife removed to Kansas, where she married B., and subsequently she and B. sold their interest.in the land to F. by quitclaim deed. B. ’s interest had been sold under the mortgage given to secure D., but he was in possession wlienB. and wife conveyed tó F., and B, let F. into possession, and he joined such poss 'ssion to the title acquired by bis quitclaim deed. D. brought suit to cancel the release of the original mortgage from A. to the county and subrogate himself to the county claim, having in fact paid the debt of the county. Meld, that D. was entitled to have the release canceled and to be subrogated to the rights of the county, with authority to legally enforce his claim against the land.</p>

<p>1. Fraudulent Conveyance—Purchase by Wife with Earnings Agreed to be Paid by Husband.</p> <p>In 1871 and 1872, M. F. and her busband, P. A. F.,kept a lodging-bouse, tlie wife attending to the duties of tbe house under agreement with the husband that he would pay her what it would cost to keep a servant. The wife had no other opportunity of making money, and the $300 thus earned was not paid to her by the husband, but in 1881 he purchased a lot and had the title put in her name, in part payment of the amount and the accrued interest. P. A. P. had previously been adjudged a bankrupt, but had not included the indebtedness to his wife in the schedule of debts filed. Held, that the property in the name of M. F. was subject to the payment of judgments against P. A. F.; following Seitz v. Mitchell, 94 U. S. 584.</p> <p>2. Same—Evidence—Fraud Proven.</p> <p>On examination of the circumstances surrounding the transfer and purchase of property claimed to be in fraud of creditors, held, that such property, with the exception of a certain leasehold estate, should be subjected to the payment of the judgments obtained against defendant.</p>

<p>Copyright—Opera — Dedication to Public — Publication of Libretto and Vocal Score in Foreign Country — Retention of Orchestration—■Infringement—Production -with New Orchestration—Injunction.</p> <p>Carte, an alien, purchased from Gilbert and Sullivan, British subjects, their right of public representation in the United States of the comio opera “ The jVIikado, or the Town of Titipu,” of which (Gilbert was the author of the literary parts, aud Sullivan the author of the musical parts. They emplc^ed one Tracey, a citizen of the United States, to come to London and prepare a piano-forte arrangement from the original orchestral score, with a view to copying the samedn the United States. After Tracey made the piano arrangement, proceedings were taken to copyright it as a new and original composition in the United States, and Carte purchased the title of Gilbert, Sullivan, and Tracey to such copyright. After the recording in the office of the librarian of congress of the title of this arrangement, the libretto and vocal score of the opera and piano-forte arrangement of Tracey were published and sold in England, with the consent of Gilbert and Sullivan. The orchestral score was never published, but kept by Gilbert and Sullivan for their own use and that of licensees to perform the opera. Duíi purchased in England a copy of the libretto, vocal score, and piano-forte arrangement, and procured a skillful musician to make an independent orchestration from the vocal score and piano score, and was about to produce the opera in New V ork city, with words and voice parts substantially the same as those of the original,“and with scenery, costumes, and stage business in imitation of the original, and with the orchestration which lie liad procured to he made, and without claiming that he employed the orchestration of tiie original opera, when Carte sought to enjoin the public representations. Held, that the publication of the libretto and vocal score of tiie opera in London witli the consent of the authors was a dedication of tlieir plaj'righl, or entire dramatic property in the opera, to the public, notwithstanding their retention of the orchestral score in manuscript, and tlio public representation would not bo enjoined.</p>

In Equity. Bill for infringement of a copyright on a book entitled “Illustrated Stock Doctor and Live-stock Encyclopedia,” which copyright, together with stereotype plates, originals of illustrations, and stamps for binding, are alleged to have been purchased by the complainant, Hubbard, from the defendant, Thompson, for the sum of $4,000.

<p>1. Municipal Bonds—Sóhool-Distuict Bond—Recitals—Estoppel—Issue in Excess oe Constitutional Limitation as to Indebtedness.</p> <p>Where it is recited in municipal bonds that they are issued “ in pursuance of” or “ in confm'mity with” the provisions of a given statute, this is an assertion that in issuing the bonds the provisions of the statute have been followed or conformed to; but when the recital is only that the bonds are issued “under” the provisions of a given statute, this simply asserts that the bonds are subject to or controlled by the provisions of the statute named; or, in other words, the purchaser is thereby informed where lie should look in order to learn what 'the provisions of the statute are which confer and limit the power to issue the bonds; and the municipality issuing such bonds is not estopped from showing that they are void, because they created an indebtedness in excess of the constitutional limitation.</p> <p>2. Same—Bona Ride Purchaser—NoTrcs.</p> <p>The purchaser of bonds is bound to know the constitutional limit of the indebtedness which the municipal corporation could lawfully incur, and whei e the bonds offered for sale to him exceed this limit, he is bound to take notice that such bonds could not be legally issued, no matter what the recitals therein may set forth.</p>

<p>Attachment—Dbeendant not Non-Resident.</p> <p>Gr., from 1800 to April, 1885, had a place of business in New York city, and only resided in Paris during a. portion of that time for the purpose of purchasing goods for Ilia Now York house. In the fall of 1884 he announced his intention to his friends of removing to New York, shipped a large part of his furniture from Paris to New York, and notified his landlord in Paris that ho would not need his apartments there after the spring of 1885. On March 17, 1885, he arrived with his family and occupied rooms at a hotel in New Yoik until May 25, 1885, from which date he lived with his wife and child at a bouse on East Eighty-sixth street, New York city, declaring his intention to make New York his permanent residence. Held, that Gr. was not, a non-resident, and that an attachment issued on that ground should be vacated.</p>

In Equity. The defense in this ease was substantially the same as in the Indiana case referred to below, and the same evidence was introduced in both cases.

<p>Patents eor Inventions—Noviít,ty—Inb-einomment— Pocket Ciieck-Book.</p> <p>¿otters patent, No. 203,365, granted to Henry II. Norrington, May 7,1878, for an improved pocket bank clieck-book, held valid, and infringed by defendant.</p>

<p>Patents for Inventions—Infringement—Doane and Bugbets Patent.</p> <p>On rehearing, former opinion, 24 Ped. Rep. b04, adhered to.</p>

<p>Patents fob Invention—Aotton at Law for Infringement—Prior Suit in Equity.</p> <p>An answer in an action at law by a patentee to recover damages for the use of a patented article that sets up that, the article used was purchased by the defendant from a manufacturer, against whom plain till had obtained a decree in equity for an accounting, does not state a defense unless it also avers that the accounting included the article in question, and that the decree has been satisfied by payment or otherwise.</p>

<p>1. Municipal Corporations—Duty as to Wrecks in Harbor.</p> <p>It is not a part of the public duty of a city to pump out and raise boats which sink at its levee, even where its charter gives it control of its levee and harbor, and makes it its duty to keep its wharf and the river along the shore free from wrecks and other improper obstacles.</p> <p>2. Same—Contracts to Perform'Private Service.</p> <p>Where public duty does not interfere with private service, a city may make a valid contract to use its instrumentalities and employ its employes in the latter ; and in case of a breach by it of such a contract it becomes liable like a private contractor.</p> <p>3. Same—Estoppel.</p> <p>Where a city has been in the habit of making contracts for the use of certain of its instrumentalities, and the employment of the employes connected therewith, through officers in charge thereof, and of receiving compensation for the performance of such contracts, it will be estopped, in case of a breach by it of such a contract entered into on its behalf by such officers, from claiming that the officers acted without authority.</p> <p>4. Practice—Appeals ix Admiralty—Doubtful Questions of Pact.</p> <p>Where, in admiralty cases appealed to this court, no question of law is involved, the decree below will not be disturbed, unless clearly contrary to the evidence.</p> <p>5. Same—Party not Appealing.</p> <p>A party who does not appeal from a decree cannot question its correctness.</p>

<p>Tug and Tow—Approaching Squadl—Negligkncb in not Anchoring.</p> <p>A tug which had assumed command oí a bark on commencing to tow her, with the responsibility of determining when to proceed and when to anchor, was held negligent in not anchoring the bark in time, in the face of an approaching squall, which it was evident would be severe, and liable for damage caused the bark by coming in contact with other vessels during the squall, before she was able to reach her destination.</p>

<p>Collision—Evidence—Lights—Negligent Lookout.</p> <p>3eld, on tlie evidence, that the cause of the collision which gave rise to this action was the failure of the steersman of the N. to see the colored lights of the W., and not any faulty location of the lights.</p>

<p>National Banks—Action against Resident Defendants — Repeal of Rev. St. « 029, Subd 10.</p> <p>Tlie tenth subdivision of section 029, Rev. St., has been repealed by tlie proviso in section 4 of chapter 290, St. 1881-82, being an act to enable national banks to extend their corporate existence, and for other purposes, approved July 12, 1882, and a national bank cannot now institute and maintain a suit against residents of its own state and judicial district.</p>

This was a petition for the protection of this court against the alleged unlawful service of process from the superior court of Detroit.

In Equity. On pleadings and proofs. This was a bill to set aside certain conveyances of real estate made by the defendant Miron Bunnell to his daughter, Ada, which are alleged to be in fraud of the rights of the plaintiff, the former wife of Miron Bunnell, who had procured a divorce, and a decree for alimony against him.

<p>1. Railroad Companies—Consolidation—’Chicago & Southwestern Railway Com p an y— M isso uiu Statute .</p> <p>The consolidation, on August 16,1871, of the Chicago & Southwestern Railway-Company and the Atchison Branch Company was valid, and the corporation thus formed succeeded to the rights, the property, and the obligations of the Chicago & Southwestern Company, created by the consolidation oí September, 1869, and it is the proper party to represent all the interests oS all the stockholders of which it was composed, including- the county of Leaven worth as a stockholder</p> <p>2. Same—Compliance with Act op March 24, 1870.</p> <p>Where the other essential provisions of the act authorizing railroad companies within the state of Missouri to consolidate are complied with, such consolidation will not he held void simply because there is no evidence that the companies each tiled with the secretary of state a resolution accepting the provisions of the act passed by a majority of the stockholders, at a meeting called for the purpose of considering the same, or because there is no evidence of the meeting of the ,stockholders of the companies separately, except such as maybe implied from the certified copy of the articles of agreement of the consolidation duly filed in the secretary’s office.</p> <p>3. Same—Foreclosure and Sale op Chicago & Southwestern Railway — Fraud--Evidence. »</p> <p>The foreclosure proceedings in the circuit court for the district of Iowa, and sale of the Chicago & Southwestern Railway Company, held valid.</p>

<p>. 1. Mortgages—Foreclosure—Final Decree—Upset Price.</p> <p>Where a railroad is to be sold under a final decree in foreclosure proceedings the decree should name an upset price large enough to cover costs, and all allowances made by the court, receiver’s certificates and interest, liens prior to the bonds, amounts diverted from the earnings, and all undetermined claims which will be settled before the confirmation and -sale.</p> <p>2. Same—Diversions from Current Earnings.</p> <p>All earnings diverted to the payment of interest on receiver’s certificates made paj'abie out of the corpus of the mortgaged properly, or to the payment of costs or allowances in the foreclosure suit, or any other matter not properly operating expenses, must he returned to the current earnings fund, and applied to the payment of claims made payable therefrom.</p> <p>3. Same—Statutory Liens.</p> <p>Statutory Hens should he paid before mortgage bonds.</p> <p>4. Same—Equitable Liens—Bonds.</p> <p>Equitable liens ordered payable solely out of earnings should be paid after mortgage bonds.</p>

<p>1. Railroads—-Land Grants—Separate Acts —One Road Securing Two Grants.</p> <p>"When, by separate acts at different sessions of congress, lands are granted to two different corporations or parties to aid in building lines of road with the same general course or direction, by no arrangement between such corporations or parties can the building of only one road secure the benefits ol both grants. Unless an intent, to the contrary is plainly disclosed by the language of one or the other of the acts of congress, it will be presumed either that the later grant superseded the former, or else that the two roads must be built to earn the two grants.</p> <p>2. Same—Missouri, Kansas & Texas Railway Company — Neosho Valley Branch—Acts 1863 and 1866 Construed.</p> <p>The Missouri, Kansas & Texas Railway Company, by the construction of a road from the Emporia down the Neosho valley, acquired no title to the grant of 1863 (1) because that act contemplated the construction of a branch down the Neosho valley of the main line running from Atchison southwesterly, and not the building of an independent road; (2) because the third proviso of section 1 limited the grant to the building of a road having no other grant; and (3) because it appears to have been the intention of congress to make the act of 1866 the sole land grant act for the road running through said valley.</p>

In Equity. • This was a bill to charge the defendant bank as a trustee, and for a breach of trust concerning a special deposit. The court preceded the opinion with tlie following statement of: facts: The firm of Walker, Sons. & Oo., composed of the plaintiffs husband, liis brother, and (J. If. Judah, was a large mercantile house in Memphis that disastrously failed and made an assignment.

<p>Master and Servant—Fellow-Servants—Injury to Railroad Employe.</p> <p>A common hand engaged in the business of distributing iron rails along the side of a railroad track to be laid in place of other rails removed from that track, and under the control, with six or eight other men, of a boss or foreman, is not in the same employment as a man controlling and managing- a switch-engine not used in carrying these rails, but iu moving and transferring from one place to another cars not engaged in the business of relaying said track, and the railroad company will he liable for an injury to the former caused by the negligence of the latter.</p>

<p>Assumpsit. Motion for a new trial.</p>

<p>On Habeas Corpus.</p>

<p>On Defendants’ Demurrer to Declaration.</p>

<p>Patents for Inventions—Hof, Printing-Press—Construction of Patent No. 131,217—Regularity of Issue of Patent.</p> <p>Former decision in 20 Blatchf.430, and 12 Fed. Rep. Ill, examined, anuopinion therein expressed adhered to.</p>

<p>1. Patents—Infringement—Improvement.</p> <p>In a suit for infringement, the fact that the infringing device is an improvement upon the one described in the complainant’s patent is no defense.</p> <p>2. Same—Stoves.</p> <p>Letters patent No. 236,425, and letters patent No. 246,606, issued to Giles F. Filley, for improvements in cooking stoves, held, infringed by stoves constructed in accordance with the specifications of letters patent No. 310,874, granted to D. G. Littlefield.</p>

In Admiralty. In these two actions against the steam-ship Wisconsin, which sere argued together, the court (Blatcheoiíd, Justice) made and iiled the following findings of fact: (1) A litilo after 1 o’clock on the morning of December 14, 1882, a collision took place between the bark 'Ella, belonging to tlie mercantile marine of the United "¡States, and the British steam-ship Wisconsin, in latitude 40 deg. 40 min. A'., and longitude 68 deg. 40 min.

<p>Seamen’s Wages—Forfeiture—Leaving during Month.</p> <p>A sailor who leaves the vessel because he is told by the mate that the master claimed he was not to receive wages, but was serving for his board only, will not forfeit his wages for the time he has served, where there was no contract ■hat he should perform a full month’s service before any wages was earned. Moore v. Neafie, 3 Fed. liep. 650, followed.</p>

<p>Towage—Lien—Laches—Bona Fide Purchaser of Vessel.</p> <p>A lien for towage must be enforced without undue delay, and unless due diligence is exercised it is waived as against a purchaser without notice.</p>

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

<p>Execution Sale—Redemption—Judgment on Note given for Claim Barred by Bankruptcy Proceedings.</p> <p>A redemption from an execution sale made on a judgment obtained upon a note given in payment of a valid indebtedness that has been assigned to the judgment creditor for value, although such indebtedness has been discharged by a proceeding in bankruptcy, will not be set aside at the suit of another bona fide judgment creditor.</p>

<p>Contract—Salt: or Copyrighted Book.</p> <p>Contract construed, and held violated by the sale by defendants of a book infringing tie copyright of complainants, or of the original copyrighted work in territory allotted to complainants.</p>

<p>1. Limitation on Bight to Sue on a Policy op Pire Insurance.</p> <p>A policy of insurance contained in effect tbis stipulation: (1) No action stall be commenced thereon to recover for a loss thereunder until the amount thereof be ascertained by agreement or arbitration; and (2) no such action shall be maintained unless commenced within one year after the date of the fire from which the loss occurred. Ifeltl, that unless the assured was prevented by the action or non-action of the insurer in the matter of ascertaining the amount of the loss, he must commence his action therefor within the time specified in the stipulation.</p> <p>2. BEPORMATrON OP POLICY.</p> <p>A demurrer to a bill for the reformation of a policy of insurance will he sustained when it appears that, by reason of the lapse of time, no_ action can be maintained thereon for any cause, when reformed. A court will only decree the reformation of an instrument as a means of enabling a party thereto to assert or maintain some right thereunder.</p>

In Equity. This case was formerly heard on exception to the pleas. Logan v. Greenlaw, 12 Fed. Rep. 10. The plaintiff commenced an action for the death of her slave against a coal company, to which he had been hired, and attached property to secure her claim for damages. The property was released upon the security of a replevy bond, the firm of \Y. 13. Greenlaw & Go. becoming sureties. The firm was composed of two brothers, W. 13. and J. 0.

At Law. Suit upon certificates of membership issued by defendant, insuring the life of George M. Biley.

At Law. Suit for the value of a number of cars delivered in good order, loaded with grain, by plaintiff: to defendant, for transportation over the latter’s road. The answer states as a defense that the ears were destroyed by fire without the defendant’s fault after they were delivered to the consignee.

<p>Patents for Inventions—Celluloid Combs—Want of Invention.</p> <p>Patent ISlo. 223,311, dated January (i, 1880, and granted to William Booth, lor improvement in the manufacture of combs from celluloid and analogous material, held void.</p>

<p>In Admiralty.</p> <p>Tiie above three actions were brought to recover $11,250, the value of merchandise imported from Europe, consigned to the libelants, and destroyed by fire at the Inman Company’s pier, North river, on the night of January 31, 1883. Numerous other actions are pending in this court growing out of the same fire. The steamer arrived about 1 p. m. of January 31st. She obtained at once, from the collector of the port, a general order for her discharge upon the dock, a further special permit for continuing the discharge after sunset, and a permit for goods not entered to remain on the dock for 48 hours after discharge. These permits were obtained under section 2871, Eev. St., and under regulations prescribed by the secretary of the treasury, dated May 5,1877. These regulations provided that goods landed, for •which no permit for delivery to their owners had been obtained, should be sent by the collector to the general order store, but that the collector might, at the request of the master, etc., allow goods landed, but not “permitted” to remain on the docks, “at the sole risk of the owner of the vessel, not longer than 48 hours from the time of the discharge, upon the production of evidence that the owner of the vessel assumes the risk of the goods allowed to remain, and agrees to pay the duties on any goods that may be lost by so remaining;” also that, in order “to continue the discharge of the cargo after sunset, a special license must be obtained in accordance with section 2871, Rev. St.” That section provides that, to obtain such a special license, the collector must be indemnified against any loss, and also that “the liability of the master or owner of any such steam-ship to the owner or consignee of any merchandise landed from her, shall not be affected by the granting of such special license or of any general order; but such liability shall continue until the merchandise is properly removed from the dock whereon the same may be landed.” Section 2969, Rev. St., provides that “all merchandise of which the collector shall take possession under the provisions relating to the time for the discharge of a .vessel’s cargo, shall be kept with due and reasonable care at the charge and risk of the owner.”</p> <p>To obtain the benefit of the above permits, the agents of the steamer signed the following applications, the forms of which were prepared' and exacted by the collector:</p> <p>“Bequest is made to allow the cargo of the steamer Egypt, Sumner, from Liverpool, England, unladen, but not permitted, to remain upon the wharf for forty-eight hours from the time of granting general order, at the sole risk of the owners of said steamer, who will pay to the consignee or owner the value of such cargo, respectively, as may be stolen, burned, or otherwise lost; and who will also pay all duties on cargo which may be in any way lost by so remaining.”</p> <p>“Application is hereby made for a special license to unlade upon the wharf, after sunset, the cargo of the 8. S. Egypt,- master, which arrived at this port on the thirty-first day of January, 1883, from Liverpool, England. This application is made in consequence of want of time, and the undersigned have given a bond to the collector of the port in conformity with sections 2871 and 2872 of the Revised Statutes, in the sum of twenty thousand dollars, and have deposited ten dollars per night for each inspector whose services may be required under the license, namely, for two inspectors for one night, being the night of January 31st. ” *</p> <p>♦</p> <p>A bond was given to the collector in the sum of $20,000, conditioned to “indemnify and save harmless the said collector from any and all losses and liabilities which may occur or be occasioned by reason of the granting of such special license.”</p> <p>Under the three permits thus obtained, the immediate discharge of the steamer’s cargo was commenced at 1:30 p.'m. of January 31st, and continued during the night. At about 2 o’clock a. m. a fire broke out upon the dock from some unknown cause, and, so far as appears, without tho fault or negligence of any one, and the libelant’s goods were consumed.</p>

<p>1. Trust—Obtaining Legal Title to Property Belonging to Another.</p> <p>A party who -wrongfully obtains the legal title to land which belongs rightfully to another, whether he acts in good faith or not, will be held a trustee for the equitable owner.</p> <p>2. Vendor and Vendee—Bona Ftoe Purchaser.</p> <p>One who purchases property in good faith for a valuable consideration, without notice of a prior equity, is a bona fide purchaser.</p> <p>3. Same—Burden of Proof.</p> <p>A party claiming to be a bona fide purchaser has the burden of proof to show affirmatively that he paid for the property, and had no notice of any prior equity.</p> <p>4 Same—Payment of Value—Acknowledgment in Deed.</p> <p>The acknowledgment in a deed of payment of the consideration is not evidonee, as against the owner of a prior equity, of payment of value.</p> <p>5. Principal and Agent—Effect of JSTotioe to Agent.</p> <p>It is well settled that the knowledge of an agent in respect to the subject-matter of the agency is the knowledge of the principal.</p> <p>C. Mining Claim—Abandonment—Evidence.</p> <p>Abandonment is a voluntary act. Evidence held not to show abandonment of claim.</p> <p>7. Same—Forfeiture—Resuming Work.</p> <p>One who has forfeited his claim by a failure to work his claim as required by the statute may re-enter and resume work at any time before other rights attach in favor of subsequent locators.</p> <p>8. Statute of Limitations—Laches—Pleading.</p> <p>A formal plea of the statute of limitations, or of the special fapts, is not necessary in equity to raise the defense of laches, neglect, or acquiescence.</p> <p>9. Same—Trusts.</p> <p>The statute of limitations does not begin to run against a cestui que trust in possession until ouster, whether the trust is an express or an implied trust.</p>

This is a suit in equity to enjoin the production of an opera of which complainants claim to be the proprietors,—a suit resting upon the common-law right of the author, not on a copyright.

<p>1. Suit to Rescind Contract on tiie Ground ov Fraud.</p> <p>A court of equity will decree a. rescission of a contract obtained by the fraudulent representations or conduct of one of the parties thereto, on the complaint of the other, when it satisfactorily appears that the party seeking the rescission has been misled in regard to a material matter by such representation or conduct, to his injury or prejudice.</p> <p>2. Same—Mistake.</p> <p>But when the facts are known to both parties, and each acts on Ms own judgment, the court will not rescind the contract because it may or does turn out that they, or either of them, were mistaken as to the legal effect of the facts, or the rights or obligations of the parties thereunder; and particularly when such mistake can in no way injuriously affect the right of the party complaining under the contract, or prevent him from obtaining and receiving all the benefit contemplated by it, and to which he is entitled under it.</p>

In Equity. Foreclosure suit. Bill of review and cross-bill. Most of the material facts are stated in the opinion of the court. Aaron Purdy left seven children. Haley Parkins is a married daughter. Martha J. Chapman is a deceased married daughter, and Maud Chapman is her only child and heir.

<p>1. Judgment—Lien—Equitable Title.</p> <p>Where the mere legal title to land is in the judgment debtor, while the equitable ownership is in another, the lien of the judgment does not attach to the real ownership of the property'under the Nebraska statute.</p> <p>Z. Execution Sale—Record Title—Right of Purchaser—Equitable Interest.</p> <p>Where a judgment plaintiff levies an execution upon land, and he or any one else purchases it at the execution sale, and pays his money, without any notice of the equitable interest of another, relying on the condition of the title as shown by the records at the time of the levy and sale, he acquires an interest in the land, and the statute,of Nebraska awards the paramount right to the land to him who first puts his deed on record or files it in the proper office for that purpose, when the prior equitable interest depends upon an unrecorded deed.</p>

<p>Pleading—-Motion to Make Moke Definite by Setting Out Wbitten Agbhement—Defect of Paiotes.</p> <p>A motion to compel a plaintiff to make his complaint, which is on its face 'sufficient, more definite and certain by setting out at length a written agreement referred to therein, will not he granted for the purpose of enabling the defendant to demur to the complaint on the ground that there is a defect of parties.</p>

<p>CLEitK oí' Distbict Coumt — Rhtubn oe Naturalization Fees — Rev. St. 828, 833.</p> <p>Amounts received by the clerk of the district court of the United States for the district of Massachusetts for the naturalization of aliens in that court are not fees and emoluments within the meaning of Rev. St. § 833, and the clerk is not bound t include them in his half-yearly returns.</p>

<p>1. Pleading—Answer—Several Defenses—Inconsistent Defenses.</p> <p>Where several defenses are pleaded in an answer, each defense must be complete in itself, and a full answer to tbe action; but it is not necessary that the several defenses shall be harmonious throughout, or such as will admit comparison and adjustment in respect to the facts alleged in them.</p> <p>2. Same—Denying Negative Averment.</p> <p>In an action on a promissory note, a negative averment that the note is unpaid cannot be met by a denial in the answer.</p> <p>3. Removal of Cause — Jurisdiction—Amount Exceeding Jurisdiction of State Court.</p> <p>Where the amount claimed by way of set-off exceeds the jurisdiction of the state court from which the cause is removed to the United States court, the United States court has no jurisdiction.</p>

<p>1. Municipal Bonds—Aid to Foreign Railroad Company.</p> <p>The mere fact that a railroad company is a foreign corporation, and that its road terminates at a point in another state, from which it runs a line of boats to a city issuing its bonds in aid of such road, affords no ground for a constitutional objection to the grant of power by the legislature to such city to subscribe to the stock of the company.</p> <p>2. Same—Recitals—Estoppel—Bona Fide Holders.</p> <p>A recital upon the face of city bonds that they were issued “in pursuance of an act of the legislature, and an ordinance of the city council passed in pursuance thereof,” concludes the city as to any irregularity in carrying into execution the power granted to subscribe to the stock and issue the bonds; the alleged irregularity being the lack of a petition by freeholders to the common council to make the subscription.</p> <p>3. Same—Recital of Compliance with Valid and Invalid Statutes.</p> <p>When such bonds contain a recital to the effect that they were issued in pursuance of a specified statute, and of a later act amendatory of the first, and the later act is invalid, the purchaser without notice to the contrary may presume that the requirements of the original statute were complied with.</p> <p>4. Same—Effect of Payment of Interest.</p> <p>While the payment of interest will not validate a municipal bond issued without authority of law, in cases where the objection is not a want of power to issue, but of compliance with a condition in respect to which there may be an estoppel by recital or other act of the city officials, such payments of interest ought to have groat weight.</p>

<p>1. Municipal Bonds—Charter op Evansville, Indiana—Renewal or Redemption Bonds.</p> <p>The city of Evansville, Indiana, besides the usual municipal powers, has power “to borrow money for tlieuse of the city, ” and this includes the right to issue bonds in renewal or redemption of bonds issued for lawful purposes.</p> <p>2. Same—Recital.</p> <p>The purchaser of municipal bonds which purport to have been issued for a lawful purpose may rely on the recital, and is not bound to inquire whether there had been a diversion from that purpose, though it be shown by the municipal records.</p>

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

<p>1. Cross-Complaint—Action at Law.</p> <p>A cross-complaint is not permissible in a common-law action.</p> <p>8. Constitutional Law—Statute Begulating Form of Note Given for Patent-Bight.</p> <p>A state statute providing that any person wbo may take any obligation in writing for which any patent-right, or right claimed to be a patent-right, shall form the whole or any part of the consideration, shall, before it is signed by the maker, insert in the body thereof, above his signature, the words “given for a patent-right," is unconstitutional.</p>

At Law. Suits upon coupons detached from bonds of Scotland county, Missouri.

<p>At Law. Demurrers.</p>

At Law. Suit on four promissory notes executed by the defendant and made payable to the plaintiffs.

The libel in. this case was filed to procure the condemnation of the brigantine Ambrose Light, which was brought into this port as prize on June 3, 1885, by Lieut. Wright and a prize crew, detached from the United States gun-boat Alliance, under Commander Clarke, by whose orders the brigantine had been seized on the twenty-fourth of April. The seizure was made in the Caribbean sea, about 20 miles to the westward of Cartagena.

<p>1. Towage—Weather Indications—Reasonable Judgment.</p> <p>Whore the evidence fails to sbow clearly and decisively such signs of threatening weather as should forbid a tug with a tow from continuing on her course, the tug, when in charge of a competent pilot, should have tie benefit of any reasonable doubt in the testimony.</p> <p>2. Same—Statement op Case—Error op Judgment not Fault.</p> <p>The tug I., while towing a number of coal-boats through the sound, when ' about half way between Norwalk and Bridgeport, encountered a gale which cast away the tow. For the damage the insurer, having paid the loss, libeled the tug. The case turned on the question whether, when the tow jiassed hi or-walk, the weather indications were such as to justify the tug in not putting into that harbor. Jffeld, on the evidence, that the master of the tug was not clearly lacking in reasonable judgment in deciding to continue his course, r.ndthe tug not being liable for what subsequently proved to be an error of udgment, the libel should be dismissed.</p>

<p>1. Collision—Interchange op Signals.</p> <p>In Hie ease of a collision between two steamers in the Brewerton channel of the Patapsco river, the rule is to be strictly enforced that the steamer which undertakes to reverse the statutory rule and pass starboard to starboard, assumes the risk of any misunderstanding of signals properly given by the other steamer.</p> <p>2. Same—Conflicting Evidence.</p> <p>Where the testimony is conflicting, the court will give weight to the fact that the master of one of the colliding steamers, in statements made immediately afterwards. and in his official report deliberately made some weeks later, did not attribute the collision to any fault oí the other steamer alleged in the libel.</p> <p>3. Same—Beaching of Vessel—Loss.</p> <p>The rule applied to the facts of this case that where the master was proved to have been reputed capable and experienced, and after the collision acted upon the best judgment he could form in the emergency with regard to getting his sinking vessel into shoal water, the owners were not to hear any portion of the loss, although the fact may have been that the master was mistaken in his judgment, and that a different course might have resulted in less damage.</p>

<p>1. Collision—Steamer, and Tuo—Circling Course—Insueeicient Care—Repeating Signals—Inspectors’ Rule 3—Seasonable Maneuvers Necessary.</p> <p>The tug Y., with a barge lashed on her starboard side, was coming slowly down the North river against the flood-tide, and was some 300 to 600 feet distant from pier 40, on the New York side. The steamer Drew came down the river near the Jersey shore, and turned to cross to her pier in New York. The tug's witnesses testified that two whistles were given the Drew when the latter was about in mid-stream, but no reply was received; that when the Drew was close to the tug, and heading nearly up the river, she whistled once, to which the tug replied with one, and ported her wheel, when, seeing that the collision was inevitable, she stopped and reversed. The Drew’s witnesses asserted that one whistle was given to the tug when the steamer was about in mid-stream; that no reply being received, the Drew first slowed, one whistle was given again, when near the tug, and then her engines were stopped; that the tug then whistled once, and took a sheer to the west, throwing the barge on the bows of the Drew. For the damage the barge libeled both the steamer and the tug, and the Drew brought suit against the tug for the injuries sustained by her. Held, that both steamers were in fault,—the Drew, because she did not take betimes such steps to avoid a collision as her circling course rendered unusually necessary, and on failing to get an answer to her whistles, did not, in time, repeat the signal; the tug, because insufficient precautions against collision were taken by her, and also on account of a defective lookout.</p> <p>2. Same—Pilot Relying on Lookout—Pilot’s Yiew Obscured.</p> <p>The barge, which was lashed to the side of the tug, was higher than the latter, and the large pilot-house of the barge obstructed the view of the pilot of the tug on that side. For the navigation of the tug her pilot relied on the directions of a seaman stationed as a lookout on the upper deck of the barge. .Exports differed as to whether, under such circumstances, the pilot should rely on such a lookout, or go himself on the higher vessel and give orders to a subordinate at the wheel. Held, that the method of navigation adopted by the tug is not justifiable, unless the pilot’s substitute; -whether in the pilothouse of the tug or on the higher vessel giving directions, be fully competent for the peculiar duties assigned him. Between the two the tug and tow must be handled with competent skill to avoid all avoidable collisions.</p>

In Admiralty. Libel lor wages. In re marshal’s account. Section 829 of tlio Itevisod Statutes of the United States provides that a marshal shall be allowed “for the necessary expenses of keeping boats, vessels, or other property attached or libeled in admiralty, not exceeding two dollars and fifty cents a day.”

In Equity. This is a suit on behalf of the United States to obtain a mandatory injunction against the Brighton Ranch Company to compel it to remove a barbed-wire fence, 57 miles long, inclosing 52,000 acres of tho public lands of the United States. The testimony disclosed that this fence stood partly on deeded lands, school lands, and lands entered under the homestead, pre-emption, and timber-culture laws of tho United States.

<p>1. Copyright—Painting Made by Artist from Design Furnished by Corporation—Size of Painting.</p> <p>A painting only seven by four and a half inches in size, owned by a corporation, painted by an artist employed by the corporation from a design made by its president from a wood-cut may be copyrighted by the corporation.</p> <p>2. Same—Painting Susceptible of Being Lithographed and Used as Label.</p> <p>That such a painting could be readily lithographed and used as an advertising label will not affect the copyright. '</p> <p>3. Same—Injunction while Qui Tam Action Pending.</p> <p>An injunction to prevent infringement of a copyright may be granted, although a qui tom action for the penalty allowed by" law is pending</p>

<p>Violation of Section 3242, Rev. St.</p>

Indictment. The defendant was placed on trial for withholding $800 of the pension money of Mary Martin, in violation of section 5485 of the Revised Statutes of the United States. She was placed on the witness stand and detailed the circumstances, showing that the defendant, who was her son-in-law, obtained her “checks”'from the post-office, and, going together to the bank, she signed them and he got the money.

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

<p>1. Patents for Inventions—Defense of Prior Use—Burden of Proof.</p> <p>The burden of proof is on the defendant to satisfy the court beyond a reasonable doubt that the defense of prior knowledge and use has been established Evidence held insufficient.</p> <p>2. Same—Design Patent—Infringement—Resembdance.</p> <p>To constitute an infringement of a design patentit is sufficient if the resemblance of alleged infringing article to the patent is such as to deceive the ordinary observer.</p>

<p>Motion for Rehearing.</p>

<p>1. Equity Pleading—Profert—Demurrer.</p> <p>Where profert is made of a paper in the complaint, it is for all purposes presented to the court as part of the pleading, and an objection thereto maybe taken by demurrer.</p> <p>2. Patents por Inventions—Infrtngemkni^-Pleading—Parties—Demurrer.</p> <p>Where complainant is a mere licensee, and the owner of the patent is not made a party, a bill for the infringement of the patent is demurrable.</p>

In Equity. This was a bill to restrain the defendant from infringing letters patent No. 252,054, granted to E. A. C. Peterson, as inventor, and Hénry Piper, as assignee, January 10, 1882.

<p>Í. Collision—Approaching Propellers—Rev. St. § 4233, Rule 19.</p> <p>When the two propellers B. and T. were approaching each other in such a way that the B. had the T. on her starboard side, held, that it was the duty of the B. to keep out of the way of T., and that the B. was respohsible for a collision caused by a failure so to do, and requiring the T. to change her course.</p> <p>2. Same—Barge in Tow—Fog-Horns.</p> <p>When, in a fog, a barge is in tow of a tug or steamer by a long line, a foghorn or other signal should be sounded on the barge at regular intervals in the same maimer as if she were moving hy the agency of her own sails, anil when this precaution is omitted she will he chargeable with negligence, and responsible for its consequences.</p> <p>3. Same—-Katk on’ Speed—Foa—OruoAgo Habbob.</p> <p>A steamer running at the rate of nine miles an hour in a dense fog in the vicinity of the entrance to Chicago harbor is guilty of negligence.</p>

In Equity. Motions for preliminary injunctions. The above-entitled cases are both suits for the infringement of letters patent of the United States, No. 104,318, of June 1, 1870, and letters patent No. 151,703, of June 9, 1884, granted to John II. Irwin for special devices used in connection with tubular lanterns.

<p>Í. Patents for Inventions—Parties to Suit for Infringement—Licensee.</p> <p>Where it appears that complainant in a suit for infringement of a patent has a license to use the patent for a specified purpose only, and that the legal title is in another who is not joined as a party, the suit cannot be maintained.</p> <p>2. Equity Pleading—Replying to Plea.</p> <p>Where a complainant in equity, instead of setting down the defendant’s plea for argument to test its sufficiency, elects to reply thereto, denying the facts alleged, he admits its -sufficiency, both in form and substance, as a defense to all the matter of the bill to which it is pleaded; and if the facts upon the proofs taken are established, the bill will be dismissed.</p>

<p>Patents for Inventions—Hat-Pouncing Machine—Anticipation—'Want of Utility—Infringement.</p> <p>Patent No. 97,178, granted on November 23,1869, to Rudolph Eickemeyer for an improvement in bat-pouncing machines, held not void for want of utility, or because anticipated by the Chamberlain machine for polishing the heels of boots and shoes, for which a patent was granted July 23, 1861, and infringed as to the second claim by defendants in the use of a machine built under the patent granted to E. R. Taylor, October 21, 1879, and numbered 220,889. ,</p>

<p>1. Injured Seaman—Expense of Cure—Discharge in Foreign Port — Dtnouii Act.</p> <p>Where a seaman is hurt in the service of the ship, his inchoate right to recover the expenses of his cure from the ship accrues at once, and is not aileeted by his subsequent discharge while sick ashore, under the act of June 35,1881, e. 13), § 3, by a. consul in a foreign port. Whether such a discharge is valid, q acere.</p> <p>3. Discharge in Foreign Port—Extra Month’s Wages.</p> <p>The extra month's wages allowed by the above statute is not in lieu of a vested right of action for a tort, or for the expenses of cure.</p> <p>3. Statement of Case.</p> <p>Libelant, a seaman on the schooner W., was hurt in the service of the vessel at Havana. He was then discharged on the application of the master by the consul, who collected for him one month's extra wages This, together with his arrears of wages, amounting together to £41.73, was afterwards applied by the consul to the expenses of his'cure and return. On suit brought against the vessel to recover his wages to the end of the voyage, held, that, the vessel was liable for the expense of his cure; that libelant, having paid it out of his wages, should be considered as having advanced it to the ship, and was entitled to recover it, in this action; that the form of the libel should bo deemed amended to correspond with the proof, and decree given for £41.73.</p> <p>4 Seaman—N hokssaries—Section 4581, Hev. St.</p> <p>Section 4581, Hev. St., as amended by the seventh section of the act of June 36, 1884, provides that “if any seaman, after his discharge, shall have incurred any expenses for board or other neeeeswries at the place of his discharge, -x- sticli expenses shall be paid out, of the arrears of wages and extra wages received by the consular officer, which shall be retained for that purpose, and the balance only paid over to such seaman.” JJekl, that the words “other necessaries ” refer to the ordinary expenses of a well seaman incurred after his discharge, who has no special claim against the ship on account of previous sickness or injury, and do not exempt the ship from previous liabiiity for a seaman’s cure incurred before the discharge.</p>

<p>1. Collision—Sailing Vessels—Rule 17—Defective Lookout.</p> <p>A sloop and a lighter were sailing on. the same tack, on courses varying by only one and one-half points; the sloop being the leeward vessel, and overtaking the lighter. As the sloop drew up to the lighter a tow lay directly across her course, whereupon the sloop luffed, and while in stays was struck by the lighter, which had not altered her wheel till too late. Held, (1) that the sloop was not obliged to fall off and back so as to pass astern of the tow; (2) that the lighter, being to windward, was bound to keep watch of the vessels to leeward and tack in time to keep out of the way of a necessary tack by the leeward vessel; (3) that the sloop had the right to rely on the lighter’s observing this duty; (4) that the primary fault which brought about the collision was in the(lighter’s keeping no watch of the sloop.</p> <p>2. Same—Conflict between Rules 17 and 22—Overtaking and Crossing Courses.</p> <p>Consideration of cases where one vessel is overhauling another and yet sailing on a crossing course; and sailing rules 17 and 22 are in conflict.</p>

<p>Pilots—New Jersey Statute—Libel in Rem.</p> <p>The steam-ship Edith Godden, hound from Jamaica to New York, was spoken by a pilot from his boat, off Little Egg harbor; but the steamer refused to stop, and came into port without a pilot, and the pilot filed a libel under the statute of New Jersey, which enacts that in such case the pilotage shall be paid to the pilot who first spoke or offered his services to the vessel. Held, that he was entitled to recover.</p>

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

On Motion to Remand. On the fourteenth of September, 1885, the Mineral' Range Railroad Company filed its petition in the probate court for the county of Houghton for the condemnation of certain lands owned by the defendant in the village of Hancock for the purpose of constructing a branch of its road across these lands from Houghton to Hancock.

<p>1. Eminent Domain—-Washington City Water Supply—Ascertainment of Damages by Jury—Act of Congress of July 15, 1882.</p> <p>The act of congress approved July 15, 1882, to increase the water supply of the city of Washing! on. is not unconstitutional for the reason that it does not provide that ascertainment of the compensation for property taken shall be by the verdict of a jury.</p> <p>2. Same—Ascertainment of Damages isy Court of Claims.</p> <p>The provision of that act by which any person interested in the properly taken, who should not for any reason have received payment for any damage sustained, might file a petition in tire court of claims and have his claims adjudical ed in that court, and a judgment entered in his favor against the United 'States, was a sufficient and constitutional provision for the ascertainment of the compensation to be paid to such person.</p> <p>3. Same—Evidence of Appropriation of Property.</p> <p>The advertisement, map. and survey made by the secretary of war, exhibited in Ibis ease, sufficiently describe the property of complainant appropriated to Die United States under the act of congress, and were sufficient to give jurisdiction 1o the court of claims.</p> <p>4. Same—Nomas—Filing Claim in Court of Claims—Watver of Appraisement.</p> <p>The complainant, through its agents, had actual notice of the extent to which its lands and water-rights were appropriated to the use of the United Stales, and, having filed its claim for compensation in the court of claims, it has waived any objection it might have made by reason of the fact that the secretary of war did not, as provided by 1he act of congress, have the land and water-rights valued bjr appraisers, and did not oiler to complainant the amount of such appraisement.</p> <p>5. Same—Possession before Compensation.</p> <p>The appropriation being by the United States itself, and not by a private corporation under its authority, held, lhat it was lawful for congress to authorize possession to be taken before the compensation had boon ascertained, provided it designated a proper tribunal for ascertaining the compensation and made provision for paying the compensation when ascertained.</p> <p>6. Same—Injunction Defused.</p> <p>Tiie act of congress having provided that any judgment of the court of claims in favor of any claimant should bo paid as other judgments of that court, although it is possible that congress may prevent payment to the complainant by failing to vote the necessary appropriation for that purpose, held, that this case is not one in which the'court should interfere by injunction,, the appeal having been filed 18 months after extensive works had boon begun by the United States, and at a time when arresting the work would cause'the sacrifice of very largo expenditures; and it appearing that as the property taken from complainant was vacant, unimproved, and of no present use to any one except the United States, the complainant’s position is not one of hardship.</p>

<p>In Equity. Motion for leave to pay money into court,</p>

<p>1. Equity Practice—Circuit Court—State Statutes.</p> <p>State statutes regulating procedure are not applicable to equity courts of United Slates, but when they enlarge equitable rights by creating- new remedies, such remedies may bo'enforced in those courts.</p> <p>S. Same—Interpleading Adverse Claimants—Code Civil Proo. Cal. § 386.</p> <p>The right to interplead adverse claimants, created by Code Civil Proe. Cal. § 386, may be enforced in the circuit court.</p> <p>3. Same—Int err leader—When Allowed.</p> <p>To justify an interpleader, the same thing, debt, or duty must be claimed by both claimants; all adverse titles or claims must be dependent on, or derived from, a common source, complainant seeking relief must, not have or claim any interest in the subject-matter; and he must have incurred no independent'liability to either of the claimants; that is, he must stand perfectly indifferent between them, in the position purely as stakeholder.</p>

<p>On Motion for Judgment upon the Pleadings.</p>

<p>Promissory Noth—Written Contract— Failure on Consideration—Evidence.</p> <p>Where a note is given in pursuance of a -written contract for the assignment of a mail route that is liable to be cut down, with corresponding reduction of pay, and such route is by law cut down, it will not constitute a partial failure of consideration, and parol evidence cannot be admitted in an action on such note, to show that it was verbally agreed when the note was given that if the pay -was reduced the liability of the maker should also be correspondingly reduced.</p>

On Motion for New Trial. This was an action by the assignee of the State Insurance Company, of Chicago, to recover an assessment upon its capital stock.

The indictment was framed under the following section of the Revised Statutes of the United States: “Sec. 5515.

<p>1. Patents—Infrincjement—Laches.</p> <p>Commencing suit within six months from granting of letters patent is prompt action for redress.</p> <p>3. Same—Equity—Injunction.</p> <p>A court of equity will not relegate an inventor to a court of law where he can recover money damages only in case of infringement, but will protect his interests by injunction whore the circumstances and facts justify and require it.</p>

<p>Patents—Bill in Equity—Necessary Parties.</p> <p>The commissioner of patents is not a necessary party to a bill in equity filed under section 4915, liev. St., by an applicant for a patent, where there is an opposing party to the bill; but where a patentee has transferee 1 his interest in an invention, he is a necessary party defendant.</p>

<p>1. Patent—Mark on Unpatented Article—Penalty.</p> <p>Under section 4901, Rev. St., the marking of an unpatented article “patented, ” with intent to deceive and defraud the public, is a criminal offense, and liable to a penalty of not less than §100 for each ofEense.</p> <p>2. Corporation—Superintendent—Liability for Acts of.</p> <p>A corporation is liable for the act of its superintendent in wrongfully af fixing the word “patented” to an article-which is unpatented.</p> <p>3. Same—Knowledge.</p> <p>If the superintendent knew, or should have known, that the articles were not covered by patent, the corporation will be liable; but if he honestly believed they were, it will not be.</p>

<p>1. Carrier of Goods by Water—Discharge oe Cargo of Oranges in Freezing Weather—Ship How Far Liable for Damages. .</p> <p>The steam-ship A. arrived in the port of New York, from Kingston, Jamaica, on the twenty-ninth of December, 1880, having on board a consignment, of oranges for one W. The weather on the 39th, and for some days after, was extremely cold. On the morning of the 39th, W., hearing of the arrival of the steamer with his consignment, procured a custom-house permit to land the fruit, and gave the steam-ship company a check for the freight. In the afternoon of the same day, however, concluding that it was too cold to discharge green fruit, he gave notice not to discharge his oranges, and he did not surrender the custom-house permit. Notwithstanding this, the oranges were discharged, and were speedily frozen. On learning of this, W. stopped payment of his check for the freight and abandoned the fruit, giving notice to the steam-ship of his action, and he subsequently libeled the vessel for the full value of the oranges. Held, that the steam-ship was guilty of negligence in discharging the fruit at an improper time and against the objection and protest of the libelant.</p> <p>3. Same—Bill of Ladino—Invoice Value. •</p> <p>The bills of lading contained a clause limiting the liability of the steamer to the invoice value of the goods shipped. No evidence of what the invoice value was, was given in the district court. The district judge held that, under the circumstances, as the oranges had not only been frozen, but forfeited to the government by being landed without a permit, the libelant was entitled to recover the sound value of the fruit in New York, less the freight, i. e., $5,-784.01. On appeal, new evidence being introduced as to the invoice value, held, that as, in accepting the bills of lading, the shipper accepted the terms of the contract they contained, the libelant could not, under the limiting clause in the bill of lading, recover more than the invoice value, for which, loss the freight, i. e., for 1783.37, decree was rendered.</p> <p>3. Same—“Effect of Climate.”</p> <p>“Effect of climate” in the sentence “effect of climate or heat of holds,” in a bill of lading, means the effect of climate in the passage of the vessel from a tropical climate northward, or vice versa, during the voyage, in its action on cargo in the vessel, and not such exposure as occurred in this case</p>

<p>On Libel. Motion to dismiss, etc.</p>

<p>1. Collision—Schooner at Anchor—Anchor Lisht^-Rule 10, § 4283.</p> <p>On tbe evidence, held, tbat tbe schooner F., which, while lying at anchor in the harbor oí New Haven, was run down at night by the steamer 0., was solely in fault for the collision in having no anchor light properly burning.</p> <p>2. Anchor Watch—Usage—Maritime Duty.</p> <p>If vessels anchor in places where other vessels are not reasonably to be expected to pass, it is not the usage, and, as it seems, is not a maritime duty, to maintain an anchor watch.</p> <p>3. Same—Proximity to Passing Vessels—Flash-Light—Rev. St. § 4234.</p> <p>But near a narrow channel-way, where steamers are accustomed to pass, whenever the weather is thick and lights likely to he obscured, it seems that the neglect to maintain an anchor watch and to exhibit a torch-light to approaching steamers should be deemed a neglect of ordinary prudence as well as of the intention of section 4234 of the Revised Statutes.</p>

<p>1. Maritime Lien—Freight Agent—Services.</p> <p>The services of an agent employed by a charterer to solicit freight are not directly connected with the navigation of the ship, nor do they, like a stevedore's services, aid her in discharging any maritime obligation, and hence are not distinctly maritime, hut of that preliminary character which does not raise a lien on the vessel.</p> <p>a. Same—Statement or Case.</p> <p>The owners of the steamer C. chartered her to H., who was to pay all expenses of navigation. 11. employed libelant to solicit freight. The boat being subsequently returned to her owners, and libelant remaining unpaid, this suit was brought by him against the steamer for the value of his services. Held,' that the services were not maritime in character, and created no lien on the vessel.</p>

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

<p>Attachment—Action on Administrator’s Bond—Code Colo. § 95, Subd. 14.</p> <p>A suit on an administrator’s bond is not a suit on a written instrument or writing for tbe direct payment of money, and a writ of attachment in aid of such suit cannot be allowed under subdivision 14 of section 95 of the Code of Colorado regulating attachments.</p>

<p>Mines and Mining Claims—Location of Claim—Notice—Description—Right to Amend.</p> <p>The first record of a mining claim is usually, if not always, imperfect, and it is the policy of the law to give the locator an opportunity to correct his record when defects are found therein, and when it is so corrected the amendment takes effect with the original as of the date thereof.</p>

<p>1. Carriers of Passengers—-Steam-Boats—Penalty for Carrying More Passengers than Allowed by Inspection Certificate—Key. St. §§4465, 4469 —Interstate Commerce.</p> <p>A steam-boat employed by a railroad company to transport passengers on Jamaica bay, Long Island, (which is an inlet of the Atlantic ocean entirely within the state of New York,) in connection with a railroad forming a part of the railroad system of the whole country, is engaged in interstate commerce to an extent sufficient to bring her within the provisions of sections 4165. 4469, of the Revised Statutes, prescribing penalties for si earners carrying more passengers than allowed by their certificates of inspection,</p> <p>fi. Same—Effect of Possession of Inspection Certificate.</p> <p>The application for anti use of tho certificate of inspection, required by another section of the same statute hero sought to he enforced against such a steam-boat, is sufficient to require tho conclusion that the steam-boat is subject to such provisions of statute, and liable for a violation of them.</p> <p>3. Same—Public Navio able Waters—.Jamaica Bay—Constitutional Law.</p> <p>The waters of Jamaica bay, New York, are public navigable walers of tho United States, within the moaning of section 4400 of the Revised Statutes. Such waters are under the direct control of congress in the exorcise of the constitutional power to regulate interstate and foreign commerce; and the statute forbidding the transportation on a steam-boat of passengers in excess of her capacity, is a regulation calculated to promote convenient and safe navigation on such waters, and is applicable to all vessels navigating such waters, although it is not shown that they wore engaged in transporting passengers or freight between places outside the state oí New York, and places within that state.</p> <p>4 Same—Ferry-boat—Section 4404.</p> <p>Such a steam-boat, having obtained a certificate as a general passenger boat, and not as a l'erry-boat, does not come within the exception in section 4464.</p>

<p>In Admiralty. The opinion of the distinct court is reported in 21 Fed. Rep. 459, and 10 Sawy. 304.</p>

<p>Admiralty Appeal.</p>

<p>Admiralty—Pleading—Names oe Parties—Exception.</p> <p>An averment in an answer in an action for salvage that “other insurance companies” were insurers of property saved is insufficient, in the. absence of an averment that their names are unknown.</p>

In Equity. Complainants allege that they are proprietors of an article called “Buchan’s Cresylic Ointment,” an article designed and used as a remedy for cattle affected by the screw-worm, and for other purposes, and that they put it up for salo in peculiar-shaped bottles and distinctive labels, printed in colors, both of which had boon used by them and their predecessors in business for upwards of 16 years; that defendants, who had also been largely engaged in the business…

<p>1. Common Carrhor—Ferryman-Liability for Negligence.</p> <p>A common carrier of passengers and teams by a ferry is bound to furnish safe approaches to and passages from the ferry-houses to the streets for all persons who are likely ordinarily to use the ferry.</p> <p>2. Same—Direction by Watchman—Injury.</p> <p>Where a stranger using the ferry after night is directed by a watchman in charge to take a certain direction, and, while following that direction, is injured. without fault of his, by a passing train, the proprietors of the ferry will be liable for such injury.</p> <p>iS. Same—Kelease—Improperly Obtained.</p> <p>Where a release of claim for damages sustained by negligence on part of a common carrier is unjustly obtained, it will not be binding.</p>

<p>Estopped—Adjudication Between Same Parties in Former Suit—Rude.</p> <p>Where a second action between the same parties is upon a claim or demand different from that involved in the first action, the judgment in such first action operates as an estoppel only to those matters in issue, or points controverted, upon the determination of which the finding or verdict was rendered.</p>

<p>1. School-District Bonds—Constitutional Power to Issue—Purchaser—Notice.</p> <p>The purchase of school-district bonds charges the purchaser with knowledge of the financial condition of the district in so far as it affects the constitutional power of the district to issue the bonds.</p> <p>S. Same—Action upon Bond after Successful Action upon Coupon—Defense —Estoppel.</p> <p>A decision adverse to the defendant in an action involving the validity of coupons of a bond does not necessarily estop the defendant from, setting up the invalidity of the bond itself in a subsequent action upon it.</p>

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

<p>Costs—Witness Fees—Witness not Examined.</p> <p>Witness foes are taxable for necessary and proper attendance in court, although the witnesses were not actually called and sworn on the trial.</p>

This is a petition for a mandamus. The case is submitted on printed briefs; that for the sinking-fund commissioners being presented by the attorney general of Virginia. The case was removed into this court from the circuit court of Bichmond, and motion is made to remand.

<p>On a Petition for Mandamus. The opinion states the case.</p>

<p>Injunction in Equity.</p>

<p>T. Virginia Coupons—Virginia Statute of January 14,1882.</p> <p>The act of assembly of Virginia of January 14, 1882, “to prevent frauds upon the commonwealth, ” authorizes the trial by jury of only two questions respecting coupons offered in payment of taxes, viz.: First. "Whether the coupons are genuine, not spurious; and, second, whether they are “legally receivable” for taxes in being offered for the first time, and never previously used for the purpose.</p> <p>2. Same—Removal of Cases to United States Court.</p> <p>The acts subsequently passed forbidding tbe receipt of genuine coupons for taxes, which impair the state’s contract that they shall "be so receivable, were not in the contemplation of the legislature of 1882, and not within the evils which that legislature designed to provide against; and that body could not hav.e intended to submit to a jury, as issues of fact, controverted questions of constitutional law in authorizing it to determine whether certain coupons are “legally receivable” for taxes. Therefore, no federal question can arise in the jury trials authorized by the act of 1882, and the suits it authorizes cannot he removed into a federal court.</p> <p>3. Statutes—Construction of Remedial Statutes.</p> <p>Remedial statutes must he construed with reference to the evils intended to he provided against, and not enlarged to embrace other subjects not in the contemplation of the legislature.</p>

<p>Admiralty—Arpeal—Payment Out of Court—Failure to Omect to Form of Decree.</p> <p>A decree directing the payment out of the proceeds of the sale of a vessel in the registry of the court of various amounts to different petitioners was entered on notice, omitting the words “unless an appeal be taken within ton days, ” and the money was paid out of court by the clerk four days after the decree was entered. "A claimant against the fund, to whom notice of the settlement of tho decree had been given, but who had not appeared or objected on the settlement, thereupon made a motion for the repayment into court of the money thus paid out, on the ground that the payment was made before the time for appeal had expired. Held, that as to sums directed to be paid to seamen for wages less than §50 there was no right of appeal; and as to other sums, by omitting to object to the form of the decree, the parties must be deemed to have assented to immediate payment; and they must be supposed to have relied on their right to recover them back in case of reversal on appeal, or to have acted on the belief that no appeal existed; and the motion was denied.</p>

<p>Libels in Rem. Motion to consolidate, etc.</p>

<p>1. Removal of Cause—Foreign Citizens.</p> <p>Declaration of intention to become a citizen of the United States does not make the citizen or subject of a foreign country cease to bo such, within the act of March 3, 1875, so as to prevent his removal of a suit from the state court.</p> <p>2. Same—Aliens—-Foreign Naturalization—Proof oe.</p> <p>The defendant’s affidavit, together'with an official passport, certifying the naturalization of the defendant as a British citizen, held sufficient, prima fade evidence that the requirements of the English statutes had been complied with.</p> <p>3. Same—Trial—When Begun.</p> <p>Where a cause was called on the day calendar for trial, and objections were immediately urged by the defendants that, the cause was not in readiness for trial, because the time granted to amend the answer had not expired, and a motion was pending to vacate that order, and thereupon the trial judge sent, the case to another part of the court to hear the motion and objections, and suspended any further proceedings in the cause until the objections and motion were disposed of, and before the motion was heard the cause was removed into this court, held, that- the trial had not commenced within the ruling of the supreme court in the Bemoval Cases, 100 U. S. 473, and that the cause was removed in time.</p>

<p>1. Shipping Laws—Tran sport ation ry Foreign Vessels between American Forts.</p> <p>Section 4347, llev. St. United States, forbidding tbo transportation of mordían dise in foreign bottoms from one port of the United States to another port of the United States, and imposing a forfeiture of cargo as penalty for such transportation, means, by the word “port,’’any place from which merchandise may be shipped.</p> <p>2. Same—Remission of Penalty—Mode Prescribed.</p> <p>The forfeiture of cargo imposed as penalty under Rev. St. United States, § 4847, can only be remitted under the mode prescribed in Rev. St. United States, § 5229) which requires a petition to the district judge, a summary inquiry by him into the circumstances, and a transmission of the facts to the secretary of the treasury.</p> <p>3. Same—Illegal Contract—Illegality Renders Contract Void.</p> <p>The illegality of a contract, and not the penal tax and forfeiture imposed as penalties under the law which declares the illegality, makes the contract void.</p> <p>4. Svmh—Execution of Illegal Contract—Effect as to Freight.</p> <p>A foreign vessel contracting to carry merchandise in violation of the prohibition contained in section 4347, Rev. St. United States, earns no freight by executing the contract.</p> <p>5. Same—Illegal Contract—Effect of Remission of Penalty.</p> <p>No remission of a forfeiture imposed under a statute legalizes a contract illegal under that law.</p> <p>6. Equity—Penalties against Which it Relieves.</p> <p>The penalties against which equity relieves are those imposed by contract, and not those imposed by law.</p>

In Equity. On motion to set aside order pro confesso, and for leave to answer. This was a bill to take testimony de bene esse.

<p>1. Notice—Contents of Corporate Records.</p> <p>A person dealing with a railroad company is not bound to take notice of wbat its records show.</p> <p>2. Corporations—Conveyance of Entire Assets—Priority of Right As Between Unsecured Creditors of Grantor and Mortgage Creditors of Grantee.</p> <p>A., a corporation, being largely indebted to B. and others, its stockholders and officers, organized C., a new corporation, and transferred to it all of A.’s assets in consideration of stock in C., and of C.’s assuming A.’s liabilities. The transfer was not recorded. C. thereafter mortgaged the property so transferred to D. to secure an issue of bonds. At the time of the execution of the mortgage B.’s claim had not been reduced to judgment, and D. accepted the mortgage without actual notice of said claim. B. has since obtained judgment against C. Held, that his lien is inferior to D.’s.</p>

<p>1. Equity Jurisdiction—Cloud upon Title.</p> <p>A suitor bas no remedy at law to remove a cloud upon title to real estate of which he has the possession and is not disturbed therein.</p> <p>2. Same.</p> <p>To maintain a suit to remove a cloud upon the title of real estate, it is generally necessary that the plaintiff’s title should have been established at law, but it suffices that it be founded on undisputed evidence or long-continued possession. Holland v. Ohallen, 110 U. S. 20, S. C. 3 Sup. Ct. Rep. 495, followed.</p>

<p>1. Usury—Aotion by Commission Merchant.</p> <p>Whore mutual dealings wore had between a mill-owner and his commission merchants, whereby the latter have made advances and served the former as his agents for a period of 13 years, rendering stated accounts monthly, which were" admitted to be correct, it is too late to plead usury in defense of a bill filed by the commission merchants to enforce the payment of abalance ascertained' to be due them.</p> <p>3. Sams—Charging Interest on Monthly Balances.</p> <p>It is not Usurious to charge interest on balances agreed to be due at the monthly settlements, when tho parties conducted their business in the manner st ated.</p> <p>3. Contract—Two Instruments ^Executed at Same Time.</p> <p>Where two instruments are executed at the same time, between the same parlies, relative to the same subject -matter, they are to be taken in connection as forming together the several parts of one agreement.</p> <p>4. Vendor and Vendee—Land Subject to Incumbrance.</p> <p>Where a creditor takes from a debtor deeds to lands to secure his debt, and at the same time executes an instrument giving to the debtor the “full right" to sell the lands and make titles, stipulating, however, that the proceeds of such sales shall “go to the credit” of the debtor, a purchaser from the debtor under such power to sell takes a good title, nor, in tho absence of allegations and proof of collusion and fraud between the debtor and the purchaser, is tho latter to be held responsible for the misapplication of the purchase money.</p>

<p>1. Equity Jurisdiction.</p> <p>Equity courts have jurisdiction in cases of avoidance of contracts on the ground of inability to contract on account of insanity, and where complainant was not interdicted, or on the ground of fraud.</p> <p>2. Same.</p> <p>Equity courts have jurisdiction of a cause seeking to set aside mortgages or conveyances of real estate, brought by forced heirs to recover their legitime, in which the real estate is alleged to have been wrongfully placed in the name of the wife of their ancestor, and wrongfully declared to have been acquired by her separate and paraphernal funds, and where an account must be taken to ascertain the estate.</p>

In Equity. The intervenors’ petition states that, pursuant to leave granted by this court, the intervenors have instituted proceedings in the circuit court of Gentry county, Missouri, and of Pottawattamie county, Iowa, to foreclose a mortgage executed to them by the Sfc.

<p>1. Navigable Livers—Obstruction by State.</p> <p>It is competent for tho municipal power of a state, in good faith and for a constitutional purpose, to authorize the obstruction of one of its navigable and tidal streams.</p> <p>2. Sami-;—Power op Congress.</p> <p>Congress, however, may interpose, by either general or special laws. It may regulate all obstruct ions in or over navigable waters, and cause their removal or punish those who shall thereafter erect them.</p> <p>8. Same—State Law, when Void.</p> <p>Any state law in opposition to such action by congress is inoperative and void.”</p> <p>4 Telegraph Companies—Georgia Constitution.</p> <p>The constitution of Georgia conferring the exclusive powers on the legislature to charter telegraph companies, the charter granted to the plaintiffs by tho superior court is null and void.</p>

<p>Bankruptcy—Injunction—Discharge—Section 5106.</p> <p>An injunction is authorized by section 5100, to await the determination of the question of the bankrupt's discharge only. After the discharge has been granted, the bankrupt's relief against the further prosecution of suits in tho state courts must be obtained in those courts only, where the effect of the discharge must he determined. Held, therefore, that an injunction obtained ex parte in the bankruptcy court, after the discharge had been granted, continuing the previous injunction, was improvidently granted, and should be vacated.</p>

<p>1. Bankruptcy—Proof of Debt—Preference—Rev. St. § 5084—Return of Payments.</p> <p>, A return of part payments as a condition of proof of debt is not required by section 5084, except upon the concurrence of an intent in the bankrupt, when the payment was made, to create a preference, together with knowledge of his unlawful intent by the creditor.</p> <p>2. Same—Statement of the Case.</p> <p>Where B. & Co., of New York, being indebted to D., C. & Co., of London, remitted to the latter by mail on July 29th, in the usual course of business, and with no intent to create a preference, a bill of exchange for ¿81,000, payable to D., C. & Co., drawn upon J. Bros., of London, factors, on account of produce consigned to the latter by B. & Co., and the bill was received by D., C. & Co. on August 9th, and sent the same day to J. Bros, for acceptance, who delivered it to D., C. & Co. on the 10th; B. & Co. failed on Saturday, August 7th, and made an assignment for the benefit of their creditors; but J. Bros, had no knowledge of the failure at the time the acceptance was delivered by them to D., C. & Co.; but D., C. & Co. were informed thereof by telegram the evening previous: held,, that the bill being accepted in good faith by J. Bros., in the usual course of business, was binding upon them from the time of its delivery to D., C. & Co., and operated as an equitable charge or lien upon the produce in J. Bros.’ hands, notwithstanding the prior voluntary assignment of B. & Co.; that the draft having been mailed 12 days before by the bankrupts, also in the usual course of business, and with no intent to prefer, was not an act in violation of any provision of the bankrupt law, and that the case was not. therefore, within the provisions of section 5084; and that the proceeds of the acceptance need not he repaid to the bankrupts’ estate, as a condition of D., 0. & Co.’s proving the residue of their demand.</p>

<p>1. Bankruptcy—Fraudulent Assignment—Prior Mortgage Available—Equitable Relime.</p> <p>An assignee in bankruptcy filed a bill in equity to sot aside a transfer of property by the bankrupt to the O. Co., for the payment of the latter and other creditors specified, according to an agreement between them. As a part of the arrangement one of the creditors transferred to the O. Co. all his rights in the same property under a chattel mortgage executed some months previous, which mortgage appeared to be for a valid consideration, and its validity was not attacked by the bill. Upon a sale of the property by the C. Co. pursuant to the agreement under its various titles not enough was realized to equal the amount due upon the mortgage, the sale being found to have been fairly made, and for a fair price. Held, that though the transfer by the bankrupt of his interest in the property was fraudulent and invalid under the bankrupt act, the C. Co. was nevertheless entitled to the security of the mortgage, which was not attacked by the bill; and that the complainant, was not entitled to any account, or to any substantial relief: and that the bill should therefore be dismissed, but without costs.</p> <p>2. Amendment—Statute ou Limitations—Available to Privies.</p> <p>An amendment of the bill should not be allowed setting up a new cause of action and requiring additional parties; still less where the statutory period of limitation has expired, and the defendants, as privies in estate, are entitled to the benefits of the statute.</p> <p>3. Final Decree—Rule 8C—Time mor Appeal—Rev. St. 4981, cannot be Enlarged.</p> <p>A decree dismissing the bill without costs as respects the only defendant who appeared to litigate is a final decree, and is sufficient in form, under rule 88, in equity. The time for appeal prescribed by section 4981 in bankruptcy cases cannot be extended by the court after that time has elapsed.</p>

<p>Criminal Law—Insanity as a Defense—Test of Accountability—Knowledge of Eight and Wrong.</p> <p>The legal test of the accountability of a criminal for his acts is his mental ability, at the time of the commission of the crime, to discriminate between right and wrong, with respect to the offense charged in the indictment.</p>

<p>J. Criminal Law—Application for Removal of Case—Rev. St. § 1014.</p> <p>It is tbe practice of the district court for the Northern district óf Texas not to entertain applications for removal until after indictment found, and to require a copy of the indictment to accompany such application.</p> <p>2. Same—Counterfeiting Foreign Treasury Note—Omission of Signatures.</p> <p>An indictment charging that defendant, on a day named, “caused to be printed three certain impressions, each in the likeness of a certain part, to-wit, the face, except the signatures, of a genuine treasury note of the denomination of 200 milreis of the empire of Brazil, with intent to defraud said empire, and other parties to the grand jury unknown, ” charges an offense under the act of congress of May 16, 1884.</p> <p>3. Same—Writ of Removal — Offense where Committed—Record—Evidence.</p> <p>Where the indictment charges the defendant as principal of an offense within the jurisdiction of the court for the district where he has been indicted, an objection to the issuing of a writ of removal to such district because defendant was only an accomplice or accessory before the fact, and that whatever he did was done in the district from which it is sought to remove him, is in the nature of a plea in abatement to the jurisdiction of the court, and must be supported by evidence alkmde the record to justify a refusal of the writ. Evidence held insufficient.</p>

<p>1. Patents eor Inventions—Several Assignments beeore Issue.</p> <p>Pending an application for letters patent the invention was assigned to corporation A., by it to corporation B., and by the latter to the complainant, all the assignments being recorded in the patent-office before the issuance of the patent. The patent issued to corporation A. Held, on demurrer to bill sett ing out this title, the patent was not void for want of interest of record in the patentee.</p> <p>2. Sami:—Rev. St. § 4895.</p> <p>The purpose of section 4895 of the Revised Statutes is to permit a patent to issue to the person who has the record title to the invention, and is attained when the patent runs to the ultimate assignee; and therefore a patent may issue to the person who, by the records of the office, is assignee of the invention, although not technically the assignee of the inventor; citing Selden v. SioakweU Gas-burner Go., 19 B'latehf. 544; S. C. 9 Fed. Rep. 890.</p> <p>8. Same—Legal Title Vests, when.</p> <p>The legal title to a patent vests at once on its issuance to the person who, by the record, is entitled to it; but it is not mandatory under the language of the statute that the patent run in form to such record owner; citing Go/yler v. Wilder, 10 How. 477.</p> <p>4. Same—To "What Assignee Issued.</p> <p>A patent is properly issued to any assignee whoso assignment is duly recorded when it can he done without impairing the rights of any other person having a paramount title to the invention, and is therefore valid when issued to any such assignee of record.</p>

<p>Patents for Inventions—Infringement—Lubricator.</p> <p>The second claim of letters patent No. 187,964, granted to William A. Clark, March 6,1877, for an improvement in lubricators, in view of the prior state of the art, must be limited to a drip-tube with one side at its end cut off slanting, and located with its slanting end so near the side of the glass cylinder that the drops of condensed water will be delivered against the side of the glass, or so near it as to practically displace the oil between the end of the tube and the glass; and, when so construed, it is not infringed by defendant.</p>

<p>t. Patents for Inventions—Kvidence—Prior Use.</p> <p>Where the evidence oí new witnesses (as to a prior use) introduced on rehearing was merely cumulative and less persuasive than the evidence to the same point on the former trial, held, that the decree should not be disturbed.</p> <p>3. H amia—Deduction to Practical Use.</p> <p>The testimony of witnesses as to the practicability of alleged prior devices incredible where a test of reproductions of those devices showed them to bo practically inoperative.</p> <p>3. Bam is—Failure to Make Practicable Machine.</p> <p>Where the alleged prior inventor was shown to be very near the realization of the invention, hut could not, at a period long subsequent, make a practical machino embodying the invention, it was held, that his operations were not sufficient to defeat a patent, although witnesses testified that they were successful.</p> <p>A Same—Bell Telephone;.</p> <p>Drawbaugh’s talking-machine held, insufficient as a prior use.</p>

<p>Cobbtsion—Tug and Tow—Steam-boat—Nineteenth Rube oe Navigation.</p> <p>Where a fug-, incumbered with a tow, proceeding on an ebb-tide at a suitaable distance out in tlie channel, has, while keeping on her course, and pursuing a moderate speed, been brought into danger of collision by the violation on the part of a steam-boat of the nineteenth rule of, navigation, and after doing all that could fairly be expected is not able to avoid collision, the tug cannot he held liable for damages to the tow and her cargo resulting from such collision.</p>

<p>In Admiralty. Appeal from taxation of costs.</p>

<p>PBBSONAI, IN.TOBTT3S—ÍÍBGMGBNCB OB SAILOB IN UnIjASIUNG A SKID.</p> <p>A skid belonging to a stevedore employed to load a steam-ship had been placed by his men resting on its side on the deck of the vessel, and leaning against the fore-rigging, lashed to it. The lashing was unfastened, and the skid fell and injured the libelant, who was in the employ of a warehouseman, and was engaged on the deck of the vessel in counting hags into which grain was being put. The proof was that, when it fell, a sailor was engaged in tarring the rigging against which it rested. Held, that the fair inference was that the sailor unlashed the skid, and that this was negligence of a servant which occurred in the course of discharging a duty imposed on him by his employer, for which the employer was liable, and that no negligence on the libelant’s part contributed to the accident. A release given to the stevedore by the libelant was held, no defense, since on the proofs there was no negligence on the stevedore’s part, and he was not responsible for the sailor’s act.</p>

<p>In Equity. Bill to foreclose a mortgage. The facts are stated in the opinion of the court.</p>

In Equity. These are five bills filed by the national banks located at Toledo, Ohio, to restrain the collection by the tax collector of an alleged excess of taxation, they having paid that which they admit to be due. The facts are stated in the opinion of the court.

<p>On Petition of Thomas Moore.</p>

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

<p>1. Patents for Inventions—Reissue—Infringement.</p> <p>Original letters patent No. 39,235, of July 14, 1863, had a single claim. It was reissued in No. 3,609, October 26,1869, with four claims. Reid, following the ruling in American Diamond Drill Co. v. Suttwan M. Co., 21 Fed. Rep. 74, there is no claim in the reissue, or set of claims, that covers the same invention as the original and no more, and no claim of the reissue that is within the claim of the original and covers the infringement.</p> <p>2. Same—Enlarged Claim in Reissue.</p> <p>Although the defendants’ device would have infringed the claim of the original patent if in force, and was also covered by an enlarged claim of the reissue, it was heM that the enlargement of the claim by a reissue six years after the original rendered such claim invalid, according to the series of'later decisions on reissued patents.</p> <p>3. Same—Enlargement of Claim—Infringement.</p> <p>Reissued letters patent No. 3,609, of October 26, 1869, compared with its original, No. 39,235, of July 14, 1863, and held, that the first claim of said reissue was invalid because of unwarranted enlargement, and that the second, third, and fourth claims were not infringed by defendants.</p> <p>4. Same—Practice.</p> <p>This was a rehearing granted on condition that an accounting then being had before a master should not be prejudiced thereby, (24 Fed. Rep. 375,) and the bill is now dismissed without prejudice to such proceedings in case of an appeal from and a reversal of this decree.</p>

<p>1. Salvage—Award—Appeal to Circuit Court.</p> <p>Tbe allowance of salvage is necessarily largely a matter of discretion, which cannot be determined with precision by the application of exact rules, and appellate courts are not disposed to interfere with decrees in salvage oases merely because the sum allowed the salvors is larger than the appellate court would have allowed.</p> <p>2. Same—Amount ok Award, iiow Determined.</p> <p>Neither the value of the property imperiled, nor the exact quantum of service performed, is a controlling consideration in determining the compensation to be made. The peril, hardship, fatigue, anxiety, and responsibility encountered by the salvors in the particular case, the still and energy exorcised by them, the gallantry, promptitude, and zeal displayed, are all to 'bo considered, and the salvors aro to be allowed such a generous recompense as will encourage and stimulate similar services by others.</p> <p>3. Same — Tug Towing Burning Scow Loaded with Cotton erom Slip into III VER.</p> <p>Under the circumstances of this case, held, that a tug that towed a burning-scow, worth about S3,000, loaded with cotton, valued at about S29,0')0, from a slip where she caught fire out into the river, and to another pier, where the lire was extinguished by the iire-boats, was sufficiently recompensed by allowing the sum of S3.Í0. of which S150 should go to' the owner of the tug-,' and the remainder be apportioned among the master and crow.</p>

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

<p>1. Sai,'vage—Eire in Cab go of Cotton—Subordinate Service.</p> <p>The lighter H. was lying at Martin’s Stores, in the East river, loaded with about §30.000 worth of cotton, when lire broke out in the cotton. The lighter was towed out into the river, where libelants’ tug C. approached her and pumped fresh water from her tanks on the burning cotton. Three or four other small tugs were pumping at the same time, the O. being the third to arrive. When the C. discontinued pumping the lire was not under control, hut was finally extinguished by the city (ire-boats. Libelant claimed §2,500 as salvage for the services of the C. Held, that while 'the tug’s services were small in the whole work of extinguishing the fire, nevertheless they wore of some value in assisting to check the fire pending the arrival of the fire-boats, and that, under the circumstances, §50 was a reasonable compensation.</p> <p>2. Same—Costs.</p> <p>Costs were withheld in consequence of the extravagance of the claim presented.</p>

<p>Towage—Negligence—Proximate Cause.</p> <p>It is unnecessary to consider the question of negligence, unless it be first made to appear that tlie negligence complained of was in fact the cause of the injury. If the evidence discloses no injury traceable to the negligence complained of, the libel will be dismissed.</p>

<p>1. Wharfage—Includes what.</p> <p>Wharfage, in its most general legal sense, includes tbe mooring' of vessels for tbe purposes of protection and safety, as well as for loading and unloading tbe cargo.</p> <p>3. Same—Vessel almost Destroyed by Fire may be Liable for.</p> <p>Tbe schooner B. bad been seriously injured by tbe burning of her cargo of lime; her decks, many of her beams, and her masts bad been burned away, and in that condition she was fastened to a wharf, belonging to tbe town of Pelham, so that she floated at high water, and at low tide was nearly or quite out of water. Held, that she bad not ceased to be a vessel so as to be legally subject to possible claims for wharfage.</p> <p>3. Same—Town Wharf used for Private Purposes—Town Ordinance.</p> <p>Tbe schooner bad been given to H. for repairs. H. tied her to tbe wharf owned by libelant, near bis ship yard, and which be sometimes used for bis convenience in repairing vessels. Held, that as tbe ordinance of tbe town only referred to vessels engaged in navigation, or in loading or unloading their cargoes, and as no charge for wharfage could be collected except under an ordinance, wharfage in this case accrued only so far as tbe wharf was used by H. as a place for safely mooring tbe schooner, and for discharging and preserving what was aboard, for which $35 was allowed; so far as be used tbe wharf as a mere adjunct to bis ship-yard, wharfage under tbe ordinance did not accrue.</p>

<p>1. Collision—Steam-Boats Crossing—Right of Way—Speed—Apportionment —Costs.</p> <p>A collision having' happened between the*steam-boat O., going up the East river, and the ferry-boat W., crossing the river from Williamsburgh to New York, the 0. was held in fault, because, having the W. on her starboard side, and being bound to avoid her, she undertook to pass between her and the New York shore, and also for proceeding at a greater rate of speed than 10 miles an hour, prescribed by law, (Laws, N. Y. 1848, e. 821, § 1;) and the W. was hold in fault in starting up when she saw the O. was intending to cross her hows, and was coming at full speed.</p> <p>2. Same—Damages.</p> <p>Both parties having appealed, and the decree of this court being substantially the same as that of the district court, on the merits, and in apportioning the damages, this court apportioned the costs of both parties in both courts. See The Warren, 11 Bed. Rep. 443.</p>

<p>Motion to Quash Service of Summons. The opinion states the facts.</p>

<p>1. Consolidation of Cases—Federal Practice.</p> <p>It is the practice in the federal courts to consolidate cases between the same parties, or between the same interests, where time, labor, and expense can be saved; but not otherwise.</p> <p>2. Reference—When Made.</p> <p>Where it is apparent that the examination of a long account is involved, and that much time will be consumed, a referee will be appointed to find and report the facts.</p> <p>3. Removal of Cause—Decision on Demurrer in Lower Court Final.</p> <p>A removal of a cause from a state court to a federal court is a change of venue and not an appeal; and any ruling on a demurrer in the state court is the same as though made in the federal court.</p> <p>4. Tort to Real Estate—Action for—Assignment of.</p> <p>Under the Kansas statute, a cause of action arising from torts to the estate is assignable</p>

In Equity. Motion to dissolve preliminary injunction, which had been granted without notice. The facts are sufficiently stated in tho opinion.

<p>On Bill and Cross-bill. The opinion states the facts.</p>

On Petition of the Pintsch Lighting Company. A suit toforoelosea mortgage on the West Shore Bailroadwas brought in the New York supreme court. Beceivers of the railroad were appointed in New York. At the same time a bill was filed in the United States circuit court in New Jersey to foreclose the same mortgage, and the same persons were appointed receivers of the railroad in New Jersey.

<p>Negligence—Injury to Vessel Passing through I)kaw—Proximate Cause.</p> <p>Former opinion, 24 Fed. Rep. 335, adhered, to on rehearing.</p>

<p>On Petition of Howard Watch & Clock Company.</p>

<p>Mortgage—Foreclosure of—Right of Government to Redeem:—Statute of Limi tations—Laches.</p> <p>Neither the statute of limitations nor laches will bar the government as to any claim for relief in a purely governmental matter; but when the government comes as a complainant into a court of equity, asserting the same rights as an individual,—a mere matter of dollars and cents, involving no question of governmental right or duty,—although technically the statute of limitations may not bar, the ordinary rules controlling courts of equity as to laches should be enforced. U. S. v. Beebee, 17 Fed. Rep. 37, followed.</p>

The cause was tried on the eighteenth November, and—under instructions from the court that the correspondence between the plaintiffs and defendants, which was the only evidence submitted on the subject of contract, there was no contract between the parties:—the jury found for the defendant. Defendants afterwards moved for a new trial, on the ground that the instructions of the court were contrary to the law of the case.

<p>Negotiable Instruments — Certainty—All to Become Díte on Failure to Pay a Part.</p> <p>An instrument in writing in tie form of an ordinary promissory note, payable on a day certain, but containing a clause reciting that the instrument is one of á series of notes, and providing that “each and all shall become due and payable to the holder on the failure of the maker to pay the principal or interest of anyone of the notes of said series, ” and also reciting that the consideration of said notes was cert ain railway freight oars manufactured and sold by the payee to the maker, and providing “that the title of said cars shall remain in the payee until all the notes of said series, both principal and interest, are fully paid, ” held to be a negotiable instrument.</p>

<p>1. Corporations—Acts Ultra Tires—Executed Contracts.</p> <p>Where a corporation goes outside of the scope of its legitimate business and makes a contract, and that contract has been executed and the corporation has received the benefits thereof, it will be enforced.</p> <p>3. Same—Contracts within Scope of Business.</p> <p>Where the contract is within the general scope of the business of corporations of the character, though beyond the powers actually vested in the particular corporation contracting, parties who make the contract in ignorance of the peculiar limitations in the special corporate powers of this individual corporation are not prejudiced thereby.</p> <p>8. Same—Injury to Innocent Parties.</p> <p>Wherever a contract has been entered into which is beyond the powers of the corporation, and other parties have acted upon the faith of that contract and parted with money or value, and the relations of the parties have become so changed that the status ante the contract cannot be restored, the contract will be enforced.</p> <p>4. Banking Corporation—Subscription to a Creamery—Withdrawal.</p> <p>Where a banking corporation, through its president, subscribed to a creamery, but before any act was done or expenditures made on the faith of such sub- ■ scription the subscription was withdrawn, held, that it was simply an executory contract, and that the subscription could at the time be withdrawn, and that the bank was not liable.</p> <p>5. Principal and Agent—Contract for Principal by Agent—Liability of Agent.</p> <p>Where an agent, without fraud or misrepresentation, at the request of the principal makes a contract for such principal and in his name, which is not binding on the principal because ultra vires, the facts being fully known to all parties, the agent is not liable on such contract.</p>

<p>Demurrer to Criminal Information.</p>

<p>Patents for Inventions—Infringem:f,nt—Letters Patent No. 137,858.</p> <p>When, from tbe evidence, it appears that tbe defendant is simply pursuing tbe same process of manufacturing wbicb be followed before tbe patent in question was issued, tbe court will not restrain bim from continuing to use tbe same means</p>

<p>Patents for Inventions—Infringement—Profits—Damages—Evidence.</p> <p>Complainants received letters patent 64,404 and 80,269 for improvements in tuck-markers, which proved to be of little value. Defendant made improvements on same which cured the defects and rendered the device marketable. Complainants obtained a decree for assessment of damages and profits for infringement of the above patents. Held, that complainants must show what proportion of profits arising from the sale of the improved tuck-markers was due to the original invention, and that, failing in that, they were entitled to nominal damages only.</p>

In Equity. The facts are as follows: Both parties claimed priority of invention. Complainant obtained a patent January 16,1883. Defendant claimed that he made the invention at a time when he was employed by complainant in his shop, and it appears that he stood by while ■complainant made application for a patent without making any claim, and subsequently took out letters himself for another and a different invention.

<p>Patents tor Inventions—Priority—Infringement—-Combination Patent.</p> <p>The employment of mechanical skill to construct a machine in accordance with ideas furnished by another gives no right to the invention. The entire merit is in him whose inventive suggestiveness conceived the invention.</p>

<p>Patents for Inventions—Infringements.</p> <p>When a patent has been issued for an invention which consists in a peculiar arrangement of old elements or parts, it must be construed strictly, and the monopoly limited substantially to the special character of the parts and the particular organization described. A machine which may be forced to produce a similar result will not be regarded as an infringement if that was not the object of its construction.</p>

<p>Patents for Inventions—Infringement.</p> <p>Letters patent 210,714 were granted to complainant for a combination of heating pipes, and metallic plates applied thereto, constructed with flexible tubes, gum tubing, or suitable rock-joints, so as to permit the elevation or lowering of the pipes without interfering with the circulation of the steam through them. Meld, that these flexible joints must be regarded as distinguishing and essential features of the construction of the pipes, and that a machine of which hinge-joints are not a constituent is not an infringement of said combination</p>

<p>Patents fok Inventions—NovuLTy—Iotkinoement.</p> <p>Patent. No. 108,800, dated October 11, L870, for an improvement in trunk-rollers, if valid, is not infringed by defendants wken properly construed.</p>

<p>1. Patents fob Inventions—Construction of Claim.</p> <p>The claim of Jotters patent No. 74,302, of February 11, 1868, was for “the combination of the brim of a hat with a drooping hoop, so that the brim is caused to droop at, the front and rear, and to rise at the sides, substantially as described. ” The definition of the drooping hoop given in Mallory Manitf’g Co. v. Murks, 11 Fed. Hep. 887, S. 0. 20 Blatehf. 82, adopted, and held, that the droop must be imparted by twisting the wire and not by bending.</p> <p>2. Same—Infringement—Burden of Proof.</p> <p>Although not free from doubt, the court concluded that defendants had made their drooping lioopsbybonding alone, without torsion, and the plaintiff, upon whom is the burden of proof, not having clearly established the fact of infringement, the bill was dismissed.</p>

<p>t. Patents—Improvement.</p> <p>A patent cannot be issued to an inventor for anything which is cither claimed or described in a former patent issued to himself, but he may patent an improvement thereon.</p> <p>3. Same—Void—Reissue.</p> <p>Where a patent is declared void because too broad, the defect may he corrected by a reissue.</p> <p>3. Same—Application—Rejection—Res Adjudicata.</p> <p>Where the commissioner of patents has rejected an application for a reissue, on a reference to a prior patent, because it covered a different invention from that disclosed in the original -invention, this, though reversed, will not operate as an estoppel, because res adjudicata, upon the parties in a judicial proceeding under the patent afterwards reissued.</p>

<p>1. Wharves—Breaking Down of Wharf—Injury to Cargo—Locus of Tort —Admiralty Jurisdiction—Criterion—Statement of Case—Rule 59.</p> <p>A wharf, loaded with steel-blooms, which had been discharged from the steam-ship City oí L., gave way beneath the weight, throwing the blooms into the water. On suit brought against, the steam-ship and the wharfinger, the latter denied the jurisdiction of the admiralty court, on the ground that the negligence alleged was a tort committed upon the wharf, i. e., upon the land. held, that, in cases where the negligence and the injury occur in different places, the criterion is the place whore the substance and the consummation of the injury are effected. As in ibis case the injury was caused wholly by the water into which the blooms were thrown, if the breaking down of the wharf occurred through the wharfinger’s negligence, such negligence was a marine tort of which a court of admiralty has jurisdiction.</p> <p>3. Same—Defects in Wharf—Liability.</p> <p>The evidence showing that the wharf was decayed and out of repair, and that the wharfinger had wholly failed to keep himself properly informed of its defects, and consequently had failed to make it secure, held, that he could not be absolved from the charge of negligence.</p> <p>S. Same—Sufficiency of Wharf’—Liability of Ship.</p> <p>A ship is not necessarily answerable, without regard to her own negligence, for the sufficiency of the pier at which she discharges.</p> <p>4. Liability of Ship—Safety of Cargo—Notice to Consignee.</p> <p>_ Until a consignee has notice of the discharge of goods, and a reasonable time to remove them, if accepted, the ship, as carrier, remains liable, except as modified by the bill of lading, as insurer of the goods, which she is bound to deliver safely to the consignee, and may thus be answerable for the sufficiency of the wharf.</p> <p>5. Same—Consignee’s Neglect to Receive—Reasonable Care.</p> <p>If the consignee, after such notice and reasonable time, neglect or refuse to receive the goods, the ship having the goods in her custody, though no longer insurer, is still bound as bailee, to care for their safely, or to store them on account of Ihe owner; but she is bound to reasonable care only, and this duty relates back to the selection of the wharf.</p> <p>6. Same—Bill of Lading—Selection of Wharf—Reasonable Care.</p> <p>By a stipulation of the bill of lading under which the steel-blooms wore brought bv the City of L., if the consignee was not ready to receive them, the ship had the right “to deposit them on the dock or wharf, at the consignee’s risk oí tire, loss, or injury. ” Held, that the risk of the consignee, under the above clause, did not embrace the selection of the wharf by the ship, and that the ship was still liable for reasonable care until the consignee had accepted the goods. As the evidence showed that the consignee had had ample notice and time to remove the goods, and had repeatedly promised but neglected to do so, the ship was liable for reasonable care only; but as the evidence indicated that the ship should have known that the wharf was unfit for a heavy cargo, such as this, the ship’s selection of it, and discharge upon it, wore not such reasonable care of the goods as to entitle her to exemption from all liability.</p> <p>7. Previous Suit at Law—Yerdtct—IIow Binding in Admiralty.</p> <p>The wharfinger had previously sued the steam-ship at law for the injury to the wharf by overloading, and tiie steam-ship had counter-claimed in that suit for the detention of the vessel, as well as for the loss of those same blooms. The jury rendered a verdict that neither should recover of the other. Held, that the verdict of the jury must be interpreted as a finding that both were negligent in causing the fall of the wharf. Though in cases turning upon questions of navigation, the verdict in a common-law court is not binding in a court of admiralty, in other classes of cases a prior determination of the same question of fact in a court of law is binding between the same parties in admiralty, whether pleaded or given in evidence. It is immaterial how the parties are arranged if both have opportunity of cross-examination. There being evidence in this suit to show faults on the part of both the wharfinger and t-ho steam-ship, the finding of the jury in the previous suit should not be disturbed, and libelants should recover half their damage from the wharfinger, and half from the steam-ship.</p>

<p>Collision—Tug and Ferry-Boat Crossing—Bight of Way—Duty to Stop and Back—Bule 21—Apportionment—Costs of Appeal.</p> <p>A collision occurred at the South Ferry slip, New York city, between the ferry-boat C., on one of her regular trips from Brooklyn to New York, and the tug B., which was coming into the East river from the North river, having a bark in tow on a hawper. The collision occurred in the day-time,'the weather was clear, and the vessels were on crossing courses, the B. having the 0. on her starboard hand. In the district court the tug was held entirely in fault in attempting to cross the ferry-boat’s bows when the latter had the right of way. Meld, on appeal to this court, that the ferry-boat was also in fault in not stopping and backing when she saw that the tug was persisting in going on, and did not respond affirmatively to the ferry-boat’s signal of one whistle, and that there must be a decree apportioning the damages and the costs of the district court, and giving the tug the costs of the circuit court.</p> <p>See the opinion of the district court. The Columbia, 8 Fed. Rep. 716.</p>

<p>Collision—Two Steamers—Sudden Shear—Conflicting Evidence as to Lights and Bearings Considered—Narrative.</p> <p>On the night of July 18,1882, a collision occurred in the Sound between the steamer A. and the steam-hoat R. I., the weather being clear, and both vessels seeing each other's lights at a great distance. The A/s account of the collision was that while making a course E. by N., she sighted both the colored lights of the R. I. about three-fourths of a point on her starboard how, several miles distant. That thereafter the red light of the R. I. was shut in, and her green light gradually drew to three or four xioints off the A/s starboard how, both vessels showing green to green, up to within a minute of the collision, when the R. I. took a sheer to cross the bows of the A., which at once stopped and backed, hut was unable to avoid a collision. The account given by the R. I. was that while heading W. i S. she saw the mast-head light of .the A. a little on her port bow, and about four miles distant; that, shortly after, the red light of the A. came into view three-fourths of p point on her port bow, when the R. I.’s wheel was ported, and one whistle given, and her course changed to W. $ N.; that she continued on that course, the A/s red light being always on her port bow, and not observed to change much, till suddenly the A. was seen close at hand on the xiort beam, with her green light exposed; that the wheel of the R. I. was prat hard a-port, hut the collision followed immediately. Held, that these two narratives were irreconcilable; that whichever story he correct, it must be found to be in the main consistent with itself and with the undoubted courses of the steamers, which must he assumed to he as sworn to by each, up to within a few minutes of the collision; that an examination of the testimony of each, with a diagram of the respective courses, positions, and bearings showed that the A/s account was consistent and credible, and the account of the R. I. inconsistent with itself, and irreconcilable with the undoubted previous courses of each; that the sudden sheer just before the collision was made by the R. I., and was probably due to the fact, disclosed in the testimony of the pilot of the R. I., that he supposed the A/s lights were the lights of a tow; that the A. did all that was possible to avoid the collision, and the libel against her should consequently be dismissed, and the suit against the R. I. sustained.</p>

<p>1. Admiralty — Fishermen not “Seamen” within Section 4523, Bev. St.— Lay.</p> <p>Fishermen who ship for a “lay, ” or shares in the catch, are not “seamen” in the sense of the word as used in section 4523, Bev. St., so as to entitle them, if “shipped contrary to the provision of any act of congress, ” to recover the highest rate of wages of the port from which they were shipped. Semble, that section refers to “merchant seamen.”</p> <p>2. Same—Oral Agreement to Ship—Section 4391, Bev. St.—Act of June 19, 1813. -</p> <p>The shipping of fishermen by oral agreement, and on terms different from section 4391, is not contrary to law, in the sense of section 4523. Section 1391, drawn from the act of June 19, 1813, which provides that agreements with men to he employed in certain fishing voyages shall bo not only in writing, but in a particular form of “lay” only, is mainly the wording of section 4 of the act of February l(i, 1792, and of subsequent acts, which had reference to bounties expected to be given to the fishermen. The act of 1813 is to be construed in pari materia. The intention of those acts was not to prohibit fisheries on any different terms, hut to allow fishermen to take advantage of the bounties. An engagement for a different form of lay, and not in writing, ■would not. therefore, be “contrary to the provisions of any act of congress,” in the sense of section 4323, or unlawful, but would only be excluded from the bounty system.</p> <p>8. Same—Statement of Case—Cod and Mackerel Fisheries.</p> <p>Libelant shipped for the cod-fishery, under an oral agreement to serve as fisherman, and to share equally with the master in the proceeds of the sale of the fish, after paying expenses and a certain share of the fish to the owners of the vessel. Tho fishing vojmges not being successful, he filed a libel under section 4323, Rev. Hi., to recover, for the whole season, 840 a month, the highest rate of wages at the port of New York during the throe months previous. Held, that he could not recover.</p>

<p>1. Admiralty—Seamen’s Wages—Libel for, Bars Subsequent Claims—Section 4529, Rev. St.</p> <p>Certain seamen who bad libeled the schooner B. for wages, and obtained a decree under which the schooner was sold, being paid their wages up to the time of filing the libel, petitioned to be paid out of the surplus their wages subsequent to the time of filing the libel, and while the vessel was in the marshal’s custody at their instance, up to the day of sale. They had remained aboard and been boarded by the ship, but had'not rendered her any services of value. Neld, that the filing of the libel was an election by them to treat their engagement with the schooner as at an end, and that they were then entitled to a discharge. They could not recover wages, therefore, for the subsequent period, but might recover under section 45¿9, Bev. St., for the 10 days’ extra pay subsequent to filing the libel for the delay in payment.</p> <p>2. Same—Section 4529—Extra Pay—Lien—Bank.</p> <p>The extra pay provided for seamen by section 4529 is an incident to the claim of wages, and ranks with the latter as a prior lien.</p>

In Admiralty. See opinion in the same case on exceptions to the supplemental libel and motion to strike out the supplemental libel. 15 Fed. Rep. 615.

<p>Bill for Injunction, etc.</p>

<p>In Equity.</p> <p>For facts of case see 20 Fed. Rep. 766.</p>

<p>1. Corporation—Dissolution — Organization of New Company—Sale by Directors of Property to New Company.</p> <p>A corporation having expired by limitation, tbe directors, under tbe Michigan statute authorizing such corporation to continue for three years as a corporation simply for the purpose of suing and being sued, and to wind up its affairs, cannot organize a new corporation, and, with the consent of a majority of the stockholders of the old corporation, sell the property thereof to the new corporation at a valuation fixed by themselves, and compel the other stockholders in the old corporation to receive shares of stock in the new corporation, or their pro rata shares in money, based on such valuation.</p> <p>2. Same—Rights of Minority of Stockholders.</p> <p>In such a case, the minority of the stockholders will be entitled to an injunction to prevent the intended sale, and to a decree directing the sale of the property for cash to the highest bidder, proceeds of the sale to be applied to the payment of corporate debts and a pro rata distribution among the' shareholders, with the proviso that, if no hid exceeds the valuation fixed by the directors, the arrangement sanctioned by the majority be carried out, and the property conveyed to the new company</p>

<p>Assessment of Damages for Right of Way.</p>

<p>This is a suit in ejectment. An amended answer is put in, to which a demurrer is filed.</p>

<p>Husband and Wife—Conveyance of Wife’s Land—Illinois Act of February 22,1847.</p> <p>Under section 2 of tbe act of February 22,1847, (2 Scates, T. & B. 111. St. 965,) when a married woman, above the age of 18 years, and not residing in the state of Illinois, executed a deed in another state, where she resided, the-mere signing, sealing, and acknowledgment of the deed by her husband was sufficient, although his name did not appear in the granting clause of the-instrument.</p>

<p>1. Attachment—Fraudulent Conveyance or Concealment of Property-Levy—Evidence.</p> <p>Under a statute authorizing- attachments where debtors fraudulently convey or conceal their property liable for the payment of their debts, where a claim is interposed after judgment and levy, the plaintiff has made out a prima facia ease when he has shown that the property seized was in the pos session of the defendant in attachment at the time of the levy.</p> <p>2. Fraudulent Conveyance—What Transfers Yoid.</p> <p>Every assignment or transfer by a debtor insolvent at the tüne, of real or personal property, or choses in action, to any person, either in trust or for the benefit of or in behalf of creditors, when any trust or benefit is reserved to the assignor, or any person for him, is void. Code Ga. § 1932.</p> <p>3. Same—Intent to Defraud.</p> <p>Every conveyance of property by writing, or otherwise, or contract of any description, made with intention Lnown to the party taking to defraud or delay a creditor, is void. Id</p> <p>4. Same—Conveyance Void—Agreement with Wife of Debtor.</p> <p>When a conveyance of an entire stock of goods by a debtor to a favored creditor, in payment of a moiety of the debt, and a reconveyance from the creditor to the debtor’s wife, she undertaking to become responsible for such moiety, is had in one day. and the wife carries on the business of the debtor in her name, employing her husband as clerk, a strong presumption of fraud exists as against a creditor whose claim for the purchase! money of a large portion <\f jjie stock is thus defeated; especially is this true where all the conveyances are embraced in one document, paged 1, 2, and 3.</p> <p>5. Same—Transfers Between Husband and Wife.</p> <p>In a transaction involving the transfer of property between husband and wife, the utmost good faith must be ntade to appear. The wile must show with great clearness that she was a bona fide purchaser, and that she had no reason to believe that the transfer was made to delay or defraud the creditors of her husband.</p>

<p>Customs Duties—Bams of Mixed Leaf Tobacco—Act of 1883, Soiiedum F.</p> <p>Bales of loaf tobacco were imported, distinct parts of each of which were composed of tobacco unstommed, more than 85 per cent, of which was of size and texture suitable for wrappers, and of which more than 100 leaves would he required to weigh a pound, and tho remaining parts of each were composed of tobacco of inferior quality, sufficient in quantity to reduce each below the requisite 85 per cent., with strips of paper or cloth between to mark the extent of the different qualities which were separated after importation. Held, that the part which was of this superior quality was dutiable at 75 cents per pound.</p>

<p>Customs Duties—Iron Show-Cards—Printed Matter—Act oe March 3, 1888, Schedule C, and Schedule M.</p> <p>Iron show-cards, printed on plates of sheet-iron from lithographic stones, on hand-presses, in the same way that lithographing is done on paper or cardboard, are not “printed matter” within the meaning of the statute, (act of March 3,1883, Schedule C,) but are liable to a duty of 45 per cent, ad valorem, under Schedule M, of the act of March 3, 1883, as a manufacture of iron not specially enumerated in the act.</p>

<p>1. Criminal Law—Depositing Obscene Sealed Letter in Post-Oeeice—Rev. St. § 3893.</p> <p>Depositing a letter containing obscene matter in a sealed envelope in the post-office is not an offense within the meaning of Rev. St. § 3893.</p> <p>2. Same—Jurisdiction— Oeeense, when Complete—Rév. St. § 731.</p> <p>When a letter containing obscene matter is deposited in the post-office, the offense is complete, and the party violating the statute must be indicted and tried in the district where the letter was so deposited.</p>

<p>1. Patents for Inventions—Design—Description of, in Bill for Injunction —Demurrer.</p> <p>The bill alleged invention of “a new and original design for a enrtain and loop, ” and that a patent, giving date and number, was granted thereon, but gave no other description of the invention, and made no reference to the patent for a further description. Held, on demurrer, that the bill did not sufficiently describe the invention.</p> <p>2. Same—Requisite of Injunction Bill to Restrain Infringement.</p> <p>It is necessary that a bill in equity for an injunction against the infringement of letters patent for an invention should contain such a description of the invention, as patented, as will apprise the court of its nature and character, and the particulars in which the improvement consists.</p> <p>8. Same—How Supplied.</p> <p>This may he done by a full and accurate description in the pleader’s own language, care being taken not to depart from the legal effect of the language of the patent, or by employing the language of the specification, or by a reference to and profert of the patent. The last-named course is the usual and most convenient one.</p>

<p>1.- Patents for Inventions.</p> <p>Upon, a full consideration, of the evidence in this case, held, that Moses 0. Johnson was not the first inventor of the combination described in the patent No. 282,975, of October 5,1880, to Henry G. Thompson, as assignee of Johnson.</p> <p>■2. Same.</p> <p>The decision of this case turned on a question of time, as to when a certain model was made, and, the evidence showing it to have been made at a period subsequent to that alleged by plaintiff, it was held that his assignor was not the first inventor of the improvements claimed by the patent.</p>

<p>1. Patents for Inventions—Construction of Claim:.</p> <p>Peculiarities of construction will not be construed to be distinctive features of claims, in order to sustain their validity, where neither the specification nor claims suggest that such peculiarities are a distinctive feature of the invention.</p> <p>2. Same—Matter Shown, but not Claimed.</p> <p>A now mechanical feature of the device was shown in the drawings, but it was not described or claimed. Held, in view of the omission, that the patent stated nothing which the public did not already have.</p> <p>3. Same.</p> <p>The claims of reissued letters patent No. 7,628, of April 24,1877, to the complainant, as assignee of John A. Evarts, for an improvement in extension lamp fixtures, cover nothing new, and the patent is therefore defective.</p>

<p>1. Patents for, Inventions.</p> <p>The patent to Rhodes Lockwood, No. 167,445, of September 7, 1875, construed and sustained; following Lockwood v. Cutter Tower Co., 11 Fed. Rep. 724, and 18 Fed. Rep. 658; and Lockwood v. Cleveland, 18 Fed. Rep. 87.</p> <p>2. Same—Disclaimer.</p> <p>A disclaimer limiting the claim of this patent to “a rubber eraser having the soft finished erasive surface produced by tumbling the eraser, substantially as hereinbefore described,” does not make this patent a different one from that which was sustained in the cases cited.</p> <p>8. Same—Prior Use—Evidence.</p> <p>Affidavits as to a prior use disproved by the fact that the parties making them had accepted and operated under a license from the patentee.</p>

<p>1. Maritime Lien—Supplies—Presumption of Lien—By What Rebutted.</p> <p>_ The furnishing of supplies to a foreign vessel makes a prima facie case of lien. This presumption is rebutted by proof that the master or agent ordering the supplies had funds in hand sufficient to meet the bills incurred; that the material-man either had notice of these facts, or had knowledge of facts sufficient to put him on inquiry; and that reasonable inquiry or due diligence would have informed him of the fact that there were such funds and no need of credit.</p> <p>3. Same—Material-Man—Inquiry as to Funds—Statement.</p> <p>S. & Co. were the regular agents in New York of the S. L. line of steam-ships, charged with attending to the New York business of the line, collecting inward freights, and paying bills. On their order, coal was furnished to the steam-ship K., one of the line, by libelants. There was no express reference made, on ordering the coal, to the owner of the steamer, and both parties expected payment to be made by S. & Co., and at that time S. & Co. had funds of the steamer in their hands sufficient to pay for the coal. No inquiries were made by libelant of S. So Co. as to the terms of their agency, the state of the ship’s account, or as to the necessity of any credit. S. So Co. after-wards gave a check for the coal, post-dated, and libelant receipted the bill as paid, which receipt S. So Go. subsequently showed to the owner, asserting that the bill was paid, and on the faith of which the owner made an advance of $5,000 to S. & Co., which he testified he would not have done had he not supposed this bill was paid. The check not being paid at maturity, and the agency of the line being taken from S. & Co., and their credit becoming poor, libelant brought this action against the ship-owner, who claimed that he was not liable on account of the dealings between libelant and S. So Co. Neld, that if the ship were liable, respondent, as owner, would also be liable; that the law requires of a material-man reasonable inquiry before presuming to charge the ship, whenever he knows that the person ordering the supplies is in receipt of funds on the ship’s account. As S. & Co. had in their hands sufficient funds to pay for the coal, and intended to pay for it, and as reasonable inquiry on the part of libelant would have shown'him that there was no need, and consequently no authority, for charging the ship, held, that the ship was not bound, so that the owner could not be held liable on the ground that the ship was lawfully charged.</p> <p>3. Same—Principal and Agent—Ship-Agents — Authority to Charge Foreign Principal.</p> <p>S. So Co. being the regular resident agents of the steam-ship, appointed by the foreign owner to conduct the general business of the ship in New York, and it not appearing that either by usage or by the terms of the agent’s authority were the libelants precluded from charging the owner personally, held, that libelants did not sell the supplies exclusively on S. So Co.’s credit; and if the bill were not paid by S. So Co. within a reasonable time, libelants might lawfully resort to the principal. The English doctrine that, on a sale to the agent of a foreign constituent, the principal is not chargeable, is not applicable. The general rule stated. The Suliote, 33 Fed. Rep. 919, distinguished.</p> <p>4. Same—Equitable Estoppel.</p> <p>But as libelants had delivered to S. & Co. tbe receipted bill, on tbe faith of -which advances were made by the owner, which would not have been made but for this receipt, held, that these circumstances constituted an equitable estoppel that justly threw upon libelants the results of their own fault in giving a receipt without present payment, and therefore that the libel should be dismissed.</p>

<p>1. Collision—Lookout—East River Navigation.</p> <p>A steamer in the night-time, in the East river, seeing a red light nearly ahead, but on the port hand, is not thereby excused from'keepiug any further watch upon that light; especially in view of a known practice for boats in that vicinity to go to the left.</p> <p>3. Same—Brooklyn Bridge—Electric Lights.</p> <p>Upon evidence showing that the electric lights on the Brooklyn bridgo dazzle the eves of pilots nearing the bridge, so that for several hundred feet on either side they cannot properly distinguish the ordinary lights of vessels ahead, held, that common prudence requires that this space be passed over at only moderate speed, as in cases of fog.</p> <p>3. Same—Crossing to Left—Custom, when no Defense.</p> <p>The practice of tugs coming down with the ebb-tide to go voluntarily to the left, near the Brooklyn shore, above the bridge, is no legal justification orexeuse for a tug’s crossing the river from the New York side for that purpose in the night-time, within a half mile of the bridge, considering the liability to meet ascending steamers, and the blinding effect of the electric lights.</p> <p>4. Same—Case Stated—Stopping and Backing—Mutual Fault.</p> <p>The steamer P.. bound up, came in collision with the tow of the D., coming down with the ebb-tide, a short distance above the Brooklyn bridge, in the evening, and about one-third the distance across from the Brooklyn shore. A third of a mile above, the D. was on the New York side of the center of the river, and showed her red light to the P. a little on the latter’s port how* The D. unnecessarily crossed the river to go to the left, as often practiced ii* that vicinity, and soon gave the P. two whistles. The P. replied with.one. Neither slackened speed until a second exchange of contrary signals, when near each other, and the collision was then inevitable. The P. kept no watch on the D. after seeing her red light until her signal of two whistles was heard, and the D.’s green light was then seen for the first time. Held, both in fault, —the P. for not keeping1 up her watch on the D. after seeing her red light, specially in view of the known practice for descending tugs to go near the Brooklyn shore, also for not reversing at the first contrary signals, and also for not moderating speed in going through the glare of the electric lights of the bridge; the D. for crossing the river under such circumstances, and for not reversing at the first contrary signals.</p>

<p>1. Arrest—Reasonable Cause—Section 970, Rev. St.—Officers Protected.</p> <p>Persons who carry on trade up to the brink of illegality must avoid at their peril addition j,l circumstances of suspicion, whether in the suppi'essio veri or suggestio falsi.</p> <p>3. Same—Probable Cause—Certificate.</p> <p>Reasonable cause, under section 970, Rev. St., is the same as probable cause-; and where reasonable grounds appear for the belief that the law has been violated, it is the duty of the officers to arrest apparent offenders; and that section makes it obligatory on the court to grant a certiflcate'f or their protection.</p> <p>3. Same—Statement of the Case.</p> <p>The steamer City of M. was chartered for the benefit of the insurgents at Barranquilla to carry arms for their use. The manifest filed by her agents before sailing did not state that she had arms aboard. The supplemental manifest was delayed long after the time allowed by law, and,a false destination was given. An agent of the insurgents accompanied the ship, and as soon as her arms were discharged at Barranquilla she departed for Rio Hacha with a troop of soldiers, who captured the custom-house officers, and afterwards attempted to make use of the steamer to capture a Colombian vessel; and the-mate made affidavit of the unlawful intent of the expedition. Held, that these, with other circumstances, afforded probable cause for arrest of the vessel, and that a certificate thereof should be issued, though upon the trial the-vessel was discharged.</p>

<p>1. Collision—Steamer and Brio—Crossing Courses—Lookout.</p> <p>A steamer bound up the coast on a clear, starlight night, off Barnegat, made the green light of the I' utch brig A. some three points off her port bow. The brig was sailing close-hauled on a S. S. B. course, and the vessels were on crossing courses, and a collision took place. Held, that the conceded fact that the steamer did not slow at once cast doubt on her assertions that she immediately starboarded to pass under the brig’s stern, and that the brig luffed, and frustrated her effort. On the evidence, the steamer did not make any effectual movement to pass under the brig’s stern, and that the brig held her course until the instant of collision, and her luffing then did not tend to cause the collision, and the sole cause of the collision was the failure of the steamer to see the brig sooner.</p> <p>2. ' -Same—Foreign Vessel—1Torch-Buhit—Section 4234.</p> <p>Section 4234 of the Revised Statutes creates no obligation on a foreign vessel on the high seas to show a torch to an approaching steamer, and failure to do so was not negligence on the part of the brig.</p>