Volume 26 — Federal Reporter

<p>1. Equity Practice — Contribution.</p> <p>Where several actions, removed from a state court, are based upon insurance policies on the same property, based on the same application, issued at the same time and by the same agent, containing a clause for contribution, the court will order one of the causes to be transferred to the equity docket, and the other defendants to be made parties, and the pleadings in that case to be reformed according to the equity practice.</p> <p>2. Same — Injunction.</p> <p>In such case the plaintiff will be enjoined from further proceedings in the other actions until a final decree in the cause so transferred.</p> <p>S. Same — Domestic Company.</p> <p>In such case an action against a resident defendant company pending in the stale court will be stayed until such final decree, and such company will be made a party to the suit so transferred.</p>

In Equity. Intervening petition. The intervenor alleges that it is a corporation, and has been authorized by an ordinance of the city of St. Louis to construct its track through said city along a designated route, and that the construction of its track along said route will necessitate its crossing the tracks of the Wabash, St. Louis & Pacific Bail way Company, now fin the hands of receivers, at several places, and asks permission to lay its track, and cross the Wabash…

<p>In Equity. Information against the county collector of Chariton county.</p>

In Equity. Petition for rehearing on the intervening petition. The intervenor asks in his petition for double damages for the killing of two heifers by the.Quincy,'Missouri & Pacific Bailroad, June 11, 1884, and alleges that the heifers were reasonably worth when killed $550, and $50, respectively. The double damages were claimed under section 809, Bev. St. Mo.

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

<p>1. Money Received on Erroneous Judgment.</p> <p>Whore money is received on an erroneous judgment by a party thereto, the law, on a reversal of the same, raises an obligation against such party to restore the amount, which obligation may be enforced by an action as for money had and received to the use of the plaintiff therein.</p> <p>3. Case in Judgment.</p> <p>In a suit to enforce a mechanic’s lion, the parties thereto, with others having liens on the same property, were made defendants, and the court, by its decree directing the sale of the property and the distribution of the proceeds among the parties, postponed the payment of the plaintiffs claim to that of the defendants, which portion of the decree the supreme court, on appeal taken after the confirmation of the sale and the distribution of the proceeds, reversed, and also ordered a resale. Held that, on the reversal of the erroneous decree, the defendant, in contemplation of law, hold the money wrongly received by him thereon for the use and benefit o £ the plaintiff, to whom it should have been originally adjudged and paid, and that he might maintain an action to recover the same as for money had and received to his use; and the order of resale did not limit or affect his right in this particular.</p>

<p>1. Contract — Breach—Measure of Damages — Penalty.</p> <p>Notwithstanding the apparent conflict of .authorities, it is clear that where the damages for the breach of all the stipulations of a contract are uncertain in their character and cannót be readily ascertained, the sum fixed will be regarded as the settled and agreed damages; but where some of the breaches are ascertainable and some not, as it is a penalty as to some, it is a penalty as to all.</p> <p>2. Same — Amount to be Forfeited.</p> <p>It would be manifestly at variance with the principle of just compensation, where there are many stipulations in a contract, some trivial and some grave, some ascertainable in damages and some not, to hold that it was intended a large sum should be forfeited for any breach.</p>

<p>1. Railroad Compart — Highway Traveler — Accident—Sunday—Recovery, how Affected.</p> <p>If a railroad company bad no right to run a train on Sunday, and if the evidence in tbe case shows no right on the part of one driving a wagon over the track on that day, whereby the death complained of occurred, the fact of the running of the train on that day has no effect as to a recovery.</p> <p>2. Same — Crossing at Grade — Law of Iowa.</p> <p>Under the laws of Iowa there is nothing to prevent a railroad track being laid on an even level with a highway.</p> <p>8.Same — Reciprocal Duties — Vigilance, what it is.</p> <p>The rights, duties, and obligations of a railroad company, and of travelers who drive across its track, are mutual and reciprocal. Both should keep such a lookout as a prudent man would in endeavoring to perform his duty.</p> <p>4. Same — Precedence—Right of Way and Reason Therefor.</p> <p>A railroad train, upon approaching a crossing, has precedence and the right of way over highway travelers, on account of the celerity of its motion and the difficulty of stopping it within a short distance.</p> <p>5. Same — Warning by Approaching Train.</p> <p>A railroad train must give warning to highway travelers, and that warning must be reasonable and timely.</p> <p>6. Same — Warning Required by Iowa Statute — Further Warning.</p> <p>Under the laws of Iowa, when a train is within at least CO rods of a highway crossing in front of it, there must be given two blows of its locomotive whistle, and its bell must be rung from then on continuously until the crossing is passed. But if, under the circumstances of the case, additional warning would seem necessary, such additional warning must be given.</p> <p>7. Same — Highway Travelers — Diligence Required.</p> <p>Highway travelers approaching a railroad crossing are charged with diligence to ascertain if a train is about to pass by; and their diligence must be greater accordingly as the peculiar locality and the circumstances of the case seem to require greater caution.</p> <p>8. Same — Injury by Accident — Action—Burden of Proof.</p> <p>The burden of proof, in case of injury received in crossing a railroad track on a highway, is upon the plaintiff to show, by a preponderance of evidence, negligence on the part of the defendant or its employes.</p> <p>9. Same — Contributory Negligence.</p> <p>If a person, in driving a wagon over a railroad crossing, has failed to exercise the proper care, skill, and watchfulness, and a collision with a train occurs, he has contributed to' the accident, and no recovery lies, even though negligence be proved on the part of the company or its employes.</p> <p>10. Same — Occupant of Wagon — How Affected by Negligence of Driver.</p> <p>The negligence of the driver of a vehicle in crossing a railroad track is the negligence of the occupants.</p> <p>Í1. Same — Damages-—Mental Anguish ot<’ Relatives.</p> <p>In actions l'or damujres brought by an administrator against a railroad com jinny for the death of his decedent through the company’s negligence, the law does not permit the jury to award damages for the anguish and suffering of the relatives of deceased] but limits the amount to be recovered to the pecuniary loss caused to the estate of the person killed,</p> <p>id. Death of Woman — Measure of Damages — Facts to he Considered.</p> <p>In estimating the damages in the case of a woman killed by the negligent running of a railroad train, the jury must consider her age at the time of her death, and any other facts established by the evidence throwing light on her ability to earn monej, fixing thus the loss to her estate. But the jury must bear in mind, while thus considering, that the sum awarded is given'in one sum, and is freed from the uncertainties that surround and affect business life and affairs.</p> <p>id. Death of Child — Measure of Damages.</p> <p>In an action against a railroad company by an administrator for the death of a chilli, the plaintiff is not entitled to damages accruing prior to the time when such child would have attained his or her majority.1</p> <p>In the absence of a statute, damages cannot be recovered by a father for negligently causing the death of his minor son. Sullivan v. Union Pac. R. Co., 2 Fed. llep. 117.</p> <p>Ill an action for negligently causing the death of a minor, the proper measure of damages, where the father is the next of kin, is the probable value of the services of the deceased from the time of his death until his majority, less the expense of his maintenance during the same time. Mayhow V. Bums, (Ind.) 2 N. E. JRep. 793 ; Stafford v. Rubens, (Ill.) SN.E. Rep. 508; Pennsylvania Co. v. Lilly, 73 Irid. 252; Oily of Chicago v. Scholten, 75 111. 468; Rockford, R. 1. St. L. R. Co. v. Delaney, 82 Ill. 198and the jury may take into account the reasonable expectation of pecuniary benefit from the continuance of the life even beyond majority. Johnson v. Chicago & N. W. R. Co., (Wis.) 25 N. W. Rep. 223.</p> <p>But where the next of kin are collateral kindred of the deceased, and have not received pecuniary aid from him, they will be entitled to nominal damages only. City of Chicago v. SehoHen, 75 Ill. 468.</p>

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

<p>1. Street Railways — Cable Cars — Diligence Required.</p> <p>Street railways, as common carriers, are "bound to tire exercise of a high degree of care and diligence in their business, in the care and protection of the persons and lives of their patrons and passengers; are bound to exercise that high degree of care and diligence in the protection of the persons of its pa-irons, as is usually exercised by very prudent persons in their own business, under like circumstances, and are liable for injuries resulting to passengers from their negligence or want of such care and diligence.</p> <p>2. Same — Negligence—Injury to Passenger Attempting to Get on Cars.</p> <p>Where a person, without negligence on his part, and while the cars are standing still waiting for passengers, endeavors to go aboard the car, with the intention of paying fare and becoming a passenger, and the conductor of the car, without giving such person reasonable and sufficient time to enter, negligently caused or suffered the car suddenly to start, whereby the person attempting to board the same is injured, the company will be liable.</p> <p>8. Same — Contributory Negligence.</p> <p>But where the injury was caused by the person’s want of care and prudence in attempting to get on the car while it was in motion; or where his own negligence or want of care contributed in any manner to produce the injury, there can be no recovery.</p>

<p>1. Attachments — Fraud—Claimant—Burden of Proof.</p> <p>On a proceeding by attachment against a debtor fraudulently conveying or concealing his property, where a claim is interposed, the rule is the same as to the burden of proof as in other claims.</p> <p>2. Same — Traverse after Judgment.</p> <p>Where a defendant in attachment has not traversed the grounds of attachment after a judgment against the defendant, the claimant cannot traverse.</p>

<p>1. Patents for Inventions — Preliminary Injunction.</p> <p>Ño new facts appearing from defendant’s affidavit, a preliminary injunction was granted in tiiis case, without an examination of the merits or any expression of opinion upon the validity of the patent; following the ruling in 0ary v. Wolff, 21 Fed. Rep. 139.</p> <p>2. Same — Motion to Dissolve Preliminary Injunction.</p> <p>Upon a motion to dissolve the preliminary injunction, the defendants conceded the utility of the invention, hut sought to show by affidavits that the patentee was not the first inventor. The court, not deciding that such evidence was conclusive as to the prior use, held that it was of a character to suggest grave doubts on this point, and dissolved the injunction.</p> <p>3. Same — Rule as to Dissolving Injunctions.</p> <p>It is a good rule that evidence which would prevent the issuing of an injunction ought to he regarded as sufficient to dissolve one already granted.</p>

<p>1. Collision — Hell Gate — Inspectors’ Rules.</p> <p>The large steamer P. R., having the steam-tug G. H. D. and a tow ahead of her and on her starboard side, exchanged signals of two whistles, by which it was understood that the P. R. should pass the tug in going through Hell Gate. Held, that this being a violation of the inspectors’ rule 9, which required the P. R. to drop astern in that situation, both vessels were culpable for the violation of the rule; and, the violation not appearing to be immaterial, both were held in fault on that ground for the collision that ensued a little above Flood rock.</p> <p>3. Same — Stopping and Backing.</p> <p>Held, further, that the tug was also in fault for going in the middle or to the left of the middle of the stream after such signals, instead of keeping on the right-hand side, as she might have done, to give the P. R. more room; and that the P. R. was also in further fault for not having stopped and hacked in time, as she might have done upon observing the course that the tug was holding.</p>

<p>In Admiralty.</p> <p>The cause came up to be heard on libel, answer, and proofs.</p>

<p>Admiralty Appeal.</p>

<p>1. Marine Insurance — Expenses of Litioation — Sue and Labor Clause— Previous Suits — Seaworthiness of Vessel — Estoppel.</p> <p>Certain insurance companies, in conjunction with, cargo owners, defended against a claim on a bottomry bond. The cargo was finally released from the claim. Afterwards, on suit brought by the cargo owners against the insurance companies, under the “sue and labor” clause in the policies, to recover the expenses of defending the bottomry suits, the company set up the unseaworthiness of the vessel, which they had not utilized as a defense in the previous suits. It appearing that such a defense would not have availed in the former suits, and that in part, at least, at the time of the former litigatio'n the condition of the vessel was unknown to the companies, and that libelants were not misled in any way by the former assistance of the companies, held, that the companies were not estopped in this litigation from using such a defense, nor was there anything in the above facts to prevent an inquiry in this suit into the question of unseaworthiness.</p> <p>2. Same — Unseaworthiness of Vessel — Policy of Insurance.</p> <p>The evidence showing that there were facts tending to indicate unseaworthiness, unless explained, and no explanation being offered, held, that, as the vessel was nnseaworthy when she sailed, the policies of insurance never attached, and cargo owners could not recover of the insurance companies the expenses of defending the former suits.</p>

<p>Motion to Remand the Cause to the Orphans’ Gourl oí Allegheny County.</p>

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

<p>1. Injunction — Private Letters — When Opposing Parti Entitled to Put in Evidence.</p> <p>Whore a party seeking to procure an interlocutory order uses documents or letters in the affidavit therefor, at any subsequent stage of the action, the opposing party will be entitled to introduce such letters or documents in evidence against the party who originally used them,</p> <p>a. Sure — Corporations—-Letters op the Officers of.</p> <p>A corporation can speak or act only through its officers or agents, and their declarations made in the course of thoir employment, and relating to the immediate transaction in which they are engaged, are always competent as against the company.</p> <p>8. Same — Confidential Communication — Letter of Corporation's Attorney.</p> <p>Where a corporation has produced in evidence fragmentary parts of the letters of its attorney, written to the other officers of the company, it cannot be allowed to shelter itself behind the privilege to insist upon the privacy of the communications. By introducing any part it surrenders its privilege as to the whole of such letters.</p>

<p>1. PARTNERSHIP — INSOLVENCY—RETIRIN'<} PARTNER — CREDITORS’ BlLT,.</p> <p>Where the insolvency of a Ann is self-proclaimed, and one partner, Iseman, for a pecuniary consideration, and the undertaking of the other partner, Strang, to pay the debts of the firm, retires from the concern, leaving all the social goods, claims, and choses in action in the possession of Straus, who proceeds to sell and collect, and advertises in a public newspaper that the Arm has been dissolved, and that he will continue in the same business, and settle the debts of the concern, held, that here was a transfer of the partnership effects from the firm to Straus; such a transfer as gave to creditors at large of the firm a right to file a bill in equity under the authority of section 2 of chapter 175. p. 112(i, of the Code of Virginia, (1873,) which authorizes suit to be brought before judgment is obtained or execution levied or returned.</p> <p>2. Same — Equity Jurisdiction.</p> <p>Held, upon the proofs in this case, that jurisdiction in equity attached independently of the charge of actual fraud; that it attached on other grounds, on which per ■ie equity may proceed, viz., on the right of creditors and of the members of the partnership to an account; also on the ground of the trust imposed upon Straus resulting from his holding effects which had been the subject of a voluntary transfer from the firm to himself; and also on the ground of constructive fraud in the transfer by the firm of the partnership effects to Straus.</p> <p>3. Same — Motion to Dismiss.</p> <p>Held, that after answer filed, full proofs taken, and final argument of counsel, final hearing by the court, and a decision of 1he principles of the case, it was too late to move for dismissal for want of jurisdiction, on the ground that no one of several complainants in the hill held a matured claim against defendants amounting to §500; it appearing from the hill that each complainant held other claims not yet payable, making, with those due, more than §500, none of which were disputed by the defendants, who were confessedly insolvent.</p> <p>4. State Laws — Construction by State Courts — Federal Courts.</p> <p>Where the law of a state determines the rights of suitors and those rights come before a federal court, either in a case at law or inequity, for adjudication, that court is hound to accept such exposition of the meaning of the state law as the court of last resort of the state has given it.</p> <p>5. Same — Setting Aside Voluntary Transfer.</p> <p>Accordingly, in a suit in equity in a federal court, founded upon the second section of chapter 175 of the Code of Virginia, which gives the right to a creditor at large to file a bill for setting aside a voluntary transfer of property, and seems to give a lien to the suing creditor, on defendant’s estate, from the date of the filing of the hill, which effect it had been decided to have by the supreme court of appeals of Virginia, held, that the federal court must respect the lien so declared to exist, and distribute the fund in its hands according to the priority attaching to it, rather than by the rule of pro rata.</p>

<p>1. ASSIGNMENT FOR BENEFIT OF CREDITORS — CAPITAL OF MERCHANT.</p> <p>The capital of a merchant is that fund which is put up and subjected to the risks of his business as a basis of credit, and as a security to his mercantile creditors against loss from the accidents and misfortunes of trade.</p> <p>2. Same — Preferring Relations.</p> <p>If, in any case, this capital is all borrowed, and yet the merchant holds himself out, and allows mercantile agencies to publish him, as owning it in his own right, then a deed made after his failure in business to prefer relations who lent him this capital over the claims of his mercantile creditors is invalid for such a purpose.</p> <p>8. Same — Borrowed Capital — Assignment to Protect Lenders.</p> <p>A merchant, on going into business, borrows large sums from various near relations, and puts the money so raised into the business as capital. The money so borrowed is soon used up in buying out a retiring partner and personal and business expenses. Notwithstanding this, he rates himself in the mercantile agencies as having a capital of $20,000. He afterwards fails, and makes an assignment to a trustee who was his confidential clerk, cognizant of the true state of his affairs, preferring his relatives from whom he had borrowed money. Held,, that the assignment was void as tending to hinder and delay creditors.</p> <p>4. Same — Assignment Void.</p> <p>A deed empowering the trustee to continue the business for such time as he should think best, and in doing so to make such purchases as might be necessary to enable him to continue and carry on the business with a view to winding it up, and conferring on the creditors no power to check or control the trustee and to wind up and terminate the business, held, in this particular case, to be void on its face, as tending to hinder and delay creditors.1</p> <p>NOTE.</p> <p>rui general discussion of the question of assignments for the benefit of creditors, preferences in, void assignments, ana fraudulent assignments, see Wooldridge v. Irving, 23 Fed. Rej>. 676, and note, 6S2-691.</p> <p>An assignment for the benefit of creditors, authorizing the assignee “to carry on and conduct said business in his discretion, for such time as in his judgment it shall be beneficial to do so ; or to sell all of said goods and stock in trade and property at such times, in such manner, and for such prices as he may deem proper, and apply the net proceeds;” etc., — is void. Jones v. Syer, 52 Md. 211.</p> <p>An alignment for the benefit of creditors, authorizing the assignee to “sell and dispose of the property, and generally convert the same into money, upon such terms and conditions as in his judgment may appear just and for the interest of all parties interested," was held not to be void upon its face, in Brahmstadt v. McWhirter, (Neb.) 2 N. W. Rep. 232.</p> <p>It was said in Richardson y. Marqueze, 59 Miss. 80, that an assignment for the benefit of creditors is not invalidated by empowering the assignee in his discretion to sell for cash, or on such credit as lie shall deem for the advantage of all the creditors.</p> <p>In Perry Ins. & Trust Co: v. Poster, 68 Ala. 602, an assignment, for the benefit of creditors, of a plantation, together with the personal property used in cultivating crops upon it, was made in the spring; and provided that the sale should bo delayed until the first o ('December following; and that meantime the property should remain in possession of the assignors, to be used in cultivating the crops; and that ihc crops, when gathered, should he delivered to the assignee, and distributed under the assignment. It appearing that such property could not be advantageously rented in the spring, and would he sacrificed by a sale then, or if stripjjed of the personal property, the provision in the assignment was held valid.</p>

In Equity. Motion lor injunction. The complainants allege in their bill that they purchased all the property and franchises of the St. Louis, Hannibal & Keokuk Hail-road Company, December 8, 1885, when the same were sold under a decree of this court in the foreclosure suit of Blair v. St. Louis, //. é K. R. Go., and are still the owners thereof; that during the pen-dency of said suit, and while said property was in the hands of a receiver appointed by this court, judgment…

In Equity. In the matter of the motions to remand on the petition of the United States Trust Company. The United States Trust Company, being desirous of foreclosing its mortgage on the Omaha Division of the Wabash system, appeared by its attorney, Mr. Sheldon, before Brewer, J., and obtained an order permitting it to make tlie receivers appointed in tlie ease of Central Trust Co. v. Wabash, St. L. á Pac. lly.

<p>Action to Recover Damages for Conversion of Timber.</p>

<p>Buling on Demurrer.</p>

<p>1. Indian Saw-Mild.</p> <p>Lumber made at the saw-mill on the Grand Ronde Indian reservation is in fact the “property” of the Indians thereon, and not that of the United States, within the purview of section 3618 of the Revised Statutes; and the agent, subject to the instructions of the commissioner of Indian affairs, may dispose of any portion of the same, and apply the proceeds to the support of the mill, or otherwise for the benefit of the Indians, without reference to section 36Í7 of the Revised Statutes, requiring’ money received for the use of the United Stntes to be deposited to its credit.</p> <p>2. Dorr,i,k Payment or Salary.</p> <p>Tire superintendent of Indian affairs in Oregon returned to the department two vouchers for the payment by him of the salary of the agent of the Grand Hondo reservation for the second quarter of 1873,"each being marked “triplicate,” from which the accounting officers assumed that the salary was paid twice, and charged the agent with the amount of such payments in the settlement of his official accounts. Held, (1) that on the face of the transaction it was apparent that these two papers wore but parts of one voucher taken in triplicate, and that there was but one payment; and (2) that, if there had been two payments, the agent, although liabfe for the excess, as an individual, as for money had and received to the use of the United States, was not liable therefor on his bond.</p> <p>3. Money Paid by Agent Without Authoiuty.</p> <p>The defendent Sinnott employed a person on the reservation aforesaid, as “superintendent of farms and mills,” and, in reporting the fact to the commissioner, said that he did so at the instance of “some political friends, ” but there was really no necessity for the employment, and advised that it be disapproved, which was done; but the agent continued the person in such employment, and paid him therefor, and, on settlement of his accounts at the treasury, §1,500 thereof was disallowed. Held, that the payments being not only without authority, hut contrary thereto, were illegal, and the agent and his sureties are liable therefor.</p>

In Assumpsit. Two verdicts in favor of the plaintiff were set aside in this case. The nature of the claim and the principal facts of the case are set out in the following opinion.

<p>Corporation — Transfer of Stock — Attachment—Right of Transferee.</p> <p>On December 80, 1875, A. sold certain shares of bank stock to B., and assigned them by a transfer written on the back of the certificate. By the bylaws of the bank, stock was transferable only on the books of the company. On December 14,1878, the shares were attached by a judgment creditor of A., and sold and transferred to C. Neither the bank nor the creditor had knowledge of the transfer to B. In January,' 1880, B. presented his certificate and transfer to the officers of the bank, and demanded a transfer of the stock, which was refused, whereupon he brought suit against the bank for such refusal. Held, that the bank was liable ip. damages for the refusal to transfer the shares.</p>

<p>1. Supervising Inspectors — Authority to Make Rules — Lights — Rev. St. § 4405 — Amendment op "February, 1885, Void.</p> <p>The supervising inspectors of steam-vessels have no authority, under section 4405 of the Revised Statutes, to establish regulations to be observed by vessels, except such as relate to carrying out some of the provisions of title 53. The subject of lights to be carried by barges, or other vessels, is not included in any of the provisions of title 52, hut is regulated by title 48. Held, therefore, that the amendment made February, 1885, to section 20 of general rule 3 of the supervising inspectors, requiring barges in tow to carry a red and a green light, is unauthorized and void.</p> <p>2. Same — Barges—Rule 8, Section 4233 — Penalties—Rev. St. § 4500 — Case Stated.</p> <p>The master of the coal-barge R. I. was sued for a penalty of $500, under section 4500, for not carrying colored lights, as prescribed by the amendment to the supervising inspectors' rules passed February, 1885. Held, that barges that have neither sails nor masts are not “sail-vessels” within rule 8, § 4233, nor required under any statutory authority to carry colored lights; and for not do'iiig so are not liable to the penalties prescribed by section 4500.</p>

<p>1. Patents for Inventions — Combination Claim — Infringement.</p> <p>A claim for a combination of three elements is not infringed by the use of only two of them, where the omitted element has a function of its own not performed by the elements used in the device claimed to infringe.</p> <p>2. Same — Equivalents.</p> <p>An inventor who is only an improver, and not the first in the art, is not en titled to invoke broadly the doctrine of mechanical eauivaients, so as to cover devices not specifically claimed.</p> <p>8. Same — Wardrobe Bedsteads.</p> <p>The patent tó Blackmore and Green, assignees of Hand and Cauher, in o. 204,321, of May 28, 1878, for wardrobe bedsteads, construed, and held not infringed by a bedstead made under the patent to Robert P. Meissner, No. 270,327, of January 9, 1883.</p>

<p>1. Patents for Inventions — Construction of Claim.</p> <p>Details of construction will not bo construed to be essential features of a claim, in order to sustain its validity, where the claim does not in any-way refer to such details, and the references thereto in the specification are merely recommendatory. •</p> <p>2. Same — Device Shown but not Claimed.</p> <p>The drawings of the patent showed a lock-case having recessed or notched end-pieces, but no reference, in terms, to notches or recesses was found in the specification or claims. Held, that this fell far short of making the notches or recesses an essential feature of the claims.</p>

<p>1. Patents for Inventions — Anticipation.</p> <p>Defendant offered two witnesses, a rejected application, and models said to be constructed in accordance with the rejected application, to prove an anticipation; hut the witnesses could not swear positively the alleged prior device embodied the patented features, nor that the rejected application described such device. The court found that the models offered did not correspond'with the description in the rejected application, and it was not evident that the models introduced nor the alleged prior device were operative. Held, that an anticipation was not made out with the necessary clearness and certainty.</p> <p>3. Same — Lapse of Time — Abandoned Experiment.</p> <p>In considering an alleged anticipation, the lapse of time, (17 years in this case,) and the fact that during that time nothing has been done by the alleged prior inventor, must be considered.</p> <p>3. Same — Little Time-Look Patent.</p> <p>The alleged prior device of Robert S. Harris, Dubuque, Iowa, held, to have been an abandoned experiment.</p>

<p>1. Collision— Obligations of Ferry-Boats when Approaching Slips.</p> <p>The ferry-boats Pavonia and Weebawken had ships on tbe New York side about 750 feet apart, tbat of tbe Weebawken being tbe lower. Tbe location of tbe slips on tbe other side of tbe river was sueb tbat tbe courses of tbe two boats crossed. In consequence it was customary for tbe Weebawken to give tbe Pavonia, on tbe New York side, tbe right of way from tbe time she commenced to swing for ber slip. When tbe tide was flood, tbe Pavonia usually commenced to swing for ber slip when belowit and to drift up with tbe tide. This sometimes made it more convenient for tbe Weebawken to go inside of tbe Pavonia and to keep up tbe river between tbe Pavonia and ber slip. Tbe collision occurred on tbe New York side, and about 200 feet from tbe entrance to tbe Pavonia’s slip. Tbe Pavonia bad begun to swing for her’ slip before tbe collision occurred. Tbe tide was flood, but tbe direction and force ottbe wind were such tbat it was not necessary for tbe Pavonia to go as far below ber slip as was usual with tbe flood-tide. Tbe Weebawken bad been coming up tbe river at a distance of between 100 and 200 feet out in tbe channel, and was inside of and between tbe Pavonia and tbe line of slips at tbe time of collision. Held., tbat tbe Weebawken was not justified in departing from tbe established practice of tbe boats by wbicb tbe Pavonia was entitled to tbe right of way to ber slip, and was in fault in attempting to cross tbe bows of tbe latter vessel when swinging to ber slip.</p> <p>2. Bule, Irrespective of Usage.</p> <p>Tbe case falls under tbe operation of tbe twenty-fourth rule of navigation, and tbe regulations of supervising inspectors do not apply. Irrespective of usage, general considerations of convenience and prudence demand tbat a ferry-boat having ample room to do so should keep out of tbe way of another about entering ber slip, or in such close proximity to it tbat she has m’adoher final preparatory movements to enter. If tbe circumstances require ber to make a circuitous swing to conform to tbe varying condition of wind and tide, she should not be embarrassed by tbe presence of another boat in such close proximity to ber as to involve risk of collision if any miscalculation or unforeseen emergency should occur.</p> <p>8. Bulb as to Signals.</p> <p>When tbe boat having tbe right of way fails to respond to tbe signal of tbe boat whose duty it is to keep out of tbe way, tbe latter has no right to assume, because of such silence, tbat tbe former abandons ber right of way.'</p> <p>4. Defective Lookout.</p> <p>When there are no obstacles in tbe way, tbe fact tbat tbe approaching vessel is not seen is all that is necessary to impute negligence on tbe part of tbe lookout. Both vessels having been negligent, and the collision having been caused thereby, tbe damages will be divided.</p>

<p>Maiutime Lien — Home Pout — Supplies Toma sued Vessels Navigating- Canals — Western AND NORTH-WeSTERN LAKES — NEW YORK STATUTE CONSTRUED.</p> <p>If supplies are furnished in tho home port, the duration and requisites of tho lien depend upon 1he terms of the state statute. If the vessel he engaged in canal navigation, the specification of the debt must be iiled in the ofiice of the canal department; or if in lake navigation, her employment therein must he shown. The burden of proof is on the libelant. An occasional venture on a lake does not make the vessel a lake boat, if her size, equipment, and other circumstances indicate that such is not her usual employment.</p>

<p>1. Navigable Rivers — Bridges—Actios by United States.</p> <p>The United States may maintain a suit to compel a company assuming to exercise the authority conferred by the act of Congress of December 17,1873, (authorizing and regulating bridges over the Ohio river,) to comply with the provisions thereof, or to abate as a public nuisance an unlawful structure so erected, when an obstruction to navigation.</p> <p>3. Same — Obstruction—Jurisdiction of District Court.</p> <p>Litigation between the government and such company touching an obstruction to the navigation of the river, created by the construction of a bridge under said act, presents a cause within the terms of the sixth section, and heneo is cognizable by the designated district court.</p> <p>8. Same — Information in Equity — Proper Remedy.</p> <p>In such case the appropriate remedy is by an information at the suit of the attorney general in equity.</p> <p>4. Hamts — Order of Secretary of War — Dike.</p> <p>A company proposing to construct a bridge over the Ohio river, under said act, submitted its designs, etc., to the secretary of war, who, pursuant to the provisions of the act, convened a board of engineers to examine the case, which board, after hearing the parties interested, recommended certain changes of location and plan, a dike 800 feet long being one of the new features so recommended. The company, accepting- the recommendations of the board, modified its plan to conform thereto, and the same was approved by the secretary of war. Official notice of such approval having been given to the company, it proceeded to construct its bridge at the appointed location in accordance with the approved plan. After the piers wore erected, and the superstructure almost- finished, the secretary of war made an order directing the company to construct a dike 918 feet in length. Ifekl, that, the secretary of war had no authority to make that order, and the company was not bound to comply with it.'</p>

<p>On Final Hearing.</p>

<p>1. Railroad Company — Lien of Contractor.</p> <p>Where a construction contract for building a railroad was set aside, at the instance of the railroad company, as ultra nires, with an allowance of compensation to the contractor for work actually performed by him, held, that for the sum so allowed him ho was entitled to a contractor’s lion under tho Pennsylvania statute,' — the resolution of January 21,1843.</p> <p>2. Same — Priority oe Lien.</p> <p>Tho contractor’s claim is to bepreferred to that of adverse counsel for serv ices rendered the company in tho litigation with the contractor.</p>

<p>Equity — REFORMATION OB’ ROND — jFaADD—MISTAKE.</p> <p>In order to justify tlio reformation of a bond on the ground of fraud or mutual mistake such fraud or mistake must bo most clearly proved. Reformation of bond refused.</p>

<p>Trial — Striking Case from Calendar — Erroneous Entries by Clerk.</p> <p>Case struck from trial calendar, because the entries of the clerk show that no issue remains for trial.</p>

<p>1. Contract — Release from Contract — Authority oe Officers.</p> <p>A by-law of the plaintiff corporation gave the superintendent, with the approval of the president of the company, authority to buy and sell material, and make all contracts for the same, and for work, etc. These officers made a contract for furnishing a large quantity of iron rails to defendant company. After a part performance the purchaser became embarrassed and unable to meet its payments, and in consideration that a third party who had no funds of the debtor, and was under no obligation to make the payment, would pay certain past-due drafts held by .the plaintiff against the defendant, the said superintendent and president and treasurer of the plaintiff agreed to, and did, on such payment, release the defendant from said contract, and all damages for a breach thereof. Held, that the acts of those officers were within the scope of their authority; that the payment by the third party was sufficient consideration for the release; and that the same was valid and discharged the defendant.</p> <p>8. Same — Execution of Bond — By-Laws.</p> <p>Where a by-law provided that the superintendent of the company and all other persons should be subject to the control of the board of directors, in everything where the board shall elect to enerrcise such control, and the board did not elect to interfere with or control the contract for the sale of iron rails to defendant, nor did the board, after full knowledge of all the facts concerning the said release, elect to repudiate the same until several months afterwards, held, that the board must be presumed to have waived its right of interference, and consented to the action of its officers.</p>

<p>Bankruptcy — Trust Fund — Lien, when Lost — Identification.</p> <p>V. & Co., in 1864, more tlian six years before Üieir failure, received certain moneys collected from an insolvent debtor, on behalf of themselves and various other creditors, acting jointly. It was so credited on their books, and their own share and expenses deducted. Ho attempt, was made to trace this fund specifically into the hands of the assignee in bankruptcy, and the circumstances leave no doubt that it was converted by V. & Co. and used in their general business before their failure. Held, that no specific lien existed, in favor of the rightful distributees of the fund, in 1864, upon the funds now remaining in the hands of the assignee in bankruptcy.</p>

<p>Patents for Ikvektions — Ixfring-emkivt—Djbmicttvu Px,eax)tkcís~^Praotioe.</p> <p>By taking issue upon a plea the complainants admitted its sufficiency; and the defendants, having established the truth of the facts alleged in their plea, are entitled to a judgment.</p>

<p>1. Patents t?or Inventions — Construction of Claim.</p> <p>The first claim of letters patent No. 119,561, to Abraham L. Bogart, October 3,1871, for “an insulated gas-burner, having its insulated section of or from glass or similar vitreous material, substantially as and for the purpose specified.” cannot bo construed, in view of the state of the art, as a broad claim for a gas-burner in an electric lighting system having an insulated section of the materia] mentioned.</p> <p>2. Same.</p> <p>But this claim should not be limited to an insulated burner having all the details of construction described in the specification, as such a construction of the claim, in view of the prior state of the art, would unduly narrow the scope of the real invention of the patentee.</p> <p>3. Same.</p> <p>The essential novelty of the patentee’s invention consists in selecting an appropriate insulating' material, and making from it the upper part of a gas-burner which will serve both to support and insulate the electrical conductor, and as a gas-way from the gas-pipe to the place where the spark is communicated to" the gas.</p> <p>4. Same.</p> <p>The claim, as construed, valid, although an entire gas-burner made of substantially the same material, but with no thought of its utility for insulating purposes in an electric lighting system, was old, and although other inventors had inserted insulating material in electric lighting burners, employing independent insulators and independent insulated sections,</p> <p>ñ. Same — Invention.</p> <p>In view of the comparatively unsuccessful efforts of those who preceded patentee, and of the manifest improvement which resulted from the changes made by him, hold, that what he did involved invention.</p>

<p>1. Patents for Inventions--Machines for Mowing under Water.</p> <p>Letters patent No. 154,900, of September 8, 1874, to Thomas Piper, for improvement in floating mowing-machines, are valid; hut the claims are narrow, and cover the combination of elements shown, or known equivalents therefor.</p> <p>2. Same — Equivalents—ínebingement.</p> <p>The patent described and claimed the combination, with a boat, of the ordinary cutting device of a mowing-machine, whereby grass and weeds could be cut below the surface of the water; the reciprocation of the sickle being effected through a vertical, vibrating lever, pivoted near its center, and connected at one end to the sickle, and at the other to machinery on the boat. Defendants employed the same devices, except that they communicated motion to their sickle by means of a vertical, revolving shaft, having a short crank connected to the sickle. Jfdd that, as this shaft and crank performed the same function as complainant’s lever, and no other, and was a known equivalent, the charge of infringement was fully sustained.</p> <p>?>. Same — Piper’s Invention Stated.</p> <p>The problem solved by the patentee was the adapting of the ordinary cutting apparatus of a mowing-machine to the use of cutting weeds and grass under water, by suspending such cutting apparatus from a boat, and'-imparting motion to the cutler from machinery on the boat; and its solution required more than mechanical skill.</p> <p>4. Same — Anticipation.</p> <p>This patent not anticipated by devices for dragging scythe-blades under water at the stern of a boat; by a device for cutting weeds along-side of a railroad track, consisting of the cutting apparatus of an ordinary mowing-machine extended from the side of a car or truck; nor by pile-cutters having circular or reciprocating saws, working under water from motion imparted to them by machinery above the water through shafts or levers.</p>

<p>1. Patents fob Inventions — Patentable Combination.</p> <p>A patentable combination is not necessarily affected by tiie tact that all the elements forming it are old, if by their co-action a new and useful result follow; bat there must be a co-action among them, to take tho case out of tho category of a mere assemblage or aggregation of parts.</p> <p>2. Same- — Invention—Mechanical Skua.</p> <p>Merely assembling old parts together, or placing them in juxtaposition, does not indicate invention. Some new or peculiar function, produced by such a combination, must be developed; and unless this follows, the now arrangement is the mere exhibition of mechanical skill.</p> <p>3. Saji® — Aggregation not Invention.</p> <p>An assemblage of old parts, each of which performs the same function that it has performed in other old combinations, does not form the subject of a valid claim.</p> <p>4. Same — Particular Patent.</p> <p>The first and third claims of letters patent No. 192,057, of June 19. 1877, to Oliarles P. Dewey and Robert P. Scott, for improvement in ice-creepers, do not cover patentable combinations.</p>

<p>1. Patents for Inventions — Infringement.</p> <p>The first claim of letters patent No. 255,229, of March 21,1882, to Charles 0. Wilson, for improvement in hand-stamps, held valid and infringed.</p> <p>2. Same — Feature Shown but not Claimed in Patentee's Earlier Patent.</p> <p>The fact that the complainant showed a feature in an earlier patent did not of itself preclude him from claiming it in a subsequent patent, under the rule in Graham v. McCormick, 11 Fed. Rep. 859, and cases there cited.</p> <p>3. Same — Additional Function Performed by Infringing- Device.</p> <p>The fact that defendants’ device is an improvement, and, as such, patentable, does not entitle him to use the patented device without license.</p>

<p>1. Collision — Vessels Meeting in Narrow Channel — Right of Way.</p> <p>The rulo that a vessel going with, the tide through a narrow, dangerous channel has the right of way, and that a boat going in the opposite direction is bound to wait until the descending vessel has come through, cannot be justly applied when the descending boat has other channels available on the right hand side.</p> <p>2. Same — I-Iell Gate — Several Channels — Keeping to the Right. .</p> <p>Vessels on the ebb-tide, bound down through Hell Gate, where three channels are available, should not take the east-channel, if they have notice that a boat is coining up; and vessels going up on the right, through the east channel, have the right to assume that descending steamers, in't.he absence of any contrary indication, will keep to their own right, and pass through one of th' other two channels, and not attempt the east channel to the left.</p> <p>8. Same — Bend in River — Several Channels — Long WnisTLE — Inspectors' Role 6.</p> <p>A long whistle, given in accordance with the inspectors' rule 6, “ on approaching a bend in the river, ” is no intimation, where there are three equally available channels around the bend, that the vessel giving it intends to take the channel to her own left, and such a whistle from a vessel, after passing Negro point with the ebb-tide, is not in practice so understood.</p> <p>4. Same — Case Stated — Ascending Boat not Bound to Wait,</p> <p>The tug K., with a heavy tow, came down the East river with'the ebb-tide. Soon after rounding Negro point, and before reaching Hallett’s point, she gave one long blast of her whistle, to which the steamer City of S., being then a few hundred yards below Hallett’s point, and bound up through the east channel of Hell Gate, replied with one. The tug rounded the point, and took the east channel, and the steamer being then in the same channel, and abreast of Flood rock, a collision followed between the latter and one of the boats in tow of the tug, for which both the steamer and tug were libeled, caused, as the court found, by the swing of the tide, which sets across the channel at the rate of six miles per hour. Held, that the tug was in fault for taking the east channel, knowing that a steamer, having the right of way, was coming up through it; and especially so, as she was incumbered with" a heavy tow; that the City of S. had a right to assume that the tug would take one of the other channels; that she was not bound to wait below Flood rock to see which channel the tug would take, and that the enforcement of such a rule of navigation in that region would tend to multiply collisions rather than to avert them; that the steamer did all she safely could to avoid the collision, after the intention of the tug became known; and that the libel should therefore be sustained as to the tug, and dismissed as to the steamer.</p>

<p>1. Collision — Management op Vessels in Tow.</p> <p>, A tow was made up as follows: Libelant’s schooner next to and astern of the tug; astern of the libelant, a second schooner; and astern of all, a third, that of the respondents. The distance between the stern of the first and the bow of the last schooner was about 1,200 feet. Each schooner had some portion of her sail set, but as the wind was light and ahead, the sails of all were trimmed flat aft. A squall came up, and with it the wind increased and shifted, coming out on the starboard quarter of each of the vessels. Libel-ant’s vessel, by reason of the fact that her head-sails were down and her after-sails set, was forced up in the direction of the wind, but was prevented from going around by a counter-force, that of the hawsers, by which her bow was secured to the tug, and her stern to the second schooner in the tow, the latter vessel having in the mean while, in consequence of the squall, left her original position astern of the libelant, and had ranged up on her (the libelant’s) port side. The third schooner, that of the respondents, was cast adrift by the second, and collided With the first. Held that, under the circumstances of the case, the collision was caused by no fault of the respondents, hut by the negligence of the libelant, in having the vessel under after-sail only, whereby she became unmanageable.</p> <p>2. Same — Lookout.</p> <p>Held, that the collision having been caused by the negligence of the libel-ant, the temporary absence of the respondents’ lookout, not having contributed thereto, was immaterial.</p> <p>3. Same — Cbeddjilitt op Testimony.</p> <p>Held, that the credibility of the testimony of libelant’s crew with regard to the movements of respondents’ vessel is much weakened by the fact that they were panic-stricken, and took to their boats as soon as respondents' vessel was seen heading towards them.</p>

<p>In Admiralty. On exceptions to commissioner’s report.</p>

<p>In Admiralty. On demurrer.</p>

<p>1. Towage — Ice in Channel — Tug Forced to Shore — Stranding of Canal-Boat — Burden of Proof — Negligence.</p> <p>The tug T. A. came from Perth Amboy to New York, around the southern shore of Staten island, towing a fleet of canal-boats, among which was libel-ant's boat, B. On coming through the lower bay she met a large field of ice, which forced her to the extreme westerly side of the channel, where the B. struck on a rock. Held, that the tug was liable only for want of care, under the circumstances that she met; that the burden of.proof was on the libelant; and that, on the evidence, the stranding was not caused by the tug’s negligence.</p> <p>2. Same — Abandonment of Wreck — Subsequent Possession by Wreckers— Disputed Authority — Increased Damage — Independent Causes — Damages Divided.</p> <p>After the accident, the tug came on to Hew York with the remainder of the fleet, leaving no one in charge of the B. Aid being subsequently sent, the canal-boat was found in the possession of wreckers, and, owing to the disputed authority, and the difficulties and delays arising from it, she became almost a total loss. The evidence indicated that but from this interference the loss would have been greatly lessened. Held, that it was the tug’s duty, having the custody of the canal-boat, to have made all necessary arrangements before leaving her to'prevent her falling into the hands of third persons under color of authority. Hot having done so, and it being impossible to determine with exactness how much of the whole loss was attributable to the original stranding, and how much to the subsequent want of protection, held, the damages should be divided.</p>

<p>Removal of Cause — Separable Controversy — Citizenship.</p> <p>A., a citizen oí New York, filed a bill as creditor of B., deceased, in the state court, against his heirs at law, to compel satisfaction of his debt, out of real estate in their hands. Some of the defendants were citizens of New York, but others were citizens of another state, and the latter removed the case to the federal court. Under the New York statute, although the heirs at law were respectively liable to the extent of the estate which had descended to them, all of such heirs were, nevertheless, indispensable parties to the suit. Meld, that the suit did not present a separable controversy which could be determined, as between the removing defendants and complainant, without the presence of the other defendants who were citizens of New York, and that the cause should be remanded.</p>

On Motion by Plaintiff to Remand Case -to State Court. The opinion states the facts.

<p>1. Unexecuted Mortgage — Foreclosure—Personal Judgment.</p> <p>In the absence of express prohibition, there is no reason why a personal judgment may not be rendered against a debtor in an action in which a mortgage not executed by the debtor is foreclosed.</p> <p>2. Execution Sale — Confirmation—Action to Cancel Deeds after Subsequent Conveyances.</p> <p>As confirmation is a final order, and conclusive upon the regularity of the proceedings in respect to the sale, and as the court had in the case at bar unquestioned jurisdiction of the person as well as the subject-matter, quaere whether, if the proceedings were erroneous, the validity of the judgment, sale, and deed could be questioned in a collateral action to cancel subsequent deeds.</p>

<p>1. Specific Performance — Contract of Ancestor — Consideration—Payment to Executrix — Right of Purchaser.</p> <p>When all the right and title of children and their grantees were received from the father of such children, they took such right and title subject to his contracts; and if that father, or his executrix, have received full payment for any land sold by him, they should be required to surrender to such purchaser the legal title.</p> <p>2. Same — Equity — Protection of- Infants cannot Include Injustice to Others.</p> <p>Equity will not, even in the interest of minors, be tenacious of technicalities, when thereby gross injustice will result.</p>

<p>Public Lands — Additional Homestead — Act of June 8, 1873 — Right to Locate and Enter Personal Property — Sale by Guardian.</p> <p>The right of the children of a deceased soldier to locate and enter 80 acres of public land as an additional homestead under the act of June 8,1873, is personal property, and may be sold and assigned to a third party by their guardian.</p>

<p>Injunctions — Rev. St. § 720 — Preventing Arrests by State Officers for Violation of Unconstitutional City Ordinances.</p> <p>The circuit court cannot issue an injunction to prevent a police officer of a city from serving warrants of arrest issued by a state court for violation of city ordinances claimed to he in contravention of the fourteenth amendment of the United States constitution and the treaty with China.</p>

<p>Sale of Stock — Rescission of Contract — Fraud—Mistake—Evidence.</p> <p>No fraud, deceit, or mutual mistake justifying a rescission of the contract sought to he avoided being shown, the bill is dismissed.</p>

<p>On Exceptions to Answer.</p>

<p>1. Tax Title — Treasurer's Deed — Evidence.</p> <p>In an action to quiet title, under the provisions of section 897 of the Iowa Code, it is incumbent upon defendant to show that ho has a title or interest, in the land in dispute, before he can be permitted to question the validity of the title presumptively shown to be in complainant by the production of a treasurer's deed, executed in pursuance of a sale made for delinquent taxes, regular in form and execution; and that the case is tried on stipulated or agreed facts will not change the rule in that respect.</p> <p>3. Same — Swamp Lands — Conveyance by County before Title Perfected.</p> <p>Whore, at the time a deed of swamp lands was issued, the county was prohibited by statute from issuing such deed until the title to the land was perfected in the county, a. covenant of warranty in such deed will not inure to the benefit of the grantor, or a party to whom he has conveyed the land, and vest a good title in Mm when the title is finally perfected in the county.</p>

Replevin. Ruling upon prayers for instruction to the jury. In this case the plaintiffs caused to he issued a writ of replevin out of this court on the twenty-first day of June, 1884, under which 3,000 cases of canned tomatoes were taken from a building in Har-ford county, Maryland, which had been occupied by the defendant, Oliver.

This was an action brought to recover $5,000 on a policy of insurance on the life of Mary A. McCaffrey, for the benefit of her sister, Margaret Carrigan, the plaintiff. The declaration was in covenant, and set out the policy at length.

<p>New Trial. — Damages Allowed by Juey Inadequate.</p> <p>In an action to recover damages for personal injuries the verdict should not he disturbed, even though the court may regard it as inadequate, unless something is shown which indicates that the jury were actuated by passion, prejudice, or corrupt motive, or that they made an important and manifest mistake.</p>

<p>1. Fire Insurance — Policy—Keeping N itro - Glycerine on Premises — Dynamite or Giant Powder.</p> <p>The keeping of dynamite or giant powder in a building, without the written consent of the insurance company, will avoid a policy prohibiting the keeping of nitro-glycerine in the building insured.</p> <p>2. Same — Waiver of Provision — Parol Agreement.</p> <p>Such a provision in a policy cannot be waived, or in any way affected, by a parol understanding at the time of the application for the policy, even if it is explicit and direct.</p> <p>8. Same-Custom and Usage.</p> <p>Such a policy cannot be affected by proof of custom or usage as to the keeping of dynamite or giant powder.</p>

<p>1. Patents for Inventions —License—Jurisdiction of Federal Corners to Enforce on Forfeit.</p> <p>It is undoubt edly the rule that where there appears to he a subsisting license between the complainant and the respondent, the jurisdiction of the court, under the patent law, will not be extended to cover a snit to enforce or forfeit the license on the ground that the terms thereof have been violated; citing Kartell v. TUghman, 99 TI. S. 547.</p> <p>2. Same — Juras diction to Determine Whether There is a License.</p> <p>But where a suit is brought for infringement, and the existence of a license is alleged hy the respondent and denied by the complainant, it i„ competent for the court to determine whether, at the'time of the filing of the bill, there was a subsisting license between the parties.</p> <p>3. Failure to Pay Royalties — Termination of License.</p> <p>Defendant failed to pay royalties, and thereupon complainant served notice of termination of the license! in the manner provided by its terms, a,nd after-wards filed his bill for infringement. Defendant sought to excuse his failure to pay royalties on the ground that ho could not ascertain where the owner of the patent was when they fell due, offered to pay any sums due under the license, and urged that it ought not to be forfeited. Held,, that the question to he decided was not whether the license should be declared forfeited, but whether it had already been forfeited by the acts of the parties pursuant to its provisions.</p> <p>4. Same — Agreement for Forfeiture.</p> <p>An agreement that, upon failure of a party to a license to perform his covenant, it may be forfeited by a written notice served on him, is valid, and may be enforced. White v. Lee, 3 Fed. Rep. 222, 4 Fed. Rep. 916, and 14 Fed. Rep. 789.</p> <p>6. Same — Effect of Forfeiture.</p> <p>When a license is terminated by service of notice in accordance with its provisions, it ceases thereupon to protect the licensee, and a bill against him for infringement 'will lie.</p>

<p>Petition for Rehearing.</p>

<p>1. Patents for Inventions — Want of "Novelty.</p> <p>A claim reading: “As a new article of manufacture., a plug'of tobacco one or both faces of which are marked off by indented lines, which serve to secure the wrapper to the filling, and also as guides for cutting up the plug into small pieces of definite size and weight, ” — is void for want of novelty, in view of the fact that it was common, prior to the date of the alleged invention, to mark cakes, candies, choeolato, etc., with indented lines to indicate measured quantities.</p> <p>3. Same — Incidental Utility.</p> <p>A feature of utility which is merely incidental to the main purpose of the invention is not, of itself, sufficient to sustain a claim, where it is shown that the main purpose has been accomplished prior to the date of the alleged invention.</p> <p>3. Same — Particular Patent.</p> <p>Patent No. 300,133, of February 13, 1878, to James Drummond, for an improvement in marking plug tobacco, is void for want of novelty.</p>

<p>1. Patents nor Inventions — Agreement to Assign Future Improvements.</p> <p>G. & 0. contracted with 8. to give him the refusal of tho purchase of a patent, at any time within a year, for a stipulated price, and, as a consideration for this option, S. agreed that, if he did not so purchase, he would assign to 0. & G. any and all improvements upon or relating to tho invention described and shown in tho patent, which he might make or patent. He elected not to purchase, but refused to assign his improvements claimed to he within the contract, whereupon this bill for a specific performance was filed against him. Held, that the contract only contemplated and covered improvements made ■within the year therein specified.</p> <p>2. Same — Construction of Patent — Rocking and Tilting Chairs.</p> <p>The distinction between a tilting and a rocking chair — that the former takes its motion from a single point or pivot, and the latter from an axis which is continually changing — recognized as “a well-defined difference” between them; and the M. D. Connolly patent of December 19, 1876, construed, and held to cover a tilting-chair, whose seat and occupant are supported by a central spiral spring, interposed between and connecting the upper and lower parts, hut not a chair in-which the weight of the occupant is sustained by rockers resting on base supports.</p> <p>3. Practice — Costs, when Allowed.</p> <p>Costs are always awarded to the successful party, unless there has been something in his conduct which renders such a course inequitable and unjust to the losing side.</p> <p>4. Same — Costs Refused on Account of Defendant’s Conduct.</p> <p>In this case the defendant had written various letters, in the hope of an advantageous business arrangement, suggesting that his improvements, patented and unpatented, related to the Connolly, patent, which induced the complainant to purchase the interest of C. & C. in the contract; but he after-wards assumed a different ground. Held, in view of't-hese letters, so written and acted on. that he should not be allowed to recover costs.</p>

<p>1. Patents for Inventions — When Employer may Use Improvements Made by Employe.</p> <p>The improvements covered by the second and fourth claims of letters patent No. 162,789, of May 4, 1875, for machines for finishing horseshoe nails, were made while the inventors and patentees were in the employ of the defendant company, under agreements whereby said company acquired the right to use all improvements made by complainants, and applicable to its nail-finishing machines, and hence complainants cannot demand compensation for such use.</p> <p>2. Same — Preponderance oe Evidence.</p> <p>Against the testimony of one of the contplainants, that he had not agreed his employer might use his improvements, was opposed the testimony of two equally credible and disinterested witnesses, one of whom had made a written entry or memorandum of the agreement on an occasion when it was assented to by complainant. Held, that the preponderance of evidence was in favor of the employer.</p> <p>3. Same — Presumptions from Relations oe Employer and Employe.</p> <p>Where the patented improvements were developed and perfected at the sole expense of an employer, by employes who received extra pay on account of their known ability as inventors, held, that these facts, standing alone, made a very strong case in favor of the right of the employer to use such improvements without further compensation.</p> <p>4. Sasíe — Novelty—Infringement.</p> <p>Although this case is expressly decided on other grounds, the court had grave doubts whether Armstrong was the inventor of the three-part die covered by the second claim of the patent, and whether the bow-spring shown in and covered by the fourth claim of the patent was infringed by the combined centering device and ejector used by the defendant.</p>

<p>1. Patents for Inventions — Corsets.</p> <p>Letters patent No. 238,100 corsets, and No. 238,101, elastic gore or gusset for wearing apparel, granted February 22, 1881, to Simon Florsheim, as inventor, and Thomas H. Ball, as assignee, are void for want of patentable novelty over the English patent to John Mills, of March 14,1815; the English patent to Miller, of December 81, 1866; and the American patent to Mary J*. C. Van Norstrand, of February 1, 1876.</p> <p>2. Same — Mechanical Skill.</p> <p>Patent No. 238,100 claimed a corset having elastic side sections comprising two layers of cloth, stitched together transversely so as to form tubes, wherein were inserted, in groups, spiral metal springs, formed of one continuous spring, and such sections having plain margins or edges for uniting the elastic sections to the non-elastic sections of the corset. The prior patents. taken together, disclosed this construction, except that they did not show an elastic section composed of groups oJ' spiral metal springs. Held, that no invention, hut only mechanical skill, was required to group such springs.</p> <p>3. Sami-1 — CHANGE OR 'MATERIAL.</p> <p>The substitution of one material (metal for India-rubber springs) is not a patentable difference, even where a superior article is produced by such substitution.</p> <p>4. Same — Complete Device sot Shown in Single Prior Patent.</p> <p>Although the complete devices described 'in these patents may not be found in any one of the prior patents, yet enough is shown in the Miller (1806) patent to invalidate them.</p>

<p>1. Patents por. Inventions — Defense of "Want of Patentability.</p> <p>It is quite common for those who are appropriating the result of another’s labor or inventive genius to attempt to belittle the device so appropriated, and insist that it required no exercise of the inventive faculty to produce it; but where the device went into general use upon the issuing of the patent, and marked the point between failure and success, the invention is established.</p> <p>2. Same — Novelty—Oil-Stoves.</p> <p>A patent for an oil-stove having the chimneys fixed between two plates, so as to make the single structure readily movable as a whole, to facilitate the placing of the chimneys over the burner for the purpose of cooking or heating, or removing them for cleaning, trimming, or filling the lamp, the oil-pot forming the base of the stove, and the chimney being removable, is not anticipated by,a gas and oil-stove having an upper and lower plate, with the oil-pot slid in between .them. 0</p> <p>3. Same — Prior Use — Evidence of.</p> <p>It is sufficient, to defeat a patent, to show that the device covered by it has been in public use or on sale for more than two years prior to the application for a patent; but the party asserting such a defense assumes the burden of proof, and is bound to sustain it by clear and convincing testimony,</p> <p>4. Same — Insufficient Evidence of Prior Use.</p> <p>Proof as to the use of alleged prior devices, resting wholly in the recollection of persons who claimed to have seen or used them about 20 years before, and where none of such devices were produced, is too unreliable to form a safe basis for judicial action.</p> <p>5. Same — Abandoned Experiments.</p> <p>Where it was not shown that more than one of each of the alleged prior .devices was ever- made, and these were not produced, but were testified to from memory 20 years after, held, that these instances of use were to be properly classified as abandoned experiments.</p> <p>6. Same — Mitchell Patent, No. 96,249, of October 26,1869 — Kerosene Stoves.</p> <p>The first claim of this patent is infringed by oil-stoves having top and bottom plates with chimneys held between them; and although such stoves have a drum or casing surrounding the chimneys, this is a mere addition, and does not change the combination covered by this claim.</p> <p>7. Same.</p> <p>The second claim of this patent, in view of the prior state of the art, must be limited to projections cast or raised upon or as a part of the surface of the plate for holding the cooking utensils, and such claim was not infringed by the oil-stoves of defendants involved in this suit.</p>

<p>1. Patents for Inventions — -Mitchell Patent, No. 96,249, of October 26, 1869 — Kerosene Stoves.</p> <p>This patent sustained, following Adams & Westlake Manuf’g Co. v. Rathbone, ante, 262, and defendants held to have infringed the first and second claims.</p> <p>2. Same — Adams Patent, No. 221,206, of November 4, 1879 — Oil-Stoves.</p> <p>The third claim of this patent sustained, and found to have been infringed by defendants.</p> <p>3. Same — Adams Patent, No. 230,860, of August 10, 1880 — Oil-Stoves.</p> <p>Defendant having used the same device as shown in patent No. 86,373, of December 20, 1868, to A. H. Emery, they do not, infringe the second claim of the Adams patent.</p>

<p>1. Patents fob Inventions — Construction of Claim.</p> <p>The combination covered by the patent in question accomplished no new result in mechanics, and differed irom previous known combinations only in the construction of one or two of the parts, whereby, perhaps, a better but certainly not a different kind of result was accomplished than had been before effected. Held, that the patent must be limited to those details of construction.</p> <p>2. Same.</p> <p>When an applicant for a patent acquiesces in the decision of the patent-office, that the novelty of his device consists merely in an improved construction of details, the claim cannot, by a liberal construction, be made to include anything else.</p>

<p>Patent Law — Inventor has the Merit, kot the Machinist.</p> <p>He who conceives the device must have the merit then of, and enjoy the profit, not he by whose mechanical skill the conception was, at the inventor’s request, put into tangible form.</p>

<p>1. Patents for Inventions — Practice before the Master.</p> <p>There had been an interlocutory decree declaring a reissued patent valid, finding certain devices to be infringements, and directing an account of profits and damages. The defendant offered the original patent in evidence, for the first time, before the master, and insisted that, upon any construction of the reissue that would be valid on comparison with the original, defendant did not infringe. Held, that this evidence was properly rejected by the master.</p> <p>2. Same — Decree as to What is an Infringement Binding on Master and Parties.</p> <p>A decree as to what is an infringement is conclusive upon the parties and upon the master, and extends to everything substantially like the infringement decreed against. Thomson v. Wooster, 114 U. S. 104; S. 0. 5 Sup. Ct. Rep. 788.</p> <p>3. Same — Weight of Evidence is a Question for the Master.</p> <p>Where the evidence as to the extent of the infringement was conflicting, and sufficient to warrant the master in finding either way, according to what was believed or disbelieved, his conclusions should not be disturbed. Bridges v. Sheldon, 7 Fed. Rep. 17.</p> <p>4. Same — License Pee.</p> <p>An established royalty or license fee is evidence, and not an absolute test, of value.</p> <p>5. Same — License Pee Established before Infringement.</p> <p>It is for the master to determine, as a question of fact, whether the value of the invention, at the time of the infringement, was equal to the license fee established after the infringement, and the court cannot say, as a matter of law, that the license fee should govern.</p>

<p>1. Patents for Inventions — Void Reissue.</p> <p>Where the application for the reissue was filed one year, nine months, and ton days from the date of the original, during which period articles which ¶ ould'infringe the claims of the reissue, hut not of the original, wore made and put upon the market by others, and where the inadvertence, accident, or mistake in the original, if any existed, was easily discernible, the reissue is void.</p> <p>3. Hawk — Acquiescence .by Appuicant tn RE-rMCTroN by Patent-Owice.</p> <p>Where a claim is rejected by the patent-oflice, and the rejection is acquiesced in by the applicant, he cannot afterwards secure such claim in a reissue, on the ground of inadvertence, accident, or mistake.</p>

<p>1. Collision — Towage—Bakk and It Air;road Float' — Highi Wind.</p> <p>The fact that a high wind prevailed at the time of a collision,. which was the general cause o£ the accident, in thwarting the calculation of the pilots, held no legal justification for the accident, when it existed at the time the vessel started,' and its natural effects were known and could have keen foreseen.</p> <p>2. Same — Tug and Tow — Pilot on Tow in Charge — Joint in eg licence.</p> <p>A bark towed by a hawser, and having a pilot aboard, who had general control of the navigation of both tug and tow, held liable, in part, for a collision that occurred through the negligence of both pilots.</p> <p>3. Same — Statement oe Case.</p> <p>The tug 1Í. started from Brooklyn to tow the bark M. to sea on a hawser, in a high wind. The bark had a pilot on board, who had the general control of the navigation of both. The tug, in her course, brought the bark to within TOO feet of the New York shore, near Pier 7, where lay a heavy railroad float lashed to the tug G., which had stopped nearly still in the water, to allow another tow to cross her bow and make Pier 7. The bark M. ran into the railroad float, which was on 1ho former’s starboard hand. On suit brought by the owners of the bark against the tug G. and the tug B., held, that the tug Gf. was not in fault, as she did all that was possible to her to avoid the collision from the time when she had any reason to suppose the bark would not keep out of tlie way; tliat 1ho tug 11. was in fault for going needlessly so near the New York shore, and for not avoiding the float, which was on her starboard hand, and for not using her full steam-power in a high wind; that the bark was liable for the negligence of the pilot in charge of her in not directing the other pilot to keep more away, and for not using the bark’s own helm betimes for the same purpose, and that the damages and costs should be divided between the bark and the tug Ii.</p>

In Admiralty. Su.r exceptions to commissioner’s report distributing the proceeds of sale. On August 19,1885, a libel was filed against the steamer Venture’s owners. A decree was obtained against the boat, and it was condemned, and sold by the United States marshal, and the proceeds of sale paid into court.

<p>1. Federal Question — Wiiks Question no Longer so.</p> <p>A point liaving- once lieen decided by the supreme court of the United States, cannot he held to present a federal question.</p> <p>2. Same — Restrictions upon Powers of State — Fourth, Fifth, Sixth, and Seventh Amendments.</p> <p>The fourth, fifth, sixth, and seventh amendments to the federal constitution contain no limitations or restrictions on the powers of the state.</p> <p>3. Same — Remanding Cause — Doubtful Jurisdiction — Rule — State Police Laws.</p> <p>The rule that the federal courts should remand in cases of doubtful jurisdiction is especially true of cases in which the state is attempting, in its own courts, to enforce its statutes, designed for the peace and good order of its citizens.</p> <p>4. Same — Manufacture and Sale of Intoxicating Liquors.</p> <p>A state may absolutely prohibit the manufacture or sale of intoxicating liquors. No state supreme court has denied the power, and the supreme court of the United States, both before and after the adoption of the fourteenth amendment to the constitution, have often and expressly confirmed it. -</p>

<p>Witness — Taking Testimony of Unwilling Witness on Motion for Preliminary Injunction.</p>

<p>1. Trade-Mark — “Hoyad Baking Powder” — “Coral Baking Powder.”</p> <p>The words “Coral Baking Powder,” in connection with the color of the label on which they appear, and the general appearance of the cans hearing the label, are calculated to deceive the public, although in themselves they are no infringement on the trade-mark “Royal Baking Powder.”</p> <p>2. Same — Injunction, Though no Infringement.</p> <p>injunction granted to restrain the nse of the words “ Coral Baking Powder, the same being calculated, in connection with a similarity in the labels and cans, to mislead the public into mistaking the one for the other.</p>

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

<p>1. Public Land — United States Vacating Patent.</p> <p>Where a patent has been issued by mistake to a party not entitled to it, and the United States is under an obligation to make a good title to another party, they may maintain a suit to vacate the prior patent.</p> <p>2. Same — Parties.</p> <p>In such a case, when the lands have been listed to a state, and by the state patented to private parties, neither the state nor the party entitled to the lands is a necessary party to the suit.</p> <p>3. Same — Multifariotjsness.</p> <p>A bill, against several parties having no joint interest in the lands, to vacate' several patents of distinct parcels of lands, is not multifarious.</p>

<p>SuMirwoNS — Service—Corporation Organized in Another State — Agent tn Saw York.</p> <p>If a corporation, organized under the laws of the state of Colorado, have an office in the city of New York, and nowhere else, and all the persons competent to represent it be also in New York, service may be made upon its agents in that city.</p>

<p>1. Factor — Pledge of Merchandise — Validity.</p> <p>By the statute, the factor is to be doomed th e true owner of the merchandise, so far as to give validity to a pledge thereof in security for a loan, if he has been intrusted with the possession of the property for the purpose of sale, or as security for advances to be made or obtained upon it.</p> <p>2. Warehouse Receipts — Negotiability.</p> <p>Warehouse receipts, hy statute, in New York, are negotiable instruments, and by indorsements transfer the merchandise for which they are given, upon surrender of the receipt.</p>

<p>Customs Duties — Merino Shirts, Etc. — Under What Law Dutiable.</p> <p>Shirts, drawers, and stockings composed in part of wool and in part of cotton, and known commercially as merino goods, are liable to an assessment of 35 per cent, ad valorem, under the act of August 7,1882, (22 St. 3(31,) in amendment of Rev. St. § 2504, irrespective of the proportions in which the wool and cotton are combined, or the comparative value of the wool in the fabric.</p>

<p>iction of Trover.</p>

<p>1. PATENTS FOR INVENTION'S — ERRONEOUS STATEMENT OE OBJECT OE INVENTION.</p> <p>A patent is valid if tlie invention is applicable to one use, although it is not applicable to all the uses suggested by the inventor.</p> <p>2. Same — Void Reissue — Unwarranted Enlargement after Two Years.</p> <p>Where the reissue was applied for more than two years after the date of the original, and the claims were expanded, held, that such reissue was void.</p> <p>3. Same — Car and Wagon Unloading Apparatus.</p> <p>Reissued letters patent No. 4,212, of December 20,1870, to Nicholas E. Phillips, are void because for a different invention from that described in the original, No. 83,405, of October 13, 1868.</p>

<p>1. Patents for Inventions — Ioyblty-Gate-Operating Device.</p> <p>A device for opening and closing the gates of railway cars, consisting of a link connecting a sliding rod with the gate, and a rod sliding in or on bearings secured to the guard-rail, and having a handle located within convenient reach of the attendant, does not possess patentable novelty.</p> <p>3. Same — Judicial Notice of Mechanical Devices.</p> <p>Judges will take judicial notice of mechanical devices of common knowledge.</p> <p>3. Same — Patentability Rests on Means for Carrying- out a Conception.</p> <p>Although the patentee was the first to conceive of the convenience and utility of a mechanism for opening and closing the gates of railway-car platforms, his right to a patent must rest upon the novelty of the means he contrived to carry his ideas into practical application.</p> <p>4. Same — Invention—Mechanical Skill.</p> <p>It rarely happens that old instrumentalities are so perfectly adapted for a uSe for which they were not originally intended as not to require any alteration or modification for such use. But if the changes involve only the exercise of mechanical skill, they do not sanction a patent.</p> <p>6. Same — Duplication.</p> <p>The mere duplication of a device for operating a gate for the platforms of railway cars, whereby the gates of two adjoining platforms may be operated simultaneously, does not require invention.</p> <p>6. Same — Patent No. 388,494, of November 13, 1883 — Railway-Oar Gates.</p> <p>The first five claims of this patent are void of want of patentable novelty.</p>

<p>1. Patents por Inventions — Application eor Rehearing por Newly-Discovered Evidence.</p> <p>Where patents have been sustained after animated, persistent controversy for over five years, and a petition for rehearing has been filed on the ground of newly-discovered evidence, the criticism naturally suggests itself, why was not the testimony adduced before the examiner?</p> <p>2. Same — Excuses por Delay.</p> <p>Excuses for delay in presenting evidence, being vague as to dates, and otherwise insufficient and unsatisfactory, a rehearing was denied.</p> <p>3. Same — Newly-Discovered Evidence Conflicting.</p> <p>Where newly-discovered evidence is conflicting, it is entitled to but slight consideration, and, if offered at a late day, the cause should not be reopened to receive it.</p>

<p>1. Patents fob Inventions — Bill in Equity — Expired Patent.</p> <p>In a bill filed more t-lian a year after the patent expired, an injunction was asked against the use or sale ol infringing devices, should any bo found in defendant’s possession, and also against the use of the tools and paraphernalia of infringement made during the life of the patent for the purpose of infringement. Meld, that the bill was not for discovery in aid of a suit at law, but was a hill for discovery and relief, and as such within the decisions in Moot v. Railway Oo., 105 IT. S. 189, and Lord v. Whitehead, 21 Fed. Iiop. 801.</p> <p>2. Same — Richardson Valve — Patent No. 85,968.</p> <p>On motion for preliminary injunction, complainant relied on the decision of the supreme court sustaining the Richardson patent. Consolidated Vahe Co. v. ¡Safety Vake Co., 113 IT. S. 157; S. 0. 5 Sup. Ct. Rep. 513. Held, that if applicable to the present case, that decision would, of course, ho conclusive; hut, there being a doubt whether defendants’ device came within it, a preliminary injunction was refused.</p> <p>3. Same — Offjcehs of Ooepo ration as Defendants.</p> <p>A demurrer by two of the defendants, officers of the corporation defendant, based upon the ground that they had no connection with tho alleged infringement, overruled.</p>

<p>Patents for Inventions — Infringement—Machines for Closing- Doors without Slamming.</p> <p>Patent No. 144,926, granted to E. H. Richards, November 25, 1873, for improvement in door-springs, and No. 251,790, granted to Lewis C. Norton, January-3, 1882, for improvement in door-checks, compared with Elliott's patent, and held, that the second claim of the Richards patent is infringed thereby, but that the first claim of the Norton patent is not infringed thereby.</p>

<p>1. Patents for Intentions — Suit in Equity on Expired Patent.</p> <p>A bill was filed to recover damages for infringement during the original term of a patent, which term had then expired, and equitable jurisdiction was sought to be maintained on the ground of the intricacy of the account. Held, following Lord v. White,head, 24 Fed. Rep. 801, that, in actions of tort, the mere intricacy of the account does not furnish a ground for equitable interference, and that the bill must be dismissed.</p> <p>2. Same — Bill Filed Twenty-Thriws Days before Patent Expired.</p> <p>A bill was filed July 10th on a patent which expired August 2d following. A perpetual, but not a provisional, injunction was prayed. Meld, that the fact that no preliminary injunction was asked for was not material, as complainants had a right at any moment to amend their bill and pray for a provisional injunction.</p> <p>3. Same — Equity Jurisdiction.</p> <p>This case was cognizable in equity at the time the bill was filed, and it was not impossible to have obtained equitable relief during the life of the patent. . It was not a mere device to transfer a plain jurisdiction at law to a court of equity, as where the patent has only several days to run.</p> <p>4. Same — Estoppel—Acts of Patentee after Assignment.</p> <p>By contract in writing made between patentee and defendants it was agreed defendants did not infringe the patent; but prior to the date of said contract the patentee had granted to complainants an exclusive license for the original term of the patent, and agreed to assign to them the extended term, which he did subsequent to the malting of the contract. Meld, that at the date of the contract complainants had vested in them the entire right to the patent for the extended term, and that right could not be disturbed by any act of the patentee.</p> <p>5. Same — Freeborn Adams Patent, No. 24,915, August 2,1859, Construed.</p> <p>The patent claimed, as a now article of manufacture, a tube or cylinder cast out of copper, and free from blow-holes and other similar defects, when produced as therein stated. Meld, that the claim was limited to a particular product, when produced in a particular way.</p> <p>6. Same — Novelty.</p> <p>This patent described apparatus whereby the stream of molten copper was deposited in the annular space of a cylindrical rotating mould, so as to fall in subdivided portions all around, intermittently, in such manner as to allow the gases to escape and thus avoid blow-holes. In the prior patents the centrifu,gal force of rotation, and not patentee’s method of distribution, was relied on to make a more perfect cylinder. Meld, that the Adams patent possessed patentable novelty over what was shown of the prior art.</p> <p>7. Same — Words “Free” and “Perfect” Construed.</p> <p>The specification of the patent contained the words “a perfect cast copper cylinder,” and the claim, the wordá “free from blow-lioles and other similar defects. ” Meld, that the claim must be construed to mean a cast copper cylinder so free from blow-holes as to be considered sound, — sufficiently perfect to be used in the arts for the purposes forwhich copper cylinders are used. — end such standard of perfection is sufficiently definite. ,</p> <p>8. Same — Equivalents—Infringement.</p> <p>In the casting of copper cylinders a basin, rotating on top of a stationary mould, is the equivalent of a rotating mould, as the molten metal is distributed in the mould in the same manner substantially by each of the devices.</p>

<p>1. PATENTS EOB INTENTIONS — BOTTLE-WASHING MACHINE — NOVELTY.</p> <p>Patent Ho. 213,583, of March 25,1879. to Miles and Lovett, is the first patent to show the whole group of instrumentalities which go to make a practical and complete bottle-washing machine.</p> <p>2. Same — Anticipation'—Abandoned Bxpebtment.</p> <p>To anticipate a patent issued in 1879 the defendants introduced evidence of two machines constructed prior to 1878. One of these machines was used for a limited period by the inventor, mostly in experimenting, when it was thrown aside, and the'other was sold to a person who used it at times during several months, when it was also abandoned. Held, that these machines were abandoned experiments.</p> <p>3. Same — Equivalents—Inebingement.</p> <p>The fourth claim of the patent sued on specified as one element of a combination of parts in a bottle-washing machine “a fixed or stationary water supply pipe,” the object of which was to deliver water to the brush used in washing the bottle. Defendants used a revolving water supply pipe, but it was joined to a stationary pipe, a stationary pipe being- essential in such machines. Held, that these devices were fairly equivalents, and that defendants infringed.</p> <p>4. Same.</p> <p>This claim also specified a funnel-mouthed sleeve, adapted to be revolved. In defendants’ machine the mouth-piece and the sleeve were in two pieces, the mouth-piece being stationary and the sleeve adapted to be revolved. The functions of the two devices were the same. Held, that the differences were not substantial, and that the defendants infringed.</p>

<p>1. Patents for Inventions — Automatic Relief-Valves.</p> <p>Patent No. 101,814, of April 12, 1870, to Arthur M. Black, and patent Wo. 120,958, of November 14, 1871, to James Garland, construed, and held that, in view of what prior inventors had accomplished, said patents must be limited to the specific mechanisms described, or their equivalents. • '</p> <p>2. Same — Infringement.</p> <p>Valves made in accordance with the description in patents Ho. 184,435, of December 31,1872, and Ho. 143,920, of October 21,1873, to Alvarado Mayer, do not infringe either the Black or the Garland patents.</p>

This case came tip for hearing on exceptions to defendants’ answer. The complainant had brought suit in the circuit court for the district of New Jersey, in 1880, against the same defendants, for infringement of his patent, No, 195,233. A decree joro con. was entered in that suit, and a written agreement entered into between the parties whereby the complainant waived damages, profits, and costs; but a perpetual injunction was issued and served.

<p>1. Patents for Inventions — Guthrie Patent, No. 125,044, of March 26,1873.</p> <p>This patent was for an improvement on the patent to Freeborn Adams, for casting copper tubes, sued on in Adams v. Bridgewater Iron Co., ante, 324; and such improvement consisted in an upright mould in combination with a chamber or vessel into which the molten metal was poured, and arranged to be rotated. The first claim of the patent covering this combination held valid, and infringed by defendants in the use of a rotary chamber or basin in combination with a stationary mould.</p> <p>3. Same — Implied License.</p> <p>The inventor and patentee having supervised and directed the building of a machine for the defendant company, and while in its employ, held, under such circumstances, the defendant company may be said to have a license to use that particular machine.</p>

<p>Patents for Intentions — Suit for Unauthorized Use — Parties.</p> <p>Where the former owner of a patent has disposed of all interest in the same, reserving the right to specified uses of the invention, he has no interest in the patent, and is not a necessary party plaintiff in an action against third parties for an unauthorized use of such invention.</p>

<p>1. Equity Pleading — Citizenship—Plea in Abatement.</p> <p>Where defendant, in a suit, in Hie circuit court, pleaded in abatement that plaintiff was not a citizen of Nevada, as claimed, but' of California, and the plea, being set down for hearing, was overruled, without any evidence being taken, or defendant allowed a day to answer on the merits, this is a proper disposition of the case, and the same defense cannot be again set. up.</p> <p>2. 1-lVIDENOE — PRESUMPTION—FAILURE TO PRODUCE WRITING.</p> <p>Where a party willfully refuses to produce a writing which it is sought to annul as a forgery, it. will be presumed that its production and examination would show its falsity.</p> <p>3. W'itnkss — Contradiction—Impeachment.</p> <p>Mere variance between the statements of two witnesses will not necessarily impeach or affect the credibility of either of them, as the contradiction may arise from mistake, or other cause consistent with their integrity.</p> <p>4. Citizenship — Residence—Fourteenth Amendment.</p> <p>The fourteenth amendment does not make a resident in a state a citizen of such state, unless he intends, by residence therein, to become a citizen.</p> <p>5. Estoppel — Res Adjudicata, what is.</p> <p>The parties to a suit in which a question has been determined cannot litigate the same question in another suit, whether instituted before or after the suit in which the matter was determined, or in the same or another court.</p> <p>6. Same — Judgment in California, when Final.</p> <p>In California a judgment is not final, and an estoppel against the parties, pending an appeal to'the supreme court.</p> <p>7. Same — Consent to Remand or Assign Case.</p> <p>A consent to remand a case, or assign it for trial before a certain judge, will not prevent the party so consenting from litigating any of the questions involved in another suit.</p> <p>'8. Same — Subsequent Suit in State Court.</p> <p>A suit in a circuit court of the United States will not be stayed until another suit, subsequently brought between the parties, involving some of the same questions, shall have been determined.</p> <p>9. Husband and Wtfe — Marriage—Evidence—Fraud—Forged Declaration and Letters — Conduct of Woman.</p> <p>Evidence examined, and held to show letters and alleged secret declaration of marriage to have been forged, and decree of annulment granted.</p>

<p>In Equity. On motion for preliminary injunction.</p>

<p>1. Equity Practice — Appiaoation eor Rehearing — Discretion.</p> <p>Ail application for a reargument is addressed to tlie discretion of the court, and the exercise of such discretion is not willful, hut is governed hy certain well-established principles.</p> <p>2. Same — Grounds eos Rehearing.</p> <p>The grounds on which courts ordinarily grant rehearings are (1) upon allegation that any question decisive of the case, and duly submitted by counsel, has been overlooked by the court; and (2) that the decision is in conflict with an express statute, or with a controlling decision, either overlooked by the court, or to which attention was not drawn, through neglect or inadvertence of counsel.</p> <p>8. SAMI'! — INSUFFICIENT GROUND FOR REHEARING.</p> <p>The allegation that one defense was not fully presented at the original hearing is no ground for rehearing.</p> <p>4. Patents for In'ykntions — Combination oe Odd Parts, when Patentable.</p> <p>A combination of old elements is patentable, whore a new and useful result is produced by their joint action, or an old result in a cheaper or otherwise more advantageous manner.</p>

In Equity. This is a suit in equity to subject the homestead of the defendants, at Des Moines, Iowa, to the payment of a judgment recovered by the assignor of the complainant in this court, May 22,1879, for $4,488.98. The homestead in question was purchased and paid for partly with the proceeds of a former homestead owned by the defendant Hellyer, at Nevada, Story county, Iowa, when the debt on which the judgment was recovered was contracted.

<p>1. MUNICIPAL CORPORATION — STREET IMPROVEMENTS — LIABILITY OE ClTY EOR Damages.</p> <p>In Illinois where the construction of a public improvement has caused some direct physical disturbance of a right which a party enjoys in connection with his property, which gives it an additional value, and by reason of such disturbance he has sustained a special damage with respect to his property in excess of that sustained by the public generally, he has a right of action to recover damages for the injury sustained dependent upon the nature and character of the improvement, and upon the question whether the property of the complaining party has been materially damaged in fact.</p> <p>2. Same — What Considered by Jury.</p> <p>In determining what has been the effect of the improvement, the property alleged to he injured must he considered as an entirety. If a part be benefited or not injured, and a part be injured, damages cannot be awarded for injury to the part as disconnected from the remainder.</p> <p>3. Same — Measure oe Damages.</p> <p>In such a case the amount of damages to which the owner is entitled is the difference between the market value of the property before the improvement was made and its market value after the construction of the improvement.</p> <p>4. Same — Evidence—Expert Testimony.</p> <p>The value of opinions given by exports depends upon the experience and knowledge which they have and evince concerning the matters about which they testify.</p> <p>5. Same — View by Jury.</p> <p>In arriving at a verdict the jury have the right to use and act upon the knowledge they may have acquired from a view permitted by the court of the loom in quo.</p>

At Law. Demurrer to intervening petition. The petition states, in substance, that the Laclede Wire & Fence Company is indebted to the petitioner for work and labor done by him, and also for work and labor performed by others who have assigned their claims to him for value, no claim being for more than $60; that after said indebtedness accrued the above-entitled case was instituted by attachment, and all the available property of the defendant seized; that the property so…

<p>1. CRIMINAL Law — INDICTMENT—JOINDER OF OFFENSES — TRIAL AND PUNISHMENT Therefor.</p> <p>When two or more distinct offenses are joined in one indictment, under section 1024 of tie Revised Statutes, or two or more indictments therefor are consolidated, the jury may find the defendant guilty of one charge and not of another, and may find a verdict as to one or more of the charges, and he discharged from the consideration of the remainder, on which the defendant, may bo thereafter tried as if a jury had not been impaneled in the case; and the defendant may bo sentenced to receive the maximum punishment for each offense or charge of which the jury may find him guilty.</p> <p>2. Extradition — "Warrant of Extradition — Interpretation of.</p> <p>A warrant of extradition allowed by the Dominion government, under the tenth article of the treaty of 1812 with Groat Britain, recited that the party was accused of the crime of forgery, and had been committed for extradition thereon, without saying what forger? Held, that resort might he had to the proceedings before' the committing magistrate, and his report, on which the warrant issued, to ascertain what and how many forgeries the extradition was intended to apply to or include.</p> <p>3. Same — Foe What Criijb an Extradited Person mat be Tried.</p> <p>The treaty aforesaid is not only a contract between the government of Great Britain and the United States, but it is also the law of this land; and a person extradited under it cannot ho detained or tried here for a crime, unless enumerated therein and included in the warrant of extradition; and ho may, if occasion require, invoke the treaty in any judicial proceeding as a protection against such detention or trial.</p> <p>4. Forgery — What Constitutes.</p> <p>The postmaster at Lewiston, Idaho, issued a postal money order on the application of a fictitious person, without consideration therefor, payable to a certain Bank, to which he at the same time wrote in the name of such person, directing that the amount of the order he collected and. remitted to him at Pierce City, in a registeredpackage, which he intercepted as it passed through his office, and converted the contents to his own use. Held, that the act of the postmaster constituted forgery, both at common law and under the statute of the United States. Section 6463, Rev. St.</p>

<p>1. GimriNAT. Law — Co is pus Delicti.</p> <p>In ail trials for crime the prosecution must prove to the satisfaction of the jury that a crime lias been committed before tho jury proceed to incluiré as to who is the criminal.</p> <p>2. Evidence— Presumption Pufinf.d.</p> <p>A presumption is a probable inference which common'sense, enlight oned by human knowledge and experience, draws from the connection, relation, and coincidence of fads and circumstances with each other.</p> <p>8. Sajo: — Kinds oí? 'Pucecíes-tíons — Conor usivun ess.</p> <p>p ben a fact shown in evidence necessarily accompanies the facts in issue, it gives riso 1o a strong presumption as to the existence of the facts to be proved. Tf 1he fact in evidence usually accompanies the fact in issue, it gives rise to a probable presumption of the existence of the facts to be proved. If the fact shown in evidence only occasionally accompanies tho fact in issue, it gii es rise only to a slight and insufficient presumption; but even this fact may, in connection with other relevant and consistent facts and circumstances, constitute an element in circumstantial evidence.</p> <p>4 Same — Presumptions of Law and Fact.</p> <p>Presumptions are of law or of fact. Presumptions of law are usually founded upon reasons of public policy and social convenience and safely which are warranted by the legal experience of courts in administering justice, while presumptions of fact result from the proof of a fact; or a number of facts and circumstances which human experience has shown are usually associated with the matter under investigation.</p> <p>5. Sanie — Province of Court and Jury.</p> <p>While the court may always instruct the jury as to the force and effect of legal presumptions, presumptions of fact must always be drawn by the jury; and every fact and circumstance which tends to prove any fact which is evidence of guilt is admissible in evidence on the trial.</p> <p>6. Same — Presumptions prom Connected Facts.</p> <p>Where presumptions arise from a number of connected and dependent facts, every fact essential to the series must be proved.</p> <p>7. Same — Circumstantial Evidence.</p> <p>Circumstantial evidence consists of a number of disconnected and independent fafets which converge towards the fact in issue as a common center.</p> <p>8. Same — Circumstances Proved by Severad Witnesses — Weight of Evidence.</p> <p>When circumstantial evidence consists of a number of independent circumstances coming from several witnesses and different sources, each of which is consistent and tends to the same conclusion, the probability of the truth of the fact in issue is increased in proportion to the number of such circumstances.</p> <p>9. Criminal Law — Reasonable Doubt.</p> <p>The jury must not be satisfied by a mere probability of the truth of the charges in the indictment, but the evidence must produce in their minds an assurance and certainty of guilt beyond a reasonable doubt, before they can pronounce the accused guilty.1</p> <p>NOTE.</p> <p>The guilt of the accused must he established beyond a reasonable doubt. Cornish v. Territory, (Wyo.) 3 Pac. Rep. 793. The rule requiring proof beyond areasonablo doubt does not require that the jury be satisfied beyond a reasonable doubt of each separate link in the chain of evidence, isolated from its connection with the other testimony. It is sufficient, taking the testimony all together, if the jury are satisfied beyond a reasonable doubt that the defendant is guilty. Bressler v. People, (Ill.) 3 N. É. Rep. 521. But in Marion y. State, (Neb.) 20 N. W. Rep. 289, it is questioned whether this rule applies to cases where the evidence relied upon to convict is purely circumstantial. See Walbridge v. State, (Neb.) 13 N. W. Rep. 209.</p> <p>A reasonable doubt does not mean all doubt. IT. S. v. Wright, 16 Eed. Rep. 112. The doubt must be a substantial, and not an imaginary or speculative, doubt, u. S. v. Keller, 19 Eed. Rep. 633. It must be such a doubt as a prudent and reasonable man would be likely to act upon in determining^ important affairs in life, People v. Dewey, (Idaho,) 6 Pac. Rep. 103; or, as has been said, “such a doubt as a man of ordinary prudence, sensibility, and decision, in determining an issue of like concern to himself as that before the jury to the defendant, would allow to have any influence whatever upon him, or make him pause or hesitate in arriving at his determination,” Leonard v. Territory, (Wash. T.) 7 Pac. Rep. 872; “such a doubt as would cause a reasonable, prudent, and considerate man to hesitate and pause before acting in the graver and more important affairs of life,” State v. Pierce, (Iowa,) 21 N. W. Rep. 195; and such a doubt as fairly and naturally arises in the mind of the jury after fully and carefully weighing and considering the evidence which has been introduced, viewed in all the light and circumstances surrounding the case. State v. Stewart, (Iowa,) 3 N. W. Rep. 99. And it must arise from a candid and impartial consideration of all the evidence in the case. State v. Pierce, (Iowa,) 21 N. W. Rep. 195.</p> <p>A reasonable doubt is defined in People v. Guidici, (N. Y.) 3 N. E. Rep. 493, as “a doubt for which some good reason arising from the evidence can be given;" and in Miriich v. People, (Colo.) 9 Pac. Rep. 4, as “such a doubt as would cause a reasonable man to hesitate and pause.” Judge Diok says, in the recent case of U. S. v. Hopkins, post, 443, that “the inherent imperfection of language renders it impossible to define in exact and express terms the nature of a reasonable doubt. It arises from a mental operation, and exists in the mind when the judgment is not fully satisfied as to the truth of a criminal charge, or the occurrence of a particular event, or the existence of a thing.”</p> <p>A preponderance of evidence in a criminal case is not necessary to raise a reasonable doubt. State v. Porter, (Iowa,) 20 N. W. Rep. 168; State v. Red, (Iowa,) 4 N. W. Rep. 831. Neither .the preponderance of evidence, nor the weight of preponderant evidence, is necessary to raise a reasonable doubt. See Walbridge v. State, (Neb.) 13 N. W. Rep. 209. And it has been said that “ clearly proven ” does not mean “beyond a reasonable doubt.” State v.' Stewart, (Iowa,) 3 N. W. Rep. 99.</p> <p>An instruction to the jury directing them to determine the question of the fact of proof beyond a.reasonable doubt, “just as they would determine any fact in their own private affairs,” is not sufficient, Territory v. Lopez, (N. M.) 2 Pac. Rep. 364; and that it is error to charge that “ reasonable doubt ” means doubt suggested by or arising out of the proof made, and-thatin considering the evidence, and arriving at a verdict, “what is called ‘ common sense ’ is perhaps the juror's best guide."</p> <p>It is not error to refuse to instruct the jury that if any one of them entertains a reasonable doubt of the defendant’s guilt there must be an acquittal, State v. Witt, (Kan.) 8 Pac. Rep. 769 ; but it is error to instruct that “while each juror must be satisfied beyond a reasonable doubt, to authorize a conviction, such reasonable doubt, unless entertained by all the jurors, does not warrant an acquittal.” Stitz v. State, (Ind.) 4 N. E. Rep. 145.</p> <p>Each juror is to act upon his own judgment, and if he entertains a reasonable doubt is not required to surrender his convictions and render a verdict merely because the other jurors entertain no such doubt. State v. Hamilton, (Iowa,) 11 N. W. Rep. 5. Proof is deemed to be beyond a reasonable doubt when the evidence is sufficientto impress the judgment and understanding of ordinarily prudent men with a conviction on which they would aetin the most important concerns or affairs of life. Polin v. State, (Neb.) 16 N. W. Rep. 898.</p> <p>Where a criminal charge is sought to be proved by circumstantial evidence, the proof must not only be direct, State v. Clemons, (Iowa,) 1 N. W. Rep. 546, but also consistent with the guilt of the accused, and inconsistent with any other rational conclusion. Walbridge v. State, (Neb.) 13 N. W. Rep. 209; People v. Davis, (Cal.) 1 Pac. Rep. 889. It isnotsuilioienl that the circumstances proved coincide with, account for, and therefore render probable the hypothesis sought to he established by the prosecution, hut they must exclude to a moral certainty every hypothesis except the single one of guilt. People v. Davis, (Cal.) i Pac. Rep. 880. That testimony not believed does not raise a reasonable doubt. Binfield v. State, (Neb.) 10 N. W. Rex>. 607. To establish the defense of an alibi preponderance of evidence is all that is required. Whether a defendant is entitled io acquittal if the evidence of the alibi is sufficient to raise a reasonable doubt of his guilt, qvi&re. State v. Heed, (Iowa,) 17 N. W. .Rep. 150. See Suite v. Hamilton. (Iowa,) 11 N. W. Rep. 5. It has been held that if there is evidence upon which a verdict of guilty might reasonably be founded, an appellate court will not interfere, whatever may be their opinion as to the weight or x>roponderance of the evidence. Cornish v. Territory, (Wyo.) 3 Pao. Rep. 793.</p>

<p>1. Criminal Law — Passing Countkkeeii Money — What Constitutes Cotjn-TiciiMiiT Coin.</p> <p>A counterfeit coin is one made in imitation of a genuine coin, it is not necessary that the resemblance should be exact in all respects. The resemblance is sufficient if the coins are so far alike that the counterfeit coin is calculated to deceive a person exercising ordinary caution and observation in the transactions of business, although the counterfeit would not deceive a person who was export or has particular experience in such matters.</p> <p>2. Baste — ORDINARY Caution.</p> <p>Ordinary caution is such caution as is ordinarily exercised by prudent men in the particular transactions in which they are engaged.</p> <p>3. S ame — Intent.</p> <p>The counterfeit coin must be passed with the intent to deceive before a defendant can be convicted of the crime charged. The mere' act of passing a counterfeit coin on one occasion is not of itself evidence of a purpose to deceive; but the manner in which it was done and the attendant circumstances are to be taken into consideration.</p>

Tins was a bill for an Injunction to restrain Infringement of complainant’s patent, reissue No. 9,690, dated May 8, 1881, for an improvement in type-writers, the original patent being No. 229,458, of June 29, 1880. There was a prayer for damages, and for an account of profits. Infringement was alleged of the fourth, sixth, seventh, and eighth claims of the reissue patent sued on.

<p>PATENTS FOB INVENTIONS —MAKING AND SELLING SERABATE MATERIALS OF PATENTED Combination.</p> <p>Where defendants made, and sold to dealers in the completed article, one of the parts of a patented combination which was of no practical utility or value except for the special purpose of the patentee, and which, of necessity, and to the knowledge of defendants, was to be used for the purpose of infringing the patent, held, that they were intentional promoters of the ultimate act of infringement, and therefore answerable as infringers.</p>

<p>1. Patents foe Inventions — Prior Decision, how Par a Precedent.</p> <p>In an earlier case under this patent (Celluloid Manuf’g Co. v. Pratt, 21 Fed. Rep. 313) the question of patentability was raised by the pleadings and evidence, and considered by the court, but no stress was laid on that defense in the argument. Jiekl, that this fact deprived the decision of all weight as a precedent in a case where the question of patentable novelty was raised and argued.</p> <p>2. Same.</p> <p>No decision can amount to a precedent unless made after full argument.</p> <p>3. Same — Invention.</p> <p>The use of an old material in an old way, to accomplish an old result, is not invention.</p> <p>4. Same — Particular Patent.</p> <p>Letters patent No. 210,780, of December 10, 1878, to Celluloid Manufacturing Company, for improvement in piano keys, are void for want of patentable novelty.</p>

<p>1. PATENTS FOR INVENTIONS — CREDITORS' BILL TO SUBJECT PATENT TO PAYMENT of Judgment of State Court.</p> <p>A creditors’ bill between citizens of different states will lie in a United States circuit court to subject'a patent-rigbt to tbe payment of a judgment recovered in a state court in tbe same judicial district, even tbougb it might be that such relief would not be afforded by tbe courts of tbe state for lack of chancery power.</p> <p>2. Same — Fraudulent Assignment of Patent.</p> <p>Relief upon such bill is not precluded by tbe previous fraudulent transfer of tbe patent-rigbt by tbe judgment debtor, — tbe original defendant, — tbe transferee having been brought in and made a co-defendant.</p> <p>3. Same — Fraud on Creditors.</p> <p>Upon tbe proofs in this case, held, that tbe transfer of tbe patent-rigbt was in fraud of creditors, and void as against tbe plaintiff.</p>

<p>1. Collision — Two Steamers — Tog-Whistle—Error in Locating Direction— Failure to Stop and Reverse.</p> <p>Two steamers, the F. and the A., approaching each, other about head on, in the night and fog, first heard each other’s whistles when about half a mile apart, but mistook their direction; the F. locating the A'.’s whistle about four points on her starboard bow, the A. estimating the whistle of the F. to come from some one or two points on her port bow. The A. ported, shortly after-wards stopped, and, on seeing the lights of the F., reversed full speed. The F. starboarded, and when she saw the lights of the A. increased her speed to cross the bows of the latter. A collision followed, the bow of the A. striking the starboard quarter of the F. Held that, while error in locating the sound, of a whistle in a fog is not in itself a fault, nor is it a fault to steer away from the apparent direction of the sound, provided this is accompanied by the order to stop and reverse, if near, {The lapunto, 21 Red. lie]). G!>1,) in this ease both vessels wore in fault for not backing as soon as the repeated exchanges of whistles showed that they were approaching each other.</p> <p>2. Same-Departure khom Hule — Risk— Rule 18.</p> <p>A steamer that fails to stop and reverse, as required by article 18 of the rules of navigation, when risk of collision is obvious, takes on herself the risk of the departure from the rule.</p> <p>3. Same —Roo—Moderate Speed — Nine Knots — Almona 13, Rules op Navigation.</p> <p>Moderate speed moans reduced speed. Therefore, where the steamer A., whoso full speed was nine knots, was moving at that rate in a.fog. through which lights could be seen about a quarter of a mile only, and came in collision. held, that site was sailing in violation of article 13 of the rules of navigation, and her speed was a fault that contributed to the collision.</p>

<p>Collision — IsTERPERiNG CoiuasES — Pbecautions ÍTeoessatiy — Damages.</p> <p>If two vessels, under steam, are approaching each other hy interfering courses, so as to involve risk of collision, the vessel which has the other on the starboard side must keep out of the way, and adopt whatever means are necessary to enable her to keep off. If the proximity is such that stopping is necessary, she must stop at once.</p>

<p>Motion to Kemand.</p>

<p>Eemovau oi? Cause— Time of ApkcicatioN — Case Remanded by Supreme Court op State to Substitute Administrator as Party.</p> <p>After a case lias been appealed to the supreme court of a state, and, on suggestion of tlio death of plaintiff, before entry of decree in the lower court, remanded to that court to have the administrator substituted as party plaintiff, it is too late to remove the case to the federal court.</p>

<p>On Habeas Corpus.</p>

<p>Motion to Dismiss.</p>

<p>1. Public Lands — Grant to California So Oregon Railroad — Mexican Grant.</p> <p>Under (he act of con "toss o£ July 25, 1866, lands outside of the 40-milo limit of (he grant, and within the exterior limits of a Mexican grant, arc subject to selection, instead of alternate odd sections not otherwise disposed of at the time of (he location of the road, situated within the 40-mile limit, any time, after the rejection of the Mexican grant.</p> <p>2. Same — Lieu Lands.</p> <p>Such grant does not attach to the odd sections outside of the 40-mile limit until the selection is actually made by the railroad company, under the direction of the secretary, in lieu of other lands disposed of within the limit.</p> <p>8. Same — Premature Selection — Suit to Vacate Patent.</p> <p>Where such lands have been prematurely selected and patented, a suit by the United Stales to vacate the selection and patent on the ground of mistake, commenced after the rejection of the'grant, will not be sustained when no private party has acquired an interest in the land, and the United States has assumed no obligation or suffered no injury.</p> <p>4. Same — Boundaries of Grant.</p> <p>Where three exterior boundaries of a Mexican grant are designated, and the quantity of land known, the fourth boundary may be ascertained by running- a line parallel, to tho opposite boundary, a proper distance therefrom to embrace the quantity of land called for.</p>

On the first of February, 1871, the railway company executed a first mortgage to the Union' Trust Company of New York, as trustee, to secure bonds, amounting to more than $14,000,000, drawing 7 per cent, interest. In 1874, the company made default in the payment of interest, and a receiver was appointed under a second mortgage. In 1875, the trust company filed a bill to foreclose the said mortgage of February 1, 1871; the receiver continuing in possession.

<p>Fire Insurance — Double Insurance — Insurance by Owner and by Carrier.</p> <p>Where owners of certain cotton ship it by a carrier, and obtain insurance on it, and the'carrier, at the time, has annual policies covering the cargoes of its steamer, which policies contain a clause limiting the insurance to the interest of the insured, and a fire occurs, this does not constitute double insurance, and the shipper’s insurers cannot make the carrier’s insurers contribute to their loss.</p>

<p>1. Corporation — Decree against — Effect as to Stockholders.</p> <p>Except in the case of fraud, a decree against a corporation is conclusive against a stockholder thereof, even though there was not personal service upon him.</p> <p>2. Same — Change of -Name — Stockholders, now Affected.</p> <p>The change of the name of a corporation does not relieve the stockholder of liability.</p> <p>3. Same — Books—Evidence as to Subscribers to Stock.</p> <p>The books of a corporation are prima facie evidence of subscription by those whose names appear thereon as owners of stock.</p>

On Demurrer. By a collision with the defendant’s train at a crossing, the intestate and his two horses were instantly killed, and his wagon was destroyed. The administrator brought two suits in the state court; one for negligently killing the intestate, and the other for negligently destroying his property.

<p>1. CoKTlillPTS — KlTOEÜAli OoiJUTS — JUKISDIC'ITOR.</p> <p>Where a canso has ficen removed from a stale to a federal court, ponding an application to punish one, of the parties for contení])!, by disobeying an order of the slate court, the federal court has no jurisdiction to hear and determine such application.</p> <p>9j. Samk — Rkv. St. § 72i>.</p> <p>The solo power of the federal courts to punish for contempt of their authority both at law and in equity is derived from section 725 of the .Revised Statutes, and ihey cannot impose*penalties under the state statute, in the form of pecuniary indemnity to the party injured.</p> <p>3. Same — Nature oe Contempt Proceedings in Federal Courts.</p> <p>A contempt proceeding in the federal courts is in its nature criminal, and must be governed by the rules of construction applied in criminal cases.</p> <p>4. Same — Removal Act oe March 3,1875.</p> <p>It is a general and elementary principle that that court alone in which a contempt is committed has power to punish it or to entertain proceedings to that end; and the removal act of March 3, 1875, does not empower a federal court to inquire into an alleged contempt of the state court committed before the case is removed.</p> <p>5. Same — Sections 4 and 6 oe the Removal Act Construed.</p> <p>The provisions of sections 4 and 6 of the act of March 3, 1875, point to all such proceedings and orders as have relation to the prosecution and defense of the suit in due course, and the ultimate results aimed at in the litigation.</p>

During a session of the court, and while a jury case in which Newman Erb, Esq., a member of the Memphis bar, was engaged as counsel, an intermission or recess of one hour was taken.

<p>Power of the Council of Portland to Punish for Opium Smoking.</p> <p>Subdivision 6 of section 37 of the charier of Portland authorizes the council “to prevent and suppress opium smoking, and houses or places kept therefor, and to punish any keeper of such house or place, or person who smokes therein, or frequents the same. Held,, that no person can be punished for opium smoking under this authority, unless it is done in a house or place kept for that purpose.</p>

<p>Revenue Laws — License to Retail Liquors — Sale to Ptobson at Another Place.</p> <p>Where a person who has secured a license to retail liquors at one town receives an order for a certain amount of designated liquors from a person residing at an oilier town or place, awl lie fills such order by taking or sending Hie liquor desired to such party, and collects the price therefor at the time of delivery, lie is guilty of a violation of the revenue laws prohibiting the sale of liquor without license.1</p> <p>NOTE.</p> <p>A party who has paid a special tax, as a retail liquor dealer, at a particular town, who fills orders received by mail to ship liquors in retail quantities to another town, there to be delivered to the party so ordering upon payment of the price of the liquor, together with the express charges, is liable to the payment of a special tax as a retail liquor dealer at the place where such delivery is made. U. S. v. Shriver, 23 Fed. Rep. 134.</p> <p>It was recently held by the supreme court of Vermont, in the case of State v. Four Jugs of Intoxicating Liquors, 2 Atl. Rep. 586, that where a liquor merchant in New York received an order for certain quantities of specified liquors from a retail dealer residing in Vermont, and he delivered the liquors ordered to an express company in New York, to be transferred to the retail dealer in Vermont, with instructions to collect the price and charges on delivery, that the merchant thereby made the express company his agent for the purpose of completing the sale and delivering the goods, and that the sale was made where the title to the goods was delivered, — in Vermont.</p> <p>The supreme court of Wisconsin held in the case of Sarbecker v. State, 26 N- W. Rep. 541, that when the contract is silent on the subject, and there is nothing in the transaction indicating a different intention, and a manufacturer residing in one city receives, through his agent residing in another, an order for beer from a customer there, and fills the order by delivering the beer to a common carrier at the place of manufacture, consigned to such customer at his place of residence, or to such agent for him, the sale is complete, and the title passes at the place of shipment, even though the customer, on receiving the beer at his place of residence, jiays to such agent there the purchase price; and the absence of a license to sell liquors in the county where the purchaser resided will not render the agent liable for selling without obtaining a license there. The court cite Fragano v. Long, 4 Barn. & O. 219; Itanney v. Higby, 4 Wis. 154; Somers v. McLaughlin, (Wis.) 15 N. W. Rep. 442; Com. v. Farnum, 114 Mass. 267; Jaimey v. Sleeper, (Minn.) 16 N. W. Rep. 365; City of Kansas v. Collins, (Kan.) 8 Rac. Rep. 865. The court say: “The same principle has frequently been applied, in the sale of liquors, to a purchaser residing in a place where all such sales, or all such sales without license, were prohibited;” citing Garbracht v. Com., 96 Pa. St. 449; Finch v. Mansfield, 97 Mass. 89; Abberger v. Martín, 102 Mass. 70; Brockway v. "Maloney, 102 Mass. 308; Dolan v. Green, 110 Mass. 322; Frank v. Hoey, 128 Mass. 263; Hill v. Spear, 50 N. H. 253; Tegler v. Shipman, 33 Iowa, 194; Boothby v. Plaisted, 51 N. H. 436; Sliuonfeldt v. Junkerman, 20 Fed. Rep. 357.</p> <p>In Boothby v. Plaisted, 51 N. H. 436, the defendant ordered, by sample, spirituous liquors of the traveling agent of a firm in another state where the sale was lawful, and they were put up, marked to purchaser, and shipped from the firm’s place of business. It ivas held that the sale was made and the contract complete at the place of shipment, and that an action for the price could be maintained in New Hampshire, where such sale was unlawful. To same effect are Hill v. Spear, 60 N. H. 253, and Tegler v. Ship-man, 33 Iowa, 194.</p> <p>But in Webber v. Howe, 36 Mich. 150, where a liquor dealer from Ohio in person solicited and received in Michigan an order for liquors, which were afterwards shipped in Ohio, and delivered to the vendee in Michigan, it was held to he a sale in Michigan. Judge Cooley says: “Had the order been sent from this state to dealers in Ohio, and filled there, or had an agent of the Ohio parties, who had no authority to agree upon sales, taken the order in this state, and transmitted it to his principals, who accepted and filled it,” the sale would have been completed in Ohio ; citing McIntyre v. Parks, 3 Mete. 207; Orcutt v. Nplson, 1 Gray, 536; Garland v. Lane, 46 N. H. 245; Kling v. Fries, 33 Mich. 275. See, to same effect, Hausman v. Nye, 62 Ind. 485; Keiwert v. Meyer, 62 Ind. 587.</p>

<p>Copyright — Infringement—Making and Selling Cut from Illustrated Newspaper.</p> <p>One who makes a plate from which a copy of a picture in an illustrated paper, that is copyrighted, can be produced, and sells the plate to another, is not guilty of infringement of the copyright.</p>

<p>1. Patents eor Inventions — Devices Shown but not Claimed in Prior Patent to Same Inventor.</p> <p>Ransom filed an application for a patent for fare-registers, July 12, 1879, which was subsequently divided into divisions A and B. A patent was issued on division A, April 20, 1880. The claims sued on in this case were added to division B, by amendment, September 27,1881, never having been made before. The subjects-matter of these claims arose upon, belonged with, and were not separable from, the things which remained in division A. Defendants’ devices, which were alleged to infringe these claims, were made under a patent to Reuben M. Rose, the application for which was filed nine or ten months after Ransom’s patent on division A was issued, and more than seven months before the claims in controversy were inserted in division B. Meld, that the question whether Ransom could have a valid patent for the claims sued on is not like that as to inventions of distinct parts of machines described, but not claimed, in applications for inventions of other parts, as in Graham v. McCormick, 11 Fed. Rep. 859, and Vermont Farm Machine Co. v. Marble, 19 Fed. Rep. 307.</p> <p>2. Same — Reissue—Abandonment oe Invention.</p> <p>One reason why a patentee cannot have a valid reissue to cover parts of his invention described and not claimed, when the omission to make the claim is not caused by inadvertence, accident, or mistake, is because the parts of the invention not claimed are by this course abandoned to the public, and the right to claim them is gone.</p> <p>3. Same — Section 4920, Rev. St.</p> <p>The defense of abandonment to the public is not confined to reissued patents, but is given generally by the statute to all patents.</p> <p>4. Same — Intervening Rights oe the Public.</p> <p>Where a patentee shows and describes, but does not claim, in his patent certain features of his invention, he cannot have valid claims for these features in a subsequent patent, if the rights of the public have intervened.</p> <p>5. Same — Benton Patent, No. 260,526, July 4,1882 — Fare-Register.</p> <p>This patent sustained on reargument, (former decision 22 Fed. Rep. 656;) and the inventor being shown to have made the invention at least before September 22,1877, he is not anticipated by the English patent to William Robert Lake, sealed November 14,1877, as the date of sealing is understood to be the time when it became patented under the laws.</p> <p>6. Same — Experimental Use in Public.</p> <p>A public use, for the purpose of ascertaining the completeness of a device, for more than two years prior to the application, will not defeat a patent.</p> <p>7. Same — Construction oe Claims — Infringement.</p> <p>A patented invention is to be construed in view of what existed at the time it was made: and all things are infringements that are brought out afterwards, and come within its scope.</p>

<p>1. Patents for Intentions — Construction of Claim.</p> <p>Tie fourth, claim of letters patent reissue No. 9,290, of July 18, 1880, to Christopher M. Spencer, for machine for making metal screws, "is in its most important particulars, a reproduction of the first claim of the original patent, No. 143,806, of September 30, 1873, and is valid.</p> <p>.2. Same — Equivalents—Infringement.</p> <p>The claim of the patent sued on was for a combination of mechanical devices for feeding forward a rod as screws were cut from it, and covered a combination of a hollow mandrel, a conical-ended sleeve, and a friction-feed device, or tube, arranged concentrically, one within the other, and in the order named. Defendants used the same parts, but placed the conical-ended sleeve outside the mandrel. Held, that this was an immaterial difference, and such arrangement was an infringement.</p>

<p>1. Patents fob Inventions — -Abandoned Experiments.</p> <p>Where one made, in 1874, a device which was claimed to embody an invention patented to another in 1879, which earlier device never went into practical use, held, that the 1874 device was an abandoned experiment, and was not sufficient to defeat the patent.</p> <p>2. Same — Failure to Assebt Tttle to Invention.</p> <p>It is hardly conceivable that one who was in fact the prior inventor of a device, on seeing it in use, and knowing that another claimed to be the inventor, would have uttered no protest, and laid no claim to the invention.</p> <p>3. Same — Failure to Apply fob a Patent.</p> <p>A. claimed to have invented a device in 1874. B. obtained a patent, for the device in 1879. Subsequently A. applied for a patent for an improvement on the device patented to B. Held, that the inference was that, if A. had been in fact the inventor of the device patented to B., he would have shown and claimed it in his application, instead of applying for a patent on what was, at most, only an improvement on such device.</p> <p>4, Same — Public Use.</p> <p>Tie fact that a person, claiming to have invented a device In 1874 or 1875, knew that another had put it into public use in 1878, is sufficient to defeat his claims to take out a patent in 1883, even if he had been the inventor.</p> <p>5. Same — Conflicting Patents.</p> <p>Patent No. 289,928, issued December 11, 1883, to Amos P. Parkhurst, assignor to Edward H. Everett, for a bottle stopper, canceled, because it interferes with patent No. 213,992, issued April 8, 1879, reissued June 17,1879, as reissue No. 3,755, to Charles G. Hutchinson, for an improvement in bottle stoppers.</p>

<p>1. Patents for Inventions — Suggestions to an Inventor.</p> <p>The true test to determine whether suggestions made to an inventor should deprive him of the claim to originality in the invention, is to inquire whether enough has been communicated to enable him to apply it without the exercise of more invention.</p> <p>2. Same.</p> <p>A general knowledge of the substance of the invention covered by letters patent No. 169,871, of November 9, 1875, to John Watson, for improvements, in clay-presses, was communicated to the inventor before he attempted to embody it in a practical apparatus, and hence his patent is void for want of novelty in the invention.</p>

<p>1. Collision — Steamer and Satluso Vessel — East River, Navigation. Eddy om? Sixtieth Street — Customary Course.</p> <p>A steamer coming down the Hast river, on the westerly side, collided, about off Sixtieth street, with a schooner beating' slowly down with ilia ebb-tide. The general rule required the steamer to keep out oX the schooner’s way, Tint the defense was that, there in an eddy on Hie westerly side at, that place on the ebb-tide, extending nearly half way across the river, to Blackwell’s island; that it is the custom o£ vessels beating down to tack at the edge of the eddy; that the schooner could not have been expected to come to the westward of tlie line o£ the eddy; and that the steamer could not go xo the eastward of the' schooner, as she expected her to follow the custom of tacking at the edge of the eddy. The schooner did not go so far within the eddy as that her heading was at all affected by it when the collision occurred. ' Jleld, that (lie custom must be construed as applying only to that part of the water where the opposite current of the eddy is actually sufficient to affect appreciably the motion of vessels going into it;"that a sailing'vessel has a right to keep her course till that limit is reached, and the schooner did not exceed this limit; that the steamer could have avoided the collision by going 100 or 150 feet nearer the New York shore, or by stopping and backing, and that she was therefore solely in fault for the collision.</p> <p>2. Same —• Exception to General Rule that Sailing Vessel must Keep Course — When Allowed.</p> <p>The exception to the general rule that a sailing vessel must keep her course cannot lie allowed except when it is entirely clear, not only that by changing her course she would in fact have avoided the collision, but that, under the circumstances of the moment, as they appeared to the sailing vessel, that means of escape was so obvious to one of ordinary nautical judgment that it was clear negligence to omit it.</p>

In Admiralty. The brig Agnes Barton came into the port of Philadelphia in the spring of 1885, needing repairs and an outfit of sails. Her home port was Baltimore, and her owners were all residents of that city. One of them, S. H. Travers, was managing owner, and had an interest of seven thirty-seconds in the vessel.

In Equity. On motion to remand. This was a bill by Joel J. Perrin, administrator of the estate of Horace J. Perrin, deceased, a-citizen of Michigan, against Stephen Y. E. Lepper, administrator de bonis non of the estate of Joseph Sib-ley, deceased, Anna L. Fisk, daughter-in-law and legatee under the will of Joseph Sibley, also citizens of Michigan, and numerous other parties heirs of Joseph Sibley, all residents of other states, and known collectively as the “Sibley heirs.”…

<p>Railroad Land Grants — Intersecting- Grants — Title oe Northern Pacific Railroad Company and St. Paul, Minneapolis & Manitoba Railway Company at Glyndon.</p> <p>The title oí the Northern Pacific Railroad Company to the lands embraced in the land grants to it and to the companies from which the St. Paul, Minneapolis & Manitoba Railway Company derived title where such roads cross at Glyndon, Minnesota, antedates and is superior to the title of the St. Paul, Minneapolis & Manitoba Railway Company.</p>

<p>1. Land Laws — Acts of Congress op June 33, 1874, and April 31, 1876 — -Acts Minnesota Legislature, March 1, 1877, and March 8, 1878 — Construction.</p> <p>The acts of congress of Time 33, 1874, April 31, 1876, and the acts of the legislature of Minnesota of March 1. 1877, and March 8, 1878, all were passed after the time given for the completion of the railroad, when there had been a non-performance of the conditions of the grant, and when, therefore, there existed the right of absolute and total forfeiture by the grantor, — the United Stales, — and of resumption and transfer by the state to another beneficiary.</p> <p>3. Same — Raí uro ad Company — Bona Fide Settlers — Priority.</p> <p>Congress and the legislature of Minnesota both intended to give to actual bona fide settlers priority over the railroad company.</p> <p>3. Same — Land Grants — How to be Considered.</p> <p>All legislative grants are to be regarded as not merely contracts, but also as laws! As such they are subject to the same rules of interpretation that govern other laws, and a primary rule is that the intent of the legislator is to he sought, and, when found, controls. The technical rides that govern the interpretation of private contracts must always yield to the single inquiry of the intent of one party, — the legislature.</p> <p>4. Same — As to Title, Intent of Grantor is to be Considered in Equity.</p> <p>There is no equity in striking down a legal title when so to do involves a disregard of the manifest intent of the original owner, grantor of siich legal title.</p>

<p>Land Grants — Land Outside of State to Which It is Grafted.</p> <p>Can land not within the limits of the state of Minnesota he, consistently with the policy of the United States government, held under a land grant, for the purpose of railroad construction, made to the territory of Minnesota under ihe act of March 3, 1837, qumre.</p>

In Equity. Creditors’. bill. Demurrers to bill. This is a suit brought by certain creditors of the M. J. Murphy Furnishing Goods Company against said company and Jesse Arnot, Alfred Bradford, George IT. Gill, the Continental Bank of St. Louis, the Importers’ & Traders’ National Bank, and the Fifth Avenue Bank of New York.

In Equity. On pleadings and proofs. This was a bill in equity for the infringement of a trade-mark-claimed by the plaintiff, in the use of the words “anti-washboard,” as applied to a manufacture of soap.

<p>1. Partnership — Dissolution—Appearance in Suit.</p> <p>The entering of an appearance in a suit by a partner, after a dissolution of the firm and an assignment for the benefit of creditors, will not bind the other partners.1</p> <p>2. Same — Judgment Obtained on Such Appearance.</p> <p>Where a judgment lien on real estate'has been obtained under such appearance, the lien may stand, but all proceedings to enforce the same should be stayed until the non-appearing partner can plead to the merits and make any proper defense he may have to the original action.</p> <p>NOTE.</p> <p>After dissolution one partner cannot appear for his copartner in a suit brought against the partners, though upon a firm indebtedness. Loomis v. Pearson, Harp. (S. 0.) 470; Haslet v. Street, 2 McCord, 311. Neither can he acknowledge service of process so as to bind his copartners. Duncan v. Tombeckbee Bank, 4 Port. (Ala.) 184; Domott v. Swaiin, 5 Stew. & P. 293, Even before dissolution, one partner cannot confess judgment, or submit to arbitration, so as to bind his copartners. Stead v. Salt, 3 Bing. 101; Adams v. Bankart, 1 Cromp., M. & R. 681; ICarthaus v. Eerrer, 1 Pet. 222; Story, Partn. g 114; Pars. Partn. 179,note; Golly, Partn. §§ 469, 470; Ereern. Judgm. § 232; 1 Amer. Lead. Gas. (5th Ed.) 656.</p> <p>It was said by the supreme court of Pennsylvania recently that a confession of judgment by a former partner against a firm, while good as against the partner confessing it, will not bind property assigned by the firm to a remaining partner under terms of agreement to pay firm debts. Mair y. Beck, 2 Atl. Rep. 218.</p>

<p>1. Life Insurance — Equity—Cancellation.</p> <p>A court of equity will not set aside a contract for life insurance during the life of the assured, on the ground that it has been rendered void by something not appearing on the face of the policy, and which can be proved by extrinsic evidence.</p> <p>2. Same — Discretion.</p> <p>As the assured, who is now intemperate, may reform, and live out the ordinary expectation of life, this is not a ease for the ordinary exercise of the discretionary power of a court of equity to order a cancellation, even if such power here existed.</p>

<p>New Trial — Verdict not Sustained by Evidence — Province of Court.</p> <p>The weight of the evidence is for the jury, if there is any to support plaintiffs case; but whether there is any or not is for the court.</p>

<p>1. Grant to the Oregon & California Railway Company by the Act of 1866.</p> <p>The grant of lands and the right of way to the Oregon & California Railway Company by the act of July 35,1866, (14 St. 389,) and the act of June 25,1868, (15 St. 80,) construed to be (1) a grant of the odd sections of land within 10 miles on each side of the line of the road, not otherwise appropriated or disposed of under the laws of the United States prior to the definite location of said line, on condition that the road is completed by July 1,1880, for a breach of which condition the grantor alone can claim a forfeiture; (2) the grant of the right of way absolute, to take effect on the definite location of the line of the road from the passage of the act of 1866, as against any person claiming under a settlement of appropriation subsequent to the passage thereof, without condition, save that which the law tacitly annexes to the grant of any such franchise, the liability to be lost or forfeited for non-user, ascertained and determined in a judicial proceeding instituted by the government for that purpose.</p> <p>2. Same.</p> <p>The declaration in section 8 of the act of 1866, that, in case the road is not completed by the time prescribed, “this act shall be null and void, ” taken in connection with the context, that the lands not patented to the company at the date of any such failure “shall revert to the United States,” and the general purpose of the act, and the policy of congress in passing it, amounts to nothing more than a declaration that the lands are granted on the condition that if the road is not completed in due time, the portion then remaining unpat-ented or unearned may be reclaimed by the United States.</p>

<p>Municipal Corporation — Imprisonment under Void Ordinance — Action for False Imprisonment.</p> <p>A party who has been arrested for violation of an unconstitutional municipal ordinance, requiring a license fee to be paid by non-resident peddlers, and, on conviction, has served out bis fine in prison, cannot maintain an action against the municipal corporation for false imprisonment.</p>

<p>CONTRACT IN BEHALF OF PROPOSED CORPORATION — PRELIMINARY AGREEMENT —Subsequent Adoption of Contract.</p> <p>The defendant and W. (who professedly acted in bebalf of a corporation to be organized) executed an agreement under seal, providing for tbe erection, by tbe proposed corporation, of water-works; tbe defendant covenanting to pay to such corporation for tbe use of water a certain sum of money yearly, and it was stipulated t-bat tbe agreement should inure to tbe exclusive benefit of the proposed corporation, and should be adopted and executed by it within 80 days from tbe date of its letters patent, or else tbe agreement should be void. Tbe contemplated corporation having been created, within tbe prescribed time adopted the agreement, and-formally executed the same under its corporate seal. In an action for subsequent breaches of the defendant's said covenant, brought by W. for the use of the corporation, held, that the agreement between the defendant and W. was preliminary, and was superseded by tbe completed contract between the defendant and the corporation, which ensued upon the adoption and execution of the agreement by the latter, and that the right of action was in tbe corporation and not in W.</p>

Ou Motion for New Trial. This was an action upon a policy of insurance, whereby the defendant insured the steamer Spartan in the sum of $10,000 against all losses occasioned by perils of the sea, “excepting all perils, losses, misfortunes, or expenses consequent upon and arising from or caused by the following or other legally excluded causes, yíz. : Damages that may be done by the vessel hereby insured to any other vessel or property; incompetency of the rgaster or…

The defendant was from July 1, 1871, to October 1, 1874-, vice-consul at Nanagawa, Japan. This action is upon a bond, signed by him as principal; one of its conditions being that he should account for and pay over all moneys received by him in his official capacity. On the twenty-second of October, 1873, Charles 0. Shepard, the consul, returned to this country, on leave, giving instructions to the defendant to take charge of his affairs during his absence.

<p>Customs Duties — Castings of Ikon, Paht of Ioe-Machine, held to be “castings of iron, nol, otherwise provided for, ” and dutiable at one and one-fourth cents per pound, under the tariff act of March 8, 1888.</p>

<p>Customs Duties — Milk Aioiashne held 1o be duliable at 80 per cent, ad valorem, as silk thread, under Schedule L of tariff act March 8, 1888.</p>

<p>Customs Duties — Steel Picks, etc., held, to be “track tools,” and dutiable at two and one-half cents per pound, under Schedule C, tariff act March 3, 1883.</p>

<p>1. Constitutional Law — Fourteenth Amendment — City Ordinance — Due Process of Law — -Privileges and Immunities oe Citizens op United States — Equal Protection op Laws.</p> <p>A city ordinance that makes it an offense for any person to carry on a laundry where clothes are washed for pay, within the habitable portion of the city, is unconstitutional.</p> <p>2. Habeas Corpus — Violation op Unconstitutional City Ordinance — Kev. St. U. S. § 753.</p> <p>A party who is held in custody for the yiolation of a city ordinance that is in conflict with the fourteenth amendment to the United States constitution is entitled to be discharged on habeas corpus.</p>

<p>1. National Banks — Indictment—Aiding and Abetting Director in Misapplying Funds op Bank.</p> <p>An indictment, seeking to charge defendants with aiding and abetting a director of a national bank in misapplying the funds of the bank, must state facts showing a misapplication of money of the bank committed by the director.</p> <p>3. Same — Misapplication oe Funds — Overdraft by Director.</p> <p>A director of a national bank, who, knowing that he has no money to his credit in the bank, arid no right to draw money therefrom, obtains money from the bank to which he has no right, by means of an overdraft, made with intent to defraud, and converts the same to his own use, in fraud of the bank, is guilty of a misapplication of the funds of the bank.</p>

<p>1. Patents for Inventions — Design Patents.</p> <p>A claim for “a new and original design for a curtain and loop, consisting of an ornamental metallic chain, in connection with a curtain adapted to he gathered to the side of the window and be held by said chain, substantially as described, ” construed to be, so far as the chain is concerned, for any ornamental metallic chain used to loop curtains.</p> <p>3. Same — Patentable Design.</p> <p>If the substitution of any metallic loop for a silk or woolen loop for curtains is a “design, ” within the meaning of the statute, (which pointwas raised but not decided,) it is clear that it is not a patentable design.</p> <p>3. Same — Substitution of Material.</p> <p>The mere substitution of one material for another, in the construction of or for the purpose of an ornament, the ornament to be of any approved form, cannot properly be patentable. There is nothing which the law deems “ new” in a mere change of that sort.</p>

<p>In Equity. On motion to dissolve restraining order.</p>

<p>1. Patents for Inventions — Invalidity of Reissue.</p> <p>Weymouth’s reissued letters patent, No. 10,272, dated April 4,1882, for an improvement in hay-knives, are void by reason of not being for the same invention specified in the original of March 7, 1871.</p> <p>2. Same — Construction oe Patent — Description of the Invention.</p> <p>Where the general description of the nature of an invention, in the beginning of a specification, is not a description of the invention itself, it should be read in connection with the specific directions as to the manner in which the device to which it refers is to be made, and the peculiar characteristics which it is to possess.</p>

<p>1. Patents for Inventions — Void Reissue.</p> <p>Reissued letters patent No. 4,361, of May 2, 1871, to Jolm P. Haines, for improvement in oil-cups, are void because for a different invention from tlie original, No. 92,820, of July 20, 1869.</p> <p>2. Same — Excuse fob Deuay in Appbyino bob Reissue.</p> <p>The excuse tliat patentee was ignorant of the laws pertaining to letters patent is wholly insufficient.</p>

<p>1. Patents for Inventions — Infringement.</p> <p>To a bill Tor infringement of letters patent No. 189,233, of April 8, 1877, to Henry F. Knapp, for means for relieving stranded vessels, the only defense was non-infringement. The defendant had used the same methods for relieving a vessel, which had been in frequent use since 1860 for removing sandy obstructions, and therefore held, that he did not infringe.</p> <p>2. Same — Judtciat. Notice.</p> <p>The court is permitted to avail itself of common knowledge in regard to matters of science, {Brown v. Piper, 91 U. S. 37,) and by that knowledge to define the scope of a patent.</p>

<p>1. Patents for Inventions — Manufacture op Hydrogen Peroxide.</p> <p>Tho first claim of lot tors patent Ao. 378.589, of March 6, 1888, for an improvement In the manufacture of hydrogen peroxide, is void for want of patentable novelty.</p> <p>3. Same — Substitution op Machine tor Hand Power.</p> <p>It does not constitute invention to stir, by a well-known and simple mechanical device, a liquid which liad before been stirred by hand; and hence tho mere substitution of a revolving screw, driven from a power shaft, for paddles operated by hand, for stirring such liquid, is not patentable.</p>

<p>1. Patents for Inventions — Void Reissue.</p> <p>The first claim of reissued letters patent TSTo. 9,586, granted to Claude N. Boland, February 22, 1881, lor an improvement in glove sewing machines, is void; such claim not being found in the original, tho application having been filed two years, two months, and eight days from the date of the original, and the rights of the public having intervened.</p> <p>2. Same — Excuse fob Delay in Applying fob Reissue.</p> <p>The patentee was a foreigner, unfamiliar with the English language, and was ignorant that the claim in controversy had been omitted from the original patent until a fortnight before the application for the reissue. Held, that these facts were not sufficient to excuse the delay.</p> <p>3. Same — Rights of tub Publics — Duty of the Doubts.</p> <p>To every patent the public is an indirect party. It is for the advantage of the whole' people that all meritorious inventions shall be protected; lint it is clearly the duty of the courts to see to it that the public is not required to pay tribute for that which may he fairly considered as abandoned by tho inventor.</p> <p>4. Same — Remedy fob Rejection by Patent-Office, Appeal, not Reissue.</p> <p>The claim in controversy was presented in the original application ami twice rejected. The applicant knew of the rejection, and his solicitors acquiesced in such ruling, field, that the proper course to secure the claim was t o appeal, and that there was no such inadvertence," accident, or mistake as entitled the patentee to a reissue.</p>

<p>1. Patents for Inventions — Hominy Mills.</p> <p>In a suit on reissued letters patent Ho. 10,057, of March 7, 1883, to Theodore Hudnut, it was shown that one of the alleged infringing machines was made in accordance with an earliér patent, and therefore held, that such machine was not an infringement.</p> <p>3. Same — Reissue with Enlarged Claims.</p> <p>It is not competent for a patentee, bjr a reissue of his patent, procured after a delay of more than 10 years, to so enlarge the scope of his invention as to cover devices, patented in the mean while, which were not embraced in the original.</p>

<p>1. Ships and Shipping — Home Post — Enrollment on Vessel.</p> <p>The word “port, ” as used in the system of laws relating to the importation of merchandise, has a restricted moaning, and is applicable only to a place for the collection of duties on imports; but when not so used, it has a wider and an entirely different meaning.</p> <p>2. Same — “Home Port” Devinbd.</p> <p>In the latter sense it means, not a port of entry only, but may mean also the place of residence of the owner. The “home port” of a vessel, therefore, may be a port of entry, or it may be a port or place other than a port of entry.</p> <p>8. Same — Vessel, where Enrolled.</p> <p>The location of the custom-house determines the place of enrollment; but when the place of enrollment and of residence of the owners of the vessel differ, the latter will he considered the “home port, ” even though the place of enrollment is in another state, if the facts of ownership and residence were known or might have been known to the material-man.</p>

<p>1. Evidence — Charter-Party — When Limited by Parol Evidence of Custom — Stevedore—Custom as to Payment — Foreig-n Master, Ignorant of Custom.</p> <p>Where the words “stevedore to be selected by charterers, and paid by them, ” were inserted in the charter-party of a Russian ship, bringing hides from Montevideo to New York, and it appeared that the custom of this trade is for the ship to pay for a stevedore at New York, and the understanding of the trade is that a clause such as the above relates to a stevedore at the port of loading only; but it also appeared that the master had never before brought a cargo of hides or been to New York, and had no knowledge of the custom, —on suit brought by the captain against the charterers to recover money paid a stevedore at the port of discharge, held, that the clause, by its context, was specially connected with the port of discharge; that, construed independently of its context, it would naturally import payment by the charterers of all necessary services of a stevedore at port of lading or discharge, butmight be limited, by proof of usage, to either port, provided it further appeared that both parties knew of the usage, and contracted with reference to it; but as it appeared that the master in this case had no knowledge of the custom, it could not be set up against him to defeat his rights under the charter-party, construed according to the natural import of its terms. Held, also, that the custom was at best one of persistent carelessness and inaccuracy, calculated, if not intended, to mislead and deceive those ignorant of it, and hence entitled to no favor, and admissible only on clear proof that the parties intended to be governed by it.</p> <p>2. Usage — -General and Special — Presumption oe Knowledge — Eeeect.</p> <p>“If a usage is general, both parties are presumed to know it, and to contract in reference to it. If it is special and confined to a particular business, or has reference to a particular port only, there is no such' presumption, and it would be unjust to admit it in order to restrict the natural meaning of a written contract, except upon proof that both parties were aware of and intended to be governed by it. ”</p> <p>8. Special Custom — Presumption—By What Rebutted — Weight.</p> <p>“Even if, as respects a special custom in a particular trade, or between particular ports, there is a presumption that parties in the business contract in reference to the custom, this presumption is at best but a prima, facie one, liable to be rebutted by proof that it was unknown to the party against whom it is set up, and on that being proved, no weight ought to be given it. ”</p>

<p>1. Carriers of Passengers — Action to Enforce Penalty against Steam-Boat for Carrying an Unlawful Number of Passengers.</p> <p>In a suit against a steam-boat to enforce the penalties proscribed by section 4165, Rev. St., for carrying an unlawful number of passengers, it appearing that tho persons in excess of tho allowed number aboard the boat wore intruders against the will of tho officers of tho boal,%nd that the boat moved from her landing to another convenient place to avoid a crowd of people who it was feared might force their way upon her and endanger her, held, that the penalties were not incurred.</p> <p>2. Same — Ltbel Dismissed without Costs.</p> <p>But there being apparently good ground for the suit, and the case being one proper for judicial investigation, and, moreover, the answer not explicitly soiling forth the real ground of defense, held, that while the libel must be dismissed, it should ho without costsio tho respondent, who also was adjudged to pay certain costs.</p>

<p>1. Carriage of Goods by Vessel — Doty of Yesskl — Delivery.</p> <p>A vessel discharger, her whole duty to her cargo by delivering in good order all that she has received.</p> <p>2. Same — Custom—Deduction from Freight.</p> <p>A custom to deduct from the freight earned the value of any deficiency between the quantity delivered and that stated in the bill of lading, and that the carrier shall not lie permitted to show that he delivered all he received, is unreasonable and invalid.</p> <p>8. Sauk — Hum of Ladino — Power of Master.</p> <p>The master has no power to bind the vessel by an agreement in the bill of lading that the same shall bo conclusive as between the shippers and carrier as to the quantity of cargo to be delivered to the consignees.</p>

<p>Collision — Unusual Care — Damages.</p> <p>Where a collision results from want of due care upon the part of a! vessel, she is liable in damages.</p>

<p>1. DISCHARGE OF CARGO — BILL, 03) LADING — USAGE OF TRADE — DEMURRAGE.</p> <p>When a hill oX lading fixes no time for the discharge of the cargo, the duty of a consignee is to use due diligence in procuring a herth, and to discharge, according to the custom of the trade; and for failure to exercise such diligence, demurrage is recoverable.</p> <p>3. Same — Upon thts Facts One Day’s Demurrage Aidowed.</p> <p>The schooner /. L. Adams arrived in New York, June 38th or 39lh; and the respondents, to whom the cargo was sold, “to arrive, ” knowing that the facilities of their private {her were inadequate, began, on Juy 1st, to make inquiries for a suitable place of discharge. The inquiries were continued over the 2d and 3d, when a berth was found. Sunday and July 1th intervened. The vessel arrived at her berth on the 6th, and finished unloading on the 10th. The evidence showed four days to bo a reasonable period for the discharge. Held, the respóndante were chargoable with one day’s demurrage, — Juno 30th, —as they showed no reason for deferring1 their inquiries for another berth until July 1st.</p>

<p>1. Equity — Adequate Remedy at Law.</p> <p>Upon a bill in equity to sot aside deeds made on orders of sale ol lands m judicial proceedings, which, were alleged to bo null and void, and J'or an account, of rents and profits, held, that there was a, plain and adequate remedy at law by an action of ejectment for the recovery of the possession of the lands and the mesne profits.</p> <p>2. Same — Judgment against One in Rebellion.</p> <p>J. was a resident of a county that became a part of West Virginia, and left his home and entered the Confederate army, and continued in armed hostility to the Union until his death. During the time he was so engaged suit was commenced in Ohio by creditors against him, attachment levied on his lands there situated, and constructive service made upon him. Judgment was had, and such lands sold upon orders therefor. Upon bill in equity by his heirs against the purchasers and others in possession to set aside said sales on the ground that said proceedings were void, held, (1) that equity had no jurisdiction; (2) that J. having voluntarily left his country for the purpose of engaging in hostility against it, his heirs cannot justly complain of legal proceedings regularly prosecuted against him as an absentee, on the ground of his inability to return or to hold communication with the place where such proceedings were conducted.</p>

<p>1. Evidence — Proof of Foreign Statute.</p> <p>The testimony of a credible witness, whether a lawyer or a layman, with reasonable moans of information, to the effect that a volume containing what purports to be a statute of a foreign country is commonly received in the business and courts of such country as such, is competent and sufficient proof of the existence of such statute.</p> <p>2. Corporation — Certi pícate op Incorporation.</p> <p>A. certificate of incorporation under section 18 of the companies’ act of Great Britain may bo issued in duplicate, and at any length of time after the memorandum of association is registered in the office of the registrar.</p> <p>8. Same — Proof op.</p> <p>Such certificate, when delivered to the corporation, is a private writing in private custody, and cannot be proved by an examined copy. The original must be produced, if in existence.</p>

<p>Public Lands — Setting- Aside Patent for Fraud — Perjury and False Testimony.</p> <p>Perjury and false testimony in proceedings to obtain a patent to public land is not fraud extrinsic or collateral to the matter tried and determined in the land-office, and will not justify setting aside the patent at suit of the TJnited States.</p>

<p>Hatiohat. Bank — ,1 urtsdiction op Circuit Court — Act op 1882 — Suit by Rb-CKIVEK — INJUNCTION.</p> <p>Plaintiff was appointed receiver of an insolvent national "bank in Yermont, and obtained an .order from tlie circuit court for tlie district of Yermont for tlie sale of certain bonds pledged to tlie bank as security for a debt due the bank by defendant railroad company in Canada, which brought suit in tlie Canadian court to recover the bonds,' whereupon plaintiff filed a bill in the circuit court for the district of Vermont for an injunction against the further prosecution of the suit in Canada. Held, that the circuit court had jurisdiction, and that the injunction should be granted.</p>

<p>New Trial — Release after Verdict.</p> <p>Where there has been a. release, in full, under seal, after a verdict in favor of defendant a motion for now trial, on the ground that the evidenee in the former trial was false, will not be heard until the validity of the release is determined by a proper proceeding.</p>

<p>Set-Off and Counter-Claim — Demands not in Same Right — Malicious Prosecution of Suit by Assignee for Benefit of Creditors — Rev. St. Wis. § 2656.</p> <p>In an action by an assignee for the benefit-of creditors, appointed in another state, to recover the purchase price of goods sold by the insolvent to a merchant in Wisconsin, damages resulting from the malicious prosecution of a former suit for the same cause of action, before the money was due under the contract, cannot be made the subject of a counter-claim under Rev. St. Wis.' 1878, § 2656.</p>

<p>Indictment under Rev. St. § 5518.</p>

Indictment for Violation of Postal Laws. Chapter 259 of volume 20 of the United States Statutes at Large, p. lél, declares that no postmaster intrusted with the sale or custody of postage stamps shall use or dispose of them in the payment of debts or purchase of merchandise.

<p>1. Patents nor Intentions — Celluloid.</p> <p>Letters patent No. 156,858, of October 27, 1874, to John. W. Hyatt and Isaiah S. Hyatt, assignors to the Celluloid Manufacturing Company, sustained against the defenses of want of novelty, non-patentability, and public use.</p> <p>2. Same — Utility op the Invention.</p> <p>To the process set forth in this patent, and the knowledge and skill which grew out of an acquaintance with it, is due the present commercial success of zylonite or celluloid as an article which can be devoted to a very great variety of uses.</p>

<p>Patents for Inventions — Prior Use.</p> <p>It was clearly proven in this case that the devices covered by patent No. 105,124, granted to Charles B. Pratt and others, July 5, 1870, for an improvement in hoop-skirts, had been manufactured and sold by others in 1868 or 1864, and hence the bill was dismissed.</p>

<p>1. PATENTS FOR INVENTIONS — -REISSUE.</p> <p>Application for a reissue having heen filed within two months after the original patent was granted, held, that the patentees could not he charged with want of due diligence in making the application.</p> <p>3. Same — Reissue must be foe Same Invention.</p> <p>If the description in the original patent does not warrant the new claims in a reissue, then the reissue is for a different invention, and no amount oí diligence in the application for the reissue can make it, valid.</p> <p>3. Same — Reissue No. 10,418, of December 4, 1888- — Siirps"5 Pumps.</p> <p>The combinations embodied in the new claims in this reissue are sufficiently described in the original patent. Such claims are valid, and the tenth, twelfth, and thirteenth claims held infringed.</p>

<p>1. Specific Performance.</p> <p>A court of equity will not specifically enforce a contract at the instance of one of the parties who has repeatedly broken it, even if the other party has been guilty of the first breach.</p> <p>3. Same.</p> <p>If one party to a contract expects to have it specifically enforced against the other, he must act steadily in good faith, by observing its terms, whether the other party violates his covenants or not.</p> <p>3. Same — Reíiisby at Law.</p> <p>Alien a party to a contract has not kept his covenants, hut excuses hnnself on the ground that the other party was guilty of the first breach, whatever remedy there is, is at law.</p>

<p>1. Patents for Inventions — Reissue.</p> <p>Tie seventh claim of reissued letters patent No. 8,276, granted June 11, 1878, to Mellen Bray, for an improvement in rivet-setting machines, is broader than the original patent, and the reissue having been applied for over three years from the date of the original, such claim is void.</p> <p>2. Same — iNFXUNnEMENT.</p> <p>The eighth claim of this reissue, for “The receiver, N, provided with the springs, v, and r', mounted upon the setting plunger, B, and adapted to operate substantially as described, ” is not infringed by a receiver consisting of a long lever, pivoted, at its rear end, to the supporting frame of the machine, and composed of two elastic strips of metal, flaring at their front ends to hold the rivet.</p>

<p>Suit on Charter-party.</p>

Petition to Limit Liability, etc. This was a petition stating, in substance, that on the twentieth day of September, 1880, the petitioner was the owner of the steam-boat Oconto, a steam-vessel engaged in interstate commerce on the Great Lakes; that on that day, shortly after the Oconto had passed up Fox river by the eity of Green Bay, in the course of a regular voyage, a fire broke out on shore in that city, which, spreading, consumed in its course 67 buildings and a large…

<p>1. Charter-Party — Freight—Prior Oral Agreement — Evidence—Managing Owners — Power oe Attorney.</p> <p>The master of a vessel at Pensacola offered II. Bros., acting for W. & Co., of Hew York, a charter of his vessel, to take lumber to New York at nine dollars a thousand feet. The managing owners, at Boston, wishing to get the vessel, which had been long in southern ports, into their possession, requested AV. & Co. to take the charter, and agreed that only eight dollars a thousand should be charged against them under it. The charter was thereupon effected. On the arrival of the vessel, W. & Co. refused to pay more than eight dollars, and the master libeled the lumber to recover the charter price of nine dollars. It appeared that the managing owners not only represented a majority in interest of the owners, but held a power of attorney, signed by various owners and by the master, who owned one-eighth, which authorized the managing owners, among other things, to obtain possession of the vessel, and to settle freight-bills. IMcl, that the power of attorney gave the managing owners authority to settle bills for freight, and, as incident to that, to agree on a remission of one dollar per thousand; that this authority prevailed over the master’s authority, and that the oral agreement prevailed for a remission of one dollar per thousand, upon the price named in the subsequent written charter, which was signed in part execution of the prior oral agreement; and, that agreement being fully proved, there could be no recovery over eight dollars per thousand.</p> <p>3. Demurrage — Vessel Aground — Three Days Allowed.</p> <p>Claim was also made to recover for 11 days’ demurrage. Held, that charterers were not liable for delay while the vessel was aground without their fault, nor for delay in getting a berth caused thereby; and that, after deducting for such delays, but three days were left for which libelant was entitled to demurrage.</p>

<p>1. Navigable River — Constructing Bridge — Piles.</p> <p>A company authorized to construct a bridge over the Allegheny river, in the course of the work, may lawfully drive piles in the bed of the river at a pier-site; but if, at an ordinary flood-stage, such piles are likely to become a hidden and dangerous obstruction to navigation, it is the duty of the company to mark the place distinctly by a buoy, or otherwise, even although the submerged caisson and piles might create a break on the surface of the water which a skillful navigator would observe in daylight and understand.</p> <p>2. Same — Backing Steam-Boat against Piles.</p> <p>A steam-boat, the pilot of which knew that the submerged piles were there, is chargeable with negligence in backing towards the place of danger in daylight, without having a lookout at the stern of the boat to give warning to the pilot.</p> <p>8. Same — Vessel Sunk — Negligence.</p> <p>Tlie steam-boat having struck the submerged and unmarked piles, and sunk, held, that both parties were in fault, and the damages should be equally divided.</p>

<p>Removal oe Cause — Bankruptcy—Discharge—Exempt Property.</p> <p>On a suit between citizens of tlie same state, removed from the state court, the circuit court has no jurisdiction, after a discharge in bankruptcy, to protect property exempted by the bankrupt court from judgment liens" existing prior to the application for bankruptcy, and such cause will be remanded.</p>

<p>Equity — Plea in Abatement to Jurisdiction — Citizenship—Decision Pinal.</p> <p>Complainant filed a bill as a citizen of Nevada against defendant, a citizen of California, in tbe circuit court for the district of California.' Defendant filed a plea in abatement, alleging that complainant was a citizen of California, whereupon complainant filed a replication, and the issue of citizenship upon hearing was decided in favor of complainant. Defendant then filed an answer to the merits of the case, and also denied that complainant was a citizen of Nevada. A replication was filed and testimony taken, and subsequently, pending the examination of witnesses, defendant offered to show by affidavits that complainant was in fact a citizen of California. Held, that the determination of the issue as to citizenship on the plea in abatement was conclusive, and could not be raised and determined again on affidavits or upon the denials in the answer.</p>

<p>1. Mortgage — Interest Coupons — Interest aster Maturity.</p> <p>In Illinois a mortgage note or bond bearing interest at a given rate continues to bear that rate of interest so long as iho principal remains unpaid.1</p> <p>2. Same — Coupons, when Draw Interest — Commerciax, Paper — “Written Instruments” — 'Rev. St. III. Oh. 11, § 2.</p> <p>Coupons given by a guardian for installments of interest on a mortgage on the ward’s land that are not so worded as to bind the guardian or the ward personally will not draw interest after they become due as commercial paper or as “written instruments, ” within the meaning of Rev. St. 111. c. 74, § 2.2</p> <p>NOTE.</p> <p>In ICellog v. lavender, (Neb.) 18 N. W. Bep. 38, notes were given pajrable in one and two years, with 12 per cent, interest, payable annually, and the court held that the holders thereof were entitled to the rare provided for, after as well as before maturity. The court say: “This view seems to he in accord with the recent decisions of the English eouris, as collected by Chief Justice Gray, in his very able and exhaustive opinion in the case of Onion Institution for Savings v. City of Boston, 129 Mass. 82. In this base the learned judge cites all the cases, American and English, and reaches che same conclusion as that announced by Mr. Justice Eiulu in Cromwell v. County of Sac, 90 U. ¡S. 51, that ‘the preponderance of opinion is in favor of the doctrine that the stipulated rate of interest attends the contract until it is merged in the judgment.’ But the best-reasoned case, it seems lo mo, is that of Spencer v. Maxiield, 16 Wis. 178. The opinion of the court by Mr. Justice Paijtk answers every objection, and leaves it perfectly clear to iny mind that the rule as last stated is the correct one, and that none other ought to be adopted in this state.”</p> <p>Where a promissory note by its terms fixes a legal rate of interest per annum, “ from date until paid,” such note will draw interest at the agreed rate after as well as before maturity, and the judgment or decree rendered thereon will draw the same rate of interest. Bond v. JDoiby, (Neb.) 23 N. W. Tiep. 35!.</p> <p>A promissory note, 'or other obligation containing an agreement for a special rate of interest, will, after maturity, draw ínteres!, only at the statutory rate unless the special rate is expressly agreed to be paid after maturity, Eaton v. Boissonnault, 07 Me; 510.</p> <p>Where there is a uniform rate of interest, and a conventional rate fixed by statute, a contract in writing to pay a debt, with interest at a given rate from a designated date, carries the conventional rate as well after as before maturity. Overton v. Bolton, 9 Ileisk. 762.</p> <p>A note payable one day after date, and bearing a conventional rate of interest greater than the legal rate, but containing no provision for the rate of interest after maturity, draws the same rate of interest after as before maturity. Shaw v. liig'by, 81 Ind. 375.</p> <p>.1 promissory note payable within a year from its date, with a larger than the statutory rate of interest, “ per annum,from date,” draws only the statutory rate of interest after maturity. Newton v. Kennerly, 31 Ark. 620.</p> <p>A contract to pay a sum certain at a future day, with interest at a conventional rate, nothing being said as to the rate of interest after the principal sum becomes due, bears interest at the conventional rate until it becomes due, and irom that time, upon theag-gregatc of principal and interest, at the legal rate. Briggs v. Winsmith, 10 S. 0.133.</p> <p>In an action upon a contract to pay a sum of money at a certain time, With interest at a specified rate, the creditor is entitled to recover interest at that rate, not merely until the agreed time for payment of the principal, but until it is actually paid or his claim for principal and interest is judicially determined. Union Institution for Savings v. City of Boston, 129 Mass. 82.</p> <p>A contract to pay interest at a specified rate, but silent as to the rate after maturity, draws the conventional rate after maturity. Meaders v. Gray, CO Miss. 400.</p> <p>A note payable one day after date, at a conventional rate of interest, bears that interest until paid. Casteel v. Walker, 40 Ark. 117.</p> <p>A sealed note, payable 12 months after date., “with interest at 12i per cent, per an-num,interest payable annually,” and described in a contemporaneous mortgage executed to secure it as a note, “with interest thereon at the rate of 12¿ per cent, par annum till paid,” draws the same rate of interest after maturity as before. Mobley v. Davega, 16 S. C. 73.</p> <p>A sealed promissory note, payable six months from date, with interest at the rate of 12 per cent, from date, bears the. conventional rate of interest until paid, although not paid at maturity. Cecil v. Hicks, 29 tíl at. 1.</p> <p>Where a note" is payable on demand, with interest at 10 per cent., that rate of interest is recoverable up to the date of the judgment. Paine v. Caswell, 68 Me. 80.</p>

<p>1. Evidence — Answer in Equity under Oath — Evidence to Overcome.</p> <p>In a suit for specific performance of a contract for the sale of land, where defendant, in his answer duly verified, denies that he received a telegram, forming part of the contract, “suchas is copied in the complainant’s bill;” and complainant testifies that he sent the telegram just as copied in the bill, and produces a copy made by himself at the time of sending it; and defendant, though sworn as a witness, and notified to produce papers, neither produces the telegram actually received, nor says a word about it in his deposition, — all the requirements of equity practice are complied with, and it must be taken as proved that such a telegram passed between the parties, and formed part of the alleged contract. ’ ■</p> <p>2. Specific Performance — Tender—Refusal to Perform.</p> <p>Where a party has flatly refused on his part to carry out .the contract, a tender by the other party of performance is not necessary before bringing a suit for specific performance.</p> <p>3. Same — Contract to Sell Land Evidence — Letters and Telegrams— Certainty — Acceptance.</p> <p>On examination of the evidence and the letters and telegrams forming the contract to sell the land involved in this case, held, that the contract was sufficiently certain, that there was an acceptance by defendant of complainant’s offer to buy, and that specific performance should be decreed.</p>

<p>1. Action-Survival of — Rev. St. § 935.</p> <p>The la ws of the United States prescribe methods only for reviving’suits that do survive, but do not proscribe what suits shall survive.</p> <p>8. Same — Revivor of Actios against Director op National Bank por Negligent Performance op Duty — Vermont Statutes.</p> <p>Under the law's of Vermont an action against a director of a national bank for negligent performance of duty in not requiring a bond from the cashier, and otherwise mismanaging the affairs of the bank, abates by his death, and cannot be revived against his administrator.</p>

<p>On Specifications against Discharge.</p>

<p>1. Bankruptcy — Discharge—Settlement with Creditors and Appointment op TRUSTEE.</p> <p>A settlement with their creditors by the members of a bankrupt firm, under section 5103 of the Revised Statutes, where trustees are appointed by a vote of the creditors, is in lieu of the usual proceedings in bankruptcy, and a discharge obtained thereby is complete and final.</p> <p>2. Same — POWER op Court to Appoint Assignee.</p> <p>Where the debts of the bankrupt firm are settled with such trustees, the trustees have settled with the creditors, and have been themselves discharged, and the bankrupts are discharged, the bankrupts are entitled to a remaining surplus of their estate; and, in the absence of such representations of fraud or mistake as would vitiate the discharge, the district court has no authority to appoint an assignee to take possession of such surplus.</p>

<p>Indictment for Perjury.</p>

<p>Conspiracy against Laws op United Status — Driving Chinese Out of United States — Rev. St. § 5336.</p> <p>A conspiracy or agreement of two or more persons to drive the Chinese out of the United ¡átales, or to maltreat or intimidate them, with a view of constraining them to' depart therefrom, is prima faeJe a conspiracy to prevent and hinder the execution, operation, or fulfillment of a law of the United States, namely, the treaties with China of 1868 and 1880, and is an indictable olfense under Rev. St. § 5336.</p>

In Equity. Suit for the infringement of the first claim of letters patent No. 170,998 and the first claim of letters patent No. 224,281, both for improvements in baling-presses.

<p>1. CONTRACT for Use of Invention Construed.</p> <p>An agreement to pay 830 for each of the first 400 locomotive engines to which an invention should be applied, is not an agreement to apply the invention to 400 locomotives, and to pay §80 for each one.</p> <p>8. SAME.</p> <p>The terms of payment, under this contract, were §6,000 within 30 days after the contract was executed, and the remainder within the period of one year. Held, that this was an agreement to pay §6,000 absolutely within 30 days, and in case the invention was applied to a number of locomotives sufflcient to produce, at §30 for each, a greater sum than $6,000, then this excess was the remainder contemplated, and was payable within the year.</p>

<p>1. Patents for Inventions — Pakty-Colobed Glassware.</p> <p>On motion for preliminary injunction, letters patent Ko. 282,002, granted tc Joseph Locke, July 24,1883, for an improved article of glassware, and the process for making the same, sustained.</p> <p>2. Same — Novelty.</p> <p>This patent was for an article of glassware of ruby and amber colors, made from a gold-ruby compound, which was a well-known glass mixture containing gold. Patentee discovered that, by reheating only a portion of the article, the ruby color was developed in the reheated portions, while the other portions remained amber colored, producing an article known as “amberina. ” This process of obtaining party-colored glassware had been before practiced, but not with gold-ruby compound, — the amber color had not been obtained, —except by accident, and then with no thought of utilizing the product,— and, although this fact undoubtedly led patentee to make the discovery, the patent was sustained.</p> <p>3. Same — Description oe Investios.</p> <p>The specification of this patent sufficiently describes the invention to enable persons skilled in the art to which it relates to produce the patented article.</p> <p>4. Same — Disclaimer Pending Suit.</p> <p>A disclaimer can be made after the suit is commenced; and tbe defendants in this case having knowledge of the scope of the patent, and sufficient time to prepare their defense to a motion for an injunction, UeW¡ that their rights had not been prejudiced in any degree by the disclaimer.</p>

<p>1. Patents nob Inventions — Inertngement—Hoots—Patent No. 804,068.</p> <p>A patent for a boot, consisting of an inside counter-protector at the back of the boot, with the sides extending over the cross-seams at the sides of the boot, fastened by a row of stitching beyond the eye-seams, by which they are covered and protected, is not infringed by a boot having an. outside counter-protector extending into and fastened by'seams lapped at the side of the boot and extending no further and not fastened by stitching outside of the lapped seams.</p> <p>2. Same — Novelty—Boots—Patent No. 214,684.</p> <p>Patent No. 214,684, in so far as it claims an outside counter-protector with lateral ends extending to the side seams of the boots inserted in the side seams formed by doubling down tbe back and front leathers of the boot, with or without welts, and stitching all together to form the seams, is void for want of novelty.</p>

In Equity. Suit for infringement of the first claim of letters patent No. 126,394 for an improvement in baling-presses, and th.G first claim of letters patent No. 199,052 for an improvement in portable hay and cotton presses. The complainant sues as assignee. The only evidence offered of the execution of an assignment to him is a certified copy of an unacknowledged instrument on record in the patent office, which purports to be a duly executed assignment.

<p>1. PATENTS EDI! INVENTIONS — PLEADINGS.</p> <p>Exceptions for impertinence and immateriality were filed to that part of a hill which described prior patents to the same inven lor, and involving the tbo same principle as one of tlie patents in suit. Held, that it was entirely-proper, and under tho circumstances of the case almost necessary, to show the relation which the patent in suit bore to the prior patents.</p> <p>2. Same.</p> <p>The history of 1ho invention is a part of the controversy in a patent case. The stale of the art, and the steps which have been taken, either by the inventor óf tho patent in question or by other inventors, are a necessary part of the testimony, and proper matters of averment in 1,bo bill.</p> <p>3. Same — Recital or Prior Lltigation.</p> <p>It is proper to recite in a bill l'or infringement of a patent prior litigation over the same patent.</p> <p>4. Same — Comiti—Rule on, in Seventh Circuit.</p> <p>In the Seventh circuit, by a rule of comity, the courts, in patent cases, endeavor to observe and follow the decisions'which have been made in reference to the same patents, and even upon kindred questions, in other circuits.</p>

On the thirteenth of December, 1883, while the ferry-boat Garden City was on one of her regular trips from Roosevelt street, New York, to Hunter’s point, a trip three and one-half miles in length, a fire was discovered in the “center-house,” near the smoke stack, when about opposite Market street. The boat was stopped as soon as possible, her engines were reversed, and in a few minutes she regained the end of her slip at Roosevelt street.

<p>Charter-Party — Demurrage— Cesser of Liability — Difference of Freight —Notice to Agent — No Agent Present — Advertising.</p> <p>The charter of the hark Peeress was in substance similar to that in the case of Eisenhauer v. Belaunmran, post, 784. The vessel sailed from New York to Cadiz, where a recharter was executed to F. & Co. to carry a cargo of salt to Bahia, Brazil. The original charter provided that “ lay days shall commence after the vessel is ready to discharge, and written notice thereof is given to the party of the second part or agent.” Upon the “provisional settlement” at Cadiz, the captain executed his note to the Cassa Marittima for the difference of freight, payable absolutely after his arrival at Bahia, with a pledge of the. ship and freight therefor. The vessel arrived March 4th, consigned to the “ agents ” of the recharterers. There were not then any agents of F. & Co. at Bahia, through delay in sending instructions in regard to this cargo; nor were there present any agents of the respondents in reference to this ship or cargo. Certain representatives of the respondents refused to have anything to do with it. Written notice of the vessel's readiness to discharge could not therefore be given to any authorized “agent” until some time after, when C. & Co. received cabled instructions from respondents and from F. & Co., and assumed the agency. Upon delivery of cargo there was no shortage, and the “estimated” freight was collected in full. The cargo at Bahia was worth no more than the freight, and the consignees therefore refused to pay any demurrage, though that was a lien on the cargo; and the argo was therefore delivered on payment of the freight only. The note was paid in full from the freight collected, and the rest of the freight was applied in payment of the charter money. This suit was brought against the original charterers for the demurrage. Held, (1) that, although the note given was in form in excess of the master’s authority, yet as the estimated freight was fully realized, the note truly represented F. & Co.’s share of the freight money received at Bahia: that as the recharter provided that “charterer’s liability should cease on cargo’s being shipped,” and as this was the form of rechárter that respondents had required the master to sign, respondents had in effect agreed that F. & Co. should not be personally held for demurrage at Bahia; that the master had no right, therefore, to deduct the demurrage claim as a set-off against the amount of the note, which truly represented F. & Co.’s share of the freight collected; that the demurrage was no lien on the freight, and hence the master did the respondents no legal wrong in paying the note in full. Held, (2) that as the recharter which the captain was required to sign expressly provided that the vessel should be loaded with salt, the captain could not be charged with fault in taking a cargo of less value than the freight and demurrage; and, as he secured the full value of the cargo, he could do nothing better for the -respondents, and wag in no fault for delivering it upon payment of its full value as freight. Held, (3) that respondents, to entitle themselves to the benefit of the provision for “written notice” of discharge under their original charter, were bound to have an agent at Bahia, ready and authorized to receive such a notice. Not having any such agent there, they were liable for the vessel’s demurrage front the time of her actual readiness, and damages for 12 days were allowed, as well as the moneys paid by the master for advertising for charterer’s agent, and for cabling to blew York.</p>

<p>Charter-Party — Cesser oe Liability Clause — Reoharter—Departure — Provisional Settlement — Dieeerbnce oe Freight — Note—Voluntary Payment — Discharge.</p> <p>Respondents chartered the hark F. for a voyage from New York to Spain, and thence to Brazil. The charter-party provided: “ Any difference in freight to be settledbefore the vessel’s departure from port of loading; if in charterer’s favor, by captain’s draft upon his consignees, payable 10 days after arrival of vessel at port of discharge. Charterer’s responsibility for amount of outward charter to cease when vessel is loaded with outward cargo, and bills of lading are signed for same. If required by charterers, captain to sign recharter without prejudice to this charter. ” At Cadiz, the captain, under the above provision, executed a recharter of the vessel to F. & Co. to carry salt to Santos, Brazil, at 22 shillings per ton delivered, and the difference of freight being in charterer’s favor, the captain gave anote to the CassaMarittimafor the difference, payable absolutely 15 days after his arrival, at Santos, with apledge of the ship and freight for payment. On such arrival the cargo was found to be short, and the freight on the amount delivered, after paying the note in full, not being equal to the balance of charter money due, the captain brought this action against the original charterers for the amount, which is equal to the freight on the shortage of cargo. Held, (1) that the cesser of liability clause in the charter applied to the voyage from New York to Spain, but d'id not apply to the voyage from Cadiz to Santos, and that a similar clause in the recharter was not available to the respondents. Held, (2) that the settlement, and the draft given in pursuance of it, as contemplated by that clause of the charter, when the true amount of freight was dependent upon the amount of cargo delivered, were not absolute and final, but provisional only, and subject to correction and deduction, for any just cause by which the amount of freight at port of discharge might become less than what had been estimated in the settlement, through no fault of the ship; and this, whether the right to such deduction were expressed in the draft or not; that the master was bound to deduct, from the estimated settlement and from the note, before payment, any sum found not justly applicable thereto; and that the master’s receipt of sufficient freight moneys, applicable to the payment of the original charter money, inured as a payment thereof, and discharged the charterers. Held, (3) that the making by the master of a note to the Cassa Marittima for an absolute payment, with apledge of the ship and freight, without being required to do so by the charter or the recharter, and without providing for a possible reduction of freight, was a departure from the original charter, and his payment of the note out of freight money received was a voluntary and wrongful payment, which discharged the original charterers from liability for the balance of the charter money.</p>

<p>1. CARRIAGE OR Goods by Vessel — Bill oe Lading — -Stipulations—Delivery or Cargo — Notice to Consignee — Care or Goons — -Maritime Duty.</p> <p>A stipulation in a bill of lading that cargo may bo landed “without notice to and at the risk and expenso of the consignees of the goods after tlieyieavo the deck of the ship” does not relieve the master from the duty of using ordinary and reasonable care for the safety of the goods until reasonable notice of discharge is given, or a delivery made. This duty of ordinary care to save the cargo from loss is a maritime duty, imposed by law upon the master in all situations until delivery is effected. The lack of such care is negligence, from which no stipulation exacted by the carrier can exempt him.</p> <p>2. Same- — CONSTRUCTION—“Consignee’s Bisk and Expense.”</p> <p>Construed in connection with the ship’s duty under her ordinary agreement to deliver “in like good order and condition, ” the stipulation means that the goods maybe landed at a proper time and place, though without notice to the consignee; and that upon the ship’s taking reasonable care of them after-wards, before notice of discharge, they will be at consignee’s risk and expense; but if discharged at an improper time or exposed to known and imminent peril of loss, without due notice, the ship will be held liable for breach of duty.</p> <p>3. Same — Delivery or Fruit in Cold Weather — Duty or Ship.</p> <p>Bills of lading were given at Palermo for 200 cases of lemons, deliverable to order, received on board the steam-ship P., designed to be sent from New York to Canada by rail. The lemons were subsequently transferred at Palermo to the steam-ship S.; hut the consignee was not notified of such reshipment, and, expecting the goods at New York by the P., paid no attention to the arrival of the S. The latter waited a few days after her arrival, on account of the coldness of the weather, but finally discharged her fruit, the weather still remaining cold, and the consignees of all the rest of the fruit being on the dock ready to receive and care for their consignments. No one appearing to claim the 200 cases of lemons, they were left on the dock and speedily frozen. Held, that a vessel is bound to make a delivery at a suitable time; that a discharge on the dock, without notice, is not a legal delivery, and a discharge at a time when for want of notice the goods cannot be removed by the consignee before they would be destroyed by frost is not a discharge at a suitable time, and not protected by the above stipulation; that the ship was therefore liable for the value of the fruit frozen; and that the S. was further chargeable with negligence in sailing without any copy of the bill of lading, which would have apprised her that the goods were destined for Canada, and that the non-appearance of any consignee was owing to some mistake arising out of the transhipment from the P. to the !á.</p>

On Motion for a New Trial. The facts of this case were substantially as follows: Plaintiff was the administrator of the estate of John Carbry, deceased, who, at the time of his death, was the engineer of a steam-pump on the barge Enterprise. On November 20, 1888, while upon a voyage from Sarnia to Lake Superior, the Enterprise went ashore upon Green island, in the northern part of Lake Huron.

<p>On Motion to Remand, and to Yacate Order to Marshal, etc.</p>

On Demurrer to Bill in Equity. Tliis was a bill filed in 1885 by a judgment creditor of the Michigan Air Line Eailroad Company to realize for his own benefit the amount of certain bonds, issued by the defendant township under the railroad aid law of this state, which had been deposited with the state treasurer, and were held by him for the benefit of the road, until the law was declared unconstitutional, and were then returned to the township authorities.

In Equity. Creditors’ bill. When the mortgage in question herein was executed by Mr. Yae-german, he was insolvent. It covered ail of his property except a small amount exempt from execution. The first of the following opinions was delivered February 23, 1886.

<p>In Equity. Motion to dismiss.</p> <p>The motion to dismiss was filed December 8, 1885. A special replication was filed December 5, 1885.</p>

<p>TRADE-MARK — JURISDICTION OR CIRCUIT COURT — INFRINGEMENT NOT IN FOREIGN Commerce or Trade with Indian Tribes.</p> <p>The circuit court has no jurisdiction of a suit for the infringement of a trademark by a citizen of the same state as the complainant unless such infringement consists in using the trade-mark by the defendant upon goods intended to be transported to a foreign country, or used in lawful commercial intercourse with an Indian tribe.</p>

<p>Corporation — Action by Stockholders — Collusion—Equity Rule 94.</p> <p>Bill in action by stockholder against a national bank held demurrable, because it contained no allegation that plaintiff was a shareholder at the time o£ the transaction complained of. or that his share had since devolved on him by operation of law, and that the suit was not a collusive one to confer jurisdiction on the circuit court, and because plaintiff failed to allege any efforts made to secure such action as he desired on the part of the officers of the corporation, and the cause of his failure to obtain such action as required by equity rule 94.</p>

<p>Railroad — Chicago, Milwaukee & St. Paul Railway Company — Liability on Judgment against Chicago & Pacific Railroad Company.</p> <p>Judgment obtained by tbe Third National Bank of Chicago held a lien on the Chicago So Pacific Railroad, leased to the Chicago, Milwaukee & St. Paul Railway Company, for which, under the terms of its lease, it was liable, and a decree passed, requiring it to pay into court, within 80 days, a sufficient sum to satisfy the demand of the bank.</p>

<p>Pledge — Insolvency—Action at Law.</p> <p>D., an insolvent, made a dation on payment of a stock of goods to M., for a lawful indebtedness to M., who knew of D.’s insolvency. The goods were delivered to M., who pledged and delivered the same to B. for §15,000; §4,000 in cash, and E.’s two promissory notes, payable 60 and 90 days after October 27, 1883. D.’s creditors, these complainants, attached the goods in E.’s hands as the property of D. B. intervened, claiming the goods under his contract of pledge from M. D.’s creditors answered B.’s intervention, alleging that the giving in payment by D. to M., and the pledge to E., were all schemes in aid of the fraud upon D.’s creditors; that all the transactions were mere simulations in fraud of creditors; that if any of the contracts relied on by defendants wore real, they were still in fraud of D.’s creditors. E.’s intervention was tried by a jury. The court on that trial would not allow any evidence except as to simulation or no simulation to be heard by the jury, because, if the contracts sought lo be avoided were real ones, though in fraud of D.’s creditors, such mailers could be heard only on a bill in equity; that the contracts, if realones, could not be revoked, and the goods subjected to the claims of injured creditors in an action at law. The complainants, being defeated in their suit at law, after the two notes were paid by E., tiled this bill to subject the goods pledged to him to the claims of the creditors of D. The court, on hearing ihecaso, declined to give any relief against 15. The complainants, in argument of their motion for a now hearing, say: “Admitting the facts to be as the court found them to be, 15. paid the two notes after the suit at law, in which lie was informed of the fraud on D.’s creditors, was filed, and, the payments being in aid of such a fraud, lie is si01 liable to these complainants for the amount of the notes; that the suit at law charged him with notice not to pay tiie notes except at his peril. ” Held, that the suit at law could not operate) in law or in equity, as such a notice to E., because IS.’ s contract of pledge was not a simulation, but a real contract, and he should be protected in his payment of the notes; that a suit cannot be said to give notice to a defendant of any tiling or charge beyond the matters that can bo tried in such a suit.</p>

<p>Creditors’ Bill — Rigiits of Receiver — Priority of Creditors.</p> <p>Complainants demand that certain property shall be subjected to tbe payment of their demand, under the lien acquired by the levy of their writ of fieri facias, and by the service of process under their bill. The receiver of the owner, intervening, shows a prior lien, and an assignment by the conceded owner to satisfy prior judgments. Held, that under no adjudged case cited, nor under any principle laid down in the text-books, are the complainants entitled to priority on the ground claimed.</p>

<p>1. Action on an Entire Demand.</p> <p>Where an action is brought on a part only of an entire and indivisible demand, the pendency thereof may be pleaded in abatement of another action on the remainder, and a judgment in either may be pleaded in bar of tho other.</p> <p>2. Case in Judgment.</p> <p>II. was appointed the attorney of the defendant, a foreign corporation engaged in loaning money in Oregon on note and mortgage, and on February 12, 1883, after being- so employed about eight years, he brought an action against said corporation to recover the sum of $21,258.80, tho alleged value of his services for that period, without specifying any particular service, except attending to two suits, for which he claimed the sum of $755.80, and had judgment thereon for 88,407.61, and $390.05 costs and disbursements; and after-wards, on September 5,1881, he brought this action against said corporation to recover the sum of $11,223.74, with interest from January 31, 1880, for services as an attorney during the period covered by the former action, in making and delivering to the defendant 554 certificates of the title to lands offered to the latter as security for loans, the sum demanded being equal in amount to 1 per centum of the moneys loaned on the lands included in said certificates, llekl, that the claim now sued for was a part of an entire and indivisible demand and cause of action, existing when tho former action was brought, and that the judgment therein is a bar to this action.</p> <p>8. Attorney and Cdient.</p> <p>The services of a standing or regularly appointed attorney are usually rendered pursuant to some general agreement or understanding, and whatever is due therefor at the expiration of tho service or employment constitutes but one cause of action; and courts should be careful in such cases, in the application of a rule against splitting up demands, not to leave any loop-hole through which an attorney may be tempted to harass and oppress his client with vexatious or spiteful litigation.</p> <p>Hughes e. Dundee Mortgage & Trust Investment Co. (Nos. 1,066 and 1,069. Two Oases.)</p> <p>Action to Recover Attorney’s Fees.</p> <p>Deady, J. These two cases were argued and submitted with the foregoing. The facts in the cases are similar, and the question made on the demurrers to the defenses is the same.</p> <p>In No. 1,060 it appears that the Oregon & Washington Mortgage Savings Bank was incorporated under the laws of Great Britain, and engaged in loaning money in Oregon and Washington; that the plaintiff was its attorney, and as such, prior to January 1, 1882, made and delivered to it 347 certificates of titles to certain lands, on which it loaned 8565,108.59; that said certificates were worth 1 per centum of that sum, or 1)5,651.03; that in August, 1882, said corporation amalgamated with the defendant, who assumed to pay its debts, including the claim of the plaintiff, which, with interest, amounts to 86,907.07.</p> <p>In 1,069 it appears that the defendant was incorporated under the laws of Groat Britain prior to 1879, and has since been loaning money in Oregon and Washington: that in 1879. 1880. and 1881 the plaintiff was the attorney of the defendant, and as such made and delivered to it 297 certificates of title to certain lands, on which it loaned 8589,000; that said certificates were worth 1 per centum of that sum, or §5,890, which, with interest, amounts to 87,189.85.</p> <p>In both these oases the defense is made that the judgmont given in the action commenced February 12, 1888, is a bar, to which the plaintiff demurs as in case 1,065, ante, 881.</p> <p>The defense is sustained, and the demurrer overruled, for the reasons given in that case.</p>

<p>Master and Servant — Negligence—Fellow-Servants—Engineer in Oiiarok or Engine and Fireman on Another Train.</p> <p>A fireman on a passenger train, and an engineer in charge of an engine not connected with such train, but belonging to the same railroad company, are follow-servants, and where the fireman is killed by a collision between the engine and the train caused by the negligence of the engineer the company will not be liable.2</p>

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

<p>1. British Merchant Shipping Acts.</p> <p>The acts of parliament known as the “British Merchant Skipping Acts” only include or embrace the statute law relating to British merchant ships and seamen, and the common law of Great Britain, except when altered by statute, remains still in force for the government of consuls.</p> <p>2. Jurisdiction op British Consuls.</p> <p>When a British consul, in a matter of discipline, is dealing with British subjects, on board of a British ship, courts of the United States are not called upon to look for his- jurisdiction further than the instructions issued by the British foreign office.</p> <p>S. Rev. St. § 728.</p> <p>Section 728 of the Revised Statutes in terms embraces all consular agents whose governments give them jurisdiction, but the authority conferred upon such consular agents to sit as judge or arbitrator, mentioned in the statute, refers to, and is limited to, authority conferred by the United States. And construing section 728 with sections 4079, 4080, and 4081 of the Revised Statutes, such authority is limited to such officers of foreign nations as are entitled thereto, under treaty stipulation with the United States; and then only when such foreign country gives the same privileges to consular officers "of the United States, the latter fact to be ascertained and proclaimed by the president.</p> <p>4. Rights oe Consular Oeitcers to Sit as Judges or Arbitrators.</p> <p>Neither under international law, nor under the statute law of the United States, has a consular officer of a foreign government a right to sit as judge or arbitrator within our territory, and render decrees or orders affecting personal liberty, which orders or decrees the courts of the United States are authorized or required to enforce, unless the consent of the United States to such jurisdiction has been given, either by express statute or treaty stipulation.</p> <p>5. Comity and Reciprocity.</p> <p>Comity and reciprocity to be extended to representatives of foreign governments depends upon congress, and is not lodged within the judiciary. See 2 Op. Attys. Gen. 378, citing The Bereide, 9 Cranch. 389.</p>

<p>Petition for Writ of Habeas Corpus.</p>

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

<p>1. Patents for Intentions — Glass Scale-Pans for Weighing.</p> <p>Letters patent No. 214,643, of April 22, 1879, to Charles Porschner, for an improvement in scale-pans for weighing, are void for want of patentable novelty in the invention.</p> <p>2. Same.</p> <p>There is no invention in making a scale-pan of glass, with glass lugs made integral therewith, and suspen ding it by branching metal b ows passing through holes in said lugs, glass and glazed porcelain scalc-pans being old, and metallic scale-pans suspended on such branching bows being old.</p> <p>3. Pleadings — Evidence—Prior Use and Prior Publications.</p> <p>Certain catalogues, showing features of the patent sued on, were offered in evidence, although not set up in the answer. Held, that these circulars should be considered as evidence in support of allegations of prior knowledge and use by others, properly made in the answer, but not as prior publications describing the invention, and constituting anticipations, of themselves, within the statute.</p>

<p>Collision— Sunken Vessel Raised and Repaired — Measure on Damages.</p> <p>When a vessel sunk in a collision is subsequently raised, and permanent repairs are both, practicable and proper,but she was put into abettor condition than before the disaster, the owners, if acting- with promptness, are entitled to recover the cost of raising the vessel and cargo, and of necessary temporary repairs thereto, as well as the amount that it would have cost them to have put the vessel, her furniture, and fittings into as good and serviceable condition as she was before the sinking, and to a reasonable sum as demur-rage for the time consumed, and also to compensation for any damage to the cargo, and to the gross freight thereon, less the charges which would have been necessarily incurred in earning it. The crew should bo compensated for the loss of personal effects, but the sum awarded should be less than the cost price of the articles lost.</p>

<p>Collision— Sailing Vessels — Absence of Side Liam.</p> <p>The schooner R., while sailing on a course R. -JR., collided with the schooner M. L., the course of the latter vessel heinglV. Bach vessel was making about seven knots. The wind was free and from 1ST. The M. L. struck the R. on her starboard side, just forward of the mainmast. Just before the collision the helm of the M. L. was ported. This was the only material change of course made by_ her. The R. luffed shortly after first sighting the M. L.; the latter vessel being at the time at a considerable distance, and bearing about one-half a point on her starboard bow. The R. subsequently luffed a second time, and was up in the wind at the time of the collision. The red light of the M. L. was not seen by the R. at any time, and its absence induced the R. to suppose that the M. L. was passing across her course to the !d. of W., instead of on a line parallel with it. lleld, that the evidence indicates that the red light of the M. L. was not burning, and that its absence misled and deceived the R., and was the cause of the collision; that, as the green light only of the M. L. was burning, it was reasonable for the R. to simpóse that the M. L. was a crossing vessel, and the maneuver of the former, under these circumstances, was justifiable.</p>

<p>Collision — Derrick-Boat Moored to a Pier — Absence of Licheit — Rule 12 (Section 4233, Rev. St.) Considered — Mistaken Movement not Necessarily a Fault in Law.</p> <p>A derrick-boat was run into by a passing steamer. Tbe latter vessel was elsewhere than she supposed herself to be at the time of the collision; but this error arose from the absence of any light on the derrick-boat or the pier, and not from negligence on the part of the steamer. The derrick-boat was moored to a pier, the location of which was out of the mid-channel and of the course usually pursued by passing vessels. Held, that a vessel cannot be said to be in fault solely on the ground that at the time of a collision she was elsewhere than she supposed herself to be. A mistake in the movements of a vessel does not necessarily imply fault as a matter of law. The absence of any light on either the pier or the derrick-boat was a violation of the statute. Skilled navigators do not always follow the main channel, especially at high water; and the statute rendering it obligatory upon the derrick-boat to carry a light, she cannot escape liability by proving that she was not in mid-channel, or that she was out of the usual course of passing vessels. The Gipsey, 19 How. 66, distinguished.</p>

<p>Shipping — Limitation op Liability — Practice—Piling Petition — Proper Court — Admiralty Rule 57.</p> <p>A libel having been filed for damages against the tug L. in the district court of the United States for the Eastern district of Now York, upon which, after judgment against the tug, an appeal was taken by the owners to the circuit and thence to the supreme court; and other suits for damages arising out of the same disaster having been brought against the owners in the state courts in the Southern district of New York, — a petition to limit liability was filed by the owners in the district court for the Southern district during the pendency of the appeal in the libel suit. On motion to dismiss the proceedings, as having been brought in the wrong district, held, that the petition should have been filed in the district court of the Eastern district, in which the original libel was filed, and the motion to dismiss was granted.</p>

<p>1. Collision — Anchoring—Foul Berth.</p> <p>The bark S. having come to anchor at least 800 feet distant from another vessel, the ship F., which lay at anchor about half a mile from the Staten island shore, in New York harbor, held, that the position of the S. was not so dangerously near the F. as to render her liable to the charge of negligence for anchoring in a “foul berth. ”</p> <p>2. Same — Two Vessels — Dragging Anchor — Negligence.</p> <p>The bark S. having thus anchored near the ship F., the vessels swung at ease and without interference during four changes of the tide, both vessels being hold by their port anchors only. Afterwards the ship F. dragged anchor, and drifted towards the bark S. until their cables fouled, when both began to drift. The F. dropped her starboard anchor, but the F. at no time dropped her starb oard anchor. With the turn of the tide the ship drew across the bows of the bark S., and all efforts to separate them by the use of sails and lines being of no avail, and no tug being procurable, as the tide became stronger both vessels were carried down the stream until they collided with another vessel, the M., and again with another, the N., which latter, together with the bark S., was injured. Held, that it was negligence on the part of the ship F. that her starboard anchor was not let go as soon as she was perceived to be drifting, as well as afterwards, while the vessels were still apart. As the evidence showed no fault on the part of the bark S., held, that the latter was not bound to slip her port anchor for the F.’s benefit, nor to run the risk of paying out suddenly all her spare chain, hut that the damage occasioned should be borne by the ship.</p>

<p>Charter-Party — Memorandum — Construction — Specified Voyages —“Intended to Load.”</p> <p>Respondents contracted by charter to ship, during the season, a specified number of cattle by each of the steamers of the Beaver Line. Accompanying the contract was a memorandum of the intended sailings, stating the vessels, the expected date of each voyage, and the number of cattle to be shipped on each, in which memorandum these words also appeared: “This contract to include all steamers of the Beaver Lino intended to load at New York this season.” The respondent shipped the full number of cattle upon each of the voyages specified in the memorandum. Shortly before the end of the season, without the consent of respondents, another voyage was added by the agents of the line, who notified respondents that they would he expected to load this vessel also under the contract, which respondents refused to do. On suit brought against them for breach of contract, Md, that the words “all steamers intended to load” meant “intended at the time when the contract was made;” that the extra voyage was not then contemplated; and that the contract could not. subsequently bo enlarged beyond the scope of the memorandum, without the consent of respondents.</p>

<p>Pilotage ojí Columbia Rives — Right oe Mastes to Choose Pilot.</p> <p>The Columbia river is the boundary between two states, (Oregon and Washington,) within the purpose and spirit of section 4280 of the Kevised Statutes, and therefore the slate of Oregon cannot require a vessel bound in or out of said river to take an Oregon pilot, or pay him half or any pilotage, if the master thereof prefers to and does take a Washington pilot.</p>

<p>COLLISION — SCHOONER—TVo AND TOW.</p> <p>The libelant, while sailing a small boat, was run into by a schooner; tho latter vessel being at the time in charge of a tug. Reid, that, as the evidence showed that the tug and tow would have passed the libelant’s boat in safety had he not changed his course, tho libelmust be dismissed.</p>

<p>1. Removal of Cause — Practice—Oasts at Law and Equity, how Treated.</p> <p>In the courts of the United States the distinction between suits at law and in equity is maintained, and when a suit involving both is removed, then the pleadings must be recast, and the causes of action stated according to the course of procedure on the law and equity sidos of the court, respectively, and the causes separated and placed there.</p> <p>2. Equity Practice -State Practice— Making Complaint More Diíbtntte.</p> <p>The practico under a state code to require a plaintiff to make his complaint more definite and certain does not apply to the equity side of the circuit court, for the state practice is not adopted in equity.</p> <p>8. Same — Amending Bill.</p> <p>In a suit in equity defendant has no right to have the plaintiff amend his bill, nor is it required of him to do so to expose defects, or supposed defects, in Ms ease, on motion of defendant.</p> <p>4. Same — Compelling Production or Record Pleaded in Bill.</p> <p>Where a record in bar to relief is pleaded, the defendant may be required to show it before the plaintiff traverses the plea, or sets it down for argument, hut this practice does not extend to the pleading of a judgment or decree of another court in the bill of complaint.</p>

<p>1. Pleading — What a Demurrer Admits.</p> <p>A demurrer to a bill admits the truth of facts well pleaded, but not of aver-ments amounting to statements of law.</p> <p>2. Same.</p> <p>Where a bill to quiet title shows the source and nature of the complainant's title, and contains an allegation that his title is clear and undisputed, a demurrer to the bill will be taken to admit only such title as the facts stated disclose.</p> <p>3. Real Property — Estates Tail.</p> <p>Section 3941, Rev. St. Mo., abolishes estates tail in Missouri.</p> <p>4. Equity — Injunction to Restrain Waste.</p> <p>A court of equity will not issue an injunction to restrain waste, unless the complainant’s title is clear, or has been adjudicated on.</p> <p>5. Same- Bill to Remote Cloud urosr A Title.</p> <p>A bill to remove a, cloud upon a title 'will not be sustained, as a general rule, where the alleged cloud is created simply by matter of record.</p> <p>6. Same.</p> <p>The mere fact, that a life-tenant is granting leases for terms extending beyond the duration of the life-estate is no basis for any action by the remainder-man.</p> <p>7. Same — Slander op Title.</p> <p>For mere slander of title, a party injured will bo left to his legal remedy.</p> <p>S. Same — Tape-Tenant and Remainder-Man.</p> <p>An action cannot be maintained in equity by a remainder-man against a life-tenant for the purpose of adjudicating the title of the former. The remedy is bj action at law, and should be against the other claimants oí the remainder.</p> <p>9. Same — Bill por Discovery.</p> <p>A bill for both relief and discovery cannot he sustained solely for the sake of discovery.</p> <p>10. Same.</p> <p>Arm We, that a hill cannot, as a general rule, be sustained solely for the sake of discovery.</p>

<p>1. CORPORATION — DISSOLUTION BY DECREE OB' COURT — CONTEMPT OP OPBTOBR.</p> <p>An officer of a corporation that has been dissolved by order oí court cannot avoid the obligation to obey an injunction issued by such court by going into another state beyond the jurisdiction of the court.</p> <p>% Same — Foreign Corporation — Bight to Carry on Business — Compliance wmi Statu Laws.</p> <p>The constitution of the United States protects the commercial transactions of a corporation of another slate against state legislation,Imposing conditions upon the right to conduct such business.</p> <p>3. Same — State Alone caw Object.</p> <p>In a suit by the receiver of a foreign corporation against an officer thereof to reach its assets the defendant cannot allege its legal incapacity to transact business in the state where suit is brought, in the absence of complaint by the state itself of an infraction of its laws.</p> <p>4. Samp, — Receiver—Appointment op Ancillary Receiver.</p> <p>Where a receiver has been appointed by a state court, the court of another state may, when necessary, appoint an ancillary receiver in such state.</p>

<p>1. Husband and Wife — Right of Supposed Wife in Land.</p> <p>■A woman who innocently marries and cohabits with a man who has a wife living from whom he has never been legally divorced, cannot acquire an interest in his land by reason of snob supposed marriage.</p> <p>2. Same —Moktgage—Wife Fa hung to Assert Her Rights.</p> <p>Where a wife has knowledge that her husband is living with another woman as his assumed wife, and takes no steps to assert tier own rights, she cannot, as against a mortgagee, who has no notice of her relation to the mortgagor, to whom the husband executes a mortgage, after the death of the husband set up her right in the property as a wife.</p> <p>8. Same — Purchase of Land with Earnings of Supposed Wife — Trust.</p> <p>Whore the title to government land is obtained by a man with means saved from her earnings by a woman who is living with him under the impression that she is his lawful wife, but who was never legally married to him, because he had a wife living from whom he had never been divorced, the land, aftot the death of the man, will not ho considered as held in trust for such supposed wife as against his true wife.</p>

In Equity. Exceptions to master’s report. The intervenor asks for damages for injuries sustained through the alleged negligence of the employes of the Wabash receivers. The facts of the case are substantially as follows: The intervenor, while walking westward aloñg a track of the Wabash, St. Louis & Pacific Railway Company, saw a Wabash engine and tender backing towards him.

In Equity. Exceptions to master’s report. Petition for damages for injuries received by the intervenor in consequence, as alleged, of the negligence of the defendants. At the time of the accident in question the intervenor was the foreman of the night crew of a switch-engine used in the Moberly yards. On the morning of May 29, 1885, he got on the engine for the double purpose of informing the foreman of the day crew about the position of cars in the yard and of riding home.

<p>OoNtract — Work to ms Paid for on Certifícate of Architect — Refusal to Certify — Recovery of Quantum Meruit.</p> <p>Where a contractor agrees to erect a building, to be paid for as the work progresses, on certiiicat.es signed by the supervising architect, and the architect fraudulently refuses to sign a certificate, and the contractor is unable to finish the building, he may recover of the owner on a quantum, meruit, for the work actually done, although there was no collusion between the architect and such owner.1</p> <p>NOTE.</p> <p>It is said in Tetz v. Butterfield, (Wis.) II N. W. Hep. 531, that where a building contract provides for the acceptance of the architect, evidence is admissible to show that he acted collusively and in bad faith.</p> <p>In Glaeius v. Black, 50 N. Y. 145, where, by the terms of a contract for repairing a building, it was provided that the materials to be furnished should be of the best quality, and the workmanship performed in the best manner, subject to the acceptance or rejection of the architect, and all to be in strict accordance with the plans and specifications, the work to bepaid for'“when completely done and accepted, it was held that the acceptance by the architect did not relievo the contractors from their agreement to perform the work according to the plans and specifications ; nor did his acceptance of a different class of work, or inferior materials, from those contracted for, bind the owner to pay for them; that the provision for acceptance was merely an additional safeguard against defects not discernible by an unskilled person.</p> <p>It is said in Lynn y. Batimore & O. JL. Co., 60 JId. 404, that on a contract by a corporation to purchase certain goods subject to inspection and approval by its agent, the corporation is liable if the agent fraudulently or in bad faith disapproves of the goods.</p>

<p>Postal Laws — Illegal Contbaot to Cabby Mail — Right oí? United States to RecoveR Amount Illegally Paid.</p> <p>Where an assistant postmaster general changes a mail route, and makes a contract which he has no authorily to make, for a different route, and thereunder the contract or carries the mail at greater expense, and receives a greater compensation for such carriage than he was entitled to tinder the former contract, the United States cannot recover the amo nnt illegally paid, in the absence of fraud in the procurement oí the contract.2</p>

<p>At Law. Demurrer to declaration.</p>

<p>1. Master and Servant — Relation—Contract Establishing.</p> <p>A contract was entered into between tbe defendant, a sewing-machine company, and one C., which was called a “canvasser’s salary and commission contract. ” By it C. was to sell the machines of the defendant on a commission, receiving five dollars for every machine he sold, and, in addition, 10 per cent, of its gross price. The defendant undertook to furnish him a wagon, which he was to use exclusively in its business, and he himself was to provide a horse and harness. It was further stipulated in the contract that he should employ himself under the direction of the defendant, and under such rulos as it, or its managers at Minneapolis, should prescribe. Held,, by the court, that under such a contract 0. was not an independent contractor, but a servant of the defendant, and that the defendant was liable in damages for his torts committed while in the discharge of its business.</p> <p>3. SAME — LIABILITY OR MASTER FOR TORT OF SERVANT — SOOI’E OF A SERVANT’S Employment — Tira Burden and Nature of the Proof.</p> <p>In order to fix the responsibility of the defendant, it is not necessary for the plaintiff to prove that Hie servant, for whose tort he seeks damages, was, at the time of the commission of the tort, engaged in executing specific commands of the defendant. It is enough for him to prove that the servant was acting within the general scope of his employment, hut this much is necessary. If the usage of 1ho parties, under the servant’s contract of hiring, was of such a character that it allowed the servant to attend to his duties on such terms as suited his convenience, and at the time of the commission of the tort he was engaged in his own private business, but at the same time was pursuing the defendant’s business in the service for which he was employed, the defendant would still be liable.</p> <p>3. NEGIilGESOE — COKTRIBUTOBY NEGLIGENCE.</p> <p>It is not conclusive evidence of negligence on the plaintiff’s part, in an action brought to recover damages for an injury sustained by being run over by the defendant’s servant on a public street’that at the time of the accident the plaintiff was crossing the street at a point not designated as a crossing: and this, too, although there were vehicles driving on the street and in sight.’ On the other hand, the plaintiff could not, without negligence, recklessly cross the street, nor take the chances of a nice calculation as to whether o'r not she could pass over with safety.</p> <p>4. Same — Negligence, when Question for Jury.</p> <p>It is a question for the jury to determine whether or not it is a negligent act for the driver of a vehicle to proceed at a reckless speed, at dusk, racing1 along a public street.</p>

<p>1. Patents for Inventions — Infringement—Machines for Making StovePipe Elbows.</p> <p>The first, second, and sixth claims of letters patent No. 224,974, of February 24,1880, to "William A. Wheeler, for machines for making- stove-pipe elbows, are infringed by a machine made in accordance with letters patent No. 234,-191, of November 9, 1880, to John P. loor.</p> <p>2. Same — Construction of Claim.</p> <p>The third claim of the Wheeler patent was not infringed, because defendant used only three of the four elements of the combination; and the seventh claim was not infringed, because, if valid at all, it must be strictly construed and limited to the particular adjustment of parts described.</p> <p>8. Same-Equivalents.</p> <p>Although the defendants did not use a toggle-joint mechanism, which was an element of the claims held infringed, the court finds that what they did use was an equivalent, which any skilled mechanic could have devised without the exercise of invention.</p>

<p>Carriers of Goods ire Vessel — Damage to Cargo While Unloading — Leakage of Ballast Tanks.</p> <p>The cargo of a vessel was damaged during its discharge by water making-from the ballast tanks into the hold. The tanks had been filled in order to steady the vessel. They had become strained (luring the passage, which was one of unusual severity. This circumstance was not known to the officers of the vessel, and there was a lack of proper care in filling them. The consignee, in consequence of the damage, refused to pay full freight. The carrier attached the cargo, claiming exemption from liability for damage caused by “perils of the sea. ” Held, that as the damage arose from negligence, it was unnecessary to consider the exemption claimed; that the circumstances demanded, on the part of the carrier, extremo care; and that as little or no caro had been used, the damage sustained by the cargo should bo deducted from the freight money</p>

<p>Personal Injury — Open Hatch — Marrow and Dark Passage — Negligence.</p> <p>Where libelant, who was acting as roundsman to see that the night-inspectors were at their post, went aboard the ship G., and fell across an open hatch of the ship, which led io 1ho coal-bunkers, and which was in a comparatively narrow passage-way where it was perfectly dark, and lor his injuries brought suit against the vessel, held, that such leaving ol' the hatchway open was negligence on the part of the ship, in respect to the libelant, whose duties called him there; but negligence of a minor character, which, under other circumstances of doubt, did not warrant the allowance to the libelant of more than his actual loss, which was fixed at 8100.</p>

In Admiralty. On a libel for compressing and delivering on board a cargo of cotton. The cotton was compressed in Galveston, Texas, and put on board the steam-ship. Tho ship, bound to Liverpool, put into Norfolk to complete a supply of coal for tho voyage. She was here libeled for the compress charges by instructions from the libelants, in Galveston.