Volume 27 — Federal Reporter

<p>1. Circuit Court—Jurisdiction—Citizenship—1Trustee of Incuae Mortgage Nominal Defendant.</p> <p>A., the owner of certain coupons and scrip certificates of unpaid interest owing hy a foreign railroad corporation upon bonds secured by an income mortgage, in behalf of himself and other owners of coupons and certificates, filed a bill in the circuit court against the railroad company, and the Union Trust Company, a citizen of the same state as himself, which was the trustee named in the income mortgage, to compel an accounting, and for an injunction against the appropriation of the earnings of the railroad company contrary to the rights of the income bondholders, and for a decree for the payment of the income applicable to the interest, averring that the trust company was made defendant because it asserted that no duty was imposed on it in respect to the matters involved in the suit, and had refused to bring suit when requested so to do. Held, that the circuit court had jurisdiction.</p> <p>2. Railroad Company—Mortgage Bonds—“Net Earnings” Defined.</p> <p>As a general proposition, the “net earnings” of a railroad company are the excess of the gross earnings over the expenditures defrayed in producing therein, aside from, and exclusive of, the expenditure of capital laid out in constructing- and equipping the works themselves.</p> <p>3. Same—Mortgage of Missouri, Kansas & Texas Railway Company.</p> <p>The expenses defrayed or incurred in producing the earnings for a given interest period are the only charges which can enter into the income account for that period, except tile payment of interest on prior incumbrances, as stipulated by the terms of the mortgage; and the company cannot charge against income, for any period during the life of the mortgage, a payment or a liability incurred on account of old indebtedness existing before the mortgage was created, or arising from a loss incurred by the sale of bonds issued to pay off old indebtedness.</p> <p>4. Same—Accounting—Interest.</p> <p>Where a mortgage is executed hy a railway company to a trustee, conditioned for the payment of interest upon the bonds secured by the mortgage at semi-annual periods out of the surplus earnings of the company, the mortgagor owes a duty to the bondholder to keep such an account of its earnings and expenses as will show the net results of each interest period, and the trus'teo owes an active duty to the bondholders in the supervision of the account.</p> <p>5. Same—Application of Interest on Coupons.</p> <p>Where the bonds are coupon bonds, and such an account has not been kept for a series of years, upon an accounting the holders of coupons are entitled to have the interest earned during each interest period applied upon the coupons representing that period.</p> <p>6. Same—Accounting.</p> <p>Mortgage and bonds construed, and manner of accounting directed.</p>

<p>1. Costs—Docket Fee.</p> <p>The taxable costs, as such, provided by sections 823, 824, Rev. St., do not belong primarily to the attorney by force of any law.</p> <p>2. Same—Sections 823, 824, Rev. St.</p> <p>Before the passage of the act of February 26, 1853, of which sections 828 and 824 are a revision, costs were distinctly taxed and allowed “in favor of parties obtaining judgment. ” Act 1793, e. 20, § 4. The purpose of the act of February 26, 1853, was to secure a uniform rule of taxation in the federal courts, and there was no purpose to change the party in whose favor the allowance was made so as to take the costs from the party to the suit and give them to the attorney.</p> <p>8. Same—Usage.</p> <p>A usage was claimed by defendant that docket foes and fees allowed for travel and attendance should be taken and treated by the solicitor or attorney as his own. This usage was not shown to prevail generally, hut appeared from the evidence to he confined to a few states. It was not shown to exist in the community where the complainant resided, nor was it shown that complainant had any knowledge of such usage in the communities where the services were to be rendered. Held that, under this state of facts, the complainant could not he held bound by any such usage.</p> <p>4. Same—Attorney’s Reasonable Compensation.</p> <p>Thirty-six dollars and sixty-four cents for each of 164 cases of like character, held to he reasonable compensation for the service of a local solicitor.</p>

In Equity. Exceptions to master’s report. This suit is to recover certain taxes, amounting to $11,000, alleged to have been assessed and levied by the city of St. Charles, Missouri, under authority of its charter, upon the St. Charles bridge, for the years 1878 to 1884, inclusive. The facts are substantially as follows: The St. Charles Bridge Company, a joint-stock corporation, organized under the general laws of Missouri, constructed the bridge in question in the year 1871.

<p>Trade-Mark—Infringement—Contract for Exclusive Right to Sell “Hunyadi Janos” Water—Purchase from Parties to Whom Owner Rightfully Sold—Reselling.</p> <p>The owner of a spring of mineral water in Hungary entered into a contract with complainant giving him the exclusive right to export and sell the water under its name of “Hunyadi Janos, ” which he had adopted as a trade-mark, in Great Britain and America. Defendant applied to the owner to purchase the bottled water, but was refused, and purchased it from those to whom it had been sold in Germany, and sold it in the United States in bottles with the same label as that used by complainant, except that defendant’s bottles, like all those sold by the owner, were stamped with the words, “Caution. This bottle is not intended for export, and if exported for sale in * * * America * * * the public is cautioned against purchasing it,’’while complainant’s bottles were stamped “Sole exporters.” Held, that complainant was not entitled to an injunction to restrain defendant from selling the water.</p>

<p>Trade Name—Chatterbox—Infringement.</p> <p>Tlie use of the word “Chatterbox, ” in connection with the same method of selection and illustration of stories, form of binding, .and vignette, by defendants, held, an infringement of complainants’ right in the name.</p>

<p>Trade-Mark—Infringement—Damages—Profits.</p> <p>Where a party has made profits by the sale of goods in violation of the rights. of another in a trade-mark, the owner of the trade-mark is entitled to them, whether the same profits would have been made by him or not, and not to any more if they would, for the same profit could not be made by both.</p>

This is an action upon a policy of life insurance for $1,000. The facts were all stipulated, and were substantially as follows: (1) The defendant is a corporation, organized and existing under the laws of the state of Massachusetts prior to the dates of any of the statutes of the state hereinafter mentioned.

<p>Fire insurance—Policy—Provision for Arbitration—Condition Precedent.</p> <p>A provision in a policy of fire insurance that in case any difference of opinion shall arise as to the amount of loss it shall be referred to arbitrators to be chosen as therein directed is not a condition precedent to a recovery for a loss, or to any proof on the trial of the amount of the loss.1</p>

<p>Partnership—Special Partner—Payment oe Capital by Check—New Jersey Statute.</p> <p>The delivery before the filing of a certificate of special partnership, by a party intending to become a special partner to the general partners, of a check payable to their order, drawn on a bank, where he has funds to meet it, is not ^‘an actual cash payment,” within the meaning of the New Jersey statute, and will not entitle him to protection as a special partner.1</p>

<p>, Evidence—Record of Deed—Acknowledgment—Notarial Seal.</p> <p>The record of a deed that recites that the notary public who took the ac knowledgment had no proper seal, and used a private seal, is admissible íd evidence in Texas.</p> <p>2. Same—Deed Offered in Evidence'for One Purpose in Evidence for Am Purposes.</p> <p>Where plaintiff offers a deed on which his opponent relies as evidence of his title, in evidence, for the purpose of showing that such deed is a forgery, if the evidence fails to show that it is a forgery, it is in evidence for all pur poses for which it could be used, and defendant may take advantage of it.</p>

<p>1. Accident Insurance—Policy—Death from Hanging.</p> <p>Death from hanging, when the insured is insane, is a death effected through external, accidental, and violent means, within the meaning of a policy of accident insurance.</p> <p>3. Same—Death not Caused by Bodily Infirmity or Disease.</p> <p>The policy in this case provided that the insurance should not extend to death or disability “which may have been caused wholly or in part by bodily infirmities or disease. ” I-Ield, that within the intent of the contract, and the meaning of the law, the death was caused, not by bodily infirmity or disease, hut by the act of self-destruction.</p>

In Equity. This is a suit brought by the complainants to restrain the defendant from publishing the opinions of the supreme court of Iowa, the complainants claiming that the exclusive right of such publication is vested in them. The Northwestern Reporter, in which are published these opinions, as well as those of the supreme, courts of other northwestern states, was first issued by the defendant in 1879, and has been since a continuous weekly publication.

<p>' Copyright—Static Statutes—Right op Compiler—Legislative Power of Static.</p> <p>While a compilation of the statutes of a state may be so original as to entitle the author to a copyright on account of the skill and judgment displayed in the combination and analysis, he cannot obtain a copyright for the publication of the laws alone, nor can the legislature of the state confer aay such exclusive privilege upon him.</p>

<p>1. Patents fob Inventions—Lockwood Patent.</p> <p>In this case, on motion lor preliminary injunction, under the patent to Bhodes Lockwood, sustained in Lockwood v. Cutter Tower Co., 11. Fed. Bep. 724, Lockwood v. Cleveland, 18 Fed. Bep. 87, and Lockwood v. Hooper, 25 Fed. Bep. 910, the point was raised, for the first time, that there was not a sufficient description of the invention within the meaning oí the statute, and the motion was denied.</p> <p>2. Same—Description of an Invention.</p> <p>A description oí an invention does not comply with the statute when those skilled in the art to which the invention belongs can only ascertain by experiment how to practice it.</p> <p>3. Defenses on Application for Preliminary Injunction.</p> <p>Where the defense of prior public use was much more strongly fortified by corroborative evidence than in prior cases, where this defense had "been made and overruled, a motion for a preliminary injunction was denied.</p>

<p>1. Patents for Inventions—Construction—Infringement.</p> <p>Letters patent No. 154,848, of December 8,1874, to William H. Curtis, for an improvement in carpet stretchers, must, in view of prior patents for carpet stretchers, acting upon the same principle, be limited to the special devices therein shown, and cannot be construed so as to include other machines which are mere adaptations or simplifications of other older devices.</p> <p>2. Same—Carpet Stretcher.</p> <p>A carpet stretcher manufactured under the patent to Frederick J. Hubbard, of May 20,1884. is a new improvement on older devices, and does not embody the special devices of the Curtis patent. __</p> <p>3. Same—Change in Size of Machine. ..... " '</p> <p>Amere change in the size of a machine, (a carpet stretcher,) whereby it is reduced from a large and clumsy device to a light, portable, and convenien. one, while its mode of operation is not changed, is not a patentable changet</p>

<p>1. Patents por Inventions —Base-Ball Masks—Fencing Masks — Anticipation.</p> <p>Letters patent Ho. 200,858, oí February 12, 1878, to Frederick W. Thayer, for an improvement in masks, is not anticipated by the old fencing mask, as the fencing mask had no forehead or chin rest, such as are specified in the Thayer patent.</p> <p>2. Same—Patentability.</p> <p>Although the patented mask and the old fencing mask are in some respects analogous in their use, held, that there was enough difference to make the former patentable over the latter.</p> <p>3. Same—Infringement.</p> <p>As patentee appeared, from the evidence, to be the first in the art to show a mask to protect the face having a rest for the forehead, held, that he was entitled to cover such forehead-rest broadly, and was not limited to the special means by which he affixed it to the wires of the cage.</p> <p>4. Same—Prior Use—Evidence to Establish.</p> <p>A party asserting a prior use of a device covered by a patent has the burden of proof, and is bound to establish such prior use by strong and convincing if not absolutely conclusive proof.</p>

<p>1. Patents for Inventions—Description of the Invention.</p> <p>The specification of letters patent No. 205,930, of August 13, 1878, to William P. Olotworthy, for a baking powder, described as one of tbe ingredients “ammoniated potash alum, ” hut the claim was for “a compound of exsiccated ammonia alum,” etc. The proof showed there was no such article known to commerce or chemistry as “ammoniatedpotashalum ” It was contended that the claim, when standing alone, was a sufficient “description” of the compound to comply with the statute. Held, that it was a matter of grave doubt, whether the “claim” was to he considered as the “description” required by law, because the statute speaks of the “description and claim,” and the office of the claim is merely to point out what is claimed as the invention.</p> <p>2. Same.</p> <p>But the claim being repugnant to the specification, held, that the whole invention must he found in the one or in the other, and that the two, taken together, were so contradictory as to render the patent void for uncertainty.</p> <p>3. Same—Patentability.</p> <p>It being known to the art that the burning or drying of the alum used as an ingredient of halting powder made it keep better,'there was nothing patentable in the discovery that drying the alum so that all the water was expelled would make a baking powder which would keep longer than if a part of the water had not been expelled.</p> <p>4. Same—Infringement.</p> <p>As the defendants did not use the entire formula of the patent, but used an additional ingredient producing another result,- held, that they did not infringe.</p>

<p>1. Patents for Inventions—Axle Skeins por Vehicles.</p> <p>Lett era patent Mo. 216,615, oí' June 17, 1879, to M. L. Holmes, for an improvement in axle skeins for vehicles, must, in view of the prior state of the art, he limited strictly to its special device, which is the cutting of the blank in such shape as that, when formed up, it will make two frustrums of cones, the small end of the larger one springing from the large end of the smaller one, or the skein itself.</p> <p>2. Same.</p> <p>The fifth and eighth claims of this patent cannot he sustained in view of the state of tho art; and there was no infringement of the first and third claims in this ease.</p>

<p>1. Patents tor Inventions—License—Estoppel .</p> <p>A licensee under a patent, is estopped to deny its validity on any question arising out of that relation between the parties, (Kinsman v. Parkhurst, 18 How. 289,) but it does not follow that he will be always estopped because he has stood in that relation.</p> <p>2. Same—When Licensee mat Challenge Validity of Patent.</p> <p>When a licensee under a patent stands out from under the license, and claims nothing from it, and does nothing more under it, with full knowledge to the licensor of his position, he is at as full liberty to contest the patent as any one.</p> <p>3. Same—When Infringement by Licensee will be Enjoined.</p> <p>Taking and operating- under a license is sufficient evidence of acquiescence to warrant an injunction without any previous adjudication, if the patent is unchallenged.</p>

<p>1. Patents for Inventions—Identity of Patented Processes.</p> <p>In a suit for infringement of reissued letters patent No. 10,137, of June 13, 1883, to complainants, as assignees of Hippolyte Mege, for an improved method of treating animal fats, held, that the invention covered by this patent was identical with that described in a Bavarian patent, which expired April 8, 1876, and in an Austrian patent, which expired May 36, 1876, both to the same inventor, and that the American patent expired with said foreign patents, prior to the beginning of this suit.</p> <p>3. Same—Estopped.</p> <p>Where it was urged that patentee had estopped himself to deny that his American patent was for the same invention as patented to him in prior foreign patents, after having represented that to be a fact in his application for the former, held, that if the inventor was laboring under a mistake as to this point, his rights should not thereby be prejudiced.</p> <p>3. Same—Test to Determine Identity of Patents.</p> <p>A fair test to determine whether an American patent is identical with or included in a prior foreign patent to the same inventor is to inquire whether the use of the precise process described in the foreign patent, after the grant of the American patent, would be enjoined as an infringement of the latter.</p>

<p>1. Patents for Inventions—Novelty—Inspirators.</p> <p>The third claim of letters patent No. 185,861, granted January 2, 1877, to John T. Hancock, for an improvement in inspirators, is void for want of patentable novelty over the Giifard English and French patents of 1858, for injectors, and the English patent of Barclay and Morton of November, 1863.</p> <p>2. Same.</p> <p>“Lifters” and “forcers” arranged in an axial line with reference to each other, for injecting water into a steam-boiler, being old at the date of the Hancock patent, and no special advantage being shown to have accrued by the arrangement of the two devices side by side, as provided in the patent, held, there was no invention in such arrangement.</p> <p>3. Same—Certainty of Description. ></p> <p>In order to save this patent from being void for lack of certainty in description of the devices covered by this third claim, it is necessary to assume that their construction was a matter of common knowledge in the art when it was applied for, and in this view the mere arrangement of these devices in a new relation to each other did not involve invention.</p>

<p>1. Patents eor Inventions—Ticket Oases.</p> <p>Letters patent No. 86,277, of January 26, 1869, to Frank Brewster, and No. 145,388, of December 9, 1873, to Leonard J. Blades, construed, and held limited to tlie special d'evices which they describe and claim, and not infringed.</p> <p>2. Same—Patents Cannot Supplement Each Other.</p> <p>These two patents cannot support or supplement each other. They are each for combinations, and the question is whether the defendants use the combination shown in each, and not whether parts in each combination can be found in each patent.</p> <p>3. Same—Acquiescence in Rejection of Application—Effect oe.</p> <p>Where a patentee, having made broad claims in his application, which were rejected, accepted claims Eor a combination of the parts shown, he must bo limited to his specific device.</p> <p>4. Same—Assignee Bound by Applicant’s Actions.</p> <p>The action of an applicant for a patent in accepting restricted claims is part of the law of the patent, and controls the assignee as well as the original patentee.</p> <p>5. Same—Reference to Rejected Application.</p> <p>Although tho broad claims of this application were rejected on a reference to a rejected application, in accordance with tho then practice of the patent office, which practice was soon afterwards overruled by the supreme court, held, that the applicant having acquiesced and taken a limited claim must now be confined to the claim he accepted.</p>

<p>1. Patents for Inventions—Equity Jurisdiction—License—Discovery.</p> <p>Equity ¿as jurisdiction to compel a discovery of the number of patented articles made under a license, where the licensee neglects or refuses to make monthly reports as he has covenanted to do; and a covenant to make monthly reports is, in fact, a covenant for a monthly discovery of the work done under the license.</p> <p>2. Same—Restricted License—Infringement.</p> <p>Where a license does not purport to give an unlimited right to the use of the patent, but restricts the right to machines of certain descriptions, when licensee makes machines not in conformity to his license, but within the patent, he not only violates his express covenant not to do so, but violates the patents.</p> <p>3. Same—Revocation of License.</p> <p>A license provided that licensor might terminate it by notice in writing. He sent a postal card to licensees, reading: “Tour royalty return for February has not come to hand. Failure to forward same within five days from March 10th subjects your license to revokement.” Held, that this paper fell far short of a notice in writing of a revocation or termination of the license.</p> <p>4. Same—When Licensee Estopped to Dispute Yalidity of Patent.</p> <p>Licensees under patents covenanted that they would not dispute or contest the validity of the same, or of complainant’s title thereto.. Held, that as long as the licenses remain in force defendants are estopped by the terms of their .agreements, from denying the validity of the patents in question.</p> <p>5. Same—Threats of Suit—Effect on License Taken in Consequence.</p> <p>The mere fact that the owner of a patent allfeges an infringement, and threatens suit unless a settlement is made with him, cannot be held to make such settlement void for fraud or intimidation.</p> <p>6. Same.</p> <p>. The tact that defendants feared the result upon their business of a suit for infringement of patents, and therefore settled and took a license, is no support to a charge of fraud in the procurement of the license.</p> <p>7 Same—License undeb Exftbed Patent.-</p> <p>Where a license was granted covering a large number of patents, including one which had already expired, hut which licensor owned and licensee had infringed, and there was no proof that it was included by the licensor in had faith, held, not enough to taint the transaction as fraudulent.</p> <p>S. Same.</p> <p>The date or duration of a patent is a matter of public record of which a licensee is as much hound to take notice as the licensor.</p> <p>P. Same—Effect of Decision Advebsb to Patent.</p> <p>A license under patents is not affected by the fact that in a suit between other parties the patents have been adjutlged void, where the licensee has agreed not to contest their validity.</p> <p>10. Same—Estoppel.</p> <p>Where licensee under a patent agrees not to contest its validity, nor licens- or’s title, he cannot urge want of patentability, nor any question save that whether his devices are covered by it.</p> <p>11. Same.</p> <p>Where the alternative to settle a claim for infringement or litigate is fairly tendered to a party, and he chooses to settle, he cannot afterwards retreat from the settlement merely because some other party has successfully contested the validity of the patents.</p> <p>12. Same—Oonsteuction of Instbombnt.</p> <p>Where a license included a large number of patents, and provided that licensees should pay a stipulated royalty on all machines made by them “embodying in their construction or mode of operation the inventions and improvements shown and described in each, all, or either of said letters patent, ” held, that so long as licensees used either of the patents they were liable to pay the royalty named in the license.</p>

The defendant# in this case had brought suit against the complainants under the Garver patent for spring-tooth harrows, and alleged that the complainants’ “Clipper” spring harrow was an infringement. After that suit was commenced defendants issued circulars notifying the trade that such suit had been brought, and warning all dealers that if the ease was decided in their favor they would hold all infringers liable to the full extent of the law.

<p>On Settlement of Decree.</p>

<p>1. Seamen’s Wages—Whaling Voyage—Acts June 9, 1874, and June 20,1790,</p> <p>§§ 4520, 4568, Key. St., Construed—Failube to' Delivek Entibe Cabgo— Deviation and Delay, when Justifiable — Constbuction of Shibping Articles.</p> <p>The libelants signed shipping articles which were partly written and partly printed. The printed part of the paper was the usual “whalemen’s shipping-paper, ” and described the voyage as a “whaling voyage from the port of Now London to Cumberland inlet and elsewhere. ” The seamen’s wages were called “shares of the not proceeds. ” The written part of the contract was as follows: “It is also further understood and agreed that we are to receive monthly wages as set opposite our names, in lien of our lays in freight earnings, from the time that the said schooner leaves the port of New London until all freights are discharged, and all freight is taken on board at A., O., and N. If, on inking on board all freights at above-named station-;, the vessel has not sufficient quantity, say from six to seven hundred barrels, then our wages are to cease, and we are to stop to whale at N. or elsewhere, and receive the lays set opposite our names on all catchings taken after such date in lieu of wages; but if the quantity taken on hoard is sufficient to come home, then our wages are to continue until arrival of vessel at New London, fall of 1884.” Held that, by the terms of the contract, monthly wages were to be paid in lieu of a lay in freight earnings, and if the vessel got enough freight to fill her, monthly wages were to he paid continuously, and the vessel was to return in the fail of 1884. If a sufficient quantity of freight was not received, whaling was to begin, and monthly wages wore to cease; and, from the surrounding circumstances, it also appeared that no contract was made that the whaling voyage should cease in the fall of 1884.</p> <p>2. Same—Act op 1874—Rev. St. § 4520.</p> <p>The shipping articles were not void for non-compliance with the shipping commissioners’ act, which, by the act of June 9, 1874, do not apply to vessels in the trade between the United States and the British North American possessions, or in any ease where the seamen are entitled to participate in the result of a voyage. The shipping agreement was not in violation of section 4520, Rev. St.</p> <p>3. Same—Deviation—Shokt Allowance of Pbovisions—Monthly Wages.</p> <p>After the delivery of freight had ceased, and whaling had commenced, the vessel and crew, oil account of stress of weather, and not by the negligence of the captain, were compelled to winter in Davis straits, and did not return till the fall of 1885. Meanwhile, they shared their 17 months’ supply of provisions with a shipwrecked crew. Provisions grew scarce, and for a time they were on short allowance. The voyage was unsuccessful. No catcliing-s were to bo divided, and the libelants returned penniless. There was a devia- • tiou to St. Johns, Newfoundland, to land the shipwrecked crew, and to refit. Held, that the crew were not entitled to monthly wages, or to extra wages on account of short allowance of provisions, they having been diminished by delivery to a crew in distress, without the fault of the respondents. Held,, also, that the circumstance that the respondents were unable, without peril to life, to deliver at Cumberland inlet a small and immaterial part of the cargo, could not be taken advantage of by the libelants as a ground for extending the period wherein monthly wages were due.</p>

<p>1. Marine Insurance—Running Policy—Certificate under and Subject to the Conditions Thereof—“ For Wkom It may Concern”—Construction of.</p> <p>The libelants issued a running policy to II. M. & Co., ‘‘on account of H.M. & Go., for whom it may concern.” They subsequently, upon the application of H. M. & Co., issued a certificate of insurance under and subject to the conditions of the said policy; loss, if any, payable to the assured, or order. H. M. & Co., by whom the insurance was effected, were intermediaries between boatmen and' shippers. A., P. & Co. were the owners of the cargo. Tho certificate by which the cargo was insured, under and subject to the conditions of the running policy, was obtained by H. M. & Co. at the request of A., P. & Co. The libelants' dealings were entirely with H. M. & Go. In consequence of negligence on the part of the carrier, a total loss ensued. The libelants, upon an abandonment by A., P. & Co. and H. M. &Oo. of their interests in the property, paid the insurance in full, and tiled a libel against the carrier for negligence. Held, that tho certificate and policy are to be road together; and when so read, constitute a contract to insure H. M. & Co. for themselves, and for those whom they might represent, having insurable interests in the premises, and that both H. M. & Co. and A., P. & Co. were embraced therein. The intention of the person who effects the insurance, whether known to the insurer or not, determines the application of the clause.</p> <p>2. Same—Right of Insurers Claiming by Subrogation to Sue for Negligence—Payment to the Assured a Prerequisite.</p> <p>Payment oía total loss works an equitable assignment of the property, and the insurer may, after payment to the assured, charge the carrier for negligence in destroying property which has become his. The insurer, upon subrogation to the rights of the assured, becomes the real party in interest, and may maintain the suit in his own name.</p> <p>3. Same —Negligence—Presumption—Burden of Proof.</p> <p>When a loss occurs in consequence of an explosion of the boiler, a presumption of negligence on tho part of the carrier is thereby created, which those who are responsible must rebut by proof of due care, or by showing the existence of circumstances over which they had no control, and to which the result may be fairly attributable.</p> <p>4. Same—Admissions in Answer—Practice—Admission of Further Testimony after Hearing.</p> <p>Although the answer denies negligence, it admits facts which raise a presumption of negligence, but as the apostles indicate that the question of nogligence has not been fully entered into, and as the claimant has relied upon the theory that the facts found did not make out aprima facie case against him, he may be permitted to apply for leave to introduce further evidence in this regard.</p>

This was a libel for a collision between the railway transfer steamer Lansdowne and the propeller Clarion, which occurred early in the morning of July 15, 1885, in the Detroit river, opposite the premises of the Michigan Central Railroad Company, in the city of Detroit.

<p>1. Ships and Shipping—Supplies—Payment—Part Owner’s Note-Discharge of Other Owners.</p> <p>Supplies were furnished to a vessel by one B., who received on account of it the four-months note of Z., the ship’s husband and a part owner. Z. subsequently became insolvent. The note was protested, and this action was brought by B. against all the owners for the value of the supplies. It appeared that B., in so taking the note, did the best he could to obtain payment. Held, that such taking of Z.’s note by B. was not a discharge of the other part owners.</p> <p>2. Same—Equitable Estoppel—Evidence—Admissions, Unsatisfactory Nature of.</p> <p>The master of the vessel, previous to remitting several sums of money to Z., had caused inquiries to be made of B. as to whether his bill for supplies had been paid. After B.’s death several witnesses testified that B. had admitted that it had been paid or settled by Z., and the captain made several remittances to Z., as managing owner. Z. was, however, a creditor of the ship and of the other owners on joint account, to a much larger amount than the amount of the remittances thus sent him. It was contended that this admission by B. created an equitable estoppel, which. discharged the respondents. Held, on the evidence, (1) that the alleged statements of B. were improbable, and not satisfactorily proved; and, (2) if made, were not shown to have been made with any intent to induce payment to Z. by the master, or with any knowledge that they were likely to do so; and (3) that it was not shown that respondents were pecuniarily prejudiced by the misrepresentations so that it would be unjust to allow libelant’s claim. Held, therefore, that an estoppel had not been made out, and that libelant should recover.</p> <p>3. Same—Nominal Owner—Personal Liability for Supplies—Master or Managing Owner’s Authority to Bind.</p> <p>“ Thé law is well settled in this country that a mere registered owner, holding a nominal title only for the benefit of another, and taking no part or interest in the vessel’s business, is not personally liable for supplies furnished. In such cases, though the vessel may be bound in rem, the master or managing owner has no authority to bind the merely nominal owner personally. ”</p>

<p>Iii Admiralty.</p>

<p>Carrier or Goods by Vessel — Bill or Lading—Valuable Cargo—Value Con <’e a r. k n—i iOss—Liability.</p> <p>A quantity of highly valuable musk was shipped on tho steamship D., under a bill of lading which read: "‘.Not accountable for i:' * highly valúa bio goods, or beyond the amount of one hundred pounds sterling ¡or any one package, unless billa of lading are signed therefor, and the value therein expressed, and freight paid accordingly. ” The value of the musk was not disclosed by the shipper, nor was extra freight paid. It was usual to pay a much larger freight, on musk. The musk was shipped with another case" of small value, and like it in external appearance. On the voyage the box was rilled, and the musk partly lost. There was no evidence of intentional wrong, or want of ordinary care on the part of the ship. Held, that the shipment was presumptively in bad faith, and that the stipulation of the bill of lading protected the carrier, and that the libel should be dismissed.</p>

<p>Shipping-Advances—Attempt to Collect through Charterers—Estoppel.</p> <p>W. & Co., agents of the charterers, made advances for the benefit of the steamer I. and owners, which the owners were bound to pay, and afterwards endeavored to have them collected by their principals, the charterers of the vessel; which arrangement the latter at first agreed to, and accepted a draft which included the advances, hut soon afterwards repudiated the arrangement. The owners adopted libelant’s claim into their accounts as a credit to the charterers; but it did not appear that the latter ratified such act of the owners, or that any payment was made by the owners to the charterers on the faith of it which was not, owed the charterers irrespective of libelants’ claim; and the libelants’ claim was never paid by the owners. Held that, as the situation of the owners had not been in any way changed to their prejudice through the libelant’s original request to the charterers to collect the claim, there was nothing amounting to a legal estoppel against the libelants, and, their claim being a valid one, they were entitled to recover against the vessel.</p>

<p>1. Courts—United States Supreme Court—Appeal—Record—Clerk Subject to Direction of Court.</p> <p>The transcript of a record on appeal is understood to he transmitted to the supremo court from the circuit court, as such, under its seal, so that the clerk in making and certifying the transcript acts as an officer of, and under the general direction and control oí, the lower court, in the first instance, subject U> the further order of the supreme court on proceedings on suggestion of diminution of the record.</p> <p>2. Same—Direction to the Clerk.</p> <p>Whore, in a doubtful case, the clerk is requested by one parly to an appeal to insert in the transcript what he is requested by the other party to leave out, a direction by the court is proper.</p> <p>8. Same—What the Record should Contain—Rui,e 8, Supreme Court.</p> <p>Whore an opinion had been rendered, on final hearing, sustaining a patent, and afterwards, on motion for a rehearing, a second opinion was filed denying the motion, and a final decree had been entered, referring to the proceedings upon the motion for rehearing as well as to the former proceedings, from which decree an appeal was prayed, heJd, that the opinion on the rehearing comes within the requirements of rule 8 of the supremo court, which requires a copy of the opinion or opinions filed in the case to bo annexed to and transmitted with the record.</p> <p>4. Same—Motion Papers.</p> <p>Where 1ho motion papers on rehearing, taken in connection with the record, illustrated the opinion rendered on such motion, and the disposition of the motion was referred to in the decree appealed from, held, that the whole was proper to he transcribed into the record, within the meaning of section 698, Rev. St., and rule 8, taken together.</p>

<p>1. Trust—Death of Trustee does not Invalidate Trust.</p> <p>A trust, valid at its inception, is never permitted to fail for lack of a trustee; e, g., a conveyance in trust to two, one capable of taking and one not, will not become invalid by reason of the death, of the competent trustee.</p> <p>2. Same—Citizen of Nation has Right to Hold Property upon Trust in any,State.</p> <p>A citizen of the United States has the right to hold real and personal property, absolutely, or in trust for his own benefit, or in trust for the benefit of himself and others, in any state of the Union. So held arguendo.</p> <p>8. Same—State Statute Confining Trustees to Residents, Void as to Citizens of the United States.</p> <p>A state statute which declares a conveyance in trust of real or personal property to a non-resident, except by will, invalid, is void as to citizens of the United States, as inconsistent with the constitution, art. 4, § 2, cl. 1, which provides that “the citizens of each state shall be entitled to all the privileges and immunities of citizens in the several states. ” So held arguendo.</p> <p>4. Same—Foreign Corporation—State Statute Confining Trustees to Residents does not Affect Such Corporation.</p> <p>A state statute which declares a conveyance in. trust of real or personal properly to other than “a bona fide resident” of the state invalid, and which provides that a trustee’s right shall cease upon his removal from the state, heid,, in view of surrounding facts, not to govern a conveyance in trust to a foreign corporation of property within the state.</p> <p>5. Same—Construction of Trust Deed—Right to Foreclose not Barred.</p> <p>Provisions in a trust deed made by a railway corporation to secure its bondholders, which prohibit the trustee, without the consent of the holders of a majority of the bonds, to declare the principal due before maturity, to take possession of the mortgaged property, operate, or sell it, or to maintain a foreclosure suit for the principal before the maturity of the bonds, do not abrogate the right of the trustee, at the request of a single bondholder, or the right of a single bondholder himself, if the trustee refuses to act, to foreclose, upon breach of the condition of the deed by the corporation’s failure to pay interest.</p> <p>6. Railroads—Mortgate—Foreclosure for Interest Due-Form of Decree.</p> <p>In a suit by a trustee suing for the benefit of bondholders to foreclose a trust deed against a railway corporation to enforce the payment of overdue interest, complainant, unless restrained by the trust deed, is entitled to a decree nisi for the amount due and for a saie of the mortgaged property upon default in payment. Upon payment of the amount due, the foreclosure decree will be suspended until default again occurs in the payment of interest.</p> <p>7. Receiver—His Arrointment Discretionary.</p> <p>The appointment of a receiver rests in the sound discretion of the court. Defendant’s insolvency may or may not be cause for appointing receiver.</p>

In Equity. Exceptions to master s report. Petition for §500 damages for negligently running over a wagon and team belonging to tho intervenor. The facts, as shown by the evidence introduced, are substantially as follows: At the Twenty-first street crossing of the Wabash tracks, in the city of St. Louis, there are two gates,—one on the north and one on the south side of the tracks,—which, when closed, prevent teams from attempting to cross.

<p>1. Principal and Agent — Title of Agent to Land Purchased for Joint- • Stock Company.</p> <p>Where the agents of a joint-stock company buy lands for it; pay the purchase money with the company’s funds; always declare that such lands belong to the company; represent themselves always as the agents of the company in the management of the lands; take their salaries as such; and never claim such lands as their own, although the deeds were taken in their names, —they took no title aslndividuals, but the title was in the company.</p> <p>2. Same—Rights of Heirs of Agent. *</p> <p>The heirs of such agents, as to this title, occupy no position superior to that of their ancestors; they take no title, because their ancestors had none.</p> <p>3. Vendor and. Vendee—Admission against Title by Former Owner.</p> <p>A party deriving title from another, mediately or immediately, is bound by the admissions against that title made by the latter while the title is in him. When such admissions so made are clear and uncontradicted, they are conclusive.</p> <p>4. Same—No Title in Vendor—Bona Fide Purchaser.</p> <p>The doctrine of tana fide purchaser without notice does pot apply where there is a total absence of title in the vendor. The'good faith of a purchaser cannot create a title where none exists.</p> <p>5. Deed—Failure to Record—Priority—Subsequent Conveyance.</p> <p>On a failure to record a deed within time, a subsequent deed, taken without notice of the first, and properly recorded, has priority; hut such deed must he from the same vendor, and a deed from the heir of the vendor has no such priority.</p> <p>6. Same—Quitclaim Deed—Notice.</p> <p>The doctrine of bona fide purchaser without notice does not apply to conveyances made by quitclaim deeds.</p> <p>7. Vendor and Vendee—Tender oe Quitclaim.</p> <p>Where a quitclaim deed is tendered by the apparent owner to one contemplating the purchase of land, it is a fact'sufficient to awaken the suspicion of tho latter as to the validity of the title, and to put him on inquiry, and he is chargeable with notice of such defect of title, as ho might readily have ascertained on inquiry.</p> <p>8. Kqtjity Jurisdiction—Multiplicity oe Suits—Cloud on Title.</p> <p>A court of equity has jurisdiction to prevent fraudulent and irreparable injury, where a great multiplicity of suits will he avoided, and when it is necessary to remove a cloud from the title to lands. Especially is this true, where the object of the hill is to declare and enforce a trust against a multitude of respondents who are claiming under one fraudulent title.</p> <p>9. Same—Remise Allowed—Fraud.</p> <p>While it is true that in all proceedings to enforce tho title to land the complainant must- rely on the strength of his own title, it is also true, where tho respondents have'beon guilty of such fraud as would defeat the complainant or his legal title, he may, in equity, with suitable allegations, and with sufiient proof, supply such defect in his legal title as their fraud has created. His equitable right,'with such satisfactory proof of their fraud, is equivalent to the legal title.</p> <p>10. Evidence—Ancient Deed.</p> <p>A deed more than 80 years of age, which has been acted upon, and under which tho purchaser took possession, is admissible without [¡roof of execution; and an ancient record, coming from the proper custody, corroborated by proof that it was a part of the actual transfer of the property therein mentioned, is admissible.</p> <p>11. State—Right to Lands Purchased in Another State.</p> <p>While the comity which exists between the states of the Union will not necessarily legalize the purchase and the possession by one state of lands in another state, still such comity would support such a'transfer, for value, as would prevent a sister state from loss; and, in the absence of any proceeding to vitiate the title, in this ease it will be presumed that the state of Indiana took the lands for a legitimate purpose, and with permission of the state of Georgia, and the respondents have no right to raise this question.</p>

<p>Suit in Equity for an Injunction.</p>

<p>In Equity. Motion to set aside order confirming report of master on intervening petition of George Hamilton.</p>

<p>In Equity. Gross-bill of Josiah Fogg. Petition for rehearing. For report of previous opinion, see 25 Fed. Rep. 684.</p>

In Equity. Exceptions to master’s report. The facts concerning the intervenor’s claim are sufficiently stated in the opinion of the court. The order of the court referred to below is to the effect that all persons who furnished the railroad company with necessary supplies within six months prior to the appointment of the' receiver shall be allowed a lien prior in right to that of mortgage creditors. Default in the payment of interest took place September 1, 1883.

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

At Law. Suit for damages for breach of contract. Motion to make petition more definite and certain.

<p>1. Depositions—Dedimus Potestatem—Section 866, Rev. St.—State Statutes.</p> <p>A “common usage, ” within the meaning of section 806, Rev. St., cannot be established by a state statute.</p> <p>2. Same—Depositions de Bene Esse.</p> <p>A dedimus potestatem will not he granted to take testimony which can bo taken by deposition de bene esse.</p> <p>3. Same—Deposition op Dependant.</p> <p>Section 866, Rev. St., does not authorize the granting of a dedim,us potestatem to take the deposition of a defendant, where the only object appears to he to ascertain what he will swear to before placing him on the witness stand in court, especially where no answer has been filed, and the answer is not yet due.</p>

<p>1. Composition With Creditor—Failure to Comply with Terms.</p> <p>Where, by the terms of a composition agreement, the creditors agree to accept notes indorsed by a particular person, and that person dies, they are not bound to accept any other indorser.</p> <p>2. Same -Estoppel.</p> <p>Where, in such a case, the debtor wrote to his creditors notifying them of the death of the proposed indorser, and suggesting B. as a substitute, and closed his letter as follows: “Should you deem his indorsement sufficient, please advise me promptly:” held, that a creditor who did not signify his intention until notes indorsed by B. had been accepted by the other creditors, was not bound to accept such notes, and, having refused to do so, is at liberty to sue on bis original cause of action.</p>

<p>Constitutional Law — Privileges and Immunities op Citizens op State — Conspiracy to Drive Out Chinese.</p> <p>Eev. St. § 5519, so far as it embraces a conspiracy to deprive Chinese residents of a state of the privileges and immunities secured to them by existing treaties, is constitutional. Per Sawyer, C. J., Sabin, D. J., dissenting.</p>

At Law. Lor a report of the opinion of the court upon motion for an order' to compel Mr. Laurie to pay over the money collected for Mr. Jeffries, administrator, see 23 Fed. Rep. 786.

<p>At Law. Motion for rehearing. For previous opinions herein, see 23 Fed. Rep. 786, and ante, 195.</p>

<p>Indictment for Counterfeiting Treasury Notes of the Empire of Brazil. Motions to quash, and in arrest.</p>

<p>1. Patents for Inventions—Protting-Machines.</p> <p>Letters patent No. 269,159, of December 12, 1882, to Luther 0. Crowell, for a sheet-delivering mechanism for printing-machines, construed, sustained as to the sixth claim, and held infringed.</p> <p>'2. Same.</p> <p>So far as appeared from the proof in this case, Crowell was the first to superimpoáe the sheets, as they follow each other from a web printing-press, by causing them to travel in different pathways of equal lengths, and to stop or retard the advance sheet until the following sheet or sheets is or are brought abreast of it, when they move at a common rate of speed to a point where they come together; and he is therefore entitled to protection against the use of equivalents by othert.</p> <p>3. Same—Richard M. Hoe Patent, No. 211,848, February 4,1879, Folding-Machines.</p> <p>Infringement was charged of the fifth claim of this patent, which was for “the combination of brake-arms, rest-blocks, and supporting carrying-tapes, substantially as described. ” Held, the true construction of this claim required that the folding blade or rollers, described by the patent, be read into this claim, and that under this construction the defendants did not infringe.</p> <p>4. Same.</p> <p>The defendants did not use the stopping or retarding device of the patent for the purpose it described, and they had the same right as patentee to take another element from the older art, and use it in combination with the elements he described, for another purpose, in their machines.</p> <p>5. Same—Void Reissue.</p> <p>The first claim of the Hoe & Tucker patent (reissue No. 8,801, of July 15, 187J) printing-machines is void because an unwarranted enlargement of the original patent, which was granted December 1,1868, and of the first reissue, which was granted May 30, 1871.</p> <p>6. Same.</p> <p>The second claim of the original of the Hoe & Tucker reissue sued on, and the corresponding claim of the first reissue, included the flies or piling mechanism described; but the first claim of the reissue sued on does not, and it is therefore void.</p> <p>7. Same—Patentability.</p> <p>In view of the prior state of the art, the court doubted whether this patent was not void for want of patentable novelty.</p> <p>8. Same—Practice—Injunction.</p> <p>Where the owner of a patent had never made, used, or sold to others to be used, the invention covered by the patent, an injunction, in the interlocutory decree, against its use by an infringer was refused, on his giving bond to secure any damages which might be awarded on final hearing.</p> <p>9. Same—Patentee must Hsb or Else Permit Others to Use.</p> <p>A patentee is bound either to use the patent himself, or allow others to use it on reasonable and equitable terms.</p>

<p>Í. Patents for Inventions—Infringement—Estoppel—Judgments.</p> <p>Where, in a suit for the infringement of a patent, the bill is dismissed because of failure to show any infringement, the decree dismissing the bill will not estop the plaintiff, or his assigns, from again suing the same defendant for infringing the same patent.</p> <p>2. Same.</p> <p>In order to make a judgment available as a technical estoppel m a case, it must appear by the récord of the prior suit that the particular controversy sought to be concluded was necessarily tried and determined.</p>

At Law. Suit for damages for breach of contract. Motion to strike out part of answer. The allegations of the answer as to the guaranty, and contract to-give an indemnity bond, referred to in the opinion of the court, are as follows:

<p>1. Patents for Inventions—Infringement-Saw-Sharpening Machines.</p> <p>Claims 12,13, and 14, oí reissued letters patent No. 10,252, granted December 5, 1882. and the fourth claim of patent No. 254,869, granted March 14,1882, for improvements in saw-sharpening machines, construed, and held infringed.</p> <p>2. Same—Equivalents.</p> <p>The only defense in this case was non-infringement; and while it was true that defendant's mechanism was not an exact copy or reproduction of the patentedmachinos, and there was a noticeable display of ingenuity and skill in an attempt to evade the patent, held, that defendant’s mechanism worked out the same resultas complainants’, and by substantially the same means, using equivalent parts to perform the functions performed by the complainants’ construction.</p>

<p>1. Patents for Inventions—Bretzel-Ctjtters.</p> <p>Letters patent No. 274,264, granted March 20, 1883, to Butler, Earhart & Crawford, for a bretzel-cutter, is void for want of patentable novelty.</p> <p>2. Same.</p> <p>The prior art disclosing the use of fiat dies for cutting dough into various forms, such as the letter “B” and character and provided with scrap passages and expelling studs, held, that there was no patentable novelty in the dies of the patent, which were simply modified to cut dough into the shape of a hand-made bretzel, and combined with the old expelling studs.</p> <p>3. Same—Experiment—Mechanical Skill—Invention.</p> <p>Although the production of the patented device may have required study, effort, and experiment, held, that only mechanical skill was required to produce it, and hence that there was no invention.</p> <p>4. Same—Invention, what is not Evidence of.</p> <p>The mere fact that others in trying to accomplish a given object .had long Wandered by the wrong path, is not evidence that invention was required to accomplish what patentee did by taking the direct path.</p> <p>5. Same—Merit of Patentees.</p> <p>The merit of these patentees scorns to have been in overcoming a prejudice against machine-made goods, and not in the invention of any radically new process for making the goods by machinery.</p>

<p>1. Marine Insurance—Insurer's Liability to Uninsured Part Owner for Negligence.</p> <p>“Where an insurer has insured tho interest of a half owner of a vessel; and the vessel was stranded during a voyage; and such half owner requests the insurer to render her assistance; and the insurer sends an agent to the vessel with instructions “to render such assistance as is necessary;” and such half owner notifies the insurer that he abandons his interest in the vessel to the insurer; and such agent, with the aid of the master, crew, and such half owner, move the disabled vessel to a harbor; and afterwards, without further orders from the insurer, such agent, the master, and crew, with the aid of such part, owner, attempt to navigate the vessel to her homo port, which is also her port of destination; and (luring the voyage the vessel is lost: held, that, the insurer is not liable to the owner of the uninsured half interest in the vessel for her loss, and is not, as to him, chargeable with negligence.</p> <p>S. Same—Higiit of Part Owner to Abandon under Insurance Policy.</p> <p>“Where a policy of insurance on the interest of a part owner of a vessel provides that the insured shall not have a right to abandon unless the amount, which the insurer would be liable to pay under an adjustment as of a partial loss, would exceed half the amount insured, nor unless the insurer would receive a perfect title to the subject abandoned, intimated, that a notice of abandonment by the insured to the insurer, before the facts which affect the right to abandonment are ascertained, does not constitute an abandonment under the policy.</p> <p>3. Same—Abandonment by Part Owner dobs not Aeeeot Co-owners—Master’s Duty.</p> <p>Abandonment by one part owner of a stranded vessel of his interest in the vessel to the insurer of such interest does not aifect the interest of other part owners, nor the master’s control over the vessel, so far as their interest is concerned.</p> <p>4. Same—Agency—Extent oe Wrecking Master’s Authority erom Insurer.</p> <p>Authority by an insurer to a wrecking master to render “necessary assistance” to a stranded vessel'does not confer on such agent any authority to accept an abandonment of a part owner’s interest, nor authority to navigate the disabled vessel to her home port after having once moved her into a harbor.</p> <p>5. Same—Weight oe Evidence Essential to Recovery.</p> <p>Libelant must, to recover, clearly prove his case.</p>

The first two of these cases were cross-libels for a collision between the steamers Stamford and Twilight. The third was a libel by Catherine E. Erederickson, a passenger on the Twilight, against the Stamford and Twilight jointly, for personal injuries received in the same collision.

<p>1. Collision—Open Draw—Vessel Approaching at Angle—Vault.</p> <p>When a tug, with a float, attempted to pass through a draw-bridge on the Harlem river, but did not apxiroach the draw in line with the opening, and the pilot-house of the tug struck the end of the draw, held, that the tug was in fault.</p> <p>3. Same—Engineer of Draw—Duty—Contributory Negligence.</p> <p>The engineer of the draw perceived that the tow was approaching upon an angle, but made no efEort to favor its passage by revolving the draw beyond the middle line, as was the custom to do when necessary. Held, that failure, to perform this simple and customary duty was contributory negligence on the part of the engineer.</p> <p>8. Same—City Corporation—Department of Parks—State Court Adjudication.</p> <p>' The state courts having held that the corporation is liable for any negligence in the management of streets or bridges under the department of parks, such adjudication should be followed by this court.</p> <p>4 Same—Draw-Bridge—Duty of Custodians—Negligence of Servant—Liability.</p> <p>The duty to take proper care of a bridge includes the duty to make proper provision for the passage of vessels through the draw. The custodians of the bridge are bound to the use of ordinary diligence to avoid accidents to vessels going through the draw in a customary manner, as one of the incidents of the management of the bridge. They are therefore responsible for the want of ordinary care on the xiart of their servants.</p>

<p>Admiralty—Practice—Costs—Piling Petition—Limitation of Liability Act—Delay—State Court Suits—Term Pees—Witness Pees.</p> <p>Fifteen months after one suit, and eleven months after a second suit, had been begun in a state court against the owners of the ferry-boat Garden City, proceedings to limit liability were taken; and when the cases were ready for trial, and witnesses were present, further proceedings in the state court were stayed by injunction issuing from this court. The Garden City was held chargeable with negligence by this court on the same issue of fact joihed in, the suits in the state court. On motion for an order directing that claimant’s costs, incurred in the state court suits before the petition to limit liability was filed, he allowed as part of the damages recoverable, held that, as petitioners, after the commencement of the second suit in the state court, were legally in the same situation as when they filed their petition nearly a year afterwards, they should equitably pay the charges accruing after a reasonable time to file the petition, as incident to the claimant’s loss and injury, which had accrued in the mean time, and which would have been avoided by the more prompt filing of the petition. Claimant’s term fees in the state court and witness fees were therefore allowed against the petitioners.</p>

<p>Carriers—Carrier of Passengers—Overloading Steamers—Penalty—Excursion Permit—Evidence.</p> <p>While the penalties imposed by law for overcrowding steam-boats must be adjudged without hesitation where the provisions designed for the security of life are violated, the court ought to be satisfied that the violation is clearly made out before finding the defendants liable. On the evidence in this case, showing but a single count, made at dusk, amid a rush of the passengers, unverified by any other evidence, and other circumstances making the excess improbable, held, that the libelant had not satisfactorily proved that the Harlem had more passengers than were allowed under her excursion permit, and the libel should therefore be dismissed. Held, also, that an excursion permit, given by the proper inspectors, for an additional number of passengers, for a period of 20 days, was not so clearly void on its face as to exclude the additional number from the lawful count.</p>

<p>Collision—Pilot-Boat Becalmed-—Steamer Approaching from Astern— Failure to Seasonably Show Lighted Torch—Neglect to Stop and Reverse—Half Damages.</p> <p>The pilot-boat S. was run into by the steamer C. The latter’s speed, at the time of the collision, was eight knots; the former was becalmed. The line of approach of the steamer was from astern, thereby shutting out the side lights of the pilot-boat. The pilot-boat was seen “right ahead’’when the steamer was three or four lengths off. The steamer’s helm was ordered “hard a-port, ” but no change was made in her speed. Held, that as the evidence shows that the steamer could have been stopped in going twice her length, the order “hard a-port” was not sufficient; she should have been stopped, and her engines reversed. Held, that the flare-up light of the pilot-boar, if shown at all, was not shown seasonably. To exempt herself from fault, a lighted torch should have been seasonably exhibited over her stern.</p>

<p>1. Admiralty—Practice—Appeal—Bond—Parties.</p> <p>Where the motion and order for appeal were not taken against any of the numerous libelants by name, and where no bond was given in favor of any other than one of the libelants, the appeal can only hold as to him, and must be dismissed as to the others.</p> <p>2. Same—Amendment of Process.</p> <p>On appeal from district to circuit court, defective process cannot be cured by amendment.</p> <p>3. Same—Dismissal.</p> <p>The City of Lincoln, 19 Fed. Rep. 410, followed.</p>

<p>Courts --Femoral and State Coubts—Execution—Supplementary Proceedings—Receivers.</p> <p>Upon an examination of a judgment debtor in proceedings supplementary to execution, in accordance with the state practice in common-law actions, as a substitute for the old creditors’ bill, a federal court is not bound to appoint the same person as receiver that was previously appointed in a similar prior proceeding in the state courts. As these independent jurisdictions have no common superior, confusion and conflict will be most likely avoided by the appointment of independent receivers. Especially should a different receiver be appointed where circumstances afford reasonable suspicion that the prior receiver was obtained by collusion with the judgment debtor.</p>

<p>1. Banks and Banking—Collection op Draft by Insolvent Bank—Drawer, wmn Entitled to Proceeds.</p> <p>A., who for several years had kepi an account with the Marine National Bank of New York, on May 5,1884, deposited a sight draft, dated that day, and drawn hy him on a corporation of Boston, Massachusetts, which was indebted to him in the amount of the draft. The bank was insolvent at the time, but the draft was forwarded to its collection agent at Boston, and paid May 7th, after the bank had failed and closed its doors. On several previous occasions A. had deposited similar drafts, and been credited therewith as cash, and they were treated hy him as cash deposits. On the occasion in question the hank credited plaintiff with the draft as a cash item. Held, that the draft was not the property of A. when paid hy the drawee, and that he was not entitled to recover the'amount thereof from the receiver.</p> <p>2. Same—Credit of Srairr Bill as Cash—Discount.</p> <p>When a sight bill is credited by a bank to a customer as a cash item, with the latter’s assent, the transaction is equivalent to a discount of the bill by the hank.</p>

<p>Equity—Pleading—Plea—Striking Out—Setting JDown for Argument.</p> <p>A plea which alleges mailers properly to be brought forward by an answer only is not a pleading recognized by the rules of practice, and will be stricken from the files; but if the matters alleged are the proper subject of defense by way of plea, then such pleading, although not, good in substance, is an authorized pleading, and all objections to it must be taken by setting it down for argument.</p>

<p>In Equity. Petition by the defendant for a rehearing.</p> <p>For a report of the previous opinion in this case, see 26 Fed. Rep. 812.</p>

<p>Fraud on Creditors—Life Insurance—Pub. St. Mass. Ch. 119, § 167.</p> <p>Where a contract of insurance is made in furtherance of a conspiracy between the insured and his wife to defraud and cheat the creditors of the former, the most the creditors can reach, under the Massachusetts statute, (Pub. St. c. 119, § 10?,) is an amount equal to the premiums paid with intent to defraud creditors, with interest thereon.</p>

In Equity. Bill to charge holders of nominally paid-up stock on behalf of a single judgment creditor. Demurrer to bill.

<p>Railroads—Bonds—Foreclosure of Mortgage—Ohio and Mississippi Railway Company.</p> <p>Contract wiiereby complainant surrendered certain bonds beld by him, and accepted in lieu thereof mortgage bonds, known as “Construction Bonds,” of the Ohio and Mississippi Railway Company, (eastern division,) construed, and held, that he was entitled to priority over the claims of the Ohio and Mississippi Railway Company, as reorganized under the title acquired by a foreclosure of a prior mortgage.</p>

<p>Fire Insurance—Authority of Agent—Loss.</p> <p>A. applied to B., an insurance agent, who had been carrying bis insurance for a series of years, and who knew the condition of his property, for §20,-000 of insurance, arid B., being unwilling to carry that amount in the companies he represented, applied to O., the agent of another company, for §2,500 of insurance, and 0., without any communication with A., or knowledge of the property, took the insurance, wrote out the policy, and delivered it to B., who gave it to A. Held, that the company represented by O. was hound by the policy, and was liable for a loss.</p>

At Law. Suit upon an indemnity bond given the United States marshal to indemnify him and F. Feldkamp against all damages and costs that might accrue to them by reason of the seizure and sale of certain property, claimed by said Feldkamp, to satisfy an execution issued iñ the case of Morse v. Frank. The other material facts are sufficiently stated in the charge to the jury.

<p>Action—Parties—Jotnt Bono.</p> <p>S. L. B. and 36. B. "became sureties on a trustee’s bond, and P. and H. ex ecuted a bond as sureties to indemnify them. E. B. indorsed on the trustee’s bond an agreement to indemnify S. L. B. Subsequently tbe executrix of E. B brought suit on tbe bond against P Held, that as it did not appear that S. L B., the joint obligee, was not living, the plaintiff was not the proper party U sue, and that the suit should be dismissed.</p>

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

<p>1. Account—Account Rendered— Effect of—Objection.</p> <p>An account rendered, and not objected to within a reasonable time, is to be regarded as admitted by the party charged as prima faeie correct.</p> <p>2. Same—Reasonable Time.</p> <p>Unless objected to within a reasonable time, and what constitutes such reasonable lime is a question of law. an account rendered becomes an account stated, and cannot be impeached, except for fraud or mistake.</p> <p>8. Same—Account Stated.</p> <p>A stated account, however, is not conclusive; but when it is admitted in evidence, the burden of showing its incorrectness is thrown on the other party. He may prove fraud, omission, and mistake, and in these respects he is in no wiso concluded bv the admissions implied from bis silence after it was rendered.</p> <p>4. Principal and Agent—Factors—Sale—Advances—Discretion.</p> <p>While ordinarily factors are bound to obey all orders of their principal, yet when they have made large advances, or incurred expenses on account of consignments, the principal cannot, by any subsequent orders, control their rigid, to sell at such a time as, in the exercise of a sound discretion, and in accordance'with the usage of trade, they may de’em best to secure indemnity to themselves, and to promote the interest of the consignor; they acting, of course, in good faith, and with reasonable skill.</p> <p>5. Same—Commissions—Forfeiture —Fraud —Dross Neotjgence.</p> <p>A factor, or other agent who is guilty of fraud, or gross negligence, in the conduct of his principal’s business, forfeits all claims to commissions.</p> <p>6. Same-Commissions from Both Parties.</p> <p>Ordinarily a factor who takes commissions from his principal, who employs him to sell, would violate his contract, should he also take commissions from the person to whom he sells, but when it is clearly understood by all tbe parties that one who is paid commissions to sell cotton, is also to charge commissions from the buyer the transaction is not illegal. This is especially true where ho advances all the money to conduct the business himself, and looks to the sales for his reimbursement.1</p>

<p>1. Pleading—Sham, Redundant, and Immaterial Allegations in Answer.</p> <p>An allegation in an answer denying knowledge of a matter alleged in the complaint will not be stricken out as sham unless it appears that the same must be false. An allegation in a complaint that the plaintiff, a British corporation, “is a citizen of Great Britain,” is meaningless and immaterial, and so is a denial of the same in the answer. It is not necessary that a corporation formed under the law of Great Britain to construct, own, operate, and lease railways in Oregon should specify in its memorandum of association the termini thereof; and therefore an allegation in an answer to a complaint, in an action by such a corporation on a lease of its road, that it had not made such a specification, is immaterial. An allegation of fact in an answer whioli is not per re, a defense to the action, and is not attempted to be made so by any proper averment, is immaterial. A mere denial of the lessee corporation’s power to execute a lease of a railway, in an action thereon by the lessor corporation to recover rent, is a conclusion of law, and immaterial. An allegation by the lessee corporation in such action that the lessor’s road had no near connection with its road; that the capital stock of the latter was not contributed to operate leased roads; that the lease was not ratified by-its stockholders, or that it was signed by its president and secretary without the state of its origin,—is immaterial, in an action by the lessor to recover the rent reserved in a lease, an allegation in the answer to the complaint that the lessee did not occupy the premises during the period for which the rent is demanded is immaterial, unless it is further alleged that such non-occupation was the direct result of the fault or misconduct of the„ lessor.</p> <p>2. Estoitel tsy Contract.</p> <p>In an a etion by an apparent corporation on a lease of its railway, to recover an installment of the rent reserved therein, the lessee is estopped to deny the lessor’s corporate existence or power to make such contract.</p> <p>3. Pleading—Contradictory Allegations.</p> <p>When a denial of knowledge concerning a matter alleged in the complaint is followed by a direct averment necessarily implying such knowledge, either the denial may bo stricken out as sham or'the averment as redundant.</p> <p>4. Estoppel—Judgment on Demurrer an Estoppel.</p> <p>Judgment, on a demurrer to a complaint isas conclusive and binding on the parties to the action, as to all matters well pleaded therein, as though it was given on a verdict on an issue arising on a denial of the allegations of the complaint; and if final judgment is given for the plaintiff on a demurrer to an answer, such, judgment is a conclusive determination between the parties of the questions involved in the defense made by such answer, and of the material matters stated in the complaint.</p> <p>5. Same—Judgment—Estoppel of.</p> <p>A judgment is an estoppel in an action between the parties thereto as to any fact or matter determined thereby.</p> <p>6. Same—Estoppel by Judgment in an Action on Lease for Rent.</p> <p>A covenant, in a lease of a railway for a number of years, to pay the rent reserved therein in semi-annual installments, is in the nature of a series of undertakings or obligations assumed or incurred at the same time and under the same circumstances, and a judgment in an action to recover any one of these installments of rent is conclusive of the validity of the lease, and the liability of the lessee thereunder, in any subsequent action thereon, as to any matter or defense that might have been made to the first action.</p> <p>7. Same—Writ of Error—Effect of, on Judgment.</p> <p>A writ of error from the supreme to the circuit court is not a proceeding under the state Code, but at common law, as modified by the Revised Statutes, and it does not have the effect, pending the proceeding, to suspend the operation of the judgment of the circuit court as a bar or an estoppel.</p>

<p>Husband and Wife—Sepárate Estate—Promissory Hote—Indorsement by Wife of Maker—Liability.</p> <p>Where a promissory note was made by one II., payable to the order of his wife, who thereafter, before 1he delivery of the note, signed the following indorsement: “Pay to the order of P. For value received, I hereby charge my separate estate with payment of within note;” and there was no protest or notice of non-payment of the note: held, in an action seeking to charge the wife as joint maker, that her liability was simply that of.an indorser.</p>

<p>Customs Duties—Action for Illegal Duties—Interest—Laches.</p> <p>An importer who has brought suit to recover duties wrongfully exacted from him by a collector, cannot recover interest byway of damages, if he has " been guilty of laches in unreasonably delaying the prosecution of the suit after it has been brought.</p>

<p>Patents for Invention—Infringement—Pleading.</p> <p>By taking issue upon a plea, complainant admits its sufficiency in point of form and substance; and if the facts alleged are established, defendant will be entitled to judgment.</p>

<p>This was a bill for infringement of reissued letters patent to John W. Hyatt, Jr., and Isaiah S. Hyatt, assignors, for improvement in treating and moulding pyroxyline. The reissue sued on was the third of the original, which was granted July 12,1870. The first reissue was granted June 23,1874, the second April 15, 1884, and the third, the one in suit, December 23, 1884. None of the claims of the original patent were retained in the first reissue ; the second reissue contained only one claim of the original; and the two claims of the third reissue, and the specification, so far as it related to these two claims, were the same as the original. These several reissues were set up by plea, and the plea being set down for argument, the questions, were,’ whether a reissue is valid which is granted merely to reinstate a patentee to an invention which he has surrendered in order to obtain a wider monopoly than he had obtained, and, if such a reissue is valid under any circumstances, whether it is so after such a delay as had taken place in this case.</p>

<p>Patents for Inventions—Reissue—Enlarging Claim—Steam-Pumps.</p> <p>The first, second, third, and sixth claims of reissued letters patent No. 9,818, granted to M. Schultz for an improvement in steam-pumps, held, unlawful expansions of the original patent, and therefore void.</p>

<p>1. Patents for Inventions—Want of Novelty.</p> <p>Letters patent No. 261,829, of August 1, 1883, to Alton J. Calkins, for an improvement in carriage bodies, are void for want of novelty.</p> <p>2. Same.</p> <p>The patent was for a carriage body having rounded corner posts, with grooves to receive the side and end panels, and tenons to receive side and end rails, and corner irons to hold the rails rigidly to the posts, the whole forming a carriage body ingeniously adjusted and held together without the aid of screws; but all the elements of the claim were old, and in view of the prior state of the art, held, that it did not require invention to bring them together.</p> <p>8. Same—Mechanical Skill.</p> <p>Although the adjustment of the different parts of patentee’s combination was novel, and the combination, as an entirety, useful, held, that it exhibited only the expected skill of the mechanic's calling, and not the creative work of the inventor.</p>

<p>1. Patents for Inventions—Preliminary Injunction.</p> <p>Whore a patent had been sustained after long and ably contested litigation, and against all the defenses ordinarily set up in patent cases, and such decision had hecn followed by another court, held, on an application for a preliminary injunction, that the question of the validity of the patent was hardly open.</p> <p>2. Same.</p> <p>In such a case, and where the patent has only a short time to run, the owners are entitled to be protected in their monopoly until the defendants are able to show that the former decisions sustaining the validity of the patent were wrong.</p>

<p>1. Patents for Inventions—Turning and Boring Mills.</p> <p>Letters patent No. 118,651, ot April 11, 1871, granted to George A. Gray, Jr., for an improvement in turning and boring mills, is not void for want of patentable novelty.</p> <p>2. Same—Use of Machine—Evidence of Utility.</p> <p>Defendant’s adoption and use of the patented device in preference to others on the market, held a pregnant fact, and strong evidence of tho utility of the patented device.</p> <p>8. Same—Patentable Combinations.</p> <p>A combination is patentable (1) if it produces new and useful results, though all tho constituents of tho combination were well known and in common uso before the combination was made, provided the results are a product of the combination, and not a mere aggregate of several results, each the product of one of the combined elements; (2) if it produces a different force, effect, or result in the combined forces or processes from that given by their separate parts, and a new result is produced by their union; (8) if it either forms a new machine of distinct character or formation, or produces a result which is not a mere aggregate of separate contributions, but is duo to the joint and co-operating action of all the elements; (4) when the several elements of which it is composed produce, by their joint action, either a new and useful result, oían old result in a cheaper or otherwise more advantageous way.</p> <p>4. Same.</p> <p>Where the attention of persons skilled in the art had been directed for many years to the discovery of a more convenient and effective contrivance, and patentee was the first to produce it, held, that something more than the more application of mechanical skill was involved in his production.</p>

<p>1. Patents for Inventions—Infringement—Tate Quilting-Machine.</p> <p>Former opinion, 22 Fed. Rep. 660, adhered to.</p> <p>2. Same—Improvement on Machine.</p> <p>Where, by the addition of certain elements, a machine is made which is properly the subject of a patent, as an improvement on a machine which it is claimed to infringe, it does not follow the original machine has not been infringed.</p>

<p>1. Patents for Inventions—Construction of Claim— Infringement.</p> <p>The first claim of letters patent granted June 19, 1883, to Charles Hoff. was for “the method of forming the body of a coal-hod or other similar vessel, which consists, substantially, as before set forth, in first forming a cone-shaped body from a suitable blank, then folding in the cone end of said body in crimps, to form the bottom. ” Defendant formed only a part of its coal-hod bottoms by folding in the sides, and then closed the space between the folded ends with a cap. ITeld, that Hoff’s first claim should not be limited to a method in which a perfect cone-shaped body is first made, and that defendants infringed said claim.</p> <p>2. Same—Henry S. Reynolds’ Patent of August 26, 1883.</p> <p>This patentee may have made a patentable improvement over Hoff’s device, hut it contains the essentials, and is an infringement of the first claim of the Hoff patent.</p>

<p>Admiralty Appeal. On motion to dismiss.</p>

<p>Collision— Diminished Vision Demands Diminished Speed — Rules oe the Road — Construction ov—Nineteenth Rule—Steam-Whistle—Inspectors’ Rules—Hale Damages.</p> <p>A steamer, shortly after hacking out from her wharf, was obliged to stop and reverse in order to thereby avoid colliding with a schooner. While lying motionless, she was run into by a tug. The latter vessel was, at the time, crossing 1hc steamer's track from starboard, so that the position of the vessels was that the steamer had the tug on her own starboard side. Held, that it was the duty of the tug, under the circumstances, to have kept out of the way of the steamer, notwithstanding the fact that if both vessels had been under way their courses would have been crossing, and their respective obligations reversed. The steamer being motionless, and without the power to alter her position immediately, must be considered as a vessel at anchor, and rule 19 is therefore inapplicable. Held, that if the circumstances were such as to obstruct partially the range of vision, It was incumbent on the tug to have stopped or slowed. Held that, both by usage and law, “in a crowded harbor, in the vicinity of wharves, steamers áre required to sound their whistles as often as may be necessary to guard against collision, ” and that the steamer, notwithstanding her position, was at fault in this regard.</p>

<p>Salvage—Vessel without Navigator and Vessel Sinking—Salvor Saving Hrs Life in Aot of Salving—Award.</p> <p>The bark S., being in a sinking condition, and without, boats, met the brigantine M., which had on board her crew alone, the master and mates having died, leaving no one capable of navigating her. The master of the S. thereupon abandoned his vessel, and, with all Ms crew, went on board tbe M., and brought her safely to port without further difficulty. Libels were thereafter filod'for salvage against the M. by the master and crew of the S. The value of the M. and her cargo was $50,000. Held, that the service rendered to the M. by the master of the S. was a salvage service, and the fact that in rendering it he was probably saving his own life did not defeat his claim; $1,000 was therefore awarded him. But as the M. was in need of a navigator only, the services rendered by the crew of the S. were not salvage services, and. they could not recover.</p>

<p>In 'Admiralty.</p>

<p>Bottomry Bond—Hypothecation of Vessel—Notice to Owner—Approval.</p> <p>Where the master of a bark at Tarragona executed a bottomry bond, binding the vessel and freight for advances and necessary disbursements, but it appeared that, when the bond was made, the owner was within reach of the master by telegraph from Tarragona: that a letter would have been received by him in five days; and that he was in actual communication with the master while the vessel was at Tarragona, but the latter never notified him of his intention to borrow money on the credit of- the ship, or obtained his approval: held, that the contract, so far as it affected the vessel and freight, was void.</p>

<p>Ooixtston—Steam-Boat and Tug—Confusion of Lights—Lookout—Negligence.</p> <p>Where two tugs hound from the East river into the North river, in New York harbor, were approaching the steam-boat 0., in the night, one at a course to pass outside of the s1eam-boat, and the other inside; and the steam-boat apparently confused their lights, and so sheered in, under the supposition that there was but one tug approaching, and so collided with and sank one of the vessels; heM, that more careful attention on the part of the steam-boat would have prevented the mistake, and also the collision, for which the steamboat was held liable.</p>

<p>Removal of Causes—Separable Controversy.</p> <p>S. made an agreement with the city of G. tor the construction by him of water-works, and the supply of the city with water, the city by its ordinance granting to S. and his assigns the exclusive franchise for this purpose, for a definite period of time. S. afterwards assigned his franchise, and tlie city of G. subsequently filed a bill in the state court against the assignee alone, seeking, on grounds therein set forth, to have the franchise vacated and annulled. After the agreement between S. and the city of G. had been entered into, the assignee executed a mortgage upon its property and franchise to the í\ L. & T. Co., of the City of New York, for the purpose of raising money thereon. In the progress of the cause the P. L. & T. Co.; upon their application, were admitted as a party defendant, and upon their motion the cause was removed to the circuit court of the United States. Upon a motion by the city of G. to have the cause remanded to the state court, held, that as the record shows a separable controversy between the P. L. & T. Co., a citizen of the state of New York, and the city of G., the motion to remand must be overruled. Held, further, that, although the contract between S. and the city was between citizens of the same state, yet as the franchise was assignable, any property rights which had accrued to citizens thereunder in other states may be litigated in this court.</p>

<p>1. Removal of Cause—Jurisdiction—Separable Controversy—Replevin.</p> <p>. W. S. & Co., citizens of Illinois, brought suit in the circuit court of Black Hawk county, Iowa, against S., E., and K., to recover certain goods, or their value, which had been purchased by S. from them, and carried to Iowa. A . judgment having been obtained against S. some time afterwards, an execution was'issued and placed in the hands of E., the sheriff, one of the defendants, who proceeded to levy the same upon the goods thus purchased. About the same time, also, S. made a bill of sale of the same goods to the defendant K., who took possession of them, and continued in possession of them, the plaintiffs not having given the bond required by law, but choosing to await the result of the suit. The defendant K. was a citizen of the state of Illinois, and the defendants S. and E. were citizens of the state of Iowa. At the appearance term the defendants S„ E., and K. united in a petition to remove ■ the cause to the federal court, but no action was taken upon the petition by the state court. A transcript of the record having been filed in this court, the plaintiffs moved to have the cause remanded to the state court. Held, that the record does not show a separable controversy between the plaintiffs and ’ the defendants to entitle the defendants to a removal, and that the cause must be remanded to the state court.</p> <p>2. Same—Amending Petition.</p> <p>“Where a petition for removal is granted by a state court, and the transcript is filed in the United States court, upon a motion to remand being made, an amendment of the petition will be allowed for the purpose of curing any defects therein. If the state court does not grant or refuses an order for the removal of the cause, no amendments to the petition will be allowed.</p>

<p>Railroads —Mortgages — Enforcement of Judgments against Mortgaged Property.</p> <p>Where a railroad company whose property is mortgaged incurs obligations in the course of its operations, and judgment is recovered against it in a state court, that judgment may be enforced before forfeiture or foreclosure or the appointment oí a receiver, by levying upon and selling a portion of the mortgaged property, and a federal court will not restrain its enforcement at the instance of the mortgage creditor.</p>

<p>Equity. Bill to quiet title to certain realty.</p>

Bill in equity to restrain the sale of plaintiff’s lands for the collection of state, county, town, school-district, and highway taxes assessed thereon in 1882. Upon hearing upon bill, answer, and proofs, at the June term, 1884, the assessment was set aside and a reassessment ordered. The previous opinion of the court herein is reported in 20 Fed. Hep. 341.

At Law. Suit upon a fire insurance policy. The summons was served upon William A. Noyes, as agent of the defendant, which is a foreign company. The defendant filed an answer containing a general denial, and stating that said Noyes has never had any authority to accept service of any legal process on it, and that there is no agent or person representing it in this state who has authority to accept service.

<p>Assumpsit—Pleadings—Contracts.</p> <p>In a suit for breach of a contract the complete performance of which, has been abandoned by the plaintiff because of the defendant’s refusal to proceed, the petition should show that something is due the plaintiff on account of what he did before such refusal and abandonment.</p>

<p>Writ and Process—Service bj Publication—Suit to Quiet Title—Subsequent Ejectment.</p> <p>A decree in a suit, to quiet, title in tlie circuit court against a defendant wlio is a citizen of another state, rendered on service of summons by publication, will not bar a subsequent action of ejectment by the defendant to recover the land involved.</p>

Trespass on the case. The jury found: (1) Prior to the year 1866 the defendant’s testator, Hartman Kuhn, was a citizen of the United States, and resided in the city of Philadelphia, in the state of Pennsylvania. (2) In May, 1866, he abandoned his residence in Philadelphia, and went with his family to live in Europe, with the intention of permanently residing abroad.

<p>Writ and Process—Exemption of Attorney from Another State Attending Court—Rev. St. III. Ch. 2, § 8.</p> <p>Under the Illinois statute a resident attorney may be served with summons in a civil action or suit while in attendance upon the courts, and an attorney from another state has.no greater privilege.</p>

<p>On Buie for Contempt against William R. Baker and others.</p>

The former opinion was rendered July 31,, 1884, and is reported in 21 Fed. Bop. 313. The important ground of the motion was that since the date of the former opinion the supreme court of the United Stales had, by judicial authority, in Hollister v. Benedict & Burnham Manufg Co., 113 U. S. 59, S. C. 5 Sup. Ct. Rep. 717, and Thompson v. Boisselier, 114 U. S. 1, S. C. 5 Sup. Ct.

<p>1. Patents for Inventions.</p> <p>Letters patent No. 86,396, of January 26, 1869, to tbe New York Belting & Packing Company, as assignee of Dennis C. Gately, for improved vulcanized rubber packing, sustained, and held infringed.</p> <p>3. Same—Distinction between Invention and Mechanical Skill.</p> <p>The line between invention and mechanical skill is not always clearly drawn. Invention indicates genius and the production of a new idea. Mechanical skill is applied to an idea, and suggests how it may be modified and made more practical.</p> <p>3. Same—Extensive Adoption of Device, Evidence of Invention.</p> <p>The fact that the patented device went at once into such extensive public use as almost to supersede older devices is pregnant evidence of novelty, value, and usefulness, and accounts for the defendants’ infringement.</p>

<p>1. Patents for Inventions—Evidence oe Prior Use.</p> <p>In order to defeat a patent on the ground of prior use, such use must be established beyond reasonable doubt. Coffin v. Ogden, 18 Wall. 120; Washburn & Moen Manufg Co. v. Haish, 4 Fed. Rep. 900.</p> <p>2. Same.</p> <p>Where a witness testified to his use of a patented invention 16 years before the time when he testified, and that he employed some 10 persons in its manufacture, and yet could not tell the names of any of such persons, held, that his testimony failed to make out a defense.</p> <p>8. Same.</p> <p>Two witnesses testified in 1884 to seeing the patented device in use in 1864, but their testimony was indefinite, and contradicted in many important particulars, and none of the alleged prior devices were produced. Held, insufficient to defeat the patent.</p> <p>4. Same—Carpenter Patent No. 116,411—Hoop-Skirts.</p> <p>This patent sustained over the alleged prior use by Max Schwab, at Ottawa, Illinois, and that seen by Robert G. Lester and August Seliginan, in 1864.</p>

This was a bill to restrain infringement of two patents, one of which had about two months to run at the time the bill was filed. Defendant’s answer denied infringement of one of the patents, and alleged that it was void for want of novelty, and admitted that the other patent was valid, and that defendant used it, but insisted that the title belonged to the defendant.

<p>1. Patents for Inventions—Abandonment.</p> <p>The patent granted to William Taylor and Charles Hodgetts, Ho. 117,386, dated July 18,1871, for improvement in caps for preserve jars, is invalid and void.</p> <p>3. Same—Renewing Application—Authority—Assignment.</p> <p>Taylor & Hodgetts filed their application March 36,1856. It was rejected, on references, April 16, 1856, and withdrawn April 22, 1856. On March 30, 1869, a patent was granted to Boyd for substantially the same invention. On January 7,1871, Cozzens, the attorney of Boyd, filed a request in the name of Taylor & Hodgetts, but without their authority, to renew the application under the provisions of section 85 of the patent act of July 8, 1870. In June, 1871, Boyd purchased Taylor & Hodgetts’ rights in the invention and application, and obtained from them a ratification of Cozzens’ attempted renewal, after which he paid the renewal fee, filed an amended specification, and had the patent issued. Taylor & Hodgetts made no effort to renew or prosecute the application between their withdrawal on April 23, 1856, and the filing of the renewed application in 1871. There was evidence that they had given up the invention, and ceased to use it, or take any further interest in it, as early as about 1862; and that they were men of means, engaged in the business of manufacturing fruit cans. ITdd, (l)-that they had abandoned the invention; (2) that the renewal was without authority, and that its subsequent ratification could not validate it; (3) that their abandonment was not in favor of Boyd, the intervening patentee, but in favor of the public; (4) tbat Boyd could not, by acquiring an assignment from them, reclaim the invention from the public.</p> <p>3. Same—Lapse of Time.</p> <p>Where an application for a patent has been filed and withdrawn, lapse of time, whether it be alone conclusive of abandonment or not, is nevertheless a fa ot which may give great point and force to testiihony disclosing what was done in the interval.</p> <p>4. Same—Interest of Public—Estoppel.</p> <p>In cases of abandonment or reissue, under the patent laws, the matter is not to be likened to chattels personal, the ownership of which may be abandoned and afterwards resumed; for there is always, in patent cases, a public equity which must .iot be disregarded. In such cases the equitable estoppel which arises, where other rights in the mean time intervene, is not in favor of the intervenor alone, but he is regarded by the courts as the representative of the public, and therefore whatever rights he gains the public gains</p>

<p>1. Carrier of Goods by Ship—Delivery of Iron Cargo—Wharf Breaking Down—Weighing—Charter-Party.</p> <p>Though a siiip as a common carrier where she selects her own wliarf is answerable for its sufficiency until the lapse of a reasonable time for removal of the goods by the consignee, including the necessary custom-house weighing- and gauging, the ship is not responsible for the breaking down of a wharf apparently sound and in good condition, selected by the consignee in accordance with the provisions of the charter, when the breaking down occurs through secret defects, of which the ship has no not ice, and the evidence does not establish any unusual or excessive deposit of cargo for a sound wharf.</p> <p>3. Same—Case Stated—Shir's Agents, when Agents of Charterers.</p> <p>The ship S., under a charter to the respondents, was loaded with spiegel iron “to he delivered at New York, at such wharf or place as may bo ordered by the consignee on arrival.” Tiie consignees finding it difficult to obtain a wharf for spiegel iron, requested the local ships’ agents to find a wharf, which they did. The ship began to discharge there, dumping the iron in a pile, from whicli it was distributed as fast as it could be weighed. A part of the wharf, 30 feet by 30, where the pile was, gave way, and a portion of the iron not distributed slid into the river. The timbers and supports of the wharf proved to be decayed and rotten. Meld, that the charter imposed upon the consignee the duty of finding a suitable wharf for the discharge, that the ship's agents in selecting the wharf in question upon the consignee’s request acted as the agents of tiie respondents, and that the selection made was legally the charterers’ selection, and not the ship’s; and the evidence not showing either notice of unsoundness to the ship or an excessive or unusual accumulation of iron, held, that the ship was not answerable for the loss.</p>

<p>1. Ciiarter-Party—Rule of Construction.</p> <p>In the absence of fraud or misrepresentation in the inception of a charter-party, the owner and charterers must ho governed by its express terms.</p> <p>2. Same—Seaworthiness—Improver Stowage.</p> <p>A. & L. hired a barge from its owner for the special purpose of carrying stone from any place on the Delaware river to the breakwater in Delaware bay. After she had been loaded for her second trip with about 700 tons of stone, a large portion of which was placed on deck, and the balance beneath tlie hatchways without being distributed evenly over the, bottom, and while being hauled' out into the main channel of the river, the wind and tide being strong from the S. W., she careened, and went, over on her beam ends, losing all of the dock-load, and drowning four of the crew. Held, on the proof, that the accident was caused by the careless, negligent, and unskillful loading and stowing of the stone by tlie charterers and their servants, and that the owner was not liable for any loss or damage on his warranty of seaworthiness.</p> <p>3. Same—Peril oe the Sea.</p> <p>On her last trip, after arriving- at the breakwater, and while discharging cargo, the barge sprung a leak, and was towed towards shore, sinking in 21 feet of water. HeM, on the proof, that, the leak was caused by the scraping of the stones down the side of the boat when unloading, whereby one of the bottom planks was started, and as the charterers liad taken no precautions to protect the sides, or in any manner to guard against such a result, they must abide the consequences. Tn no sense can a loss arising from such a cause, and under such circumstances, be attributed to a peril of the sea, or to the unseaworthiness or faulty construction of the boat.</p>

<p>Collision—Crossing Courses—Special Circumstances Justify -a Departure from the Ordinary Bule—Faulty Execution of Maneuver — Half Damages.</p> <p>The schooner E., while sailing with the wind nearly aft, sighted the schooner A. The latter vessel was, at the time, close-hauled on the starboard tack. The vessels were sailing on crossing courses; the red light of the E. hearing five points on the A.'s starboard bow, and the green light of the A. hearing four points on the E.’s port bow. The distance between the vessels was from one-eighth to one-fourth of a mile. A thick fog prevailed, shutting in the lights of both. In this emergency the E., instead of passing astern of the A., luffed. The A., instead of holding her course, put her helm up. In executing the maneuver the E. did not lull' sufficiently to materially deaden her headway, and the A., instead of gaining distance'by a slight eliange of helm, made an extended circuit. When each vessel attempted to regain the course upon which she had been sailing, prior to the execution of the maneuver, they met again in closer proximity, but in positions otherwise corresponding almost precisely with fhoso in which they originally stood. JTe/d, that the closeness of the vessels when first seen was a special circumstance which justified a departure from the ordinary rule of the road, but that as both vessels were in fault in the execution oí 1¿e maneuver, and as the collision resulted therefrom, the damages should be divided.</p>

The facts in. the present controversy, as disclosed by the pleadings, are as follows: In the fall of 1879 the steamer Butte, owned by the complainants herein, Power, MeGarry, Bees, Melvnight, and-Andrew M. Johnson, now deceased, tvhile on the ways at Bismarck, in a shipyard owned and managed by 0.

<p>Collision —Tripping Anchor—Drift—Negligence—Notice of Intention to Drift.</p> <p>When the schooner W. tripped her anchor knowing that, as the wind and tide then were, she would drift rapidly, and across the course of vessels coming up the bay; and, having done so, drifted and collided with a tug, having the schooner A. in tow, which was within hailing distance when the anchor was tripped; and nothing showed that the tug had notice beforehand of the schooner’s intention to drift, or could have avoided her after the drift had begun: held, that the schooner W. was liable for the collision.</p>

<p>Collision—Damages—Repairs in Excess—Survey.</p> <p>When repairs of a general character, beyond the injuries inflicted by a collision, are made at the same time, and without separation of the items of the work as the repairs progress, the bills of repairs presented are no criterion of the damages, and the items of repairs claimed will be closely scrutinized to prevent exaggeration. The estimate of competent surveyors made immediately after the injury may be used in evidence. The commissioner in this case having, upon a'careful investigation, allowed much less than the estimate of the surveyors, the report was confirmed; though the repairs, asmado, adopted different'methods from those recommended by the surveyors, by allowing the expense of strengthening pieces, and disallowing the' surveyors’ estimate of permanent depreciation.</p>

<p>Admiralty Practice—Juratory Caution or Pauper’s Oath.</p> <p>Poor persons may sue in the admiralty, without giving security for the costs, on complying with the practice of the court for giving the juratory caution, which practice is explained.</p>

<p>1. Removal of Causes—Citizenship—Parties.</p> <p>In causes where the parties, plaintiff or defendant, consist of moro than one, they must he collectively so situated as to authorize a removal. Florence Sewing-mach. Co. v. Grover & Baker Sewing-mach. Co., 18 Wall. 553; Knapp v. Railroad Co., 20 Wall. 117.</p> <p>2. Sami*;—Local Prejudice Act of 1867.</p> <p>Citizenship of different states is not enough, under the local prejudice act of 1867. The locality—the citizenship—of the party adverse to_ that of him seeking the removal should he in the state where the local prejudice is averred to exist.</p>

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

<p>1. Jurisdiction—Suit by Guardian.</p> <p>"Where a minor sues by his guardian, the citizenship of the former determines the jurisdiction of the court.</p> <p>2. Executors and Administrators—Connivance at Improper Classification of Claims.</p> <p>Where an administrator, by collusion and connivance, aids in having claims placed in a higher class than that in which they belong, and in that way prevents any thing being left for other claims of the same sort, properly classed, ho is liable to holders of the latter claims for their share of the amount diverted, and may he sued in this court therefor.</p> <p>3. Same.</p> <p>It is unnecessary for the claimants wronged, to await the final settlement of the estate before suing, even where by so doing they could obtain a remedy iu the probate court by a restatement of the account.</p> <p>4. Same—State Laws Binding.</p> <p>State laws providing for the settlement of estates of deceased persons are binding upon federal courts.</p>

<p>Í. Equity—Practice—How Regulated.</p> <p>The equity practice in the courts of the United States is regulated by the laws of congress, and the rules of the supreme court of the United States made under the authority of an act of congress.</p> <p>2. Same—Deposit of Fund in Registry.</p> <p>The equity practice in the United States courts requires the court, that all parties who can by possibility have an interest in the fund, except a fraction of the defendant; unite in the application, to order the, deposit of a fund garnished in the registry of the court, notwithstanding that the stakeholder, who is the agent of defendant, also resists.</p>

<p>Suit in Equity to Declare and Enforce a Resulting Trust.</p>

In Chancery. The complainants, citizens of Massachusetts, and New York, filed suits in the state court of Louisiana, which were revocatory in their character, to set aside, inter alia, a conveyance from the defendant J. H. Scheen to his wife, as made in fraud of creditors. The suits were removed by them to the United States circuit court, and proceeded as to the demands for revocation on the chancery side, where they were consolidated.

<p>1. Banks and Banking—Checks—Notice.</p> <p>A check does not operate as an equitable assignment of any portion of the drawer’s deposit, as against the hank, until the hank is notified that it has been drawn.2</p> <p>2. Same—Equitarle Assignment.</p> <p>Where the drawer of a check becomes insolvent, and makes a general assignment before the check is presented, the check will operate as an equitable assignment of the amount drawn for, as against the general assignee.</p> <p>3. Same—Where Drawer is One or Several Banks Owned by Sam® Man,</p> <p>BUT HAVING SEPARATE ACCOUNTS WITH DRAWEE.</p> <p>Where; the same man owns several hanks, each having a separate account with si ill another hank, a check drawn hy one of his hanks upon the outside hank will not operate as an assignment of any portion of the accounts of his other hanks.</p> <p>4. Same—Equities as between Bank and Check-Holder.</p> <p>As between a bank holding a note which is due and the payee of a cheek, drawn by the maker of the note, the equities are in favor of the hank.</p> <p>5. Same—Depositor's Note.</p> <p>Where a hank holds a depositor’s note, it has a right, at any time during the day on which it falls due, to apply funds in its hands belonging to the maker to the payment of the note, oven where nothing will be left to the maker’s credit to apply on checks.</p> <p>6. Bquity—Trusts.</p> <p>Where a trust fund can he traced, equity will follow it.</p>

<p>Equity—Costs—Docket Fee—Attorney’s Docket Feb Taxabbe on Dismissal eor Want ob' Prosecution.</p> <p>Where a suit had abated, after demurrer overruled and answer filed, by the death of the plaintiff, and subsequently there was granted a motion by defendant to dismiss for want of prosecution, held, that the attorney’s docket fee of $20 was taxable under a decree awarding the defendant his costs.</p>

Demurrer to Amended Complaint. On November 17, 1883, the plaintiff shipped a car-load of flour at St. Paul, Minnesota, by the defendant’s transportation line, consigned to itself at Boston, and took a bill of lading therefor showing such consignment.

At Law. On demurrer and merits. The complaint in this case was as follows: “.Elizabeth E. White, the plaintiff, a citizen and a resident of the state of Illinois, by attorney, complains of the defendant, Robt.

<p>1. Petitory Action.</p> <p>In a petitory action, the plaintiff must rely on the strength of his own title, and not upon the weakness of that of his adversary.</p> <p>2. Prescription.</p> <p>Defendants having shown that they and their authors had been in possession of the real property for a period of more than 80 years, they are protected in the title thus acquired until a better is shown.</p>

<p>1. Railroad—Receivers and Their Employes.</p> <p>Receivers are sworn officers of the court, and their agents and employes in operating the railway are, pro hoe viee, the officers of the court. As such officers, they are responsible to the court for their conduct; and, if they willfully injure the property or endanger it, or seek to cripple its operation in the hands of the receivers, they can and will he made to answer therefor. At the same time, these officers, and the property of the company in the custody of the court, are entitled to and must have the full protection that the court can give, under the laws of the land; and this, whether the grievance comes from within or without.</p> <p>2. Contempt or Court.</p> <p>It is well settled that whoever unlawfully interferes with property in the possession of a court is guilty of contempt of that court, and it is equally well settled that whoever unlawfully interferes with officers and agents of the court in the full and complete possession and management of property in the custody of tie court is guilty of a contempt of court, and it is immaterial whether this unlawful interference comes in the way of actual violence, or by intimidation and threats.1</p>

<p>On Writ of Error to District Court.</p>

Bill for injunction and accounting under letters patent No. 92,355, granted to T. H. Fuller, assignee of A. M. Polsey, July 16, 1809, for an “Improved Manufacture of Nails.” The patent describes the manner of making horseshoo-nails by first rolling from the end of a bar while hot a strip so as to form a, rib or raised portion at one end, and the remainder of which was made thinner, and from the sides or edges of this ribbed strip the blanks for the nails were to he cut or…

<p>Patents for Inventions—Admissions in Answer.</p> <p>In. a suit for infringement of reissued letters patent No. 6,207, granted Deember 81,1872, to the complainant, as assignee of S. E. Chase, for an improvement in finishing horseshoe-nails, the answer said that the defendant had “never felt disposed to contest said matter with the complainant, but chose rather to make such terms as were by said complainant made with the other companies, and pay for its royalty, rather than to have litigation, and proposes to do the same now, and has so offered to do with said complainant both before and after this suit was commenced. ” Held, that with this admision in the defendant’s answer there could bo but one decree, and that in favor of complainant, sustaining the validity of the patent and finding infringe • ment.</p>

<p>1. Patents for Inventions—Chains for Bracelets, Etc.</p> <p>Letters patent No. 287,564, of October 30, 1883, to Carl A. Muller, for an improvement in chains for bracelets and articles of jewelry, are void for want of patentable novelty.</p> <p>2. Same.</p> <p>An ornamental chain, composed of transverse helices interwoven together, in the usual way, with the ends of the wires bent inwardly, so as to interlock, does not present a patentable invention; as the idea of bending in rather than of soldering the ends or of closing the ends of the spirals was an idea which would naturally suggest itself to the worker in wire, and the bending was the ordinary work of the skilled artisan.</p>

<p>Patents fob Inventions—Scandinavian Padlocks.</p> <p>Mol ion for preliminary injunction to restrain the alleged violation of reissued letters patent No. 10, 272, of January 16, 1883, to Eraim &Praim, Scandinavian padlock, denied; the question of infringement of the first two claims not being clear, and there being much doubt whether the third claim can be sustained in its present form.</p>

<p>1. Pilots—Branch Pilots of tus Port of Mew Orleans.</p> <p>The Association of Branch Pilots of the, port of Mew Orleans does not constitute what is known in Louisiana, as a commercial partnership, in which the partners are liable to their creditors in solido.</p> <p>2. Same.</p> <p>Said association is not an insurer of the experience, skill, judgment, or conduct of any of its members, and therefore, when without fault itself,'it is not,liable for the negligence, want of skill, or fault of any Branch Pilot, belonging to tho association, resulting in damage to any vessel that such pilot, may undertake to pilot into the Mississippi river from the sea.</p> <p>3. Same.</p> <p>When a pilot, in piloting a vessel, has used his best skill and judgment,, he is not liable for her loss, although the result shows that his best judgment was wrong.</p>

<p>Collision—Tugs a.nd Tows—Helpless Situation—Unwarranted Supposition by Pilot—High Wind.</p> <p>While the tug Easton lay about 400 feet oil Pier 3, East river, between two* canal-boats, which she was about to take in tow, but which were not yet fastened to her, the tug American Eagle came around the Battery, and her pilot, seeing the position of the Easton, supposed that she was about to move ahead, and consequently did not check his speed till his tow collided with libelant’s boat, on the starboard side of the Easton. The Eagle's engines were reversed, but the high wind prevailing at the time drove her tow again upon libelant’s boat, whereby the latter was sunk. Held, that the collision was due to the inattention and fault of the pilot of the Eagle in not lceepingout of the way of the Easton, and the unwarrantable supposition that the Easton was ready to move on; also, that the Easton was in no fault, as she was where she had a right to be, and was pursuing the customary course, and. because her situation rendered her practically helpless.</p>

<p>COT/LTSTON—ítaGT/IGENCfE—DAMAGES.</p> <p>M here a vessel in the tow oí' a tug runs into another vessel, partly through the negiigence of the tug and partly through the improper position of the vessel run into, held, that damages and costs could he recovered against both.</p>

<p>Libel for Salvage by the owner, master, and crew of the steam-tug William H. Clark against the brig Eaven.</p>

<p>Wharfage—Hell Gate—Tow in Sections—Hew York State Statute-Laws of 1882, On. 410, 8 798—“Uses or Makes Past to Wharf”—Liability of Both Tug and Tow—Demand—Double Rates.</p> <p>A law of Hew York, passed in 1882, (chapter 410, § 798,) provides that wharfage may he collected “from every vessel that uses or makes fast to any pier, wharf, or bulk-head. ” within the city of Hew York. In 1883 libelant gave general notice that wharfage would he required. Afterwards, a tug having agreed to tow barge Ho. 6 for a lump sum, and having taken her with many others in tow, left her with others at libelant’s wharf, between One Hundred and Thirty-ninth and One Hundred and Portieth streets, East river, and the libelant claims wharfage. The barge-owner claimed that the tug-boat should pay the wharfage, since it was for the latter’s convenience that the barge was left at the bulk-head. It has long been the practice for tugs taking large tows through Hell Gate to divide them into sections, and, taking one section at a time through the Gate, to leave the rest at the libelant’s wharf till they are successively taken through. Red that, under such circumstances, the tug “uses” the wharf, in the sense of the statute, and is liable; but that the barge is “made fast” to it; and that wharfage may therefore he collected of either. Demand not being clearly proved, only single wharfage can he collected.2</p>

<p>Demurrage—Delay in Unloading.</p> <p>Damages can be recovered for delay in. unloading upon vessels, where the cargo could have been discharged more quickly upon railroad cars.</p>

<p>Sale—Stoppage in Transitu—Assertion of Vendee’s Insolvency—Non-Delivery of Cargo—Bill of Lading—Vendee’s Right of Action.</p> <p>A cargo of clay was skipped by H. on board the schooner IS. H. Pray, under a bill of lading providing for its delivery to P. Before the delivery of the clay II. appeared, and, asserting the insolvency of the libelant, and the non-payment of the price, ordered the master not to deliver the clay to P., which direction the master obeyed. P. thereupon brought suit on the bill of lading against the vessel to recover damages for non-delivery of cargo. Held, that the assertion of the fact of insolvency by the vendor, made in good faith and believed by the master, coupled with the fact that the goods had not been paid for or the price secured, and the other fact that the stoppage was during the continuance of the ii'ansitus, justified the master in delivering the cargo to the vendor, and gave the vendee no right of action against the vessel.3</p>

<p>Carrier—Oe Goods by Ship—Damage to Cargo—Theet oe Jewelry—Bill oe Lading—Exceptions—Concealment oe Value—Liability.</p> <p>Libelant shipped on board the steam-ship Bermuda a trunk containing jewelry, under a bill of lading, in which the trunk was described as “merchandise, ” which contained the clause “weight and contents unknown, ” and a provision that the carrier should not be accountable for jewelry contained in any package shipped under a bill of lading unless the value was therein expressed, and extra freight paid. Libelant did not inform the carrier that the trunk contained jewelry. The trunk was opened during the voyage by some person unknown, and part of the jewelry abstracted. Held, on suit brought against the steam-ship for the loss* that libelant could not recover.</p>

In Admiralty. On the nineteenth of July, 1883, a fire broke out on a pier at Harbeck’s stores, Brooklyn, at which the bark Perseverance was lying loaded with a cargo of jute. The fire spread rapidly from the pier to several vessels lying near, among them the Perseverance, and one of them, the Lawrence Delap, was totally destroyed.

<p>SADVAGTÍ—D.IÍREBTCT—SERVICES—SUBSEQUENT ABANDONMENT.</p> <p>There can be no recovery for services rendered to a derelict, however meritorious the services may he, where the derelict is abandoned by the salvors before reaching a place of safety</p>

<p>Costs — Foreign Commission—Evidence — Customary Rate—Reasonable Charge.</p> <p>In the absence of evidence to show the existence at the place of executing a commission of a customary rate of charges for commissioner’s services, or for like services, proof that the sum actually paid the commissioner is a reasonable sum for like work at the place of payment is sufficient to warrant the allowance of thedtem as a disbursement properly made to secure the execution of the commission. See S. C. 24 Fed. Rep. 495.</p>

<p>Motion to Allow Attorney’s Pee.</p>

<p>Motion to Remand.</p>

<p>1. Corporations—Capital Stock—Certificates—Effect.</p> <p>Certificates of stock, issued as evidence of the ownership of the shares, are the indicia of title, and are treated as representing the shares themselves.</p> <p>2. Same—Assignment of Certificate—Resulting Equities.</p> <p>Although the assignment of a certificate of stock can pass only the beneficial interest of the assignor, the rights of the assignee will be protected at law and in equity as if he were the purchaser of the legal title to tangible property or negotiable paper.</p> <p>3. Same—Rights of Purchaser of Stock—Reliance upon Diligence of Corporation—Recitals in Certificate—Fraudulent Issue by Agent.</p> <p>The purchaser of stock has a right to rely upon the diligence of the corporation, and to put faith in the recitals contained in the certificate issued by its agents while acting within the general scope of their powers, even though it afterwards appears that such certificate was issued through the negligence or malfeasance of such’agents.</p> <p>4. Same—Bona Fide Purchaser — Right to Certificate Issued upon Surrender of One Fraudulently Issued by Agent.</p> <p>The complainant, through the fraud of an employe, issued a certificate of stock in due form reciting that G. was the owner of 100 shares. G. was not a stockholder. The name of G. was simulated to a transfer of the certifícale. The defendants bought the certificate for value. Thereafter they presented it to the complainant,, surrendered it, and received a new certificate. They were not notified of the fraud until the employe had absconded. Held, that defendants could not rely upon an estoppel upon the purchase of fee certificate because the issuing of the certificate by complainant was not the proximate cause of injury. But when complainant issued the new certificate to defendants without discovering and notifying defendants of the fraud until the forger had absconded, an estoppel arose, because defendants, in reliance on the conduct, was induced to omit taking proceedings to obtain restitution.</p>

<p>1. Trade-Marks—Infringement.</p> <p>Soap packed in a box, with, alternate red and yellow wrappers, so as to produce a representation of a trade-mark of the same combination of colors, is not an infringement of that trade-mark.</p> <p>2. Same—What will be Protected.</p> <p>A peculiar method of arranging soap in a box is not a trade-mark which can be legally registered.</p>

<p>1. Trade-Mark—“Astral Oil.”</p> <p>Tire appropriation of the word “Astral,” in a combination of words constituting a trade-mark, does not preclude its use in all other combinations formed for the like purpose. Held, therefore, that the plaintiff’s trade-mark, “Pratt’s Astral Oil, ” applied to refined petroleum, was not infringed by tbe use of the words “Standard White Astral Oil” to designate the defendants’ refined neleum.</p> <p>2. Same—Known Use of Word.</p> <p>An oil-burning lamp called tbe “Astral Lamp ” having been long well known, and in common use, semble, that the word “Astral” was without tbe range of lawful appropriation as a trake-mark for refined petroleum.</p> <p>3. Same—Rf.ijkf Refused.</p> <p>Relief will not be granted against the use of a brand which points unequivocally to origin, and, except in the common use of the words “Astral Oil,” so differs from the plaintiff’s brand that purchasers will not mistake the one for the other.</p>

<p>1. Municipal Corporations — Illegal Contracts — Liability on Quantum Meruit.</p> <p>Municipal or public corporations are not liable, on the quantum mePuit, fertile value of materials furnished under illegal or forbidden contracts, when the municipality cannot choose whether or not it will retain or reject the benefit of such work or materials.</p> <p>2. Same—County Boards in Indiana—Contracts fob Construction of Public Buildings.</p> <p>Contracts for the construction of court-houses and other public structures, to cost more than §500, unless lot to the lowest bidder upon plans and specifications theretofore adopted,being forbidden, (he county will not be held liable for the value of a court-house constructed, upon public ground, under a con tract made in disregard of the statute, notwithstanding the use of the building by the county.</p> <p>3. Same—Alteration of Plans in Course of Construction.</p> <p>The statute which forbids contracts for the construction of county buildings to cost more than §500, unless made with the lowest bidder according to plans and specifications, applies to contracts for parts of such structures; and if, in tiie course of construction under a legally-made contract, any alteration or add ilion to the plans, exceeding §500 in cost, is made without specifications and bids, the county will not be liable for the price or value thereof.</p>

<p>t. Circuit Court — Jurisdiction — Non-Negotíable Notes — Assignee and Payee.</p> <p>In the United States circuit court an action on a non-negotiable note by an assignee, not averring the citizenship of the payee, must fail for want of jurisdiction.</p> <p>2. Schools and School-Districts—-School Township Notes—Negotiability.</p> <p>Notes payable from a particular fund, issued by a school township, endowed only with restricted powers for special and purely local purposes of a non-commercial character, are not negotiable by the law-merchant.</p> <p>3. Same—Liability or School Trustees—Indiana Statute.</p> <p>Paper in negotiable form, issued by a school trustee, if not void, has only the force of a single obligation.</p> <p>4. Same—Liability, how Measured.</p> <p>The liability declared by the second section of “An act touching the duties of township trustees in certain particulars” (Acts Ind. 1883, p. 114) is measured, not by the sum named in the forbidden contract or writing, but by the amount of the indebtedness evidenced thereby; and the right of action is given, not upon the paper, but to the holder thereof.</p> <p>5. Same—Liability or Bondsmen.</p> <p>Liability on “official bond” is not the same as personal liability, and does not necessarily include the bondsmen.</p> <p>6. Same—Action on Notes—Pleading—Consideration.</p> <p>In an action on notes issued by a school trustee, in violation of the Indiana statute, (Acts 1883, p. 114,) a complaint which does not aver the real consideration or indebtedness for which the notes were made is substantially defective.</p>

In pursuance of a written stipulation, this case was tried by the court without the intervention of a jury. Tho following facts are therefore found by the court. (1) The First Rational .Bank of Butler, Pennsylvania, (the defendant,) issued, on the several dates thereof, and to the respective payees therein named, for deposits of money by them made, certificates of deposit, of which the following are copies: A. “$64.60.

On the twelfth of December, 1876, Henry M. Davis and David Morse were adjudicated bankrupts. On the second day of February, 1877, the above-named plaintiff, Aaron F. Balliett, was duly appointed their assignee.

<p>1. Patents for Inventions—Infringement—Election of Remedies fob Infringement of Patents.</p> <p>The patentee may sue at law £or Ms royalty or patent foe, one who infringes by using Ms invention; or, at Ms election, sue in equity for the profits arising from such infringement, and for an injunction against further use.</p> <p>3. Same—Novelty—(Jong Attachments for Fire-Engine Houses.</p> <p>Claims 3 and 4, in patent No. 0.831, re-issued to Robert Bragg, for gong attachments for fire-engines, sustained.</p> <p>3. Same—Registering Stroke of Alarm.</p> <p>The third claim of patent No. 173,301, issued to Robert Bragg, for an invention registering the number of strokes for giving a lire alarm, sustained.</p> <p>4. Same—Prior Use—Notice.</p> <p>Testimony taken before the examiner, under objection, tending to show-prior use, will be rejected by the court, when no notice of such prior use has been given, and it has not been set up in the answer.</p>

<p>1. Patents nor ínventions—Damages for Infringement—License Pee.</p> <p>On the accounting, in a suit lor infringement of two patents, complainant relied upon a license uuder throe patents, one of these being one of the patents infringed, a proper deduction to bo made on account of the non-use of the other two; hut, as only two out of the six claims of the patent infringed, were held valid, and those claims were unimportant, held only nominal damages could be allowed.</p> <p>2. Same.</p> <p>Where a license offered in evidence to establish the measure of damages for infringement was based upon two patents, one of which was the patent infringed, and the other had been declared void, and there was no important evidence as to the value of the use of the valid patent, held, that only nominal damages could be allowed.</p>

Libel by the owners of the schooner Cyrena Ann against the schooner Martha Brower, to recover the loss sustained by a collision between the two vessels.

<p>Collision—Fog—Identity of Colliding Yessel—Alibi.</p> <p>On the evening of February 6,1884, a vessel collided with the steamer Western Texas, which was lying at Pier 9, Bast river; but, owing to the darkness and a thick fog which prevailed at the time, it was impossiule to distinguish clearly the boatwhich did the damage. At about that time, on the same evening, the Pennsylvania Annex No. 3, on her way from Brooklyn to J ersey City, was in collision with some object in the vicinity of Pier 9. Suit was brought against Annex No. 3 for the damage sustained by the Western Texas. The claimants denied the identity of the colliding vessel.with the Annex boat. Held, on the evidence, that the libelant had not proved that the damage in question was done by Annex No. 3, and that the libel should be dismissed.</p>

Libel by the owner, master, and crew of the fishing schooner Dido, of Gloucester, against the British schooner Maggie Willett, of St. Johns, New Brunswick, and her cargo, for salvage.

<p>1. Towage—Sited—Steamer’s Swell—Damage to Cargo—Liability.</p> <p>Where the tug D. started to tow a lighter from Brooklyn to Hoboken, and took her too rapidly through the swells of a large steamer, which caused the lighter to fill with water, and subsequently to careen, and lose part of her cargo, held, that the tug was answerable for’the loss.</p> <p>2. Same—Outer to Put Lighter in Safety—Duty of Tug—Negligence—</p> <p>CnoTOE of Courses—Error of Judgment.</p> <p>Testimony was offered to show that after the danger to the lighter became apparent the tug proposed to take her to a place of safety on the New York shore, hut tho master of the lighter objected. Held, that the tug would not he relieved from her duty to put the lighter in a place of safety by an objection from the lighter’s master; and if the duty of deciding upon the proper course was upon the master of the lighter, an error of judgment on his part would not relieve the tug, since it was her negligence that brought upon the captain of the lighter the necessity of making such decision.</p>

<p>1. Carrier—Off Goods by Ship—Damage to Cargo — Odor off Petroleum— Proof.</p> <p>On the evidence, held, that the damage to canaryrseed, claimed by libelants to have occurred from tlie odor of petroleum, while on the hark Venner, had not been proved, and that the action must therefore fail.</p> <p>2. Same—Delivery off Cargo—Shortage—Bill off Lading—“Weight and Contents Unknown ”—Evidence.</p> <p>There can he no recovery for short delivery whore the hill of lading says “weight and contents unknown,” and no testimony is offered to show how much cargo was shipped, while the testimony from tho ship is that all taken on board was delivered.</p>

<p>Seamen — Lien for Wages — Stale Claim — Priority of Bona Pide Lien Claimants.</p> <p>In the distribution of the proceeds of a sale, the libelant, a former mariner, claimed, as against a material-man, wages for three years. Prom the libel-ant’s own testimony it appeared that over two years had elapsed before the institution of the present proceedings; that he had been in the neighborhood of the vessel and her owner during all the time; and that no excuse whatever was given for this long delay. It further appeared that during all this time he had not heretofore made any attempt to collect the debt. Held, that public policy requires that such liens should not be enforced, to the detriment of other bona fide lienors, after such a lapse of time, and without the assignment of any reason for their having lain so long dormant.</p>

<p>1. Pilotage—Validity of State Laws.</p> <p>The provisions of a stale law, regulating pilots and pilotage, which are in direct and manifest collision with the act of congress of March 2, 1837, concerning pilots, held, to be inoperative and void.</p> <p>3. Same—Construction of tub Act of Congress of Marcii 2,1837.</p> <p>A law of the state of Delaware provides that, the flrst duly-licensed pilot who may offer himself to any inward bound vessel in the Delaware hay, requiring a pilot, shall take charge of her. and that if his services are refused he may sue the master, owner, or consignee thereof for full pilotage. The act of congress of March 3, 1837, (5 St. 183,) enacts “that it, shall and may be lawful for the master or commander of any vessel coming into or going out of any port situate upon waters which are the boundary between two states, to employ any pilot duly licensed or authorized by the laws of either of the states bounded on the said waters, to pilot said vessel to or from said port, any law, usage, or custom to the contrary notwithstanding.” Held, that, although Hie Delaware bay and river do not constitute a boundary between the states of Delaware and Pennsylvania, these states, being coterminous, and bordering on the same navigable waters, come within the spirit and moaning of Hie act of congress, which was intended to neutralize the effect of adverse and conflicting laws of adjoining states which had exercised, or might assume, an exclusive regulation of pilotage on navigable waters which are the common, though not the separating, boundary of such states. Following The Oiymene, 9 Pod. Rep. 164; S. 0.13 Pod. Rep. 346; The mock, 13 Fed. Rep. 311: The, Abereorn, 36 Fed. Rep. 877.</p>

<p>Carriers or Goods—Discrimination in Rates—Exclusive Patrona&e.</p> <p>While a common carrier may make discriminations in rates, based upon the quantities of goods sent by different skippers, be cannot charge a higher rate against shippers who refuse to patronize him exclusively.1</p>

<p>1. Telegraph Companies—Contract to Pdt up Wires—Common-Law Lien.</p> <p>One who, under contract with a telegraph company, has strung wires upon the poles of the company, cannot, without an agreement to that efffect, retain possession and assert a lien by turning the ends of the wires into the ground.</p> <p>2. Same—Lien for Labor—Rev. St. Ind. 1881, § 5286.</p> <p>A contractor who is employed by p, telegraph company to put on arms and insulators, and string wires on poles, the material to be furnished by the company, at a designated rate per mile, is not an employe within the meaning of Rev. St. Ind. 1881, § 5286, and entitled to a lien for the work so done.</p>

<p>1. Equity—Practice—Master’s Report—Exception.</p> <p>Report ot' master upon question not referred to Mm by court is erroneous, and subject to exception by party aggrieved.</p> <p>2. Same—Errors—Restatement oe Account.</p> <p>Small errors in master’s statement of an account held not ground for requiring Mm to restate account, even in case in wMch exceptions to bis report were sustained on other grounds.</p>

Trespass on the Case. The jury found the following special verdict, April 20, 1886: “That Willamina E. Smith died domiciled in the city of Philadelphia, in the month of July, 1864, leaving a last will, by which she provided that there should be paid to her nephew, Gr. Wymberly Jones, afterwards known as Gr.

<p>Trespass on the Case.</p>

<p>In Covenant. Demurrer.</p>

The plaintiff’s child, a colored girl about 16 years of age, was killed by collision with the defendant’s transfer boat in the Mississippi river, near the Arkansas shore, soon after the boat had left the incline of the railway. She was one of the occupants of a skiff coming from a cotton plantation, and had paid the skiffman for her pas-, sage, as many persons did who came in that way to Memphis, the skiff being kept at the plantation for that purpose.

In Bankruptcy. In May or June, 1884, the assignee received, on account of the estate, $5,478. On the fifteenth of October, 1884, he deposited $4,563 in the bank designated by the court. At tho third meeting of creditors the amount received by him in excess of the sum so deposited was ascertained to be $995, and the amount due him for commissions, etc., was adjusted at $419.

In Bankruptcy. On the ninth day of March, 1886, a motion being then ponding for an additional allowance to the assignee, the issues involved were, by consent of all parties, duly referred to the register in charge.

<p>1. Patents for Inventions—Patentee Bound by His Claims.</p> <p>Letters patent No. 44,740, of October 18, 1864, to Charles E. Otis, must be limited to the peculiar arrangement which patentee describes; he having acquiesced in the rejection by the patent-office of broad claims.</p> <p>2. Same—New Combinations of Old Mechanisms.</p> <p>The fact that patentee produced an old result by a more effective combination of old elements is no reason why defendants should not be allowed to make new combinations of such elements to produce the same result, so long as they do not use the combination of parts claimed by complainants’ patent.</p> <p>8. Same.</p> <p>Patent No. 44,778, of May 18,1865, is a mere improvement upon the principle shown in the English patent of Cidlow, 1858, and of Law, 1881; and as the defendant was also an improver upon old devices in this art, held, that the readier and more natural conclusion was that defendants’ improvement was not the same combination of devices that was shown in and covered by complainants’ patent.</p> <p>4. Same—Conditional Assignment of Patents—Parties.</p> <p>Where owners of patents had granted the entire interest in them for certain territory, but upon certain conditions which grantees were to perform, and, upon failure to perform, the title was to revert to grantors, held, that grantor’s title was never fully divested, or at least they had a possible reversionary interest, so that it was proper to join them as complainants in a suit for infringement of the patents within the territory covered by the grant.</p>

<p>1. Patents for Inventions—Infringement.</p> <p>Letters patent No. 161,591, granted to Melvin B. Church, April 6, 1875, for an improvement in calcimine, consisting of pulverized calcined gypsum and white glue, the latter being dissolved in hót water, and, when cold, stirred into the gypsum wifli sufficient cold water to bring the mixture to. proper consistency to be applied with a brush, is infringed by one who sells a dry mixture of pulverized calcined gypsum and glue, put up in packages, with printed directions for reducing such mixture to a liquid according to the formula of said patent.</p> <p>2. Same—Accessory to Infringement.</p> <p>In selling a compound which the seller knows cannot be practically applied without making the user a trespasser, such seller renders himself an accessory to the infringement.</p>

<p>1. Patents for Inventions—Novelty—Improved Hog-Rings.</p> <p>• Letters patent 130,853 were granted to complainant for a triangular hog-ring, so constructed as to conform to the shape of the hog’s snout, and remain stationary therein. Held, that the invention possessed novelty, value, and utility, and that the patent was therefore valid.</p> <p>S. Same—Utility.</p> <p>The utility of a machine, instrument, or contrivance, as shown by the general public demand for it, while not conclusive, is highly persuasive evidence of novelty and invention, and, in the absence of pretty conclusive evidence to the contrary, will generally exercise a controlling influence.</p>

<p>1. Towage—Grounding—Pilot in Charge op Navigation—Assumption op Authority by Tug—Subsequent Accident—Liability.</p> <p>Tlie tug A. was towing the hark S. upon a hawser eastward through Hell Gate on the flood-tide. The bark-had a Hell Gate pilot on board, who was m control of the navigation. It was the tug’s duty to govern herself by the bark, and to keep ahead of her as nearly as possible. The tug was following another tow from 500 to 600yards distant, consisting of a ship towed between two tugs. Both tows were intending to go through the channel east of Flood rock. As the tow ahead neared Flood nock it sheered to the starboard somewhat across the east channel. The captain of the tug A. observing this, and thinking it would be unsafe to follow through the east channel, when about 500 yards from Flood rock, and in mid-river, starboarded his helm to go through the north channel, without consulting the pilot. The pilot on the bark at once objected to this change; but the other persisting, he quickly acquiesced, and starboarded the helm of the bark. In swinging, the keel of the bark struck the rocks of the middle reef, and injured the schooner, so that she afterwards sank. Held, that the cajrtain of the bark was in fault in taking into his hands the control of the navigation of the tug, by changing his course without notice to the pilot, and in insisting upon that change without the pilot’s consent. The change of course was therefore at his risk, and the grouqding was the fault of the tug.</p> <p>2. Same—Situation in Extremis—Error op Judgment by Pilot.</p> <p>Had the pilot on the bark immediately acquiesced in the tug’s maneuver, the schooner would probably have escaped; but that was found on the facts to have been more dangerous than to have kept on. Held, no defense to the tug, as the latter, in adopting, without authority, a dangerous maneuver, thereby put the pilot in a situation in extremis, in which even an error of judgment, on his part, had there been any such error, was not a legal fault.</p>

<p>1. Seamen—Wages—Forfeiture of Wages—Shipping Articles—Statutory Provisions.</p> <p>In so Jar as shipping articles provide for a forfeiture of wages in excess of that provided by statute, they are contrary to law.</p> <p>2. Same—.Entire Forfeiture—Desertion—Ahsenoe not Amounting to Desertion.</p> <p>In coastwise vessels, as well as in foreign trade, an entire forfeiture of •wages, upon the analogy of the statute, should be limited to eases of desertion. In a case not amounting to desertion, and not of any aggravated misconduct, the forfeiture should not exceed more than two days’ pay and the expense of a substitute, etc.</p> <p>3. Same—Section 4596, Bev. St.—Statement or Case.</p> <p>Libelant, an engineer on the Mallory Line, was absent without leave when his vessel sailed, but, as the evidence indicated, had no intention of deserting. Under the provisions of the shipping articles, all wages were declared forfeited for absence without leave. Section 459(5, Bev. Kt., provides that “any seaman, for neglecting, without reasonable cause, to join his vessel, or to proceed to sea with his vessel, or for absence without leave, at any time within 24 hours of the vessel sailing, * * * shallbepunishablobvimprisonment, and also, at the discretion of the court, hy forfeiture of not more than two days’ pay,” etc. Ifdd that, whether these provisions are now strictly applicable to coastwise voyages or not, since the maritime law does not ení orce against seamen unreasonable or oppressive stipulations, the analogy of the statute should be followed, and but two days’ wages should be deducted, the ship having been put to no expense by the libelant’s absence.</p>

<p>1. Carrier—Of Goods by Vessel—Delivery of Cargo—Dispute as to Quantity—Carrier’s Right to Immediate Settlement op Controversy.</p> <p>A carrier is entitled to have settled upon the spot, in some form, any dispute concerning the number of articles delivered by him. He cannot be required to adjourn the controversy to a distant place, or a future time, for determination and settlement in a remote forum. The delivery is conditional only until such a receipt is either given or waived.</p> <p>2. Same—Carrier’s Right to Have Receipt—Attachment op Cargo por Re-</p> <p>ceipt-Tallies Discordant—Subsequent Delivery to Owners—Costs.</p> <p>Where a dispute arose, upon discordant tallies, between the National Steamship Company and the schooner M., concerning the number of certain packages delivered by the former to the latter; and the schooner sailed away with the articles on board without any retally, or adjusting the controversy, or giving a clean receipt for the number she had actually received; whereupon the steam-ship company attached the whole of the articles, and also the schooner: held, that the steam-ship company was entitled to a receipt; and that the schooner, in departing without settling the controversy, and without giving or tendering a clean receipt, acted at her peril; and that the libel was therefore legally filed to arrest the whole quantity. Held, further, that as, after the bonding of vessel and cargo, the cargo had been delivered to the owners, and the latter had been compensated by the schooner for all shortage, no further question remained to be adjusted but that of costs and expenses, and these the libelant is entitled to recover, as the schooner was in fault, ana the evidence does not establish any fault in the libelant.</p> <p>B. Admiralty—Jurisdiction—Implied Contract to Give Receipt—Maritime Obligation.</p> <p>The claim of the libelant in this case rested wholly upon the obligation of the implied contract of the schooner to give a clean receipt for the packages taken aboard, and to have any doubt about the number settled before sailing. Held, that the obligation of the schooner to so receipt for the cargo was a maritime obligation within the jurisdiction of the admiralty.</p>

<p>Gross-libels for a Collision between the steam-ship Perkiomen and the schooner Abbie C. Stubbs.</p>

<p>Maritime Lien—Foreign Port—Cooperage—Whane age—Negligence.</p> <p>The libelants furnished wharfage and cooperage materials for the ship Tonawanda, of Philadelphia, at Jersey City, at the request of A & Co., who had been the ship’s agents in New York, and who were dealt with as such, when in fact, although unknown to the libelants, they were the owners of the ship. Payment was promptly sought of A & Co., and, upon their promise to pay, the Tonawanda was allowed to sail for Europe. She returned to Philadelphia twice, bnt of these visits libelants knew nothing. On her subsequent return to Philadelphia she was attached. This was two years after tlie expenses were incurred. In the meantime the ship liad been bought by the respondents. Held that, as the expenses had boon incurred in a foreign port, the unpaid charges became alien to which the libelants were still entitled, as the facts do not show them to have been guilty of negligence.</p>

<p>Removal oe Cause—Suit not Originally within Jurisdiction of Circuit Court—Act oe 1875.</p> <p>G., a citizen of Maryland, as trustee and assignee of a corporation chartered under the laws of Virginia, instituted suit against W. & S., citizens of Virginia, in a court of that state, and on motion of plaintiff the case was removed to the circuit court of the United States, whereupon defendants moved to remand. Held, that the suit was removable, and that the motion should be overruled.</p>

<p>Motions to Remand.</p>

<p>Motion to Remand.</p>

<p>1. Vendor and Vendee—Rescission—Fraud—Erection.</p> <p>1'n a bill in equity by a vendee for the rescission of a deed on tbe ground’ of tbe vendor’s fraud and misrepresentation, relief in equity cannot be granted except- tbe plaintiff have, within a- reasonable time after the discovery of the fraud, elected to disaffirm tbe contract, and has, either before or at the trial, returned, or offered to return, the personal property received, and reconveved, or offered to roconvoy, the real estate of which he has tbe title.1</p> <p>2. Same—Birr in 'Equity—Rhrreader.</p> <p>Where a complaint asking both damages and equitable relief against a vendor’s fraudulent sale of real and personal property is removed to a federal court, and a bill in equity is filed therein for the equitable relief, and is tried, tbe action at law is not abandoned by tbe reploader, but remains on the common-law side of tbe court.</p> <p>3. Same—Rescission—Injunction—Action at Law.</p> <p>A bill in equity asking for relief by the rescission of a deed, and of a note and mortgage given in part payment, on tbe ground of tbe vendor’s fraud, and also by injunction restraining the transfer of the note and mortgage, although denied so far as regards the rescission, will be granted so far as regards the injunction, when the plaintiff has instituted an action at law for damages, which can be set off against the note and mortgage, and when the defendant is a non-resident, and not a property owner 'to any amount.</p>

<p>1. Taxation—Tax Deed—Statute of Limitations—Code Iowa, § 845.</p> <p>If the property owner allows five years from the execution of a tax deed t'o elapse, he cannot afterwards be heard to question the validity of the tax sale on the ground of the failure to make entry upon the tax-book of the years for which, the taxes were unpaid.</p> <p>2. Same—Deed from Treasurer to Himself.</p> <p>After the lapse of five years from the recording of a tax deed, in which time the property has been often transferred on the faith of said deed, one cannot complain that the deed was executed by the treasurer to himself.1</p>

<p>1. Statute of Limitations—Suit on Promissory Note, when Barred.</p> <p>Suit on promissory nota is not barred, under Illinois statute, until 10 years from maturity of note.</p> <p>2. Mortgage—Mortgagor’s Personal Liability, when Discharged.</p> <p>■Where grantee of mortgagor assumes payment of mortgage debt, and obtains from mortgagee extension of period for payment, mortgagor is discharged from personal liability to mortgagee.</p>

<p>1. Banks and Banking—National Banks—Stockholders' Liability—Creditors Share Equally.</p> <p>In a. suit in chancery, under the statute of June 30, 1876, by a creditor of a national bank on behalf of himself and all other creditors, against the stockholders of such bank, to enforce their individual liability for the payment of claims against the bank, the fund obtained is a part of the general assets of the bank, and all creditors of the bank stand upon an equal footing in the distribution of it.</p> <p>3. Same—All Creditors may Take Benefit of Bill—Running of Statute of Limitations Stopped.</p> <p>A bill filed under the statute of June 80, 1876, by a creditor of a national bank, against stockholders of such hank, to enforce their individual liability, is for the benefit of all creditors of the bank, although it does not contain an averment of that fact; and filing such a bill stops the running of the statute of limitations upon all claims against the bank.</p> <p>3. Same—Discharge in Bankruptcy, widen Belease of Stockholder’s Liability. '</p> <p>A discharge in bankruptcy releases a shareholder of a national bank from his statutory individual liability to creditors of the bank, where, at the time of his discharge, the claims of such creditors were provable, not merely contingent.</p> <p>4 Same—Stockholder of Bbcord is Liable.</p> <p>Person who appears upon the records of a national bank tobe a stockholder at the time the bank becomes insolvent, is subject to statutory personal liability of shareholder, although he has previously, in good faith, sold his stock.</p> <p>5. Same—Bank in Liquidation—Guaranty by President.</p> <p>After a national bank has, by its shareholders, decided to go into liquidation, its president, upon giving paper held by the bank to creditors of .the bank, as collateral security for their claims, has authority to indorse or guaranty such paper in the name of the bank, so as to bind the bank and its shareholders.</p> <p>6. Same—All Creditors on Same Pootins.</p> <p>Creditors of national bank in liquidation, who received, as collateral, paper guarantied by the bank, and who have obtained judgments against the bank on its guaranty, stand on basis of general creditors, and should receive only the amount due them by the books of the bank when it suspended, less payments and amounts collected from collaterals, with legal interest upon the unpaid balance.</p>

<p>1. Agistment—Contract to Feed Cattle Construed.</p> <p>Contract, which provides that contractor shall take certain cattle to his farm; that he shall feed and fatten them there until certain date; that he shall be liable for all losses of such cattle from death, disease, escape, or theft at a fixed price per head; that he waives any lien on said cattle as an agister, or in any other character; that contractee shall sell said cattle; and that contractor shall receive, in full for his services, price realized at sa’e in excess of fixed sum per head and expenses of sale,—construed not to give contractor title to said cattle nor right to sell them.</p> <p>2. Sale—Bona Fide Purchaser from Apparent Owner, when Protected.</p> <p>A creditor who takes a conveyance of personal property merely in payment of a pre-existing debt is not a bona fide purchaser, within the meaning of the Missouri statute for the protection of bona fide purchasers from apparent owners in possession. Such statute (Rev. Code Mo. § 2507) provides that, where purchaser of personal property has possession, a condition in the contract of sale for the retention of title in the seller until the completion of the payment of the purchase money is void against subsequent bona fide purchasers and creditors, unless such sale is evidenced by written contract executed and recorded as in the case of mortgages of personal property.</p> <p>3. Same — Uniting in Fraud with Apparent Owner Forfeits Protection.</p> <p>_ Laws of Missouri in relation to recording chattel mortgages, or conditional titles to personal property, protect only persons dealing in good faith with apparent owner in possession. They do not protect one uniting with apparent owner in fraud upon true owner.</p>

<p>1. Bankruptcy—Vacating Discharge—Knowledge of Facts—Petition by Executors.</p> <p>A discharge in bankruptcy not being voidable for causes previously known to the creditor, no order to take testimony should be made upon a petition to-vacate the discharge, unless the petition shows affirmatively reasonable cause to believe that the creditor was ignorant of the ground specified when the discharge was granted. The knowledge referred to in the statute is the knowledge of the creditor, not of his executors</p> <p>2. Same—Specifications Allowed.</p> <p>Specifications in this case allowed as to matters alleged to have occurred within a few days of the discharge; disallowed as respects other charges pending a long time previous.</p>

<p>Motion to Exclude Evidence.</p>

The petitioners in this case were, on April 9, 1886, at a term of the supreme court for the District of Columbia, indicted, together with William A. Phillips, for violation of section 2105 of the Revised Statutes; that is, for making a contract with Indians in violation of the law of the United States. Subsequently, on April 21,1886, they, together with William A. Phillips, were indicted in said court for a conspiracy to commit an offense against the United States.

Indictment for Manslaughter. Dennis Kelly, orderly sergeant, in charge of Fort Popham, was indicted for manslaughter within said fort. He was put upon trial before the circuit court, September term, 188é; the circuit and district judges presiding. The jury reported, through their foreman, that they were and would be unable to agree, and thereupon, by order of the court, were discharged from further consideration of the case.

<p>Patents for Inventions—Infringement—Special License—Inventor in Licensees' Employment.</p> <p>The plaintiff was in the employment of the defendants; and, in experimenting upon his inventions, of which he had several, he took the time which belonged to the defendants, used their tools, workmen, and materials, and tested the inventions in the machinery which was run by them. He was given to understand in regard to inventions he brought out prior to the one in question that the defendants claimed the right to use his inventions because he was in their employ. About the time of patenting the invention in question he received a sum of $330 a year in addition to his salary from the defendants, and he now claimed that this sum was given as a royalty for the use of his patent for spindle bolsters; but it appeared from the evidence that he had made, about this time, a complaint of being unfairly treated, and his receipts showed that the §250 had been received by him as an increase of salary. There was also evidence that he was anxious for the defendants to adopt his first invention, as it would be an advantage to him in introducing it elsewhere, and agreed to allow them to use it free, and that this agreement was extended to his other subsequent inventions, including the one in question. Held, in an action for infringement, that the defendants had shown a special license for the use of the patented spindle bolster and other improvements, put into their mills while in their employ.</p>

<p>1. Corporation —Stockholders —Relation on Majority and Minority — Trust.</p> <p>When a number oí stockholders combine to constitute themselves a majority, in order to control the corporation as they see fit, they become, for all practical purposes, the corporation itself, and assume the trust relation of the corporation towards its stockholders; and, if they seek to make'profit out of it at the expense of those whose rights are the same as their own, they are unfaithful to the relation they have assumed, and are guilty, at least, of constructive fraud.</p> <p>2. Same—Sale—Dissolution.</p> <p>Although the minority of the stockholders cannot complain because the majority have dissolved the corporation, and sold its property, they may justly complain where the majority, while occupying a fiduciary relation towards the minority, have exercised their powers in a way to buy the property for themselves, and exclude the minority from a fair participation in the fruits of the sale.</p> <p>8. Same—Following Trust Fund.</p> <p>Under the rule of equity which entitles those whose property has been misapplied by an agent or fiduciary to follow it into any form in which it has been converted, and impress it with a trust whenever its identity can be traced, or, at their election, to recover the value of the property in any form into which it has been transmuted, where the majority of the stockholders merge the business and property of the corporation with other business and properties belonging to themselves and embark the whole in a joint venture and sell the corporation’s property to themselves, the inquiry, in a question with the minority, is, what is the property worth to the purchasers as a constituent of their geiieral properties?</p> <p>4 Same—Equitable Ltbn.</p> <p>The minority of the stockholders have an equitable lien, to the extent of their interest, upon the property of the corporation which has beeii sold by the majority to themselves, in breach of their fiduciary relation.</p> <p>5. Same—Action—Parties.</p> <p>Actors in the transaction by which the minority of the stockholders have suffered, are proper parties to suits at their instance.</p>

<p>In Equity. Bill to quiet title.</p>

In 1885 the Pacific Railway Company of Missouri filed its bill in equity asking for .a receiver, the equitable distribution of a certain fund in the hands of its officers, and for an injunction to prevent the bringing of suits by stockholders for the recovery of the fund. Eob•ert S. Cutting and Peter Marie* were, by order of court dated April 20 and May 8, 1885, appointed receivers of said fund.

<p>Partnership —Special Partner — Action against—Action to Enforce Decree in Equity.</p> <p>A decree in a suit' in equity, at the instance of a creditor of a firm, found that a special partner had received a sum, the property of the firm, which should have been applied to the payment of debts, and ordered such partner to pay the amount to the clerk of court in order that it might be applied to the payment of the claims that should be established against it. The partner having failed to make payment as required, held, that such decree could not be foundation for an action at law at the instance of the creditor to compel him to do so, as it did not entitle the creditor to demand judgment, cither in his own right, or as trustee for the other creditors, for the entire sum; and the amount to which he was entitled was not fixed, nor coulditbe ascertained from the facts found in the decree. Held, further, that the action could not be maintained, even though the clerk of court be joined as co-plaintiif, as the decree did not make him a trustee or receiver, nor did it clothe him with any power or right, or convey to him a title to the money as trustee, or otherwise.</p>

During August and September, 1857, one Henry Hooman imported; from Dundee and Glasgow, in Scotland, into the port of Nett York, certain carpeting, and entered the same for warehouse as “hemp carpeting.” Subsequently, and while in warehouse, llooman transferred this carpeting to the firm of Haggerty & Co., the surviving partner of which is the plaintiff’s testator.

This was an action against William H. Robertson, collector of the port of New York, to recover an alleged excess of duties upon certain importations of bichromate of soda, made by the plaintiffs in the years 1884 and 1885.

<p>At Law. Tried by the court.</p>

<p>1. Patents for, Inventions—Temporary Injunction—Prior Decisions.</p> <p>Where patents have been the subject of judicial investigation, ending in decisions in the circuit courts of the United Stales maintaining their validity, so far as the issues presented in those causes have been identical with those involved in the case at bar. for the purposes of granting a preliminary injunction to run pendente lite, those prior decisions, elsewhere obtained, are sufficient.</p> <p>2. Estoppel—Res Adjudicata—Who are Bound, and Who not Bound.</p> <p>Parties who are bound by a judgment include all who are directly inter ested in the subject-matter, and had aright to make a defense, control the proceedings, examine and cross-examine witnesses, and appeal from the judgment. Persons not having those rights, substantially, are regarded as strangers to the cause; hut all who are directly interested in the suit, and have knowledge of its pendency, and who refiise or neglect to appear anti avail themselves of these rights,'are equally concluded by the proceedings. Robbins v. Chicago, 4 Wall. 631, followed.</p> <p>8. Patents for Inventions—The Bell Telephone Patent.</p> <p>The court having reached the conclusion that the invention of Bell is sot forth in the claim and specifications as originally filed, therefore any inquiry into the question whether, after the filing of Beil’s application, his specifications and claims wore changed in consequence of information derived through the examiner of the patent office from the caveoA of Elisha Gray, would lead to nothing which could affect the validity of the patent. It is also found that Bell's invention did not lack novelty,’ and was not anticipated, by Philip Reiss nor his successors.</p>

<p>Demurrage—Delay in Loading—Custom.</p> <p>When A. agrees to have a vessel loaded for B. at the wharf of a railroad company, where it is customary to load vessels in turn, and tills was done, causing some delay, however, A. is not answerable for demurrage, he having no personal control over the loading.</p>

<p>Injunction—Removal or Modification—Petition—Proceedings to Enforce —Wallamet River Bridge.</p> <p>Where an injunction has boon granted restraining the erection of a bridge, the defendants enjoined cannot obtain relief by presenting a petition for removal or modification of the injunction on the ground of achango in the law, and an alteration in the plans of the bridge, but may make the point in a proceeding against them to enforce the injunction, under which the questions whether the law has been so changed, and whether the bridge being constructed is the one to which the injunction applies may he raised,</p>

<p>1. Counties—Bonds—Court-House—Powers or Commissioners—Wilbarger County.</p> <p>Except when attacked for fraud, the decision of the county commissioners as to the character of the court-house needed is final; and, although the cost may exceed the amount for which the commissioners are presently authorized to levy taxes, they may contract for the building of a court-house; the cost thereof to be paid in bonds to be issued and delivered and made payable to the contractors, and bearing interest from the date of issuance, as soon as tho taxable value of the county increases so as to enable the bonds to be issued in accordance with law.</p> <p>2. Same—Preliminary Injunction—Pleading.</p> <p>A preliminary injunction to restrain the action of the county commissioners, oven though they are attempting to exceed their authority, will not be granted, except it appear from the pleadings that the complainant has a sufficient interest at stake in the county to entitle him to institute proceedings.</p>

<p>Equity—Original Bill—Dismissal by Plaintiff—Costs.</p> <p>A complainant in an original bill has, as a general rule, the right to dismiss his bill upon payment of costs, provided no decree has been made by which the defendant’s rights have been adjudicated.</p>

<p> Habeas Corpus. </p>

Defendant was indicted for depositing in the mail a certain obscene writing, inclosed in a letter envelope. Motion was made to quash the indictment upon the ground that the statute did not embrace sealed writings.

<p>1. Patents for Inventions—Reissue—New Claim:—Validity.</p> <p>Where matter claimed in the reissue was embraced in the original patent, but not claimed therein, held not an enlargement of the invention, and may be secured by reissue.1</p> <p>2. Same—Laches—Limit for Reissue.</p> <p>Two years seem to have become the measure of reasonableness or limit of time within which, ordinarily, the application.must be made.</p> <p>3. Same—Jurisdiction of Commissioner of Patents.</p> <p>Whether the omission occurred through “inadvertence, accident, or mistake” is (in proper cases for amendment) a question for the commissioner.</p> <p>4. .Same—New Claims.</p> <p>Miller v. Brass Co., 104 U. S. 350, does not prohibit the introduction of new claims, under all circumstances. It simply applies the equitable doctrine of estoppel to a patentee who, after inexcusable delay, (during which others may be presumed to have acted on the reasonable inference that all not claimed in the patent has been dedicated to the public,) sought, by means of a reissue, to enlarge the scope of his patent, so as to embrace and prohibit such acts.</p> <p>5. Same.</p> <p>The Combined Patents Can Co. v. Lloyd, 11 Fed. Rep. 149, cited and approved.</p> <p>6. Same—Infringement.</p> <p>Differences in size, form, and degree not material.</p> <p>7. Same—Former Adjudication, Effect of.</p> <p>Former decree by circuit judge is not final between others; but, involving apparently same questions, is entitled to little, if any, less weight on that account; and in case of difference of opinion between district and circuit judges, the former would not act without rehearing by latter.</p> <p>8. Same—Reissue Construed, and Held Valid.</p> <p>Reissue No. 3,024, dated November 24, 1868, given on original letters patent No. 70,447, granted November 5, 1867, to George Asmus, assignee of F, W. Lurmann, for blast-furnaces, considered valid.</p> <p>9. Same—TNVEífTrou—'WnAT Oojtstitutes.</p> <p>What constitutes invention in the legal sense is difficult of exact definition in terms. Where, however, an old device or machine in general use, with acknowledged serious defects, which have been long endured because no one has previously discovered a means of obviating them, is taken in hand, and, by changing ‘its form of structure, they are removed, and a different and great.lv improved result obtained, it may safely be affirmed that the change required invention. Whore the improvement, and consequent public benefit, is great,, very little evidence of invention is required.</p>

<p>1. Patents fob Inventions—Assignment before Issue.</p> <p>When an assignment is made paneling an application, or in contemplation of an application, for letters patent, it is fair to assume that the parties contract with reference to the legal title which they expect will then be granted.</p> <p>2. Same—Invention or Improvement.</p> <p>The word “invention” or “improvement,’’when used in an assignment with reference to a pending application, refers to the subject-matter of the grant, aiul not to a possible future title which may be granted out of personal consideration for the inventor, i. e., an extended term.</p> <p>3. Same—Covenant Construed.</p> <p>A covenant by the owner of an invention to assign to himself and another jointly “said letters patent about to be issued, ” does not embrace the interest of the assignor in extending the patent.</p>

Suit at law to recover damages for infringement of letters patent No. 25,662, granted to Edwin May, October 4, 1859, for improvements in the construction of prisons, extended October 4, 1873, for seven years, damages being claimed only for infringements committed within the extended term.

<p>1. Patents eor Inventions—Inebingement—Parties — Pleading—Estoppel</p> <p>To support a plea in abatement for non-joinder of parties in a suit for infringement of a patent, defendant offered in evidence a written certificate given by plaintiffs to a third person, and reciting that such person bad “one-third equal interest with ourselves in the said patent. ” Defendant urged that plaintiffs were estopped from showing by parol that the writing did not state the agreement and intention of the parties. Held, that Ibis was not a case for the invocation of the doctrine of estoppel.</p> <p>2. Same—Assignment—Notice.</p> <p>The bill of complaint in this case was filed March 15, 1883, by plaintiffs, claiming to be the sole owners of the patent sued on and all rights under it. On May 10th following, defendant procured an assignment of the patent and a release of infringement claims from one who claimed an interest. Held, that dofendantwas a pnrchaserwitb notice, and was subject to all the equities that could be invoked against its assignor.</p> <p>3. Same—Assignment.</p> <p>A certificate given by patentees, which recited that the party to whom it was given bad “one-third equal interest with ourselves in the said patent,” held not an assignment of the patent, or any part thereof; the evidence showing that it was not intended by the parties giving it to operate as an assignment.</p>

<p>1. Patents for Inventions — Novelty—Lock and Handle for Traveling Bags.</p> <p>Letters patent No. 195,233, of September 18, 1877, to William Roemer, for improvement in combined lock and handle for traveling' bags, held, valid; following Roemer v. Simon, 20 Fed. Rep. 197.</p> <p>2. Same—Acceptance of Narrow Claims.</p> <p>A patentee is bound by his claims. If he acquiesces in a rejection of broad claims, and accepts claims for his specific construction, he cannot be heard to enlarge the scope of his patent by construction, so as to cover devices not within its terms.</p> <p>3. Same—Construction of Claim.</p> <p>This patent construed, and held limited to the patentee’s particular construction, and not infringed by defendant’s lock-case; which had an extended bottom plate; the patentee having amended his application so as to dispense with a bottom plate.</p>

<p>Patents for Inventions—Infringement—Tubular Lanterns.</p> <p>Letters patent No. 104.318. of June 14, 1870, and No. 151,703, of June 9, 1874, to John H. Irwin, sustained, and defendants held to have infringed the first claim of the former, and the second claim of the latter.</p>

<p>1. Collision—Steam-Ship and Pilot-Boat — Pilot Boarding Steam-Ship— Duty of Steam-Ship as to Speed and Helm.</p> <p>It is the duty of a steam-sliip, when about to take on hoard a pilot at sea, to come to a substantial stop ; i. e., to reduce her headway to the minimum speed required to keep her in position. She should not adopt a veering course, calculated to thwart the maneuvers of the pilot-boat as the latter approaches, hut come as near to a stop as possible, and leave the rest to the pilot-boat.</p> <p>Same—Duty of Pilot-Boat—Night—Gale—Hazardous Method—Custom.</p> <p>The pilot-boat in this case attempted to launch her yawl when ahead of the steam-ship, so that it should go down the latter’s lee side, while the pilot-boat crossed the steamer’s bow, to go down her windward side, and round under her stern, to pick up the yawl. Held, that no such invariable custom was proved of hoarding vessels in that manner as to excuse the pilot-boat for attempting it at night, and in a gale which rendered that method hazardous and unjustifiable.</p> <p>3. Same—Evidence—One-Sided Story—Improbabilities—Speed.</p> <p>In a case of collision where all upon one vessel are lost, the narrative of the other, considering the natural bias of the witnesses, should he received with caution, and not adopted beyond what is consistent, rational, and probable. • In this case the steamer’s claim of low speed critically examined and disallowed, upon the other circumstances proved, and upon the insuperable difficulties :and .improbabilities in navigation that such low speed would involve.</p> <p>4. Same—Lien not Lost by Reasonable Delay—Change oe Ownership oe Libeled Vessel—Notorious Accident—Diligent Inquiry.</p> <p>Though a libel for collision had not been filed at the time of a change of ownership of the vessel, held, on suit subsequently brought, that, as the accident was so notorious that the possibility of claims arising therefrom could not have escaped reasonably diligent inquiry on the ^art of the purchaser, the vessel was not discharged; the delay of 11 months in filing libel was not unreasonable.</p> <p>5. Negligence—Death on High Seas—Loss op Support—Right to Recover nr Admiralty.</p> <p>The pecuniary loss sustained by persons who have a legal right to support from one who has lost his life through, the wrongful conduct of vessels on the high seas may bo recovered in admiralty.</p> <p>6. Collision—Statement oe Case.</p> <p>The pilot-boat Columbia, after an exchange of signals, attempted to board the steam-ship Alaska about midnight, in a moderate N. W. gale, by crossing the bows' of the steamer, so as to launch her yawl ahead of the latter, and then get away. In the act of launching her boat she was run down and sunk by the Alaska. The evidence indicated that at the time of collision the speed of the Alaska was about four knots, and, under the captain’s orders to keep the pilot-boat two points on the steamer’s port bow, the helm of the Alaska was kept to port so that her head continually veered to starboard, as the pilot-boat attempted to cross ahead of the steamer to the latter’s starboard side. Yield, that the steamer was in fault for her speed and constant veering, and the pilot-boat for attempting such a method of boarding, which was not justifiable in a gale, if ever justifiable at night.</p>

In Equity. Motion by defendant for decree on bill, plea, and replication.

<p>Attorney and Counselor— Substitution—Reference—Costs—Attachment. In an application by a party for leave to substitute a new attorney, which, has resulted in a reference to a master, and a decision that the attorney was not entitled to further compensation than he had already received, the court has power to enforce obedience to the order requiring the attorney to pay the ’ costs of the reference by attachment.</p>

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

At Law. Suit for damages. The plaintiff states in his petition that, while being transported by the defendant over its road, the car in which he was riding was thrown from the track, through the defendant’s negligence, and that he received a serious bodily injury, for which he asks damages.

<p>1. Insane Persons—Act of Lunatic—Estoppel.</p> <p>One who is disabled "by want of mental capacity to act, cannot be estopped to deny that he has acted. An estoppel creates no power, and while, in favor of a bona fide purchaser of negotiable paper, inquiry is denied as to equities between prior parties, yet such protection does not cut off inquiry into the contractual capacity of those parties.</p> <p>2. Same—Certificate of Deposit—Indorsement by Lunatic—Innocent Purchaser.</p> <p>The indorsement of a certificate of deposit by the insane person, in whose favor it was drawn, carries no title, even to an "innocent purchaser.</p>

<p>1. Statutes, Construction of—Discretionary Power.</p> <p>Under statutes conferring a general discretionary power without, qualification, the exercise of the officer’s discretion is limited, by legal construction, to the evident purposes of the act, and to what is known as a sound and legal discretion, excluding all arbitrary, capricious, inquisitorial, and oppressive proceedings.</p> <p>3. Courts—Jurisdiction—Special Tribunals—Review—Excess of Power.</p> <p>Though the acts of special tribunals cannot be in general reviewed, except, as provided by law, they maybe examined collaterally as respects their jurisdiction, and as regards acts in excess of power; and as to such acts their proceedings will be held unauthorized and void.</p> <p>8. Customs Duties—Appraisement—Examination of Witnesses—Penalty— Rev St. §§ 3922, 2923.</p> <p>The defendant had contracted at Lyons, Prance, with manufacturers there to deliver at his store in New York certain goods, free of all charges, at a certain price in dollars, indicated by certain cipher marks. The manufacturers subsequently imported the goods into the United States, and upon appraisement by the appraiser for the purpose of collecting duties the defendant was examined as a witness, and required to state the price in dollars indicated by the cipher marks, which he declined to do, as prejudicial to his interests. Section 2922 of the Revised Statutes authorizes appraisers to examine on oath any person “touching any matter or thing they may deem material in ascertaining the foreign market value;” and section 2923 imposes a penalty for declining to answer any such interrogatory. There was no evidence of any concealment or fraud in the importation, or of the absence of the ordinary means of ascertaining the market value of the goods in the principal markets of Prance, which was the only ultimate question for the appraiser’s determination. Held, that the discretion of appraisers in putting inquiries under section 2922 is not unlimited, but restricted, by the purposes of the act,—by the-the limitation of section 2902,—to “reasonable ways and means, ” and to the-exercise of a sound and fair judgment of what was material to the ascertainment of the market value in the principal markets of the country of exportation; that the inquiry as to the contract price for the future delivery of goods at a store in New York, free of all charges, was prima facie incompetent, because too remote and uncertain as evidence of the foreign value, and resort to such evidence was justifiable only upon the failure of the ordinary and appropriate prod's; that to compel such disclosures, without necessity, from a stranger to the importation, when such disclosure would be prejudicial to his business interests, was not within the reasonable ways and means prescribed by the statute, nor the exercise of a sound and reasonable discretion, and was therefore in excess of the appraiser’s lawful power, in the absence of special reasons to justify it; and that no penalty, therefore, was legally incurred.</p>

At Law. In October, 1884, the plaintiffs imported from Puerta Plata, in the Dominican republic, two cargoes of sugar and molasses. The collector assessed duties thereon pursuant to the provisions of Schedule E of the tariff act of 1883. 22 St. at Large, 488, 502. The plaintiffs protested, insisting that their importations should have been admitted free, under the stipulations of the treaty between the United States and the -Dominican republic, concluded February 8, 1S67.

<p>1. Patents por Inventions—Handles por Orosscut-Saws.</p> <p>Letters patent Ho. 78,658,.issued June 9, 1868, (antedatedMay 19,1868, to P. Donoughe, for an improvement in handles for crosscut-saws, construed and sustained.</p> <p>2. Same—Hovelty—Combination op Old Elements.</p> <p>.The arrangement of a wooden handle for crosscut-saws; with a threaded shank entering a securing nut in such handle, and having its lower end slot-, ted to receive the end of the saw, a ferrule inclosing the lower end of the handle to prevent abrasion of the latter by the saw, and a washer loosely secured to this ferrule, presents a patentable combination; although each of the elements of the combination was old at the date of the invention, and the combination of several of them in saw handles was also old.</p> <p>'8. -Same—Anticipation—Priority—Presumption op, prom Patent.</p> <p>The rule is well settled that an anticipation, in order to defeat a patent, must be clearly made out. A patent 'raises a presumption of priority which can only be overcome by clear proof.</p> <p>4. Same—Assignment by Administrator—Title.</p> <p>An assignment of a patent from the administrator of the patentee gives the assignee the title, unless a better title is shown in another.</p>

<p>Patents for Inventions—Sash Fasteners.</p> <p>Letters patent No. 212,487, oí February 18, 1879, to John B. Morris, for an improvements sash fasteners, held limited by the prior art to the specific construction it describes, and not infringed by fasteners made under letters patent No. 284,508, of September 4,1883.</p>

<p>Patents for Inventions—Petition for Rehearing.</p> <p>Petition for rehearing, upon the ground of newly-discovered evidence on the question of public use, denied, and the opinion expressed on the former • hearing, 26 Fed. Rep. 692, adhered to.</p>

<p>1. Collision—Schooner under Sail and Schooner in Tow—Error in Locating Vessels by Sound—Change oe Oojijrse in Fog.</p> <p>During' a douse, fog a collision occurred between the schooner M. and two other schooners in tow of the steamer O. The fog signals of both the steamer O. and the schooner M. were sounded as required by statute, but the M.’s horn was not hoard by the O. The O.’s whistle was hoard by the M., and endeavors were made to determine her bearing by locating the" sound. The O. was Aral seen by the >1. when about 50 feet distant. From the presumed direction of the sound, it was supposed by the M. that the O.’s course was astern of the M., and, as the latter vessel was sailing at. a moderate speed, close-hauled, on the starboard tack, no chango of course was made until the O. was actually seen. Held, that as the steamer’s lights could not be seen,-sound formed the'only guide furnished the ML, and that, an error in locating sound, under the circumstances, was not a fault; and that, as the M. was sailing at a moderate speed, close-hauled, on the starboard tack, the circumstances were such that the master of the M. was justified in concluding that a change of course might increase the hazard,</p> <p>2. Same—Lighted Torch—Failure to Exhibit, when Justified.</p> <p>The schooner failed to show a lighted torch. It was not proven, to the satisfaction of the court, that the torch, if shown, might not ¡possibly, have been seen, lb Id, that though it be possible that the torch, if shown, might not have been seen far enough off to have done any good, such apossibility furnished no excuse for its absence. Nothing short of an absolute certainty that it could do no good, to be established by proof on the trial, can justify an omission to obey the rule.</p> <p>S. Same—Failure to Keep Out op the Way, Prima Facie Prooe of Fault on Part oe Steamer—Speed in Fog.</p> <p>The steamer’s speed was diminished upon the coming up of the fog. According to the testimony of her crew, she was, at the time of collision, gteaming at from three to four knots per hour. According to the testimony of the M.’s witnesses she was steaming at from seven to nine knots per hour. Held, that the occurrence of the collision, under the circumstances, was sufficient to,establish a, prima facie case of negligence on the part of the steamer; and that the density of the fog, the locality, and the position of the tow, required an occasional stoppage, in order to listen for sounds from vessels that might possibly be approaching. Both vessels held to be in fault, and damages divided,</p>

<p>Collision—Vessels in Tow—Maneuver in Extremis—Strength op Hawser —Unnecessary and Extraordinary Strain.</p> <p>The canal-boat B., owned by the libelants, collided with the barge M. Each vessel was in charge oí its own tug, and both were without other motive power. When about onc-íourtk of a mile apart, and in mid-channel, signals were exchanged. When a few hundred feet to the westward of libel-ants’ ship, ihe M.’s hawser parted, and she was forced obliquely across the river, and collided witb the U. The libelant’s tug maneuvered in accordance with the course indicated by signal until after the parting of the hawser, and, when confronted with the sudden peril incident thereto, the master of libel-ant’s tug used his best judgment in maneuvering. 'Dio collision was caused by subjecting the M.’s hawser to an unusual and extraordinary strain, in consequence of which it parted. Held, that the master of libelant’s tug was justified in presuming that the M.’s tug would take the course indicated by signal, and was under no obligation to stop or to maneuver as if anticipating an accident, and that, when confronted with a sudden peril, the only obligation imposed by law was the use of his best judgment. Held, further, that if the hawser was strong enough to stand any ordinary strain, and if it was, without cause, subjected to an extraordinary strain, the M.’s tug was chargeable with negligence.</p>

<p>Collision—Canal-Boat and Steamer’s Propeller—Suction — Evidence— Propeller at Rest—Liability.</p> <p>While the lihelant’s canal-boat H. was being warped by her captain into a slip on the North river, her bow came in contact with the propeller of the steam-ship El Dorado, which was lying at the pier. For the resulting damage the El Dorado was libeled. Held, on the evidence, that the steamer’s propeller was not in motion at the time of collision, and the steam-ship consequently was not liable.</p>

<p>1. Seamen—Wages—Advance Wages—Act Twenty-Sixth June, 1884, (23 St. 53) — Dingley Act Construed—Province oe Court in Construction oe Statutes.</p> <p>The crew of the bark S., on shipment, signed articles made out in the usual way; and containing, inter alia, the rate of wages, but without any provision for the payment of any portion of the same in advance. Contemporaneously therewith they made a parol agreement with the shipping master, both as to the rate of wages and the payment of an advance. The difference between the rate of wages named in the shipping articles and that verbally agreed upon was the precise amount of the advance wages. Both agreements were made with the consent of the owners of the vessel, and were fully understood by the crew, and the amounts agreed to be advanced were paid to them Upon shipment. At the termination of the voyage the crew were tendered payment of their wages as due by the shipping articles without any deduction on account of payments made in advance. All of the crew, with the exception of the second mate, accepted this offer, and signed a release of all claims against vessel, master, and owners. They, together with the second mate, shortly afterwards filed a libel for the recovery of the amount of wages stipulated for by the verbal agreement, without any deduction for the amounts paid to them in advance. Held, that the act of twenty-sixth June, 1884, (23 St. 53,) declares in express terms that the payment of advance wages shall, in no case, absolve the owner, master, or vessel from full payment of wages, or be a defense to a suit for their recovery after they are earned; that it would be an absurd, as well as a palpable disregard of legislative intent, to hold that the law can be evaded by merely having seamen sign fictitious shipping articles, which do not express the rate of wages actually agreed upon and intended to be paid. The second mate is entitled to recover the full amount of his wages as verbally agreed upon, withoul any deduction for the advance paid to him at the time of shipment. As to the rest of the crew, the libel must, be dismissed, there being nothing in the nature of the claim to render it incapable of being released, and it appearing evident that the parties when they signed the release intended to be bound by it.</p> <p>2. Statutes—Construction— Doubtful Woiíds.</p> <p>The rule undoubtedly is that statutes are to receive a reasonable construction, and doubtful words and phrases are to he so construed, if possible, as not to produce mischievous results. But when the words used are plain and unambiguous, there is no room for construction,—nothing is left for the court but to give them their full effect.</p>

<p>Collision—Wharves—Projecting Booms—East River—Too Near Approach.</p> <p>Whore a sloop, unloading, lay along a bulk-head at the mouth of Bushwiek creek, East river, with her bowsprit projecting partly across the mouth of the creek, and her boom swung out into the river, and a tug, in going into the creek when it was nearly dark, ran into the boom, held, upon a dispute of the facts, that it was so nearly dark as to make it negligence in the sloop to have her boom projecting in that maimer, without any light or other means of warning; and also a lack of proper care in the tug'to go so near to the sloop at night; and both were held in fault, and the damages divided.</p>

<p>Courts — Jurisdiction — State and National Courts —- Construction op Statute.</p> <p>A question involving the right to public land claimed by one of the parties to have been pre-empted by him under a statute of the United Slates, (loos not fall within the jurisdiction of the circuit court unless it actually involves the construction of a United States statute.</p>

<p>In Equity. Motion to dissolve injunction.</p>

<p>1. Equity—Jurisdiction—Remedy at Law.</p> <p>To sustain the jurisdiction in equity, it mustbe shown that there is no sufficient and speedy remedy at law.</p> <p>2. Courts—United States Courts —State Statute Creating New Bight— Jurisdiction.</p> <p>Where a state statute creates a new right, and provides a remedy ior the enforcement thereof, the United States courts will, for the protection of the right created, follow the remedy prescribed; hut this is subject to the limitation that the remedy is not contrary to some provision of the constitution of the United States or acts of congress.</p> <p>3. Same — New Equitable Bemedy — Adequate Legal Bemedy—Bight of Trial by Jury.</p> <p>In the United States courts, if the remedy at law is speedy and adequate, a remedy in equity, created by state statute, cannot he resorted to, because of the provisions of section 733 of the Bevised Statutes, and of article 7 of the amendments to the constitution of the United States, guarantying the right of trial by jury.</p>

<p>1. Attorney and Counsel—Advice—Estoppel.</p> <p>While a lawyer does not insure the correctness of his advice, yet, after having- given it, he is estopped from speculating upon it to the injury of his client.</p> <p>2. Same—Incorrect Advice, in Good Faith—Effect of Attorney’s Subsequent Profit by it—Essential Conditions.</p> <p>When a lawyer ignorantly and mistakenly, yet honestly, gives advice, and thereafter enters upon a speculation in respect to the property, the subject-matter of the advice, the law holds him as an agent for his client, and holds the speculation as only for the benefit of the client. But if, when giving the advice, the lawyer at that time understood, not that he was regularly employed to do so, and if the advice was an answer abstractly correct to a question put generally, and not with all the facts and circumstances of the case stated, the above principle does not apply.</p>

<p>1. Injunction—Modification or Order—Service or Papers.</p> <p>The rules and practice of the circuit court of the Ninth circuit, on an order to show cause why an injunction should not be modified, require copies of all the moving papers to be served with the order; and mere supporting affidavits cannot be filed in opposition to the affidavits showing cause, where the latter only controvert the moving affidavits, and do not set up any new affirmative matter constituting a defense.</p> <p>'3. Mines and Mining Claims—Mining Debris—Impounding Dams.</p> <p>No dam for- impounding mining debris, erected in mountain rivers, should be held sufficient to protect riparian and other proprietors below, where the determination of their sufficiency rests upon the opinions of engineers, apparently equally intelligent, and those opinions are at variance; nor upon any evidence not of the most unquestionable and satisfactory character.</p> <p>8. Same.</p> <p>It is pot the province of the court to speculate upon the sufficiency of means adopted by trespassers for the protection of parties trespassed upon, or the sufficiency of such means to resist the action of the forces of nature, where the data for a correct determination are uncertain and unreliable, and where an error in judgment is liable to work great injury to the latter.</p>

In Equity. This is an action to recover the value of water taken by the receivers of the Wabash, St. Louis & Pacific Railway Company from the mains of the intervenor, at the round-house of the Missouri Pacific Railway Company. The defense is that the water was sold to the defendant by the Missouri Pacific Railway Company, and that the latter had a right, under its contract with intervenor, to make the sale.

MASTER’S REPORT. The evidence clearly shows that, since the date of the filing of the decree herein, mining tailings have been discharged into Humbug creek by the respondent the North Bloomfield Gravel Mining Company, from its mine described in the bill.

Debt on'County Warrants. Demurrer to answer. This suit is based upon two county warrants, properly drawn upon the treasury of the defendant, which were duly presented for payment, but were not paid for want of funds to meet the same.

<p>1. Criminal Law—Indictment—Motion in Arrest on Judgment—Section 1025, Rev. St.</p> <p>Under section 1025, Rev. St., a technical defect in an indictment, not tending to the prejudice of the defendant, affords no ground for a motion in arrest of judgment after a plea of guilty.</p> <p>2. Post- Omtce—Obscene Matter in Mails—Taking from Mails—Depositing Same.</p> <p>The clause in the act of congress of July 12, 1876, “for the purpose of circulating or disposing of, or of aiding in the circulation or disposition of, the same,” applies only to the offense of taking an obscene publication from the mails, and not to that of depositing one in them.</p>

<p>1. Patents for Inventions—Patentability—Invention.</p> <p>To make a suspender end of flat cord, in substantially tbe same way that suspender ends of round cord had been made, and in substantially tbe same way in which flat button ends bad been made, for tbe purpose of fastening or securing other articles of wearing apparel than trousers, is an exercise of tbe ordinary skill of tbe housewife or tbe seamstress.</p> <p>2! Same—Suspender Ends.</p> <p>Letters patent No. 169,855, of November 9,1875, to Abraham Shenfield, for an improvement in suspender button-straps, are void for want of patentable novelty.</p>

<p>1. Patents for Inventions—Intention—Adaptation of Old Devices.</p> <p>It may involve invention to make changes or modifications in parts which were substantially old, in order so to combine them as to effect their efficient co-operation.</p> <p>2. Same—Patent for Improvements must be Limited to Same.</p> <p>Where the invention consists in changes or modifications of old elements in order so to combine them as to effect their efficient co-operation, the claims of the patent must be carefully limited, either by express terms or by fair construction, to the precise improvements made.</p> <p>3. Same—Combination, when not Invention.</p> <p>It is not invention merely to bring old devices into such juxtaposition as will allow each to work out its own effect, without contributing any new function or mode of operation.</p> <p>4 Same—No. 258,334, Machinery for Folding and Curling Collars, Void.</p> <p>Letters patent No. 258,334, of May 23, 1882, to Thomas S. Wyles, for machinery for folding and curling collars, held void for want of paj.entable novelty, in view of patents No. 57,30,8 and No. 173,096, and the “Churchill Machines, ” which were in common use as early as 1870.</p>

<p>1. Collision—Overtaking Vessel—-Rival Boats.</p> <p>An overtaking steamer must keep out of the way of the one ahead. It is no defense, that the latter had not acquired full speed.</p> <p>2. Same-—Rounding Points — Signal Whistles, Meaning op—Crowding—</p> <p>State Statutes.</p> <p>When two steamers, bound around a point, and approaching it from the same side, upon courses somewhat crossing, signal to each other, the one giving two whistles, and the other replying with one whistle, such signals mean that the former will starboard her wheel and keep to the left, and that the latter will port her wheel and keep to the right, so far as is reasonably necessary to pass the common point. The outside vessel, in such a ease, is bound to keep away enough not to crowd the other ; 20 yards being required by the state law.</p> <p>3. Sauk—Case Stated—Reckless Navigation.</p> <p>The rival passenger boats B. Q. and D. R. JVI. loft their docks in the Kills, Staton island, at about ¡he same time; both being bound around Long Dock, and between that and a schooner which lay at anchor 400 or 500 feet to the westward and outside of it. The D. R. M. signaled by two blasts of the whistle; the B. Q. replied by one; the .former being then under full speed, but considerably further from the Long Dock than the B. Q., which was under half speed. There was sufficient room for both to pass at the same time between the schooner and Long Dock. When nearly abreast of it, the B. Q.’s stem struck the wheel-house of the D. R. M., doing the latter some damage, but the latter kept on without pause. Held, discrediting much of the testimony of the D. R. M., that she was, at the time of the signals, considerably astern of the B. Q.; that she was an “overtaking” boat; and 'that, as such, as well as by reason of having the B. Q. on her own starboard hand, she was bound to keep out of the way of the latter; that by her signal of two whistles, also, she was bound to keep to the left; that she did not do so to the extent easily within her power, but crowded upon the B. Q.’s course; that she was navigated recklessly, if not with the intention, even, of running down the B. Q., or forcing her upon the dock. Held, further, that upon the signals given, the B. Q. could not have anticipated such navigation on the part of the D. R. M.; and having proceeded' slowly, and gone as near the Long Dock as was safe, and reversed shortly before the collision, she was without fault, and the damage should be borne by the D. R, M. alone.</p>

<p>1. Removal oif Cause—Jurisdiction—Citizenship.</p> <p>The citizenship of a party moving from one state into another is controlled by the intention in that regard with which he takes up his residence in the new place.</p> <p>3. Same—Removal ísoh State—Intention.</p> <p>A parl y who has moved from one state into another cannot avail himself of the jurisdiction of a federal court upon the claim of being a non-resident, after showing by his acts and declarations, before the litigation commenced, an intention of becoming a citizen in his new place of abode.</p>

<p>1. Railroad Comeantes—Powers of Directors — Contract for Joint Management.</p> <p>fwu railroads entered into a contract J'or the joint management of their lines, including certain railroads leased to them. The contract fixed the proportion of the net earnings to be drawn by each of the contracting parties. In pursuance of the agreement, the directors of the plaintiff company authorized the deduction from the net earnings of interest on the cost of anew depot built by the defendant company for the accommodation of the joint trafile. It was also agreed by the respective boards of directors that the defendant company should purchase a controlling interest in two roads leased to them, and managed under the joint contract, and that during the continuance of the joint contraed, the excess of interest upon the purchase money, over the amount of dividends earned upon the stock, should be borne in proportion to their shares of the net earnings. IteJO, that, under the circumstances, the directors of the plaintiff company had acted within their powers, and that the plaintiffs could not claim payment of the sums so expended.</p> <p>3. Same—Directors’ Consent—Evidence.</p> <p>Where other circumstances prove the directors’ consent, it is not necessary, to bind the corporation, that their records should disclose a formal vote of the directors.</p>

In Equity. The actions referred to in the following opinion were brought by the complainant as the assignee of her deceased husband, to compel the specific performance of certain contracts in writing entered into with him by the defendants.

<p>1. Champerty—Limitation.</p> <p>The former ruling of this court in this case ¿10 Sawy. 415, and 33 Fed. Rep. 13) that the agreement made in California on February 10, 1874, between S. G. Elliott and Martin White, for the loan and repayment of money, was to be performed in that state, and is not champertous, and that a suit may be maintained to enforce a security for a debt arising thereon, without reference to whether an action on the debt directly against the debtor can be maintained or not, considered and affirmed.1</p> <p>3. Same—Res Judicata.</p> <p>The obligation of White under said agreement, and the fact of his having performed the same, is res judicata since July 13,1875, by the judgment of a competent court in White v. Mliott.</p> <p>3. Attorney’s Fee.</p> <p>A contract to pay an attorney 8400 a month to attend to certain litigation held to have been tacitly abandoned by reason o.f unforeseen delays in the progress of the litigation, and a gross sum allowed for the services of the attorney therea fter.</p> <p>4. Comtes—Concurrent Jurisdiction—Receiver.</p> <p>The more fact that a court has acquired jurisdiction of a suit between a grantor and grantee concerning their rights in certain property, and has taken possession of such property by the appointment of a receiver, does not prevent another court of concurrent jurisdiction from taking jurisdiction of a suit by a creditor of said grantor against said grantee, brought to sot aside or postpone the conveyance of said property to the latter on the ground that it was made and received with intent to hinder and delay the plaintiff in the collection of his demand against the grantor; the relief sought may he granted without interfering with the possession of the receiver.</p> <p>5. Equity—Answer in Equity.</p> <p>A defendant may answer an allegation in a hill that he has no knowledge, information, or belief concerning the same, and the effect is to leave the matter to be proven by the plaintiff; but such answer is not equivalent, as evidence, to a denial of the fact alleged, nor can the defendant add a direct denial thereof 1o his answer that he has not even a belief on the subject.</p> <p>6. Depositions—Objection to.</p> <p>A technical objection to evidence taken in a suit in equity must be made by molion to suppress before the cause is set for hearing.</p> <p>7. Equity—Creditors’ Bill—Judgment—Proof of Debt.</p> <p>A judgment creditor seeking to set aside conveyances anterior in date to his judgment, because made to hinder and delay him in the collection of bis debt, ma) show by the proceedings in the case prior to the judgment, or other com potent evidence, that his debt existed at or prior to the date of such convey anees.</p> <p>8. Same—Insolvency of Debtor.</p> <p>It is not necessary to issue an execution on a judgment and have a return of wulla bona thereon, to show the insolvency of the judgment debtor, but the fact may be shown by any competent evidence that he has no property subject to the legal process of the court in which the judgment remains.</p> <p>9. Fraudulent Conveyance—Knowledge of Grantee.</p> <p>It is not necessary that the grantee in a deed made by a debtor to hinder and delay his creditors should have actual knowledge of the grantor’s intent to make it void; hut it is sufficient if behave knowledge of facts sufficient to put a prudent man on inquiry.1</p> <p>10. Same—Case in Judgment.</p> <p>Conveyances made by an insolvent debtor to his brother, who was a large creditor, of all his property in the state, the value of the same being considerably in excess of the amount of the grantee’s debt, without any settlement oi agreement as to values, or cancellation or surrender of the evidences of debt held by the creditor, or any special change in the management, of the property included in the conveyances, together with the fact that, the grantor continued in the receipt of a large portion of the rents and profits of the property, held sufficient evidence of fraudulent intent of the grantor, and of the grantee’s participation therein.</p>

Action by holder of tax certificates to recover purchase money on failure of tax title, land not having been liable to taxation at time of sale. Defendants demur.

At Law. Consolidated eases. Suits on check drawn and note made by J. N. Israel in the name of C. W. Israel & Go. Demurrers to answers of Israel and the Laclede Bank, garnishee. The facts, as they appear from the pleadings, are substantially as follows: At the time of the transactions here involved, J. N. Israel. did a banking business at Hamilton, Texas, under the name of C. W. Israel & Co., and at Harold and Wichita Falls, Texas, under the name of the Exchange Bank.

This was an indictment, tried at April term, 1886, of the district court of the United States, Western district of North Carolina, at Greensboro, North Carolina, Hon. Robert P. Dick, D. J., presiding.

<p>1. Copyright—Transfer— Rights of Amen Assignee—Infringement.</p> <p>Where a piano-forte arrangement of the orchestral score of an opera was made by a United States citizen, with the consent of the non-resident foreign composers of the opera, and then transferred by him to a fellow-citizen, who procured a copyright, which he assigned to a non-resident foreigner, aeting as agent of the original composers of the opera, held, that there was nothing of evasion or violation of law, and that the assignee was entitled to the protection of the court against infringers.</p> <p>2. Same—Validity— Registration—Title of Book.</p> <p>If the published title of a book is sufficient to identify it with substantial certainty with the registered copyright, the copyright will not be forfeited on account of slight variations between the two.</p>

<p>1. Patents iron Inventions—Infringements—Damages—Profits—Rev. St. § 4931.</p> <p>Prior to Hie act of July 8, 1870, patentees were not authorized to recover in a single snit both profits and damages, but had their election to treat the infringer as a trustee, and by bill in equity recover the profits made hy him, or to sue at law for the damages sustained, without reference to the question whether the infringer had gained or lost hy his infringement. Section 4931, Rev. S1,., authorizes courts of equity, in suits for infringement, to award, in addition to the profits to he accounted for by the defendant, the damages the complainant has sustained.</p> <p>3. Same—Damages—Profits, when Measure of.</p> <p>“Gains and profits are still the proper measure of damages in equity suits, except in cases where the injury sustained hy the infringement is plainly greater than the aggregate of what was made hy the respondent, in which event the provision is that the complainant shall be entitled to recover, in addition to the profits to be accounted for hy the respondent, the damages he has sustained thereby. ” Birdxatt v. Qoolidge, 93 U. S. 69.</p> <p>3. Same—License Fee—Apportionment.</p> <p>Where an established license foe for the use of a patent containing six claims was shown, and the defendant had infringed only two of the six claims, 7ietd, that it was the duty of the master to ascertain the relative value of the different claims, as nearly as the nature and circums! anees of the case allowed, and to charge the defendant, for the use of the claims infringed, such proportion of the whole license fee as the testimony revealed they were relatively worth in their contribution to the efficiency of tho machine!</p> <p>4. Same—Burden of Proof.</p> <p>Where complainant seeks to recover damages on the basis of an established royalty for the use of several claims, only a part of which have been infringed, the burden of proof is upon him to show the relative value of the claims which have been infringed.</p> <p>5. Same—Relative Value of Claims.</p> <p>Where the claims not infringed are merely structural, and comprehended within those infringed, no apportionment of the license fee is proper.</p>

<p>1. Towage—Grounding—Negligence—Burden of Proof.</p> <p>Where one of a large number of boats in a tow is injured by striking some obstruction on a trip over a common and safe route, the burden is upon the tug to give some rational explanation of the injury or a consistent account of the trip that may satisfy the court that there was no lack of due care in navigation.</p> <p>3. Same—Case Stated—Robbins Reef—Evidence—Credibility of—Tides.</p> <p>The E. McG. was the port-boat in the hawser tier of a fleet of 20 boats in tow of the Y. A. from Amboy to New York. Before reaching Governor’s island the strong ebb-tide compelled the fleet to put in to the sea fence at Red Hook. Shortly afterwards the E. McG. was found leaking, supposed by the master to be caused by bumping against the sea fence. This claim was rejected by the owners of the tug. A month afterwards, on raising the boat, a diagonal cut was found across her bottom, with some holes through, indicating contact with some obstruction as the cause of the leak. On the trial the libelant’s wife, who lived on the boat, testified that when passing Robbins reef between 1 and 2 a. m., and very near the light, she felt a jar and subsequent roll that startled her and took her on deck. She did not mention the circumstance till the cut was discovered. Held, notwithstanding the discredit arising from her silence in the mean time, as the tug oflered no other explanation of the injury, and the accounts given by her captain and pilot as regards her passage from Robbins Reef light to the sea fence and as to the tides and currents were irreconcilable, and the wife’s testimony being in accord with the pilot’s, her account should be credited as the only rational explanation of the injury; and the tug was held liable.</p>

<p>Salvage—-Fire in Otl-Works—Towage—Lighters.</p> <p>A fire broke out in some oil-works on Busbwick creek, near the East river, within a shed inclosed by a brick wall immediately adjacent to the creek. Several lighters and other" boats were moored near the shed. The standing orders of the company were to clear tho creek of boats in case of any Are or the premises. There were other combustible materials in different parts ol the premises near the shed. Soon after the Are broke out the libelants’ tug, of light draught, came to the mouth of the creek, and was immediately engaged to tow out three lighters partly loaded with naphtha, which were above the fire. The tug did so, devoting about two hours to the entire service. The lighters, with their cargo, were worth about $4,500. Held, that the service was not a mere ordinary towage service, but one rendered with reference to the apprehension of danger of fire, and was therefore a salvage service, though of no high degree of merit; and $200 compensation was awarded, one-half to the tug, the other half to the captain and crew.</p>

<p>1. Negligence—Occupier of Pier—How Charged Generally.</p> <p>A party who enjoys the exclusive privilege from the owner of a pier to use such pier in his business, though under no obligation f o the owner in regard to repairs, assumes the duty to those invited there, to do business, not to expose them to peril by reason of defects in the condition of the premises known to him, or which, by reasonable diligence, would be known.</p> <p>2. Same—Obligation towards Intruders.</p> <p>One who occupies, and has the exclusive use of, a pier for loading his coal, is not responsible for damage to a barge caused by a defect in such pier, when the barge, having received its load some time before, had no business at the pier at the time the damage occurred, and was injured by a defect that did not exist during business hours.</p>

<p>Demurrrage—'Faiwiíe to Obey Instiutctions oe Consignee—Delay Aktsing Thekku'rom.</p> <p>Libelant’s schooner was ordered by the respondent, to whom it was consigned, to proceed to a certain wharf in a certain manner. The libelant endeavored to roach the wharf in another manner, and while so engaged the schooner grounded. In consequence of this a delay of eight and one-quarter days ensued. IMJ, that, as Hie wharf designed was suitable, and the manner reasonable, and as the accident happened solely from thelibohmt’s fault in not obeying the instructions given him, the libel must bo dismissed.</p>

<p>Demurrage—Condition Limiting—Printed Condition.</p> <p>The libelant made an agreement with, defendant to carry a cargo of coal to Boston, and received an order, directed to defendants’ agent, giving instructions as to the loading, etc. This order contained the following: “This order is taken by the captain sub j ect to the conditions printed on the back hereof. ” On the back was this indorsement: “No liability for demurrage or other charges shall be incurred by S. C. & Co., the cargo, or consignee thereof, for any delay in the loading; such delay to be borne by the vessel or boat. ” In an action for demurrage on a delay caused by S. C. & Co., it was held that the above condition was not binding on the vessel; that although it was signed by the master, this order was only a direction to the shipper’s agent, and there was no proof that the master’s attention had been called to the condition.</p>

<p>In Equity. Motion to discharge receiver.</p>

<p>1. Removal of Cause—Jurisdiction—Motion to Remand.</p> <p>On a motion to remand a cause to the state court from which it was removed, the petition for removal is the basis of jurisdiction. It is not in tho province of the pleadings in the state court to state the grounds of jurisdiction in the United States circuit court.</p> <p>2. Same—Federal Question—Iowa Prohibition Law—Depriving Person oe Property without Due. Process of Law—Fourteenth Amendment.</p> <p>Where a petition for Die removal of a proceeding in equity under tho Iowa prohibition law, in which the complainant sought to obtain an injunction against the defendant to restrain him from 1he violation of that law, sets forth facts showing that the defendant had vested property rights at the time the law went into effect which the injunction would operate to destroy, held, that tills raises a question under the fourteenth amendment to the United States constitution, depriving a person of property without due process of law, giving tiie United States circuit court jurisdiction.</p>

<p>1. Removal of Cause—Petition for Removal, Basis of Jurisdiction—Pleadings.</p> <p>On a motion to remand a cause to the state court from which it has been removed, the petition for removal is the basis for jurisdiction; but when the petition fails to state all the facts of jurisdiction, and refers to the pleadings in the state court for the same, the United States circuit court will look to them.</p> <p>2. Same—Pleading—Allegation op Mattes op Law—Iowa Prohibition Law.</p> <p>Where the petition for the removal of a cause from the state court to the United States circuit court sets up that, prior to the late Iowa prohibition law, the defendant erected the building and established the plant in question, to be used in the sale of beverages such as at that time the law authorized and permitted, this is an allegation of matter of law, and not sufficient to give the United States circuit court jurisdiction.</p>

<p>Courts—State and Federal Courts—Jurisdiction—Intoxicating Liquors.</p> <p>Whether the law of Iowa prohibiting the sale of intoxicating liquor is in violation of the constitution of the United States, and therefore involving a question of which the federal courts have jurisdiction, is involved in so much doubt that the federal courts will not assume jurisdiction, but will remand the cause to the state courts, since no material rights will thereby be affected.</p>

<p>Constitutional Law—Fourteenth Amendment — Destroying Leasehold Property Occupied for Saloon—Due Process of Law.</p> <p>Where alease was made of promises to be occupied for the purpose of the sale of ale, wine, and beer, containing a clause that the lease should be forfeited unless so occupied, and before the expiration of the term of said lease the act of the legislature of Iowa was passed and went into effect prohibiting the sale of ale, beer, etc., and imposing penalties for violating said law, held, that these circumstances presented a federal question, within the principles of State v. Wairuff, 26 Fed. Rep. 178, and that there is no difference between the destruction of leasehold property and any other kind of property by retrospective legislation, without compensation.</p>

<p>1. Principal and Agent—Ratification.</p> <p>A principal who receives and appropriates purchase money of land sold by his local agent for him, and rents collected, and who likewise appropriates repairs made on his real estate by such agent, thereby ratifies the agency, and is estopped from repudiating the action of such agent in any transaction within the general scope of the business.</p> <p>2. Same—General Agency.</p> <p>Under such circumstances, the agency becomes, not special, but general, and third persons dealing therewith are entitled to actual notice from the principal of any restriction of the agent’s authority, though in a special agency the contrary is true.</p>

<p>1. Municipal Corporation—Contract to Build Water-Works—Rescission.</p> <p>A contract by which one S. promises a municipality to construct and operate water-works, and which contains the provision that, “in case of failure of the party of the first part to construct or maintain said water-works as herein agreed, the rights and franchises hereby; granted to him shall cease and determine,” is not rescinded by ex parte action of the municipality, e. y., by a resolution of its city council, without judicial proceedings.</p> <p>2. Same—Extension of Time for Performance — Injunction against Municipality.</p> <p>Where one S. agrees with a municipality to construct and operate waterworks to supply water to the public by a contract which contains the forfeiture clause set forth in the preceding head-note, and which does not make time the essence of the contract, and S. and his assignees construct, and put ■ in operation water-works not complying with the contract, and the non-performance of tlie contract is due largely to the acts of both parties, and in part to unsuccessful experiments authorized by the municipality, held, (1) that S. and his assignees are entitled, before they are liable to a forfeiture of their rights under the contract, to a reasonable time in which to perform it; (2) that an injunction lies to restrain the municipality from interference with the pipes laid, or to be laid, by S. and his assignees during the extension of timo granted to them.</p> <p>3. Contract—What is Performance.</p> <p>Where one contracts to supply water from artesian wells, supplying water from other sources equally good or better is not compliance with his contract.</p>

<p>1. Partnership—Suits in Pikm Name.</p> <p>A partnership cannot institute a suit in the firm name alone in the United States courts. The name oí each member of the firm must he set forth.</p> <p>2. Coraras—State and Pedekal—Bemovad of Causes—Affidavit.</p> <p>An affidavit for the removal of a cause which states that a certain firm is a resident of a different state from the one in which the defendant resides, is insufficient; the name and residence of each member of the firm should be clearly slated.</p>

<p>Promissory Notes—Consideration—Options in Grain.</p> <p>No recovery can be had on a promissory note, executed in the state of Illinois, where the consideration on which it is based arises from option deals m grain, even though the note may be owned and held by an innocent born fide holder.1</p>

<p>Contract—Railroad Bridge—Damages.</p> <p>question of law appears to have been raised in this case. The damages sought by the defendants in their counter-claim were rejected as being too remote, and judgment rendered for the balance found due nlainliifs on their contract.</p>

In Equity. The plaintiff is the owner of the copyright of a book, written by James G. Blaine, called “Twenty Years of Congress,” and sold it by subscription only, to individual buyers of single copies. The book bad never been otherwise placed upon the market by the plaintiff, or with its consent. It employed agents to solicit subscriptions and deliver the copies ordered, assigning to each a certain territory.