Volume 30 — Federal Reporter

<p>Removal of Causes — Amount in Dispute. 18 St. IT. S. 470.)</p> <p>Where suit is brought in a state court by one oí a largo number of owners of stock, in behalf of himself and all others similarly situated, and the decree sought on behalf of the orator is less than 8500, the defendant is not entitled to have the cause removed to the United States circuit court, under act of March 8, 1875, (18 St. U. S. 470, § 2,) no others having: become plaintiffs, and there being no matters in dispute beyond what plaintiff claims in his own behalf.</p>

<p>1. Railroad Companies — Discrimination between Connecting Lines — Texas Pacific Railway Company — Missouri Pacific Railway Company.</p> <p>Under the charter of the Texas Pacific Railway Company, (16 U. S. St. 678,) and the Texas act of May 3,1873, granting land to it, which forbid discrimination by it against any connecting or intersecting road, and the latter of which forbids it to enter into any combination in the nature of a partnership with any railroad in the state running parallel with it, or in the same direction, that will give the latter control of rates on it, a pooling and traffic arrangement made by the receivers of the'road, or of its successor, the Texas & Pacific Railway Company, with the Missouri Pacific Railway Company, which has 200 miles of road parallel to its road in Texas, relating to business interchanged in Texas, and giving the Missouri Pacific a preference in rates, is illegal, and will bo ordered to be abrogated upon objection made by other lines connecting with the Texas & Pacific Railway Company’s road in Louisiana, although the receivers are willing to make the same arrangement with the objecting companies, if theyNwill furnish their road with the same amount of business under the same conditions, and although the arrangement is satisfactory to the traffic agents of the objecting companies, and operates to the benefit of the property in the receivefs’ hands.</p> <p>2. Same — Traffic Association.</p> <p>Likewise membership in a traffic association is improper, and the receivers will be ordered to withdraw therefrom, if the association has power to make discriminating rates for or against the Texas & Pacific Railway Company. ¡</p>

<p>FRAUD — COSnfTDÜÍÍTIAI. RET, ATIONS — -SUIT TO SET ASTDF, CoXVEYAXOE.</p> <p>Where the grantor of a deed was at the time of its execution 77 years of age, was worried about business matters in connection with the property conveyed, was in the habit of transacting business through the grantee, who was her favorite nephew, and had her unlimited confidence, and signed the deed without any consideration, on the representation of the grantee that he required some written authority from her to act in certain matters connected with lite property, and believed she was merely signing a power of attorney, the deed will he set aside in a suit at the instance of the grantor.1</p>

<p>1. Mortgage — Deb» Absolute on Face — Bon» or Defeasance to Third Person — Foreclosure.</p> <p>A., the owner of land, conveyed it by absolute deed to B., as security for a debt. B. afterwards, with the co-operation of A., conveyed it to 0., to secure a loan made by 0. to A., C. at their request giving' back a bond to convey, upon payment, to D. Held, that C. was justified in treating D. as the owner oí the equitv of redemption, although he knew that the deed from A. to B. was intended as a mortgage, and even though the bond to D. was in fact never delivered to him, and he never knew of it, and that a title obtained by C., by foreclosure proceedings against D. alone, was valid as against a claim on the part of A. or B., or their representatives.1</p> <p>2. Same— Four,closure — Service by Publication.</p> <p>A suit Cor foreclosure of a mortgage, not seeking a jjersonal judgment, is essentially a proceeding- m r&m, and service by publication, in a case allowed by the statute, is sufficient to give jurisdiction.</p> <p>8. Same — M ailing Summons to Wrong Address — Affidavit—Laws Minn. 1869, Oh. 73, § 49.</p> <p>Under Laws Minn. 1869, e. 73, § 49, allowing service by publication upon affidavit stating, among other things, that plaintiff has mailed a copy of the summons to defendant at his place of residence, “unless it is slated in the affidavit that his residence is not known to affiant,” the fact that the address to which the copy of summons was mailed, as stated in the affidavit, was not in fact the residence of defendant, held, not to render the judgment void; the plaintiff having acted in good faith, upon the best information obtainable, the affidavit being in proper form, the publication being properly made, and the judgment reciting due service by publication.</p> <p>4. Same — What Bights Foreclosed — Claims in Different Bights.</p> <p>The complaint in a mortgage foreclosure suit alleged that defendants claimed some interest in or lien upon the premises, as owners of the equity of redemption, which interest or lien, if any, it alleged to be subject to tbe lien of the mortgage, and prayed that defendants he foreclosed of all equity of redemption, and other interest in the premisos. The decree ordered that the title of the purchaser at the sale should, in case of non-redemption, be adjudged free and clear of all equity of redemption on the part of defendants or those claiming under them. Held, that the proceedings foreclosed a title of defendant’s derived from an execution sale, upon a judgment in favor of third parties antedating the mortgage, as well as hia title as mortgagor.</p>

<p>1. Courts — United States Commissioner — Removau.</p> <p>A United States commissioner may ho removed by the circuit court which appointed him, although lie is not strictly an officer of that court, hut exorcises independent judicial functions, which are conferred upon him by law.</p> <p>S. Same — Procedure—Ruub to Show Cause.</p> <p>.No special mode of procedure having been prescribed by statute, an application to have a commissioner removed may be heard upon a rule to show cause, founded upon affidavits of citizens making charges of misconduct, and granted upon the motion of the United States district attorney, giving the commissioner notice, and an opportunity to present affidavits and other documentary evidence.</p> <p>8. Same — Exercise of Power oe Removau — Presumption oe Innocence.</p> <p>The power of removal should not he exercised capriciously or arbitrarily, but the court should proceed with groat caution, and every presumption of innocence allowed in a criminal case should be indulged in "favor of the commissioner.</p> <p>4. Same — .Evidence— Charoes not Sustained.</p> <p>Upon the evidence in the case, held, that the charges of drunkenness, violent partisanship, improperly discharging prisoners, unnecessarily extending trials over successive days,"and of fraudulently allowing excessive witness fees, were not- sustained by the evidence.</p>

<p>SpEOIKIC PERFORMANCE — CONTRACT TO CONVEY LAND — CONSIDERATION—PUBLIC Lands — Compromise.</p> <p>Tlie plaintiff, wlio, by reason oí having purchased, inclosed, and cultivated a tract "oí land -within the limits of the Hot Springs reservation, had an equitable claim to a patent likely to he recognized by the United States, executed a deed of conveyance of a subtract to the defendant, who had occupied and built, on it, with the plaintiff’s permission; tlie defendant at the saino time executing an agreement to roconvey an undivided half of the subtract to the plaintiff within 30 days after the title should be acquired from the United Slates. The deed and agreement were executed in settlement of certain controversies between the parties, and it was agreed that the plaintiff' should furnish the evidence necessary to enable the defendant to obtain the title from the United States. This the plaintiff did. Held, in a suit to compel specific performance of agreement to reconvey, that there was neither want nor illegality of consideration, and that plaintiff was entitled to a decree.1</p>

<p>Costs — Skourtty for — N'os-ltKsrDTBXou.</p> <p>Where defendant moved lor an order on the plaintiff to furnislqsecurity for costs, because plaintiff was not a resident oí the state oí TN'ew York, and it appeared that plaintiff was sot up in the proceedings as such resident, and on all the papers nothing appeared but that he was so set up properly and correctly, the motion was denied.</p>

<p>1. Public Lands — -Cutting Timber — Action for Damages — Partial Defense.</p> <p>A partial defense to an action or in mitigation of the damages claimed therein ought to he pleaded in the answer as a distinct defense; and an allegation that the defendants cut and removed certain timber from alleged public land, believing that it was the land of the Northern Pacific Railroad Company, from which they had a license, is such a defense, where the damages claimed in the complaint are based, not only on the value of the timber in the standing tree, but also the value bestowed on the same in converting it into lumber, and putting it into market.</p> <p>2. Samf, — Grant to tiie Northern Pacific Railroad Company.</p> <p>The grant of certain odd sections of the public lands to the Northern Pacific Railway Company, by the act of July 2, 1864, (13 St. 365,) does not give the corporation any such present right to or interest in any one of such sections as .authorizes it to waste the same, by disposing of the timber thereon before it is earned by the construction of the section of the road adjacent and opposite thereto. The case of U. 8. v. Childers, 8 Sawy. 171, Í2 Red. Rep. 586, distinguished from Butte, v. Northern Pac. Ry. Co., 7 Sup. Ct. Rep. 100, and followed.</p> <p>3. Same — Earned Lands.</p> <p>On the construction and acceptance of any section of the road of the Northern Pacific Railway Company, the coterminous odd sections vest absolutely in the corporation, and thereafter the patent therefor may be considered as having issued.</p> <p> {Syllabus by the Court.) </p>

<p>1. Pleading — Surplusage—Insufficient Evidence Set Out.</p> <p>Where, in an action on town bonds, the declaration sufficiently avers the facts required by the state constitution to validate the issuing of the bonds, and the town clerk’s certificate of such facts, made a part of the complaint, is insufficient, this insufficiency is not a ground of demurrer, since it is only evidence of the facts pleaded, and mere surplusage.</p> <p>3. Same — Parties—Legal Title.</p> <p>The declaration, showing that the plaintiffs were the legal owners of the bonds, is not demurrable by reason of the fact that it also shows that other persons than the plaintiffs were the equitable owners of the bonds.</p>

<p>Action for the price of machinery sold. Verdict for plaintiffs. Defendants moved for a now trial.</p>

<p>On Application for Habeas Corpus.</p>

<p>1. Kxtoadition — Treaty with Great Britain-Proof of Criminauity — Copies oí? Deposittok — Act of August 3, 1882, (22 St. at Large. 21 (i.)</p> <p>Under the act of August 3,1882, depositions, and copies thereof, require the same kind of authentication to entitle them to he received in evidence in proof of criminally. The words “similar purposes” mean “proof of criminality;” and. whether the original or a copy is offered, it is not admissible under the act of 1882, unless it would he receivable in the foreign country in proof of criminality.</p> <p>2. Same — Authentication— Consui/s Certificate.</p> <p>The consul’s certificate, if conformable to the act of congress, is absolute proof that the papers certified are receivable in proof of criminality abroad, whether they are originals or copies. If this certificate is not conformable to the act of congress, the papers, whether originals or copies, may still be received upon proof of the fact that by the foreign law the papers presented would he competent evidence in proof of the criminality of the accused, in the country from which he escaped.</p> <p>3. Same — St. 6 & 7 Viot. — Defective Certificate.</p> <p>The relator being arrested in New York upon a charge of forgery committed at Calcutta, British India, the only proofs of criminality submitted were copies of depositions taken before the criminal magistrate at Calcutta, attested by his clerk and the seal of his court. The consul’s certificate stated that the depositions were so authenticated as “to enable them to be used in evidence, and as proof that the originals were duly received in evidence of the criminality of the accused.” Hold insufficient, under the act of congress; and, no other proof being made that copies so attested could be received in evidence as proof of criminality within the British dominions, the copies of depositions were held improperly received.</p> <p>4. Same — Enguish Statutes.</p> <p>Under the statute of 6 & 7 Viet., upon similar proceedings for the removal of the accused from London to Calcutta, proof of criminality would be required, and copies of the original depositions would be receivable for that purpose, if certified under the hand of the magistrate who issued the warrant, and attested under the oath of the party producing them. The copies in this case having no such certificate from the magistrate, hold, that the papers were defective under the first danse of the act of 1882, as well as under the second, and that the prisoner must be discharged.</p>

<p>1. Patents for Inventions- — Process for Making Parer Bags.</p> <p>Letters patent No. 258,212, granted May 23, 1882, to the Eastern Paper-bag Company, assignee of Daniel Appel, for a process of making paper bags, the object being the production in a novel manner of a satchel-bottom paper bag, made from a strip of paper folded to form a tube, by first forming a diamond fold, then cross-folding the leading corner of the 'diamond fold’, and subsequently cross-folding the rearmost corner of the diamond fold, to form the last cross-fold of the bag bottom, and, together with it, the main body of the bag-blank, on the line of the second cross-fold, hold, in view of the prior state of the art, not void, as lacking patentable invention.</p> <p>3. Samp, — Process.</p> <p>A process may be patentable irrespective of the particular form of instru-mentalities used.</p> <p>3. Same — Description of Process in Application.</p> <p>Description of a process in an application for a machine patent does not constitute an abandonment or dedication to the public of such process, so as to estop the inventor from subsequently obtaining a patent for the process, if applied for in two years.</p> <p>4. Same — Machín® Made Capable of Working Process.</p> <p>Where the defense to a suit for the infringement of a patent process is that machines embodying the process claimed were sold and in public use more than two years before the date of the application for the process patent, such defense is not sustained by proof that the use made of the machine before that date was experimental only, and not capable of working the process. There is no real invention of a process until, a machine is constructed to work the process.</p>

<p>COFYRKHIT — INFRINGEMENT—PRELIMINARY INJUNCTION — EVIDENCE.</p> <p>On a motion for a preliminary injunction to restrain an infringement of a copyright, when plaintiff has shown a copyright of a book, and a copy of a book having the same title, and has shown that defendant is publishing a book containing extracts from it, but has failed to show that the copy shown is a copy of the book copyrighted, and defendant denies that it is, held, that there is no ground for a preliminary injunction.</p>

<p>PATENTS FOR INVENTIONS — IsrERIir&E]VrEKT“-SrHOTEXCATIONS.</p> <p>Although the bustle manufactured and sold by defendant was made, for all practical purposes, in imitations of the bustle patented by complainant, except that it was of rattan instead of wire, yet, as complainant in his specifications limited himself to a bustle made of wire, he authorized the public to malte and use bustles of any other material, and cannot complain of such use as an infringement of his rights.</p>

<p>In Equity. Bill to restrain infringement of patent, and for an accounting.</p>

<p>1. Towage — Services Rfjsdkhk» tx Home Pout — Lies' non — Raxk. •</p> <p>The usefulness of tugs in coming in and out of port have made them a necessary auxiliary to vessels propelled by sails. As the tug is tlie substitute lor both seamen and pilot, the owner of the tug is at least equally, with the pilot, entitled to a lien for his services when rendered in the home port of the tow.</p> <p>2. Same — Shames’s Wages.</p> <p>As bet ween conflicting lien claimants, seamen’s wages precede towage bills; the latter are entitled to priority over mortgages, and home port supply claims.</p>

<p>1. Collision — Tug and Schooner — Harbor Navigation — Overtaking Vessel.</p> <p>Tlie tug M., wbilo incumbered by a tow, was overtaken by tbe tug B. The latter vessel was unincumbered, and was steaming at a, higher rate of speed than the M. After passing the latter vessel, the master of the B. endeavored to cross her bows, but in doing so the two vessels came in contact, in consequence of which the B. was forced athwart the river, and into collision with the schooner C. Held, that, the collision was caused by the faulty maneuver of the B., and that there was no fault on the part of the other vessels.</p> <p>3. Same — Attachment oe Innocent Vessel — Costs.</p> <p>The M. having been brought into the case at the instance of the owners of the B., and having been adjudged to be without fault, must be awarded costs as against the B.</p>

<p>1. Maritime Liens — Stale Claims — Lake Practice — Seamen’s Wages.</p> <p>The wages of seamen for the previous season, if sued upon during the season after they have accrued, are not stale, as against the claims of mortgagees whose mortgages were executed before the wages were earned.</p> <p>3. Same — Mortgagor in Possession.</p> <p>A mortgagee who permits a mortgagor to retain possession subjects a vessel to such liens as may accrue under the latter’s management.</p>

<p>1. Admiralty — Practice—Tímv. St. §§ 2807, 8088.</p> <p>Whether a libel can be maintained on the instance side of the court to recover from the vessel, under U. S. Rev. St. § 8088. the penalty imposed on the master and mal e for violal ion of section 2807, both sections being embraced in title 34 of the Revised Matules, (“Collection of Duties, ”) without an averment being made as to previous seizure by the customs officers within the district, queers. Bee The Missouri. 3 Ben. 508’.</p> <p>2, Same — 21 St. at Larcík. 822.</p> <p>Under the statute approved February 8, 1881, (21 St. 322,) in order to recover any penalty or forfeiture by force of any of the provisions of title 34 of the Revised Statutes, the government must allege and prove that, at the time of the alleged illegal act charged, the master or owner was a consenting party or privy thereto.</p>

<p>1. Removal oe Causes — Amount in Dispute.</p> <p>In a suit to restrain the maintenance by defendant of an awning over a part of a street adjoining the plaintiff's premises, the matter in dispute is the value of the right to maintain the awning, and not the amount of damage done by it to plaintiff. The value of such right held to bo more than $500, within the meaning of Act of March 3, 1875, (18 St. U. S. 470, § 2,) relating to removal of causes from state courts to United States courts.</p> <p>2. Same — Citizenship—Dependant Sued in Representative Capacity.</p> <p>The representative character of a party does not affect his right of removal of the cause from a state court to the United States circuit court. It depends upon his citizenship alone, without regard to that of those whom he represents. or of those who are interested in the controversy, but are not parties to the record.</p> <p>3. Parties — President or Treasurer op Joint-Stock Association — Sued Alone — Code Civi t, Proc. N. T. 1919, 1923.</p> <p>Under sections 1919, 1923, Code Civil Proc. N. Y., suit may ho brought by or against the president or treasurer of a joint-stock association, instead of joining all the individual members.</p>

<p>In Equity. Suit to redeem from mortgage, and to set aside decree of foreclosure. Demurrer to amended bill.</p>

<p>1. Equity — PRACTICE in United States Circuit — Agreed Facts without Pleading — Rev. St. U. S. § 918.</p> <p>This court will not take cognizance oí a caso in equity, in which parlies agree upon a statement of facts, and stipulate that the court shall take jurisdiction, try the cause, and render decree without pleadings.</p> <p>3. Same — Practice in State Courts — Comp. Laws Kan. On. 80.</p> <p>film slalnte of Kansas, authorizing such a proceeding in the courts of that stale, confers no jurisdiction upon this court, sitting as a federal court of equity, nor does it change the chancery practico in this court in any respect.</p> <p> (Syllabus by the Court.) </p>

<p>On motion for Interlocutory Injunction.</p>

<p>1. Carriers — Of Passengers — Lien on Baggage.</p> <p>The fare paid by a passenger to a carrier includes the transportation of his baggage; and the carrier has a lien thereon for the fare, and may detain the same until payment thereof.</p> <p>2. Same — Case in Judgment.</p> <p>R. purchased an unconditional ticket for a passage on the Oregon & California Railway from Portland to Ashland, and, after his ticket had been taken up by the conductor, stopped over at Grant's Pass, without his consent, leaving his baggage, consisting of a large valise, to be carried on to Ashland, where it was taken charge of by the employes of the road. On the next day R. got on the train to Ashland, hut refused to pay the fare thereto, §1.79, when the conductor allowed him to remain on the train, but refused to deliver him his valise at Ashland until he paid the additional fare. Held, that the journey from Portland to Ashland was performed under one contract modified by the action of R. in stopping over, whereby he incurred an additional charge for his transportation, for which the carrier had a lien on the baggage so long as it remained iu his possession.</p> <p> (Syllabus by the Court.) </p>

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

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

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

At Law. Action 'by the United States on an indemnifying bond given under circular No. 186 of the office of the commissioner of internal revenue.

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

In Equity. llotion for attachment for contempt, against Alfred Clifford and Charles II. Rowe. This was a suit against the Southern Barbed-wire Company, Alfred Clifford, John W. Gates, and Citarles H. Rowe for the infringement of a patent. The bill does not state what the relation of Messrs. Clifford and Rowe is to the company, but charges tlicm, together with the company, as infringers.

<p>Ill Admiralty. Proceedings in ram by material-men.</p>

<p>In Admiralty. Distribution of proceeds. Hearing on petition.</p>

<p>Suit for Pilotage.</p>

<p>1, Demurrage — Bill of Lading — Holder’s Liability — Subcontracts.</p> <p>A vessel, in delivering cargo, is not bound to look beyond the owner and holder of the bill of lading. As he has the control of the delivery and acceptance of the goods, he is responsible, on accepting the goods under the bill of lading, for freight and demurrage according to its terms. He cannot relieve himself from responsibility by subcontracts for a delivery to others, who do not act directly under the bill of lading, but only under the consignee’s orders.</p> <p>2. Same — Case Stated.</p> <p>J., the owner and consignee of certain iron rails, sold them to arrive, to a railroad company, to be delivered “ex ship, free of duties; terms, cash on handing invoice and order'on vessel when they arrive in Hew York.” On arrival, J. entered the goods at the custom-house, and paid duties and freight. P. & 0., who had acted as agents for J. in some matters concerning the rails, procured the ship a berth, and received from J. the invoice and order on the vessel for delivery, with a request to collect payment from the railroad company, which they subsequent^ did. There was unreasonable delay in unloading the ship, partly in removing the iron from the dock, and partly through difficulty in getting lighters. Held that, whether or not P. & 0. roally acted in reference to the delivery of the iron for themselves or for the railroad company, J. was liable to the ship for the demurrage, and must look to his vendees or to P. & 0. for his indemnity, if the delay was by their fault.</p>

<p>Admiralty — Practice—Stipulation for Value — Estoppel—Limited Liability — Amendment—Reappraisement.</p> <p>Where, upon arrest, a vessel is released upon a stipulation given for her value, and by subsequent amendment, in the progress of the cause, is allowed to plead the statutes in limitation of liability, the owners are not estopped by the stipulation from showing that the stipulated value included the value of subsequent repairs. Tlie stipulation for value to release from arrest and the undertaking given under the statute of limited liability being for different purposes, reappraisoment should be allowed to fix the value of the vessel and freight at the termination of the voyage, as determining the statute limit of liability in case the owners are found entitled to its benefits.</p>

<p>In Admiralty. Suit for damages and wages.</p> <p>Appeal from district court. Decree in 28 Fed. Rep. 855, affirmed*</p>

<p>1. Triar — Exhibition on Paper to "Witness — Right on Opponent to Inspect Paper.</p> <p>The exhibition of a paper to a witness on the stand entitles the opposite party to an inspection of the paper.</p> <p>2. Sauk — Exhibition on Signature.</p> <p>But, where only the signature attached to a paper is exhibited to the witness. that fact does not entitle the opposite party to inspect the paper containing the signature.</p> <p>3. Same — Production op Papers — Test op Veracity op Witness.</p> <p>The issue in the case being whether J. C. had been the wife of B. 0., deceased, the question was whether certain papers bearing upon the relations of the parties, and in the possession of C. C.. executor of B. 0., and defendant herein, should ho produced prior to the examination of J. C. 1LM that, the veracity of ,T. 0. being largely involved in this case, she should give her testimony before inspecting the papers, in order to better enable the court to judge of her veracity.</p> <p>4. Executors and Administrators — Claim by Alleged Wipe — Examination</p> <p>op Executor Touching Estate — Proof op Marriage. Where the issue is whether a woman was the wife of a person now deceased, the executor of such decedent should not be examined touching decedent’s estate until after the decision of the court upon the principal question, viz., the question of marriage.</p>

<p>1. Public Lands — Centbal Pacific Railroad Grant — Map of Genebal Route.</p> <p>The map of the route of the Western division of the Central Pacific Railroad, filed with the secretary of the interior, December 8, 1864, is the map of the general route, and not of the line as “definitely fixed, ” within the meaning of the land-grant act of 1862.</p> <p>2. Same — Definite Location.</p> <p>The map of the route of said road, as finally located and constructed, filed with the secretary of the interior, February 1, 1870, and accepted as such by that officer, is the map of definite location.</p> <p>3. Same.</p> <p>The Moquelamos grant was finally rejected, February 13, 1865, after which the lands within the, exterior boundaries of the grant ceased to he subjudiee. and became public lands, to the odd sections of which, within 20 miles of the line of the road, the right of the railroad company attached, and became indefeasible, immediately upon the filing of the map of definite location of the road, and the acceptance thereof as such by the secretary of the interior.</p> <p>4. Same — Estoppel.</p> <p>Matters of estoppel as to lands lying oast of range line, between ranges 7 and 8 E., Mt. Diablo meridian, discussed.</p> <p>5. Same.</p> <p>The withdrawal of the lands upon filing the map of the general route of the road, for 25 miles on each side of the line indicated, protected the lands against the attaching of any other right as against the railroad company, until the filing of the map of definite location.</p> <p> (Syllabus by (he Court.) </p>

<p>Nuisaitce — Preliminary Injunction — Fertilizer Factory.</p> <p>A. filed a t>ill for an injunction to abate a nuisance, alleging that he was the owner of a farm bounded by a public road on which B. had erected and was operating works for making fertilizers, the fumes and gases from which injured and destroyed his fruit trees and crops, and frequently compelled the doors and windows of his dwelling to be kept closed, to protect the inmates from the offensive and sickening odors. B. answered, denying the injury, and alleging that he had operated the works for several years; that it was only occasionally that any inconvenience was caused thereby to A. and his family; and that he had invested $20,000 in the works, and did a business of $50,000 per annum, which would be ruined if the injunction prayed for was granted. Seld, on motion for a preliminary injunction, that under the circumstances a preliminary injunction should not be granted.</p>

In Chancery. In the matter of Matthew B. Winbourn, praying for compensation for personal injuries. On exceptions to master’s report.

<p>Raileoads — Liability op Receivers — Personal Injuries.</p> <p>Winbourn’s Case, o,nte, 167, followed.</p>

<p>At Law. Motion for a new trial.</p> <p>This action is by William B. Cooper, Jr., to recover of the defendants the sum of £5,000, with interest, amounting in the aggregate to S28,~ 502.56. At the time of the transaction in question, in the spring of 1884, the plaintiff was a commission merchant in the city of New York. The defendants were engaged in the business of banking in the city of London, with a branch office in New York. During the same period, Martin, Turner & Co., of Glasgow, Scotland, were In the East Indian trade, having a branch office in London. Their banking business was transacted at the Bank of Scotland, which also had a branch office in London. On the fourteenth of December, 1888, the plaintiff having a letter of credit permitting him so to do, drew a draft upon the Glasgow firm of Martin, Turner & Co. for £5,000, payable in London to the order of himself. This draft was due February 29, 1884. It was the plaintiff’s duty to take it up at maturity. On the twenty-sixth of February he went to the office for the defendants, in New York, and purchased a cable exchange for £5,000, which was sent by them to Loudon, reaching there-the next day, February 27th. The money was on that, day deposited in the Bank of Scotland, London, to the credit of Martin, Turner & Co. At the same time a dispatch was sent by the defendants, in London, to-Martin, Turner & Co., at Glasgow, announcing that at that moment they were paying to their credit at the Bank of Scotland the sum aforesaid. On the same day they wrote to the Glasgow firm that the amount had been paid to their credit. The loiter reached Glasgow on the morning of the 28th. It is undisputed that if a draft bad boon inclosed, that also would have reached there at the samo time. The payment to the; Bank of Scotland was made pursuant to written instructions received by the defendants, at London, from Martin, Turner & Co. Upon the 28th,. Martin, Turner & Co. having received advices from their East Indian correspondents, became convinced that it was idle for them to continue-longer in business, and upon the morning of the 29th they closed their doors. The money was paid to tbe Bank of Scotland without specific instructions, and a general credit was given to Martin, Turner <fc Co. upon the books of the bank. The firm was indebted to the bank to a considerable extent, and the money was retained to lessen this indebtedness. The plaintiff received no benefit from it. It was not used to take up the draft. The plaintiff insists that the money was lost to him by reason of the failure of the defendants to obey specific instructions given by him to them upon the twenty-sixth of February. He testified that he informed the agent of the defendants that the money which he was about to send to Martin, Turner & Co. belonged to him; that it was sent to take up a draft shortly to fall due; that he wished it sent by cable to London, and from thence by mail, in the form of a check, to Martin, Turner & Co., at Glasgow; and that the defendants agreed to these terms. The defendants deny that any specific instructions were given, and insist that the money was sent in the usual way, and was paid to Martin, Turner & Co. as directed by them. If the money had been sent by mail, so that it could have been identified, it would have been applied by Martin, Turner & Co. to retire the plaintiff’s draft. The jury were instructed that the relation of principal and agent existed between the parties; that the plaintiff had a right to prescribe the manner in which his funds should be sent, and if the defendants, knowing that the funds were his, and that they were transmitted for a special purpose, contracted with him to send them in a particular way, and loss occurred by their failure to keep that agreement, the plaintiff was entitled to recover. If, however, there was no such agreement; if the defendants did not know that the money belonged to the plaintiff, or that it was to be sent for a specific purpose; if the circumstances were such that they had a right to assume that it was the money of Martin, Turner & Co.; if, in other words, it was sent in the usual course of business, without any particular instructions, — then the defendants were entitled to a verdict. The jury found for the plaintiff. The defendants excepted to the refusal of the court to direct a verdict in their favor, and also to the refusal to charge that the money belonged to Martin, Turner & Co. as soon as it came under their control, and also to that portion of the charge where the jury were instructed, in substance, that if they found the agreement to be as stated in the plaintiff’s testimony he was entitled to recover.</p> <p>The defendants now move for a new trial upon the ground that the plaintiff has no cause of action, and that the verdict is against the weight of evidence.</p>

<p>ATTACHMENT — DISSOLUTION BY AMENDMENT.</p> <p>An attachment is not dissolved by an amendment of the writ and doolaration increasing the amount claimed, made after another attachment has intervened, where the first attaching creditor, upon obtaining judgment for the increased amount and taking out execution, directs the sheriff to levy only for the amount originally claimed.</p>

<p>1. Army and Navy — Courts-Martial—Jurisdiction—Desertion.</p> <p>The military courts have jurisdiction, to try all military offenses, committed by parties enlisted in the military service of the United States, among which, is, the offense of desertion.</p> <p>2. Same — Jurisdiction op Civil and Military Courts.</p> <p>The civil courts have no authority to review, control, or in any manner interfere with the action of the military tribunals, while, regularly, engaged in the exercise of their appropriate jurisdiction.</p> <p>3. Same — Statute oe Limitations.</p> <p>The bar of the statute of limitations provided for in the 103d article of war in the case of a party charged with desertion, is a defense, to be set up in the case, which the military court trying the charge, has jurisdiction to determine for itself, without interference from the civil courts.</p> <p>4. Same — Two Tears’ Limitation.</p> <p>The provisions of the 103d article of war, providing, that, "no person shall be liable to be tried and punished for any offense, which appears to have been committed, more than two years before the issuing of the order for such trial,” is applicable to the offense of desertion; and it is the duty of courts-martial as to this'offense as well as in all cases within its terms, to give full effect to this provision of the statute.</p> <p>5. Same — Desertion op Minor.</p> <p>A minor over 18 and under 21 years of age, who enlists in the army of the United States, without the consent of his parent or guardian, can commit the military offense of desertion, and the military tribunals have jurisdiction to try a minor so enlisting upon a charge of desertion.</p> <p>6. Same — Civil Courts.</p> <p>The civil courts have no jurisdiction to discharge a minor, who enlisted in the army, in violation of section 1117 of the Revised Statutes, who is in custody of the military tribunals, awaiting a trial, ordered to take place before a court-martial, upon a charge of desertion.</p> <p> {Syllabus by the Court.) </p>

Indictment under Rev. St. U. S. § 8242, for carrying on the business of wholesale liquor dealers without licenses. The following letter from the district to the circuit judge states the case: Grand Rapids, Mich., October 13, 1886. Mon. Howell H. Jaolcson — My Dear Judge: At my last term, at Marquette, a case was tried before me involving a question upon which I was in great doubt.

<p>Patents for Inventions — Expiration of Patent — Suit for Infringement— Reforming Decree.</p> <p>A. filed a hill against, B. to restrain infringement of two patents. B., at the hearing, offered no evidence, and an interlocutory decree, sustaining both patents, and ordering an account to he taken of profits and damages, was passed. Subsequently B. moved to open the decree, and strike out so much thereof as directed the taking of an account as to one of the patents, because such patent had expired more than two years before the hill was filed. Held that, as to the expired patent, the court never had jurisdiction, and that it could and should reform the decree as prayed.</p>

<p>Patents eor Inventions--Injunction-New Patent — Contempt.</p> <p>Where defendant was enjoined from making- a certain kind of pen, and thereafter made a different pen, on which he obtained a patent, held, on motion to attach for contempt of injunction, that the fact that a patent had been issued to defendant entitled him to have the question of infringement determined on a motion to prevent the making of this form of pen, and that the present motion should be denied.</p>

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

In Equity. This was a bill in equity for the infringement of letters patent No. 196,650, issued to George H. Flower, October 3G, 1877, for an improvement in lubricators. Application for this patent was filed on the third day of September, 1877.

<p>1. Collision — Sail-Vessel and Steamer — Tacking—Overreaching.</p> <p>A sailing vessel has a right to rely upon the ability of .a steamer to keep out of her way, and that the latter will do so, where there is nothing to prevent; nor is a sailing vessel required to take measures to avoid a steamer by remaining in stays, or overreaching longer than usual, when these measures are not apparently necessary to avoid a collision.</p> <p>3. Same — Bearing Awav — Error op Judgment in Extremis.</p> <p>Bearing away at the last moment to 'avoid instant collision is not a fault, even if a mistake, when caused by the wrongful and dangerously near approach of the steamer.</p>

<p>1. Salvage — Salved Promo bty Brought into United States — Salvage Claims —Customs Duties — Priority.</p> <p>Where property is salved on the high seas, and brought by 1he salvors within the limits oí the United States, the salvage claims are entitled to priority over the claims ol the government for duties.</p> <p>2. Same — Imported Goods — Customs Laws.</p> <p>Goods so brought into the United States are not imported goods, in the sense of the customs laws, so as to necessarily attach the right to duties.</p> <p>3. Same — Sale oe Salved Property — Equitable Right of Government to " be Paid Duties.</p> <p>But where the goods so brought within the United States, subsequently, by virtue of a sale, pass into consumption within the United States, an equitable right on the part of the government to be paid duties arises, not taking precedence, however, of the salvage claims.</p>

<p>Maritime Liens — Domestic Vessel — Departure erom Port.</p> <p>The departure of a domestic, vessel, in the regular course of her occupation, from Brooklyn to Long Beach, on her return making fast to the shore in Ilocltaway inlet, is such a leaving of the port as to prevent the enforcing of a lien against her, arising under the laws of the state of New York.</p>

<p>1. Maritime Liens — Failure to Provide Safe Machinery for Discharge of Cargo.</p> <p>A lien arises against a vessel for damages occasioned by failure to provide safe machinery for the discharge of her cargo.</p> <p>3. Same — Personal Injury — Statement of Case.</p> <p>As a hogshead was being hoisled from the hold of the steam-ship Carolina, a guy-rope, belonging to the ship and used for the hoisting, parted, and the fall of the hogshead injured libelant. The officers of the ship knew of the insufficiency of the rope. No fault could he attributed to libelant. Held, that he should recover his damages against the ship.</p>

<p>Admiralty Appeal.</p>

<p>Maritime Liens — Seamen’s Wages — Wreck—Termination of Yotage — Survey.</p> <p>In case of a wreck, it must be left to the discretion of the master to fix the actual termination of the seamen’s services, under section 4526 of the. Revised Statutes, and his decision will he supported, unless some wrong or injustice be practiced on the seamen. Survey and condemnation of a vessel is not a necessary ingredient of wreck.</p>

<p>COLLISION' — Two Sailing Vessels — Vessel Close-Haulmd —-Vessel Sailing Frew — Luff.</p> <p>The evidence indicated that the collision in this case was caused by a luff on the part of the schooner E., when it was her duty to hold her course, being close-hauled, and meeting the vessel E. W. sailing free.. It not being shown that her luffing was necessary to avoid immediate collision, held, that the luff was a fault, and the E. solely liable for -the collision.</p>

<p>Salvage — Fire—Schooner at Pier — Hauled into Stream — Award — Additional Costs.</p> <p>A fire broke out in oil-works not far from the pier where the respondent’s steam-schooner lay loaded with case-oil. Libelant’s tug took hold of her, and drew her out into the stream. Held, that the service was a salvage service, for which libelant should recover §200, besides §25 added to his taxable costs.</p>

<p>Demurrage — Designation of Wharf — Improper Place.</p> <p>The decision of the district court in the same case (37 Fed. Rep. 316) affirmed.</p>

<p>Collision — Two Soiiooneiis — Faulty Lookout — Change oe Course — Vessel Close-Hauled os Port Tack — Starboard Taok.</p> <p>On the evidence, held, 1hat the schooner 'JR. was in fault for the collision between herself and the schooner B., for not seeing- the lights of the B. intime to avoid her, and also for a change of course. If the deduction were drawn from the evidence that the JR. was close-hauled, and made no change of course, held, that her liability would still bo clear, as she was close-hauled on the port tack, and hence bound to avoid the B., close-hauled on the starboard tack.</p>

<p>Maritime Liens — Supplies—Steam-Dredge a “Vessel.”</p> <p>A steam-dredge is a vessel, within the meaning of the law, and, as such, subject to a maritime lien for supplies.</p>

<p>Col us roN — Steam-Boat and Tow — Dkaw-Biudoe — Custom —Doty to Keep in 'PartictJuak Side oe Channel.</p> <p>The steamer T. P. W.. after passing through the western passage of the draw in the railroad bridge over Newark bay, met with the lug W. 8., with a scow and libelant’s schooner in tow. It is customary for vessels bound both up and down the river to use the west passage. The tug whistled twice 1,o the steam-boat, which made no reply, and continued on in about the middle of the channel. Jleld, that it was the duty of the steam-boat, after passing through the draw, to boar to the east, and allow the tug to pass through the western passage; that she was therefore solely liable for the collision.</p>

<p>1. Carriers — Of Passengers — Duty as to Landing.</p> <p>A carrier’s contract with bis passengers includes the landing of tbem in the usual and safe way. '</p> <p>2. Same — Injunction—Impossibility of Landing — Obligation of Carrier.</p> <p>-Where a steam-boat was prevented by injunction from landing at the only dock at Sands Point, held, that she was under no obligation to her charterers to take passengers to Sands Point, and leave the charterers to provide a way of getting the passengers ashore.</p> <p>3. Chautbb-PaRty — Guaranty—Wike op Chaktmrkr — Liability op Wife.</p> <p>The wife of one of the charterers guarantied the faithful performance of the ■ charter, but without charging her separate estate. Held, on broach of the charter, that she could not be hold liable on her guaranty.</p>

<p>1. Carriers — On Goods by Vessel — Damage to Cargo — Presumption as to Undamaged Portion or Cargo.</p> <p>Proof that some part of a cargo endured the voyage without damage does not raise the presumption thart damage to another part of the same cargo during the same voyage was occasioned by bad stowage.</p> <p>2. Same —Bill op Lading — Exception — Perils op the Sea — Statement op Case.</p> <p>Casks of indigo auxiliary, belonging to libelant, were injured during a voyage in the steam-ship P. Other casks in the same tier, similarly stowed, were uninjured. The bill of lading excepted damage from perils of the sea. Claimant proved the encountering by the ship of weather sufficiently heavy to warrant* the conclusion that the cause of damage was the motion of the ship. Held, that libelant could not recover, if the cause of the damage was weakness in the casks. If the cause was strain resulting from the motion of the ship, the exception in the bill of lading would relieve the ship from liability, in the absence of proof of bad stowage. Libelant did not prove bad stowage. Held, therefore, that he could not recover.</p>

<p>Saltare — Fire—Towage—Award.</p> <p>On November 11,1886, fire was discovered in tbe bold of a cotton vessel loading at tbe wbarf at West Point, Virginia. A tug went to ber, and towed ber away from tbe wbarf into deeper water, where sbe was sunk by ber crew, and tbe fire thus extinguished. Tbe service was not attended with any danger to tbe tug or ber crew. Tbe value of tbe vessel and cargo in their damaged state was $72,000. Tbe court awarded $500 as salvage.</p> <p> (Syllabus by the Court.) </p>

<p>Towing and Towage — 1Tug and Tow — Negligence—Sunken Rock.</p> <p>A tug is required to have a knowledge of the condition of the bottom and of the depth of water in the river that she is navigating. The master of a tug employed in the Harlem river should certainly be aware of the existence and location of a well-known reef; and if his tow, in consequence of this ignorance, is injured, the tug will be liable.</p>

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

<p>1. Carriers- — 0» Goods — Cargo Injured — Damages.</p> <p>The rule of damages as regards goods delivered at their destination, but injured through negligence, is the difference of their market price in their . sound and in their damaged condition. If destroyed, it is their market value, if sound, at the place of discharge.</p> <p>2. Same — Foreign Markets.</p> <p>Ho changes in foreign value can he regarded.</p> <p>3. Same — Duties Paid by Carriers.</p> <p>Ho deduction for unpaid custom-house duties should be allowed to the carrier. ,</p>

<p>1. Pleading — Issue upon Insufficient Pleading.</p> <p>Having taken issue upon the plea, the complainant cannot afterwards assert that the facts alleged are not a good defense to the bill.</p> <p>2. Contiiact — -Pbivity—Who Bound.</p> <p>Complainant was bound by a contract, although he did not sign the written memorandum, and was not mentioned as a party in it, by which suits then pending between himself and defendant over the infringements of patents were to bo dismissed, and defendants wore to be licensed to use the patented inventions: it appearing that, though complainant did not himself sign the instrument, he participated in the negotiation which led to its being signed, was present at. the signing, knew its terms, and intended to allow the parties who did sign to adjust the whole matter, as they were principally interested in effecting a settlement.</p> <p>8. Same — Completed Contract.</p> <p>A written contract, although inartifioiaUy drawn, obscure, and capable of different interpretations in several particulars, yet its provisions embracing, although in very inadequate terms, every matter which the parties had definitely agreed to, and the circumstances surrounding its execution being consistent with no other conclusion, must be regarded as a completed agreement or contract, and not merely as an agreement to agree.</p>

<p>Attorney and Client — Changing Attorney — Lien.</p> <p>A litigant has the right, in general, to change his attorney at pleasure, nor is this right barred by a prior contract to pay the attorney a fee contingent on the amount recovered. Such a contract is to be construed as fixing the mode of compensation only, subject to such reasonable changes as subsequent circumstances may make proper. But, where a' change of attorney is made, it should be upon security for his fees. In this case the plaintiff was required to file a stipulation with an order declaring the attorney’s lien pro rata upon any money or judgment recovered, to the extent that might be thereafter determined, should the plaintiff be successful in the suit, and notice of such lien should be given the other party.</p>

<p>1. Libel — One Libel does not Justify Another.</p> <p>A libel upon the plaintiff cannot be justified by a previous wholly independent libel upon the defendant: and the latter cannot even be given in evidence in mitigation of damages where any considerable interval has elapsed.1</p> <p>2. Same — Pleading Truth in Justification.</p> <p>Where the libel complained of Is that defendant published that “the wretched idiot [meaning the plaintiff] set about to injure us [meaning defendant] by trying to oast doubt upon some of tbe early pedigrees as they appeared in the register, [meaning defendant's book of pedigrees of horses,]" and defendant in his answer alleged in detail the instances in which the plaintiff had tried to cast doubts on the earlier pedigrees in defendant’s register, held, that these allegations were in effect averments of the truth of the alleged libelous matter, and set forth the specific instances referred to in the general assertion. Such matter was competent, under Code Civil Proc. N. Y. §§ 535, 536, alio wing, defendant to prove mitigating circumstances, and facts not amounting to a complete defense, tending to mitigate or reduce plaintiff’s damages, if the facts are set forth in the answer.</p>

<p>False Imprisonment — No Especial Loss — Recovery.</p> <p>On the evidence, held that, as no loss resulted to ulo libelants from the admittedly wrongful detention on board defendant’s vessel, $100 would be sufficient remuneration for the infringement of their personal rights.</p>

Sur Rule for a New Trial. This was an action brought by the United States against John G. Poul-son, a surety on the official bond of F. F. Burmeister, who was pension agent at Philadelphia from February, 1867, to May, 1869. The bond was joint and several, and was dated March 13, 1867. Burmeister’s last monthly statement showed a balance due him by the United States of $4,531.26.

<p>1. Criminal Practice — Venue—Removal of Prisoners — Evidence.</p> <p>Where prisoners have been held by the commissioner upon conflicting evidence, both as regards identity and the commission of the offense, for removal to another district for trial, under section 1014, Rev.-St., and there is sufficient proof both of identity and criminality, aside from the evidence in behalf of the prisoners, the court should not examine the evidence as an original question, hut is required by section 1014 to issue the warrant of removal.</p> <p>2. Burglary — Breaking- into Post-Office — Rev. St. U. S. § 5478.</p> <p>Section 5478, Rev. St. U. S., requires evidence of forcible breaking into the premises. Persons found attempting a burglary are not entitled to the benefit of any presumption that they had previously secreted themselves within the building, it appearing that all persons had apparently been previously removed from the premises.</p>

<p>1. Patents for Inventions — Copartners—Dissolution—Implied License.</p> <p>The extent of an implied license to make and sell patented articles is to he construed according to the presumed intent of the parties, as inferred from the circumstances.</p> <p>2. Same — Receiver’s Right to Sell — Injunction.</p> <p>A firm having been largely engaged during several years in manufacturing and selling stoves upon designs patented by one of the partners, and accounts between them having been repeatedly settled embracing such sales, and the profits thereon, as firm business, held, without regard to the question whether the patent was equitably the exclusive property of the patentee, (1) that a license by the patentee to the firm to make the stoves and to sell those manufactured was implied; (2) that such license, by necessary implication, was coextensive with the business of the firm, and continued until the copartnership affairs were wound up by any lawful agencies for that purpose; (8) that, consequently, the copartner of the patentee had the same authority after dissolution as before to sell for the benefit of the firm the stoves manufactured for sale before dissolution; and (4) that a receiver of the partnership effects, appointed by a state court in a suit brought for winding up the affairs of the partnership, had a similar authority to sell the stoves remaining on hand, both as the representative of the parties, and as a lawful agencj^ for closing up the partnership business, and was by necessary implication included in the implied license; an application for an injunction to restrain him from selling was therefore refused.</p>

<p>Patents for Inventions — Register for Car Pares — Infringement.</p> <p>A’patent, No. 260,526, dated July 4, 1882, granted to John B. Benton for an improvement in car-fare registers, and consisting of a combination which includes a tell-tale hand to indicate any failure to reset the trip-hand of the register at zero at the commencement of a trip, is not infringed by a device incapable of being fixed at the point where registration is begun away from the proper place, so as to indicate that fact, or act as a tell-tale at all.</p>

<p>Tn Equity.</p> <p>The court heretofore decided (Kittle v. Hall, 29 Fed. Rep. 508) that the complainant, although the third claim of his patent was invalid as having been irregularly inserted, was, nevertheless, the patent being about to expire, entitled to a decree for an accounting as to the valid claims. No disclaimer was filed, and the defendants now move to dismiss the bill for that reason.</p>

<p>1. Patents fob Intentions — Llability of County fob Tnfbingement — Fbaud OF CONTBAOTOfi FOB COUNTY JAIU.</p> <p>A contract for building a county jail provided for a patent lock device, which was put in by the contractor or a subcontractor, but without, authority from the owner of the patent. In less than two years after the county took possession of the jail the patent expired, and in the mean time the lock device was not used. The county authorities knew nothing of the contractor having put in the lock without authority from the patentee. Held, that the county was not liable in tort for infringement of the patent.1</p> <p>2. Same — Assignment—Damages fob Puro» Inebinoements.</p> <p>The assignment of a patent does not ordinarily transfer the right to damages for infringements prior to the assignment; and held, that a salo and assignment by an administrator, under order of court, of a number of patents belonging to the deceased, some of which had expired, the sale being for a nominal sum, contained no circumstances to vary the general rule.</p>

<p>1. Counties — In Kentucky — Liability for Infringement of Patent.</p> <p>A Kentucky county is a corporation, and an action can be maintained against it for the infringement of a patent.</p> <p>2. Patents for Inventions — Action for Infringement — Pleading—Rev. St. II. S. § 4919.</p> <p>Under Rev. St. U. S. § 4919, providing that “damages for the infringement of any patent may he recovered by action on the case, ” it is sufficient that the plaintiff's pleading, in an action to recover such damages, contains all the ah legations material to make an action on the case, and it will not he demurra-ble because called a “petition,” the Code term, instead of “declaration,” the common-law term.</p> <p>8. J odgment — Conclusiveness—PatentJUight—Executor's Sale — Confirmation.</p> <p>Where a court, having general jurisdiction of the estates of decedents, has confirmed a sale by an administrator of a right of action for infringement of a patent owned by the decedent, the order thus made is conclusive upon another court, in which an action is brought by such assignee upon such right of action, of the assignee’s right to sue, and the latter court will not inquire whether the former court could, under the statutes of the state, legally sell such assets, or whether the original order of sale was broad enough to include the chose in action.</p>

<p>On Demurrers to Plaintiff’s Petitions.</p> <p>These are actions to recover of the defendants for alleged infringements of a patent, issued October 4, 1859, to Edwin May, for an improvement in the construction of prisons. The original term of the patent was fourteen years, which was subsequently extended for seven years, the extension expiring October 4, 1880. The patentee, a resident of Indianapolis, died testate February 27, 1880. Edwin Forrest May, appointed executor of his last will March 6, 1880, resigned June 7, 1880, when George F. McGinnis was appointed administrator de bonis non, with the will annexed. December 30,1880, said administrator reported to the civil circuit court, of Marion comity, Indiana, that all the real and personal estate of said decedent which hail come to his hands or knowledge had been sold, except the rights of said decedent in certain letters patent; that a favorable opportunity offered for selling such rights; and that he believed it for the best interest of said estate to soil said rights at private sale. The court thereupon authorized and empowered said administrator so to sell said rights. March 7, 1882, said administrator reported that he had sold such rights to Sarah May, and had executed to her a deed of assignment of such rights, which ho brought into court for approval, and thereupon the court ratified and confirmed said sale, and, upon examination, ratified, confirmed, and approved the assignment thereof. The assignment recited the procuring of the said letters patent, and also five other letters patent of subsequent dates, and the sale of all the right, title, interest, claim, and demand of said estate in, to, by, under, and through the same, and purported to “sell, assign, transfer, and set over unto the said Sarah May all the right, title, interest, claims, and demands whatsoever which the said estate "of said Edwin May, deceased, has in, to, by, under, and through the said improvements and the letters patent and extensions thereof therefor aforesaid; the same to be held and enjoyed by the said Sarah May for her own use and behoof, and for the use and behoof of her legal representatives, to the full end of the term for which said letters patent and extensions thereof are or may be granted, as fully and entirely as-the same would have been held and enjoyed by said estate had 'this assignment and sale not been made, and as by and under the order and authority aforesaid I, as such administrator, can or ought to grant, sell, and assign the same.”</p>

<p>1. Carriers — Oí1 Goons — Connecting Lises — Negligence.</p> <p>Connecting carriers are not liable to the owner oí goods for the negligence of each other, except upon some contract or understanding making' them so.</p> <p>2, Same — Through Bills of Lading — Transhipment—-Prior Damages — Offset.</p> <p>A through hill of lading, providing for a transhipment to another vessel at an intermediate port, and for payment of the whole freight at the port of discharge, does not import the joint liability of each, or that the latter carrier is the agent of the former, but independent rights of the latter ship, and does not impose upon the latter vessel any liability for damages occasioned by prior negligence. She is therefore entitled to collect her just freight upon delivery of the goods, without offset or deduction for prior damages without her fault.</p>

<p>Costs — Marshal—Disbursements for Suir-Keeper — Keeper Engaged by Claimant — Delay in Sale of Vessel.</p> <p>The steam-ship S. J., condemned to be sold, remained in the custody of the United States marshal. By an arrangement between the proctors for the parties the sale was adjourned from October to February, the proctors for the claimant agreeing to place a watchman on board. No direction was given the marshal by any person to release the vessel, nor was any order of court to that effect applied for. Held, (1) that such an agreement, whereby thevessel remained so long in the custody of the marshal without necessity, was not approved by the court; (2) that the marshal was correct in keeping his watchman aboard, in the absence of the court’s sanction of his removal; (8) that the marshal was entitled to tax in his costs the amount actually disbursed by him for a ship-keeper, notwithstanding the presence on the vessel of the keeper employed by claimant.</p>

<p>1. Vitare and ViiAitEiNGiaii,— Floating Boat-House — Maritime Contract — ■ Lien.</p> <p>An implied contract for Uie wliarfago of a floating boat-liouso is a maritime contract by reason of the subject-matter, and a lion attaches for the wharfage, enforceable in admiralty.</p> <p>2. Same — Rate—-New York State Statute.</p> <p>Held, that the rate of wharfage fixed by the Hew York state statute regulating1 wharfage in Hew York and Brooklyn should bo adopted here as the rate chargeable against the structure in question.</p>

<p>1. Salvage — Steaw-Siiips—Loss on Rtjddkb — Lee Shore —Award.</p> <p>The Spanish steam-ship Gallego, when oil the Florida coast, lost her rudder and rudder-post. For two days she drifted, with a signal of distress set, in a direction that would shortly have carried her on a lee shore, various vessels passingher, but none offeringher assistance. The steam-ship Lone Star, bound from Galveston to New York, finally came to her assistance. Your hawsers were passed from the Gallego’s quarters to the bows of the Lone Star, by means of which the latter was enabled to steer the Gallego, hauling her stern from side to side, as occasion required. Abandoning for the time her voyage to ÍTew York, the Lone Star brought the Gallego safely to Havana. In doing so she encountered risks, and was actually damaged by collision with the Gallego, and in other ways, to the extent of §2,451.96. The Gallego and her cargo were worth §476,764. The Lone Star and her cargo were'valued at §440,265. Held, that §25,000 should be awarded the Lone Star as salvage, besides the actual expense which she incurred.</p> <p>2. Admiralty — Evidence—Notary’s Certificate to Protest.</p> <p>The official certificate of a notary proves the making of a protest, and what it contains. It is competent evidence in a court of admiralty, and the examination of the notary by commission, in order to prove the protest, is not necessary.</p>

<p>1. Collision — Schooners.</p> <p>The schooners A. and B. were sailing off Cape Cod. Between 9 and 10 o’clock at night both vessels were heading about W. byN., on their starboard tack, B. being a quarter to a half mile in the rear of A. The wind was coming from the S'. N. W. There was from five to seven miles of navigable water between the vessels and the shore. B. changed her course about two points southward, and ran under A.’s stern. Soon after, B. again changed her course to go about, across A.’s bows, missed stays, and before getting off was struck and sunk. No light was displayed from B.’s stern after passing A. Held, that B. was guilty of negligence, and that there could be no recovery against A.</p> <p>8. Same — Absence of Torch.</p> <p>Failure to display a light or torch required by the statutes is negligence, if there is a possibility that a collision would have been avoided had the requirements of the statutes been observed.</p>

<p>1. Collision — Fog—Piers and Slips — Tug—Ferry-Boat—Moderate Speed.</p> <p>While a tug' taking a tow to her customary place to lie up for the night is not hlamable, in a dense fog at night, for going near tó the piers and slips, she is bound to use a corresponding degree of caution, and ferry-boats are bound to the same caution, and to use moderate speed in approaching and entering their slips.</p> <p>' 2. Same — Case Stated.</p> <p>The ferry-boat J. R., from Hoboken to the Twenty-third street slip, Hew York, in a dense fog at night, in the flood-tide, crossed the river under a slow bell. On making the lights of her feriy-slip she found herself a little above her slip, and thereupon ported, and rang her bell to go full speed. Soon after a tug and tow were seen crossing her ferry-slip entrance, and, notwithstanding reversal, a ‘collision ensued. Held, both in fault, — the tug, for too great speed, for having her red light hid, and for not sounding fog signals, and for inattention and want of lookout in not hearing the fog-bells and whistles which were sounded near her; the ferry-boat, for going under full speed when near her slip, notwithstanding the liability of other vessels being unavoidably near in the fog, and full speed not being necessary to enter her slip.</p> <p>3. Same — Damages—¡Old Boats — Notice.</p> <p>The recovery in favor of an old boat is not to be limited to half her damages, unless there is some fault on her part, actual or constructive, such as the failure to give notice of her weakness, where there is opportunity to do so, in a place of risk, or where her exposed position is of her own selection. In a collision that is wholly unexpected, and without any fault on her part, she is entitled to full indemnity, and to repair corresponding to her previous condition.</p>

<p>1. Admirat.ty — Practice—Motion to Reduce Stipulation.</p> <p>II: a vessel and cargo are attached upon the allowance of a libel for salvage wherein no amount is named, and if a release of the property attached is subsequently effected, out of court, and by agreement of the parties, a motion to reduce the amount of the stipulation given in advance of a hearing of the cause upon its merits, made after the vessel and cargo are no longer within the jurisdiction, will be denied; but, if a stipulation bo executed under an order of court, or under section 911 of the Revised Statutes, the rule is otherwise.</p> <p>3. Same — Motion in Advance op Hearing.</p> <p>Whore the parties themselves have agreed upon the amount of stipulation to bo given to effect the release of property attached by order of court, a motion 1 ¿'reduce the amount so determined, in advance of a hearing of the cause upon its merits, will be denied.</p>

<p>Collision — Tugs and Tows — Bast River — Bend in Stream — Contrary Signals — Wrongful Persistence in COURSE — State Statutes.</p> <p>Two tugs, with, tows along-side, were navigating in the Bast river, and approaching the bend at Corlear’s Hook; the D. going up with the flood-tide, the €r. coming down. The state law required them to navigate in mid river. Both were considerably on the Slew York side, the G. a little nearer than the I). They exchanged contrary signals twice, and each steered'to the westward, and persisted in doing so until a collision happened between their tows. Held, both liable; the D., first, for improperly assuming that the because her green light was seen across the bend on the D/s port bow, was intending to cross to starboard; second, for not stopping and backing sooner; the ft. for not stopping in time; and both for persistent steering to the westward.</p>

<p>CoijMsion — Da mase — Detention by Ice WinxE Waiting for Dry-Dock.</p> <p>Libelant's vessel, alter having been damaged by collision, proceeded to a dry-dock lor repairs. While awaiting her turn at the dock, she became surrounded by ice, so that when the dock was clear she could not got to it, and in this way some days were lost. Held, that this time lost should not be charged against the colliding vessel as part ol libelant's damage.</p>

<p>1. Seamen — Leg Broken — Medical Attendance — Duty of Master.</p> <p>It is the duty of a master to procure any medical attendance that may be available, at ports where the vessel touches, for the benefit of seamen injured, where there is reasonable evidence of a necessity for it.</p> <p>3. Same — The Case — Damages.</p> <p>The libelant's leg having been broken 13 days before arrival at St. Helena, the master did not call in medical aid, because he did not believe the seaman’s leg was broken, and thought him shamming, notwithstanding the seaman’s persistence that his leg was broken, and various circumstances indicating serious difficulty. The leg might there have been properly set. Upon arrival at New York, it was found grown together in so bad a position as permanently to disable his limb for seaman’s duties. Five hundred dollars damages were allowed. ,</p>

<p>1 Federal Jurisdiction — Citizenship op Parties — Conflict op Jurisdiction —OoNBTIlüüTrON oif IVtil-Executors.</p> <p>Bill by one of three executors, against co-executors and the legatees, for enforcement of the trusts of the will, and especially for sale of the Ilygoia Hotel, situated on the territory of the United States at Fortress Monroe,, and erected, held, and maintained by virtue of certain acts of congress, and subject to certain regulations contained in deeds from the secretary of war. The will was probated in the county court, of .Elizabeth. City county, Virginia, ■where the executors qualified. Bill alleged that plaintiff was a citizen of Massachusetts, and the defendants all citizens of Virginia; that, owing 1o disagreements and differences between the executors, and for other reasons, it was impossible to execute the trusts of the will without the aid of a court of equifv. On general demurrer held: (1) The citizenship of the parties as alleged’ being admitted by the pleadings, and the validity of the will and the regularity of its probate-in the state court being conceded, there is no conflict of jurisdiction between that court and this. (3) The allegations of the bill show such a contest and disagreement between executors concerning the administration of the trusts of a will as to bring the case within the usual and ordinary jurisdiction of a court of equity.</p> <p>3. SviIH — CUAKAOTKU OP CONTROVERSY — FORTRESS MONJIOB.</p> <p>In such a suit, upon a plea to the jurisdiction, alleging that one of the executors and all of the legalees were citizens, not or Virginia, hut wore residents of territory within the exclusive jurisdiction of the United States at Fortress Monroe, held: (f) The federal court has jurisdiction by reason of the character of the cause, irrespective of the citizenship of the parlies. (3) The Iiygcia Hotel, being located upon territory of the United States at Fortress Monroe, federal jurisdiction is complete under the federal constitution, (article 1, 8, cl. 17.) (8) The federal court also has jurisdiction under the federal</p> <p>constitution, (article 8, § 3,)by reason of the necessity for a construction of the several acts of congress, by virtue of which said hotel was erected, and which define the terms upon which it shall bo maintained, held, and transferred.</p> <p>8. Same — Ceded Territory.</p> <p>Query: Have the courts of the United States jurisdiction, by reason of the citizenship of parties, when the controversy is between plaintiff, a citizen of one state, and defendants, one of whom is a resident of a different state, and the others of whom are residents on territory coded by a state to the United ¡States for the purposes of a fort?</p> <p> (Sj/llabus hy the Court.) </p>

<p>1. Equity — Pleading—Amendment—Variance.</p> <p>A hill'bro'ugb.t to charge the directors of an insolvent national hank with the amount of losses caused by the bank’s failure, alleged that one of the defendants sold and transferred his stock on a day named, but the evidence showed that defendant had not paid anything for'the stock, but delivered it to a messenger of another one of the defendants, from whom he had agreed to purchase it, and that such defendant then sold and indorsed the stock to a third party, as it was agreed he might do if he so desired. Plaintiff moved to amend the bill to conform to the proofs, and make it allege that the transfer was merely formal. Meld unnecessary.</p> <p>2. Banks and Banking — National Bank — Receivers—Suit against Directors.</p> <p>A receiver of an insolvent national bank, in his own name or in the name of the bank, may enforce against the directors, for the benefit of the stockholders, depositors, and other creditors of the bank, any right or claim resting upon the non-performance or negligent performance of their duties that the bank itself could have enforced.</p> <p>3. Same — Resignation of Director — Liability for Subsequent Losses.</p> <p>A director of a national bank who, before the expiration of his term, sells his stock, and orally resigns his office to the president, in his place of president at the bank, and afterwards receives the money for liis stock, prior to the sustaining of losses by the bank, ceases to be a director, and cannotbe held liable for subsequent losses caused by the negligence of the directors.</p> <p>4. Same — President Absent on Sick-Leave.</p> <p>The president of a national bank, being in failing health, was anxious to resign his position, but, at the suggestion of a majority of the directors, consented.to take a year’s leave of absence, and during such absence, and, without any fault on his own part, losses were sustained by the bank, and it became insolvent. Meld, in a suit by the receiver to charge the directors with such losses, that he was not liable.</p> <p>8. Same — Loss Caused by Act of One Director — Negligence of Otiikrs.</p> <p>The directors of a national bank which has become insolvent by reason of losses caused by the discount, from time to time, of paper not properly secured, indorsed by. a director who is a man of wealth, and the largest stockholder in the bank, and in whom the other directors have reason to placa confidence, cannot bo held liable for the mere failure to discover the illegal transactions, and to prevent such director from continuing therein.</p>

<p>Sur Rule to Set Aside Release of Verdict.</p>

<p>L Public Lands — “What abe Abpbopkiatkd. ”</p> <p>By act of congress approved June 16, 1880, there was granted to the state of Nevada 2,000,000 of acres of land, in lion of the sixteenth and thirty-sixth sections of land theretofore granted for school purposes, the same tó be selected from “any unappropriated, non-mineral land in said state, ” in the manner provided in'said act. Held, that lands of which parties had been in the peaceable possession for several years, and on which they had erected costly and valuable improvements prior to the passage of tho act, and prior to any selection thereof by the state, were not “unappropriated * * * public lands, ” within the meaning of said act.</p> <p>2. Same — Lands sub Judjok.</p> <p>While a contest is ponding and undecided in the general land-office, as to the right of the state to select certain lands, and have tho same listed to it, such lands arc mbjudice, and not within the terms of said act.</p> <p>8. Sauio — Fiiaud in Obtaining Title.</p> <p>Where title to government land has been obtained by fraud perpetrated upon the officers of the general land-office, the United States can maintain a suit to vacate and set aside such transfer of title.</p> <p> (Syllabus by the Court.) </p>

<p>1. Public Lands — Tax Sale — Patent—Ejectment—Wild Lands.</p> <p>A. entered on wild and unoccupied lands, but had obtained no patent for them up to the time they were sold for taxes. Subsequently to the sale he obtained a patent. Held, the patent related back to and confirmed the entry, so (hat the purchaser at the tax sale acquired the legal title, and might maintain-ejectment against A., or one to whom he had sold after obtaining the patent.</p> <p>3. Estoppel — Inaction does not Constitute — .Suffering Another to Pay Taxes.</p> <p>The purchaser at the tax sale suffered the purchaser under the patent to pay all the subsequently maturing taxes. Held, this inaction or failure on the part of the former actively to assert title is not sufficient to constitute an es-toppel against his afterwards sotting up his title against the other purchaser. To create an estoppel it must appear that one party has been influenced to pursue a certain course of action by the conduct of another, which in such a case means more than passive inaction.</p> <p>3. Recohds — General Index — “See Record” — Tax Deed.</p> <p>The supreme court of Wisconsin, in Oconto Oo. v. ferrard, 46 Wis. 817, in construing the statute which requires a general index to be kept, in the offices of registers of deeds, of all tax deeds, having held that the entry, “See record. ” in the column of the general index designed for a description of the property' conveyed, is sufficient to put all parties interested upon inquiry, (lie ruling must be the same in the case at bar, although the additional fact appears in this case that, besides the particular deed in question being so indexed, it was (he practice of the register, in a. majority of eases, to so index tax deeds. That fact is not sufficient to distinguish the case from the ferro,rd Case.</p> <p>4. Taxation — Omitted Taxes — Double Sale.</p> <p>The assessment of the hinds in contest for taxation in 1868 was omitted, but in I860, the levy and assessment, was made, not only for that year, but for the omitted taxes of 1868. Held, there should have been, under the Wisconsin statutes, but one sale of each parcel for the aggregate of the two years’ taxes on that parcel, and the issue of one certificate of sale on each parcel. The making of two sales, and issuing of two certifícales, was a violation of law, and rendered the sale nugatory, and the tax deed void; and, as the assessments were concurrent and were returned delinquent at the same time, they cannot he separated, by tlie court striking out from the deed those parts which show a sale for 1868, and allowing to be valid those which show a sale for 1869.</p> <p>. Same — Rbcoteiíy of Possession — Limitations—Good Title.</p> <p>Law's Wis. 1859, c. S3. § 83, provides that no action shall be maintained by the grantee in a tax deed to recover possession of the land convoyed unless such action be brought in three years next after 1-he date of such deed, or unless the grantee shall have paid taxes for five years, or have been in actual or continual possession of the land for three years previous to the expiration of the five years next after the date of the deed. The supreme court of Wis cousin having construed this section to mean that, after the lapse of three" years from the date of recording a tax deed, there being no actual adverse possession during any part of that time, the tax deed draws after it the constructive possession, and ripens into a valid and unimpeachable title without regard to whether the grantee has been in actual possession or has paid taxes on the land for five years, that construction of a state statute by a state court is binding on the federal courts.</p>

This is a bill in equity. The facts are few and simple. The parties are agreed upon most of those that are material. The plaintiff was incorporated by an act of the legislature of the late territory of Nebraska, with authority to build and operate a horse railway in the streets of-the city of Omaha. The act was a special charter, and was approved February 18, 1867.

<p>1. Railroad Companies — Receivership—Labor and Material Liens — Mortgage.</p> <p>Preferred debts for work done and materials furnished, incurred in the operation of a division of a system of railroads owned and operated by a single corporation, are a lien upon all the lines of the system, prior in right to both local and general mortgages</p> <p>2. Same — Non-Paving Lines.</p> <p>The mere fact that someof ike lines of such a system have been paying and others not does not justify a casting of the entire burden of the preferred debt upon the latter.</p> <p>8. Same — Apportionment oe Earnings.</p> <p>Where such a system of roads is covered by general mortgages, and some of its branches by local underlying mortgages, and the entire system is placed in the hands of receivers in proceedings to foreclose the general mortgages, the earnings of the system should, as a rule, be apportioned among the different divisions for payment of taxes and interest on underlying mortgages upon a. mileage basis.</p> <p>4. Same.</p> <p>The ordinary rules of business should be observed, however, and a larger proportion of the earnings may properly be expended upon one division than upon others, in case it is necessary to the prosperity of the system as a whole.</p> <p>5. MORTGAGR — "RrOMTS OI' MORTGAGOR BEFORE FoimCLOSCRB — INCOME.</p> <p>A mortgagor has a right to the absolute control of the income of his property prior to the institution of proceedings to foreclose.</p> <p>6. Judicial Salks — PiTKCHAsrcii’s Eights — Decree.</p> <p>A purchaser at a judicial sale is entitled to look to the judgment or decree for the measure of his rights, and noedlookno further. Lt is his contract with the court, and should not be changed.</p> <p>7. Hame — Tub "Wabash Hale.</p> <p>The decree under which the property of the Wabash, St. Louis & Pacific Kailway Company was sold did not bind' the purchasers to pay the underlying-mortgage debts before receiving possession, nor did the court reserve power-to compel payment of such debts.</p> <p>8. Same— Eights Am-ecttíd Prior to Decree — Estoppel.</p> <p>A, s\ stem of railroads, covered by general mortgages as well as local underlying" mortgages, was placed in the hands of receivers by the mortgagor. ¡Subsequently proceedings were instituted to foreclose the general mortgages, and the foreclosure suits and the original suits wore consolidated, and the receivers were continued in possession, and administered the whole system for the benefit of all parties in interest. The holders of bonds secured by underlying mortgages were represented by their trustees, and a decree foreclosing the general mortgages, and ordering a sale, was entered without objection. The entire property was sold pursuant to the decree, and the purchasers agreedto pay all preferred debts before receiving possession, and the contract of side ivas partially executed. Held, that it was too late, after such decree and sale, for holders of underlying mortgage bonds to object, to the manner in which the earnings of the system had boon applied prior to the decree, and to proceedings to foreclose their mortgages, and too late for the court to so alter the decree as to change the rights of the purchasers.</p>

<p>1. Railroad Companies — Killing Stock — Double Damage Act — North Missouri Railroad Company.</p> <p>The Missouri double damage act is not applicable to the successor of the North Missouri Railroad Company.</p> <p>2. Courts — Federal and State — Construction oe Statutes — Police Regulations.</p> <p>A local double damage act is a police regulation; anda decision of the state supreme court as to whether such a state statute is applicable to a particular corporation, in view of its charter, should be followed by the federal tribunals.</p> <p>8. Same — Receivership.</p> <p>Where, but for the existence of a receivership, the rights of an intervenor would be determined by the laws of the state in which he resides, as interpreted by its supreme court, the fact that a receivership has been instituted should not be allowed to operate to increase his rights.</p>

<p>1. Nl3aT,TGU5tCB — CONTRIBUTORY NEGLIGENCE — INJURY TO PASSENGER ON TRAIN —Starting Train without Notice — Making up Train.</p> <p>While the passengers in an emigrant ear, which had been side-tracked over night, were outside in the morning, the train suddenly started, without any signal being given. Plaintiff, who was one of the passengers, jumped onto the platform of the car next to his own, and, after waiting a moment, until a brakeman who stood in the passage-way moved to one side, ho proceeded to cross to his own car. At that moment the ears separated, having been previously uncoupled in order to divide the train, and plaintiff fell between them, and was run over. The brakeman had remained silent all the time. Jfdd, that there was negligence on the part of the company which was the proximate cause of the injury, and that whether plaintiff was guilty of contributory negligence was a question for the jury.</p> <p>2. SaNe — Instructions as to Contributory Negligence.</p> <p>The jury having been instructed that, if the fault of both parties caused the injury, plaintiff could not recover, held, that a new trial should notbe granted because another part of fhe charg'o defined contributory negligence as some fault or act on the part of the person injured that brought about the injury, or because the trial judge failed to say to the jury that, if they should find lhatbut for the negligence of plaintiff the accident would not have happened, they must find for the defendant.</p> <p>3. Huff Trial — Absence oe Witness.</p> <p>The absence of a witness held not ground for granting a new trial, it being considered that the testimony which it was claimed he would give would not affect the question of contributory negligence at all, and would not justify the jury in finding no negligence on the part of the defendant.</p>

<p>At Law. Motion to strike out demurrer as frivolous.</p>

<p>1, Insurance — Fire — Action on Policy — Six Months' Limitation — From What Date Reckoned.</p> <p>A policy of fire insurance provided that an action to recover upon the policy for a loss should be commenced within six months after the fire occurred, and also that arbitrators should be appointed to ascertain the amount of loss, and no action should be brought until they had made an award, and nothing should be due and payable under the policy until 60 days after the completion of all the requirements of the policy. Held, these provisions should all be construed together, and the six-monihs limitation be reckoned, not from the occurrence of the Are, but from the expiration of the 60 days, when the loss was due and payable. Under any other construction the insured’s right of action might be barred before it had accrued.</p> <p>2. Same — Interest—Alienation—“Sale, Transfer, or Conveyance” — Mort gage.</p> <p>The policy also provided that “the interest of the insured is the entire, unconditional, and sole ownership of the property, and that the policy shall become void by the sale or transfer, or any change in title or possession, of the property insured, whether by legal process or judicial decree, or voluntary transfer or conveyance,” etc. At the time the policy was issued there was an outstanding mortgage on the property, and the insured, after receiving the policy, executed another mortgage upon it. Held, neither of these mortgages was a voluntary sale, transfer, or conveyance of the property within the meaning of the policy, nor did either have the effect to vitiate the policy; especially as the insured'was asked no questions as to any outstanding mortgage, and made no agreement as to future ones.</p>

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

The issue involved in this case was the legality of reappraisement proceedings before the United States general appraiser and merchant appraiser, at the port of New York, on April 8, 1886. The plaintiffs, C. A. Auffmordt & Co., imported from Bremen, per the steamer Main, certain manufactures of silk and cotton, which were entered at the customhouse at the port of New York on March 13, 1886. The value of the merchandise in the invoice was 6,249 francs 50 centimes.

<p>Customs Duties — Forfeiture'of Smuggled Goods — Bona Fide Purchaser.</p> <p>In a proceeding to forfeit goods that have been smuggled into the United States, if it is shown that such goods were actually smuggled or brought in in fraud of the revenue laws, the government will be entitled to a decree of forfeiture under section 12 of the act of congress of June 32,1874, notwithstanding the claimant of such goods purchased them in good faith and for full value, as section 16 of said act, requiring the submission to a jury of the distinct and separate proposition whether the alleged acts were done with an actual intention to defraud the government, and requiring a special finding of the jury as to such fact, only means that the forfeiture cannot be enforced without showing that the goods were willfully and intentionally imported in’ fraud of the revenue laws, and has no application to a bona fide purchaser to whom knowledge of their illicit character was not brought home.</p>

<p>Patents fob Intentions — Claims — Specifications -r- Drawings Supplying Omissions.</p> <p>Where' one part of an invention is properly described, and the second part is not alluded to in the written or descriptive part of the specification, but is shown in the drawings, and the second claim is broad enough to include the second portion of the invention if it had been properly described in the specification, the drawings cannot supply the entire absence of written description, and enable the second claim to be so construed as to include the omitted portion of the invention-</p>

<p>Judgment — Res Adjudicata — Assignment Pending Suit — Patents for Inventions.</p> <p>In a suit to restrain the infringement of a patent, the respondent sold out his interest in the business which was alleged to infringe, pending the hearing. The suit proceeded, however, without any change of parties, and a decree was entered against him, and in favor of the patent, field, although the decree may have been entered in pursuance of an agreement between his vendee and the complainant without his personal co-operation, still, by giving up to his vendee the control and management of the suit, the respondent must be taken to have authorised such an agreement, and the decree in favor .of the validity of the patent is res adjudicata as between him and the complainant.</p> <p>3. Patents for Inventions — Application of Process — Gelatine and Pish Glue from Dried Pish Skins.</p> <p>Reissued letters patent No. 9,396, issued July 18, 1880, to John S. Rogers for a process of extracting gelatine or ichthyocol'la from salted fish skins, must, in view of the state of the art, be held valid only for the identical thing discovered or invented by the patentee; that is to say, the application of the process of washing in cool water, extracting the gelatine by boiling, and then straining and evaporating, as applied to salted fish skins. Consequently the process of cleaning the skins in solutions of bisulphite of soda and sal-soda, and of boiling in a solution of borax, followed by straining and evaporating, is not an infringement.</p>

<p>Patents for Inventions — Infringement—Noiseless Metallic Shutters.</p> <p>The first claim of patent No. 137,595, granted to Alexander Olark on April 8, 1873, for an improvement in corrugated metallic shutters, whereby the noiáe in raising or lowering such shutters is deadened or prevented by the application of a soft or pliant material, such as leather, webbing, etc., to the shutters, in the width, so' as to coil up therewith, and form a cushion between the several coils, is infringed by the shutters constructed under the patent granted April 3, 1884, to James C. Wilson, for an improvement in corrugated shutters, in which pieces -of leather are placed upon the shutters in longitudinal lines, as in the Clark invention, to deaden the sound, and fastened by rivets, which protect the edges of the shutters, and the stems of which run through the shutters, and through the leather strips, which are made to fit in the hollow part of. the corrugations.</p>

<p>1. Maiutiub Liens — Seaman's Wages — Charterer in Possession.</p> <p>A seaman’s lien on 1he ship for his wages does not depend upon contract, but is fixed by the law as an incident to his lawful employment on board. He has the sanio lien, therefore, when employed by a known charterer, who runs the vessel on his own account, as when employed by the owner, though the latter is not personally liable) when the vessel is run by the charterer.</p> <p>2. Fame — Oxse Stated — Waiving Lien — Void Contracts.</p> <p>The respondent having chartered his vessel to a charterer for a fixed term, with the right to nominate the captain and engineer, who were to be paid by the charterer, named the libelant as engineer; and having explained to him Cnllv the provisions of the charter, introduced him to the charterer, by whom he was employed. Ho express reference was made to the question ‘of lion, though the libelant understood (hat the charterer was to be his paymaster. lje/d,~(V) that the seaman had a lien for his wages, there being no implied contract renouncing it; and. semble, (2) that an express contract to that effect would be Held void in admiralty unless there were some corresponding benefit to the seaman to sustain it.</p>

<p>1. Maritime Liens — Seaman’s Wages — Sailing-Master.</p> <p>A sailing-master lias a lien for his wages.</p> <p>2. Same — Negligent Discharge of Duties — Disrating.</p> <p>Where libelant, sailing-master on the yacht C., brought suit, to recover his wages as such, the defense being that he had performed his duties in so negligent a manner that his rate of wages should be the rate [laid a common seaman, it was held that, though he had performed some of his duties in a negligent manner, it was not such negligence as should reduce his wages to the rate claimed by the defense.</p> <p>8. Same- — Traveling Expenses.</p> <p>On the evidence, held, that libelant was not entitled to recover his traveling expenses while going to and returning from the yacht.</p>

<p>Salvage — -Vessel Aaitohe-Tmtendtnu (tale— -Rescue by Tug.</p> <p>The bark Cassandra Adams, loaded with ore,, went, ashore on the Romer shoal, off Now York harbor, two hours before high water, Friday afternoon, .and was unable to olear herself. She hired a pilot-boat to fetch her a lug. Thereafter, the tug B. coming to her, she agreed to pay the tug $¡500 if unsuccessful. and SÍÍ800 if successful, in getting her off the' shoal. Meantime the pilot-boat had found and sent the tug II. to the bark about 11 o’clock that night, and on the following morning the two tugs got the hark off the shoal. She could only have been taken off at high water. The next high water after she was taken off was Saturday night. During Saturday the worst storm of the season was brewing. If the bark had not been rescued Saturday morning, she would probably have been entirely lost, or would had to pay a heavy salvage to a tug taking her off in the gale. It was doubtful if the tug B. could have sa-vedher alone, or if another tug would’have come to her assistance in time. The bark and cargo were worth §200,000. The tug H. was worth §20,000. She was in no danger, nor called on for extraordinary skill or unusual exertion, lldd. that she should recover §3,500 as salvage.</p>

<p>Salvage — Tug-—Loss ov Motive Power— Pilot-Boat— Holding Tug Duhing Gale.</p> <p>The tug H., when some 30 miles E. S. B. of the Highlands, rolled her smokestack oif, and thereby lost her motive power. The pilot-boat W. attempted to take hex to New York, but was unable to do so, and, the w'iud increasing, tlie W. anchored, and held the H. overnight., -when a tug took her to New York. No other tug was in sight when the H. lost her smoke-stack, nor did one appear during the day. The evidence showed that but for the W., the H. would have been compelled to anchor on losing her smoke-s.tack, with danger of becoming a total loss in the gale which followed. The W. incurred no especial danger. The value of the H. was $5,000. Held,, that the W. should receive $1,250 as a salvage award.</p>

<p>Collision — Overtaking Vessel— Close Approach — No Signals — Sheer by Leading Vessel.</p> <p>Where the steam-boat O., overtaking the S., collided with her, and, on suit brought, defended by alleging a sheer on the part of the S., but the evidence showed that she had approached dangerously near the H., without giving the signal required by the international rules, held that, if the S. made no sheer, the O. was in fault as the overtaking vessel; if the S. did sheer, the O. was still in fault for her approach without signals. Held, also, that, in the absence of signals from the O., the sheer of the S. was not a fault.</p>

<p>Admiralty. Libel in rem for breach of an executory contract. Exceptions to libel.</p>

<p>1. Consuls — Actions against — Joint Plotrndants — Jurikdtctton.</p> <p>The act of congress of February 18, 1875, which amends liev. St. U. S. §711, bv repealing ihe previous express exclusion of the state courts as to jurisdiction over suits against consuls, does not diminish the jurisdiction of the federal courts over the same actions.</p> <p>3. Same — Distjriot Courts.</p> <p>Prior to the act of 1875, the reasonable construction of Rev. St. IT. S. §>? 563, 711, and of the judiciary act of 1789, giving, up to the passage of the act of 1875, (18 St. at Large, 318.) exclusive jurisdiction to federal courts of “all suits against consuls or vice-consuls, ” embraced all suits to which the consul or vice-consul was a necessary defendant, because within the general language of the constitution and tiie acts of congress, and because otherwise there would bo no legal redress upon joint obligations whore a consul was a necessary co-defendant; and 1lie same construction must still prevail. Held, therefore, that a motion to dissolve an attachment against a consul's necessary co-defendant, for want of jurisdiction, should be denied.</p>

<p>Courts — State and FedeRAL — Iniíiiingeitent o» License to Stall Patent— Construct ton on Contract.</p> <p>Where ihe parties to an action are both citizens of tho same stale, although the action is brought for the infringement, of a patent, where the defendant admits the validity of the patent, and his use of it, and the only question is the construction of a contract between them as to the use of the patent, involving wholly common-law and equity principles, tho federal courts have no jurisdiction of the action, and the plaintiff must resort to the state court for his remedy; and it does not affect the question that the state court had previously ruled that it had no jurisdiction, and that relief must be sought in the federal court, tho plaintiff being thus left without remedy.</p>

<p>1. Removal on Causes — Transmissal on Record — Laches.</p> <p>Where, on the granting of a petition for the removal of a cause from a state court to the federal court, the defendant failed, through the inadvertence of his counsel, to have the record promptly transmitted to the circuit court, (Act 1875, §3,) and 15 months elapsed without such transmission, whereupon the plaintiff, for the purpose of a motion to remand, transmitted such record, held, that plaintiff's motion should he granted for want of due prosecution under the removal.</p> <p>2. Same — Motion to Remand — Laches.</p> <p>Delay on part of plaintiff, for 15 months, in making his motion to'remand, held not a waiver of the right to object to defendant’s failure to file, in the circuit court, a copy of the record of the cause removed.</p>

<p>1. Removal of Causes — Citizenship—“Suit of a Civil Nature” — Diversion of Water from Mill — Assessment of Damages.</p> <p>A proceeding in a Massachusetts court, under St. Mass. 1881, c. 208, for the appointment of commissioners, and the assessment of damages suffered by complainants, mill-owners in Rhode Island, by reason of the diversion of the water of a stream in Massachusetts by the defendant, is removable to the federal court on the ground of-diverse citizenship of the parties. Such a proceeding is a- “suit of a civil nature either at law or in equity, ” within the statutes as to removal of causes.</p> <p>2. Same — Special Statutory Proceeding — Remand.</p> <p>Where a cause has been removed from a state court to the circuit court on the ground of citizenship, it will not he remanded because founded upon a ' special statutory procedure authorized by a statute of the state, if the circuit court has equafipower with the state court to follow the procedure prescribed by the state law. Midland By. Go. v. Jones, 29 Red. Rep. 198, approved.</p> <p>8. Same — Petition—Amount.</p> <p>Where a cause is removed from a state court to the federal court, jurisdiction sufficiently appears in the record if the amount in dispute is stated in the petition for removal, although it be not stated in the original petition in the cause.</p> <p>4, Same — Citizenship of Real Owner — Trustee.</p> <p>Where a removal of a cause involving the ownership of land is sought on the ground of diverse citizenship of the parties, in determining the question of jurisdiction the court is to look at the citizenship of the real owners, and not to that; of a party who is a trustee only.</p> <p>5. Waters asb Water-Coi uses — Mit.t.s—Easement jx Strkam Outsidb State.</p> <p>The owner of land in an adjoining slate may have, as appurtenant, to such land, an interest in land or water in Massachusetts, which may he protected hv suit in the courts of that state. JtTanville v. Oit;/ of Worcester, 188 Mass. 89, followed.</p>

<p>1. Removal on Causes — Remand— Second Romo vat, — Same Quounds.</p> <p>When a cause has been removed from a state court to the United States circuit court, and -remanded on motion, because the petition for removal does not set up the diverse citizenship of the parties at the commencement of the suit as well as at the time of removal, a second removal on the same grounds is not allowable. The decision on the motion to remand is conclusive, except upon appeal.</p> <p>2. Situ: — Appeal—Stay.</p> <p>Upon granting- a motion to remand a cause to the state court, no stay is necessary for the purpose of an appeal other than that provided for by Rev. St. U. S.'§ 1007.</p>

<p>Equity — Pleading—Withdrawal of Answer — Demurrer.</p> <p>Defendant answered the bill, and issue was joined by replication. Thereafter, a co-defendant, named in the bill, hut not served with process, became a party, and on demurrer the bill was dismissed as against him. Held., that defendant would not be allowed to withdraw his answer and demur to the bill when the dismissal as to his co-defendant had not altered the position in which he stood at the time of the answer, and any question which could be raised by demurrer might be raised on final hearing.</p>

<p>Parties — Trusts—ILaiuboad Boxes.</p> <p>In an action by a bolder of tbo bonds of a railroad company, secured by a deed of trust, merely to compel the defendant company to fulfill the agreements on its par! contained in the deed of trust, mid not seeking to reach in anv wav the security provided in said deed, or the income of the road, through the rights or powers of the trustee, the latter is not a necessary party.</p>

<p>1. Railroad — 1Track in Street — Rights of Adjacent Lot-Owners.</p> <p>A state constitution guarantying compensation to tlie owner of property “ damaged ” by the public use, entitles tile owner of a lot abutting on the street to recover damages of a railroad company, diminishing the value of the lot by laying tracks and running its trains through the street in front of the lot.1</p> <p>2. Samis — Limitations.</p> <p>In such case the cause oí action accrues against the railroad at the time of its occupation of the street, and is harred, like any other cause of action, after the lapse of the prescribed number of years from that date, so that for each day’s continuance of the occupation a new cause of action does not arise.1 A change in the ownership of the railroad property neither revives the old nor creates a new cause of action.2</p> <p>3. Same — Obstiujcting tiib'Stemet by Leaving Oaks Standing on Thack.</p> <p>Although a railroad company may have acquired the right to lay a track along a street, and run its trains thereon, yet, if it leaves its cars standing on the track so as to improperly obstruct travel, the abutting lot-owners may recover for such improper use of the street, and the cause of action for such injuries arises as often and whenever they occur; and for each day’s continuance of the wrong a new cause of action arises. But it is not an improper use of the street to run trains at night as well as during the day, to run heavy freight trains, and to ring bells and sound whistles.</p> <p>4. Samis — Hkoisivhb—Harty to Suit.</p> <p>A receiver duly appointed to take charge of the property and business of a corporation is the proper party in whose name suits by or against the corporation maybe conducted.3</p>

<p>1. Assignment for Benefit of Creditors — Use of Wife’s Money- — Wife as Creditor.</p> <p>II a husband, not acting in a fiduciary character as to the wife’s income, of which she personally has entire control, collects such income habitually with her consent and acquiescence, and mixes those collections with his own moneys, and does not, at or before the time of his collecting them, give prooi. by his own declarations or acts that he receives them as hers for her separate use, and holds them as a debt due from himself to her, and she permits this appropriation of her income by him to go on for a protracted period, then, and in such a condition of affairs, she cannot afterwards, on the occurrence of a family quarrel, or insolvency, or other event, recall a permission so long indulged, and require him or his assignees to make her a creditor of her husband for the amount so collected.1</p> <p>2. Same — Preferring- Wipe xn Assignment.</p> <p>Conversely, a husband may prefer his wife in an assignment for income of hers collected by him under an agreement with her to account to her for it, a separate account of said income being kept on his books under his name as trustee.1</p> <p>3. Same — Assignment Valid.</p> <p>In the case at bar, where the husband had preferred his wife both for rents collected by him without any clear understanding to hold them for her, and for rents collected by him with such an understanding, and also for indorse-ments made by her for him, and secured by trust deed on her separate estate, the court sustained the assignment as security for the last two preferences, but set it aside in so far as it attempted to secure the first.1</p> <p> {Syllabus by the Court.) </p>

At Law. Assumpsit. This action was brought, by the plaintiff upon three promissory notes; the first bearing date October 17, 1882, payable at the plaintiffs bank in Boston in lour months irom date, and being for the sum of §5,288.75; the second bearing date November 27, 1882, payable at the same place, in four months from date, and being for the sum of §5,100.73; the third bearing date January 15, 1883, payable also at tbc same place, in four months from date, and being for…

<p>1. NEGOTIABLE INSTRUMENTS — DISHONOR OR NOTE — NOTICE TO INDORSER.</p> <p>In Georgia (act of February 28, 3876, § A) notice of the non-payment of a promissory note need not be given to the indorser unless the note is made for the purpose of negotiation, or is intended to be negotiated at a chartered bank.</p> <p>2, Same — Accommodation Indorsement — Cokeltot op Laws.</p> <p>TV here the maker of an accommodation note in Georgia sends it to the payee in Connecticut, who indorses it for the accommodation of the maker, and sends it back to him in Georgia, the liability of the accommodation indorser does not attach until the note is negotiated to a bona fide holder; and the place where tho note is thus negotiated is, in contemplation of law, the place where the indorsement was made, and the law of that place will govern the contract of indorsement.1</p>

<p>Memorandum on Motion for Rehearing.</p>

<p>At Law. Action to recover excess of duties.</p>

<p>1. Customs Duties — 'Trimmings for Bonnets, Etc. — Artificial Fruits.</p> <p>Artificial fruits, with artificial stems and leaves, used only for trimming and ornamenting ladies’ hats and bonnets, are “trimmings for hats, bonnets, and hoods, ” within clause 448 of Heyel’s Index of the New Tariff, and subject to duty at 20 per cent, ad valorem.</p> <p>2. Same — Criterion—Material—Use.</p> <p>Clause 448 of Heyel’s Index of the New Tariff does not require that trimmings for hats, in order to be strictly dutiable at 20 per cent, ad valorem, shall be composed of any particular material. It is the use for which they are intended, and to which they are applied, that furnishes the criterion by which the duty is to be assessed.</p>

<p>1. Customs Duties — Hair-Clippers—Cutlery.</p> <p>•‘Hair-clippers” used by barbers in cutting hair close or short should be rated for duty as “cutlery, ” and charged duty at 83 per cent, ad valorem.</p> <p>2. Same— Criterion — Name—Machines—Use .</p> <p>The name of an imported article is not the sole guide by which to classify it for duty. Its uses, especially when it is new, and a substitute for other articles, should be considered.</p>

<p>At Law. Action to recover excess of duties paid under protest.</p>

<p>At Law. Action to recover duties paid under protest.</p>

<p>Customs Duties — Potato Stajioji — -Pauina.</p> <p>Starch made from potatoes, and pulverized or ground so as to take the form oí a line flour or powder, and invoiced as “sifted farina,” is not within the meaning of the term “farina” as used in paragraph 004 of the Index to the Hew Tariff, and consequently free of duty, hut is to he classified as “potato starch, ” and subject to a duty of two cents per pound, under paragraph á69 of the act of March 8, 1883.</p>

<p>Fraudulent Pension Claim — False Deposition — Indictment—Ret. St. TJ. S. § 5438.</p> <p>An indictment charging the defendant with making a false deposition in order to enable another to obtain payment of a fraudulent pension claim, in violation of section 5488 of the Revised Statutes of the United States, need not allege that the false deposition was ever used or attempted to he used, or set out the fact that the claim had been presented and was pending before the government at the time the deposition was made.</p>

<p>1. Patents for Inventions — Infringement — Improved Cooking-Stoves — Ventilated Ovens.</p> <p>The first claim of letters patent No. 286,425, granted to Giles E. Eilley, January 11,1881, for an improvement in cooking-stoves, by having one or both of the stove-doors provided with wire-gauze, or finely-perforated metal, so as to create a draught, and the second claim of the same patent having the gauze or metal extending up and down the upper part, and also up and down the lower part, of the door, for the purpose described, are both valid.</p> <p>2. Same — Register.</p> <p>The second claim of letters patent No. 246,606, granted to Giles E. Eilley, September 6, 1881, for an improvement in doors of stove-ovens, having a register and gauze, the register being arranged and extended so as to create a draught of air through the stove, is valid; but the first claim of the same patent, providing for a register arranged and extended through the main portion of the door, is Void for want of invention. It cannot be construed to embrace the register in combination with the gauze, as it would then be a mere repetition of tbe second claim; and it being admitted that, prior to the invention, a small register had been used in oven-doors, there could be no invention in simply placing a large register in place of the smaller one.</p> <p>3. Same — Iot’iutíoed by Littlefield Patent Tío. 313,874.</p> <p>Tlie object of the first of the above patents being to introduce the outer air into the oven by means of a wire-gauze inserted in the door, so that the air will enter through the lower portion and pass out through the upper portion of the perforations, and in the second patent the object being to regulate the passage of the air through, the gauze, by means of a large register inserted in the oven-door, an oven-door constructed pursuant to the specification of patent No. 313,874. granted to 1). C. Littlefield, March 17, 1885, is an infringement. although defendant, in manufacturing under the last-named patent, introduced an auxiliary ilue tí) produce "a stimulated draught, and used a gauze with a finer mesh than that employed by complainant.</p>

<p>Í. Patents for Inventions — Celluloid Collars and Cuffs — Infringement.</p> <p>Letters patent No. 300,937, of March 5, 1878, to f!. H. Sanborn, C. O. Kan-onse, and A. A. Sanborn, for an improved fabric for collars and cuffs, or other similar articles, having outer sheets or layers of celluloid, and an interlining of textile or fibrous material, substantially as and for the purposes speciüed. A fabric consisting of two sheets of cloth, with a paper interlining, was made by one of the defendants, and delivered to the defendant the xyló-nii o company, wiio placed a thin sheet of xylonite upon one side, and returned it to him, and he turned the xylonite face back on itself, so as to make a surface of xylonite upon both sides. The xylonite company claims that this is no infringement,because the fabric, as delivered by the company, is not a patented fabric, for the reason that, it contains the celluloid on one side only, and the collar maker simply turns over one edge, and thereby makes a collar, and there can he no infringement in simply turning the liem of an unpatented material. Meld, the patent was hot lor a new collar, but for a now material from which to make a collar, and consisted pi double and outer sheets of celluloid andan interlining of textile or fibrous material; and, while a fabric which contains celluloid upon one side only is not the patented article, yet, if, by an intended change of form, it becomes a fabric for collars and cuffs having a double outer shoot of celluloid interlined with textile material, it is an infringement; especially as it appears that the patentee and the infringer had the same object in view, — to produce a collar which could be kept clean without the aid of a laundress.</p> <p>2. Same — Conspiracy to Infringe — Joint Liability.</p> <p>The zylonite company having made the compound for the other defendant, with knowledge of the method in which it was to be used in making collars, must be considered as engaged with the other defendant in a common purpose to avoid the patent, and is liable as joint tort-feasor with him for the infringement.</p>

<p>1. Patents for Inventions — Novelty—Buckets for Chain-Pump.</p> <p>Patent No. 178,785, of June 18, 1876, to John A. Clmrc.Mll, for an improvement in pump-huckets, compared with patents granted in 1852 to one Policy, and in 1875 to J. D. Shoots, and one in 1874 to M. D. Sennett, and other prior patents granted to Mooney, Hanlan, Yan Duser, and Johnston, held not void for want of novelty.</p> <p>2. Same — Infringement.</p> <p>Letters patent No. 178,785, to John A. Churchill, for an improvement in pump-buckets, held infringed by the bucket manufactured by the Goss Pump & Ilubber-hucket Manufacturing Company.</p>

In Equity. On demurrer to bill. This is a suit brought October, 1886, against Joseph W. Hoke and Charles D. Moody, to restrain the alleged infringement of letters patent No. 158,084, granted July 14, 1874, to Maurice Joyce, for an improvement in processes of producing relief-line metal plates for printing, etc. The bill alleges that Mr. Joyce was the first inventor of the improvement described in said patent; that the defendants are “doing business under the name of the Hoke…

<p>1. Patents for Inventions — Infringement — Damages—Apportionment of Profits.</p> <p>Where the claim infringed covers simply and only an improvement upon an existing machine, the damages recoverable as profits realized by defendant from sales of the infringing machine are not the amount realized from such sales, less the cost of manufacture of the machines sold, hut only that part of defendant’s profits which was derived from the use of the patented improvements.</p> <p>2. Same — Burden of Proof.</p> <p>In such a case it is obligatory on the complainant to adduce clear and positive proof apportioning- the profits, or equally convincing proof that they should not be apportioned for the reason that the entire market value of the machine sold is due to the invention.</p>

<p>Patents rob Inventions — Suit nob Infringement — Pleading—Amendment— Reissue.</p> <p>In a suit in equity to restrain infringement of an original patent, and for account of profits and damages for past infringement, the defendant answered that the patent sued on had been surrendered and reissued. Held within the power of a court of equity to allow an amendment of the bill to cover the reissue.</p>

<p>1. Maritime Liens — Repairs and Supplies — Home Port — Charterer, Master —Notice oe Charter.</p> <p>"Where necessary supplies and repairs were furnished a chartered vessel, where the charterer was owner pro ¡me rice, and part of the time master, and it is not shown that the material-mon had knowledge of the charter, held:</p> <p>(1) That at the place of residence of the charterer, as long as he was master, such supplies gave a lien, hut after ho had appointed another master, and only procured supplies as charterer, there was no lien.</p> <p>2. Same — Foreign Port.</p> <p>(2) That in a port of another state, hills contracted by master, although charterer and owner pro ¡tac rice, also hills contracted by a master in command, not charterer, at a port of the same state as the residence of the charterer, where it was not shown that the material-man had notice of the charter, gave a lien; hut where it was shown that the matorial-man had be?n informed of the charter and its terms, he is presumed to have furnished subsequent supplies upon the credit of the owner pro hac rice.</p> <p>3.; Same — Money Borrowed to Pay Bills.</p> <p>' • Money borrowed to pay a bill stands in the same relation to the vessel as the bill paid. If that was a lien, so is the new debt; but not otherwise.</p> <p>4. Same — Change of Home Port by Charter.</p> <p>When the owner does nothing to inform the public of the charter, courts will not presume knowledge of the change of home port from the residence of the owner to that of the owner fro hao vice, so as to relieve a vessel of an otherwise valid lien.</p> <p> {Syllabus by the Court.) </p>

In Admiralty. On the fifth of July, 1883, the libelant’s boat, with a cargo of 268 tons of coal, was taken from Port Johnston to the landing in the Harlem river at the foot of One Hundred and Sixth street, where she was moored.

<p>1. Insurance — Marisk—Seaworthiness oí? Vessel — Burden of Proof.</p> <p>Ordinarily the burden of proving that a vessel was unseaworthy at the time an insurance on the cargo was effected is on the insurer; but where a vessel has been forced to put back into port by a storm, and an insurance is then effected, and the voyage resumed without notice to the insurers of the storm, the burden is shifted, and the insured must show lhal the vessel was seaworthy when she made the second start.</p> <p>2. Sami; — Surveyors’ Report.</p> <p>Unless overcome by competent evidence, the report of the surveyors of a port is sufficient evidence that a vessel is seaworthy.</p> <p>8. Same — Loss before and after Insurance.</p> <p>When part of the damage to a cargo was sustained prior to the placing of the insurance, and no notice of such damage given to the insurers, the duty of ascertaining what part of the loss occurred before and what after the insurance devolves on the insured.</p>

<p>Exceptions to Commissioner’s Report.</p>

<p>1. Pleading — Equity—Plea in Abatement — Another Sutt Pending.</p> <p>To a bill against W. and others, a plea averring the pendency of another suit by complainant against W. must be overruled, since the plea of another suit pending is good only when the first suit is between all the same parties.</p> <p>2. Same — Trade-Marks—Infringement—Master and Servant.</p> <p>An averment in the plea that W.’s co-defendants were only his servants and agents does not make W. the sole true defendant, and thus render the plea good, since agents and servants are liable jointly and severally with their masters for their torts of misfeasance, like infringements of trade-marks.</p>

In Equity. Plaintiffs are cotton factors at New Orleans, and defendants were a firm of merchants in Tennessee, shipping cotton to them. Plaintiffs owed the defendant firm a balance on account. During the season, Galloway, one of the defendants, opened an account individually with plaintiffs, shipping cotton to secure his margins for speculations in cotton futures. Upon this account he owed a large balance to plaintiffs.

<p>1. Specific Performance — Good Faith of Complainant.</p> <p>Defendant, in order to interest iilainliff, a valued employe, in its business, gave him a written agreement to give him, in addition to his salary, 28 shares of its stock, to be paid for out of the dividends thereof. Subsequently plaintiff, against-defendant’s wish, severed bis connection with defendant, and surrendered the contract for the stock. Plaintiff suing for a specific performance of the contract to deliver stock, held, that be was not entitled to recover, since be bad voluntarily rescinded and surrendered bis contract.</p> <p>2. Corporations — Stock—Delivery of Certificate.</p> <p>Defendant drew up a certificate of stock to plaintiff, which it retained in the stock-book, and indorsed thereon a receipt by defendant for plaintiff. Held that, the certificate never having been delivered, plaintiff acquired no rights thereby.</p> <p>8. Laches — Unexplained Delay.</p> <p>The plaintiff delayed bringing suit till seven years after the defendant’s refusal to give him the stock. Held, too long a delay, no excuse therefor being shown.</p>

<p>In Equity. Heard upon the allowance of defendants’ plea.</p>

<p>1. Railroad Companies — Insolvency—Receiver’s Certificates — Negotiability.</p> <p>Receiver’s certificates are not commercial paper, and the holder takes them subject to all equities between the original parties, even though he acquired them for value and without notice.</p> <p>2. Same — Purchased at Discount.</p> <p>When such certificates are negotiated at a discount, which the receiver is not authorized to allow, a subsequent bona fide holder will only be protected to the amount actually advanced by the first purchaser.</p> <p>8. Same — Sale after Issue of Certificate — Rights of Purchasers.</p> <p>Purchasers at a judicial sale of the property and franchises of a railroad company, “subject to the payment of the undue principal and interest” on certain receiver’s certificates of indebtedness previously issued by order of the court, or persons acquiring title, through such purchasers, cannot resist the payment of the certificates on the ground that the receiver negotiated them collusively, and with less benefit to the trust fund than should have been realized. "They have no interest in the trust fund represented by the certificates, and it is immaterial to them whether they were or were not negotiated on fair terms, and for the best interests of the fund.</p> <p>4. Same — Estoppel.</p> <p>Purchasers, and all others claiming under purchasers at a judicial sale, are concluded by the decree authorizing the sale, and estopped from questioning the validity of receiver’s certificates of indebtedness, subject to the payment of which the sale was decreed to be made.</p> <p>6. Same — Purchaser’s Deed — Estoppel.</p> <p>Where the deed to purchasers at a judicial sale expressly provides that such sale is “subject to the payment of the undue principal and interest” on certain certificates of indebtedness of the railroad whose property and franchises were the subject-matter of the sale, such purchasers, and all persons claiming by derivative title from them, are estopped by the deed from denying the lien of the certificates for the whole principal arid interest due upon them.</p> <p>6. Estoppel — By Judgment — Privies.</p> <p>Every person is a privy to a judgment whose succession to the rights of property thereby affected occurred subsequently to the commencement of the suit. Thus a grantee is estopped by a judgment against his grantor, because he holds by a derivative title from such grantor.</p>

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

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

<p>On Habeas Corpus.</p>

<p>VOTEltS — REGISTRATION—DUTIES OS' RECORDER OF VOTERS.</p> <p>Under the registration law applicable to the city of St, Louis, Missouri, (Bess. Laws Mo. 1883, p. 38,) a deputy recorder of voters for a ward of said city is not obliged to register a person merely because he applies for registration and takes the oath prescribed by section 3 of said act. Such officer may reject an applicant for registration who has taken the oath, if he is awara that the applicant has not truly stated in his oath and entered on the registration book the number of his residence. Accordingly held, that an indictment under section 5513 of the Revised Statutes of the United States against a deputy recorder of voters for a ward of said city was not demurrable which charged that said officer, at a registration for a congressional election, knowingly and willfully registered one A. 13. as a duly-qualified voter then and there residing at number “2U7 North 12th street,” in the Tenth ward, he, the said defendant, well knowing that said A. B. did not reside at said number, and was not entitled to be registered therefrom. Held, further, that although the applicant for registration resided in the Tenth ward and was a qualified voter therein, that, the registration officer could not lawfully permit him to register or register him from a street number in said ward where he did not reside.</p> <p> (Syllabus by the Court.) </p>

<p>On Special Demurrer. Indictment under Rev. St. U. S. § 5512, for fraudulent registration.</p>

<p>Indictment under Rev. St. U. S. § 3894, for sending a lottery circular though the mails.</p>

<p>1. Collision — Between Steamers — Getting under Way — Backing out of Slip — Bules of Navigation, when Applicable.</p> <p>A steam-propeller while hacking* out of a slip, and two-thirds of a mile across the river upon a defined course, for the purpose of turning about, is not entitled to the immunities of a vessel getting under way, but is bound by the rules of navigation as respects other vessels. So far as practicable, the rules are to be applied according to her line of motion, treating, for the time being, her stern as her head, and her starboard side as her port side.</p> <p>2. Same — Change of Course by Reversing.</p> <p>A backing steamer, proposing to change her course by reversing, is, upon stopping her engine for that purpose, in a situation analogous to that of sail-vessels tacking when beating in similar rivers or narrow streams, and, like the latter, is bound to use reasonable dispatch in order not to mislead or obstruct other vessels navigating in the vicinity.</p> <p>3. Same — Stopping and Backing — Risk of C6llision — Wiien it Arises.</p> <p>A vessel hound to keep out of the way has a right to assume that the other vessel will perform her duty, and pursue the ordinary and customary course according to the special circumstances. She is not bound to stop and reverse until there is reasonable cause to apprehend some danger of collision.</p> <p>4. Same — Case Stated:</p> <p>The steamer N., 480 feet long, hacked out of her slip at Jersey City, straight across the North river, for the purpose of turning- down and going out to sea. When in mid-river, her propeller was stopped, when she gave a signal of two whistles indicating that she would go ahead under a starboard wheel. The steamer S., 520 feet long, was at the same time coming down the North river, near the New Torlc shore, and saw the N. when she stopped her propeller, and understood her purpose. The S. continued going- down slowly not more than 800 or 1,000 feet from the New York shore, there being other vessels between her and the shore. The N. continued running out her stern way, did not set her engines in motion for two minutes after they were stopped, then, put them ahead at half speed, and two minutes afterwards at full speed. Within a minute after, the bow of the S. struck the round of the N.'s stern not over 800 or 1,000 feet from the New York shore. The instructions of the N. were not to go more than two-thirds across the river. She considerably exceeded that limit and it was not usual to go so near unless the navigation was clear and unobstructed. The S., when she saw that the. N. did not go ahead, as was expected, stopped, and afterwards backed at full speed, and was nearly still at the collision, while the N. still had a little sternway. Held, that the two vessels were to be judged according to the ordinary rules of navigation, treating the N. in reference to her line of motion, and that the N. was solely in fault (1) for going so near the New York shore unnecessarily; (2) for exceeding the usual limits in such navigation; (3) for not using reasonable dispatch in going ahead after she had signified her intention to do so in mid-rivor; (4) because the S. had no reason to apprehend any collision, as she could not anticipate that the N. would continue backing so far; (5) and because the S. did all that was in her power after she had any reason to apprehend danger of collision.</p>

<p>1. Charter-Party — Stevedore’s Charges — Current Rates — Agreement as to Rates — Breach oe Charter.</p> <p>Where a charter-party provided that the cargo of green fruit should he discharged by a stevedore named by the charterer at current rates, and the charterer had guarantied that the stevedore would charge no more than current rates, and the stevedore had set up his tackle, held;that it was too late for the master to insist upon an agreement as to what rates were current, and the vessel was liable to the charterer for his damage sustained by the master’s refusal to proceed with the discharge.</p> <p>3. Admiralty — Stipulation eor Yalue — Exorbitant Demand oe Damages —Compensation Paid Stipulators — Set-Oee.</p> <p>An exorbitant demand of damages in a libel will be relieved against on summary application to the court therefor, and a claimant who has given bonds for the full amount of such claim is therefore not entitled to set oil against-libelants’ damages the amount paid to the stipulators as compensation for signing his stipulation for value.</p>

<p>In Admiralty. Exceptions to libel.</p>

<p>1. Courts — Federal—Jurisdiction— Citizenshib — Suit by Partnership-Some Members Plaintiffs and Some Defendants.</p> <p>A bill was filed in the federal court in the name of the four members composing the firm of Kent & Co., two of whom, Kent and Young, were citizens of Yew York, the state in which several of the defendants resided. Objection being anticipated to the jurisdiction of the court, because some of the plaintiffs and some of the defendants were thus citizens of the same state, an amended bill was filed by Poole and Sherman, two of the partners, making Young and Kent defendants. It appeared that, although the four were partners. their business was conducted by two houses, one in Chicago, managed by Poole and Sherman, and one in New York city, managed by Kent and Young; that the action arose out of a certificate of stock which had been pledged to Kent and Young by the defendant, a debtor of the New York house, and that 1he New York house, being indebted to the Chicago house, had transferred the debt and stock security in payment. Kent and Young, on being made defendants, filed an answer disclaiming all interest in the stock. Held, they might be made defendants, and there was thereafter no objection to the jurisdiction of the court attaching.</p> <p>2. Corporations — Increase of Stock — Statutory Requirements.</p> <p>An increase in the capital stock of a corporation, although not made with the formalities required, by a state statute, is binding upon the stockholders and the corporation, where it appears that the increase was made with the consent of all the stockholders.</p> <p>8. Same — Assets —Trusts— Creditors — Stockholders.</p> <p>As between the creditors of a corporation and its stockholders, the property will in equity be first appropriated to the payment of the creditors; the funds of a corporation arc a trust fund for the payment of its debts, and the stockholders have no rights until after the creditors arc paid.</p> <p>4. Same — Preferred Creditors — Mortgage by Superintendent.</p> <p>One having money on deposit- with a corporation purposed to withdraw it, but permitted it to remain upon the superintendent, who was left in charge of the affairs of the company, executing to him a chattel mortgage. Held, although the superintendent may not have been legally authorized to make the mortgage, yet, considering the loose and irregular way in which the business of the corporation was managed, and that he was left in charge of affairs, and the equitable character of the claim, the mortgage must be allowed to be valid, and, the corporation proving insolvent, the mortgagee is entitled to priority as a secured creditor.</p> <p>5. Samé — Money Advanced to President.</p> <p>A bank advanced money directly to a corporation, and also to the president, lobe expended for the benefit of the corporation, which sums were recognized as debts by the corporation, and were attempted to be secured to the bank by each stockholder assigning his shares in the corporation. Held, equity would treat both sums as debls due by the corporation to the hank.</p> <p>6. Same — Preference of Salary — Assignee of Stock.</p> <p>A stockholder who so assigned his stock to pay the bank’s debt, and after-wards took a bill of sale executed by the superintendent upon certain personal property of the corporation to secure his salary as general manager, is not entitled to enforce the bill until the bank is paid; nor has an assignee of his claim any better rights in the matter than he has.</p> <p>7. Same — Subscription Fraudulently Induced — Stockholder and Promoter.</p> <p>An action by a stockholder, against the insolvent corporation, to have his share of the assets set apart to him before the claim of a particular creditor should be paid (by whose fraudulent representations he alleges he was induced to become a stockholder) is not a proceeding to dissolve the corporation, and it is not necessary for him to allege his previous efforts to induce the corporation to bring the action.</p> <p>8. Same — Pledgee oe Stock a Shareholder.</p> <p>■ Where share's of stock in a corporation are assigned by a debtor' to his cred; itor as collateral security for the debt, and are duly transferred on the books of the company, the creditor becomes a stockholder, and entitled to all the rights of such.</p> <p>9. Same — Ultra Yires — Estoppel.</p> <p>, The stockholders of a corporation having acknowledged the liability of tk,e 'company for a ¿’articular debt, they cannot afterwards repudiate it on the ground that it.was.'in excess of the indebtedness which the corporation was authorized by law to contract.</p>

At Law. ■ This" is a suit to recover possession of a number of Oswego township bonds. It was originally brought against the Union Savings Association, the Memphis, Carthage & Northwestern Railroad Company, C. Montague, and other persons alleged to claim an interest in said bonds, but ■to be unknown to the plaintiff. Oswego township, Kansas, voluntarily entered its appearance as a defendant.

<p>Equity — Plead iso — Draruiuuo a.</p> <p>A deiendant in equity will not ordinarily he allowed to filo a demurrer to tlie whole bill, and at Üie same time several pleas. Even if the court has the power to allow such a procedure, such power will not be exercised, unless for good .and sufficient reasons, and to prevent injustice.</p>

<p>1. Partnership — Construction or Contract — Patent Rights.</p> <p>R., the orator, entered into a partnership with if. for the purpose of making- and selling certain patented articles, and selling territorial rights. R. furnished §1,000, and N, the use of the patent, the title to which he retained, the profits to he equally divided. A quarter interest in the patent was sold to B„ and the proceeds of the sale, and a like proportion of the capital furnished by R., became common property. Subsequently R. and N. made a' supplemental agreement, declaring that, any definite reduction in the capital of R., (the patents.) resulting from any action of the firm, affected R.’s capital in the same ratio; that all letters patent and reissues in the same class of inventions should be at the expense of the Arm, and that R. should have three-eighths of all the proceeds thereof; that, in case of dissolution, R. might take all that should remain of his §1,000 capital, after making the deduction provided for, and N. should have the privilege of taking the remaining interest in the letters patent, paying a proportionate amount of the expense incurred by the firm; and, in case of negotiations with any other party pending at the time, li. should have reasonable and ample time in which to act on such negotiations, thereby reducing the sámelo fixed and definite proceeds before said (N. could effect the dissolution; and, if negotiations be completed with any other party for .royalties, nothing should be construed as depriving- R. of his full share. By a contract to which R. consented, the rights of li. being known to all parties to the transaction, TST. and R. gave to C. R. & Co,, the firm to which defendants belong, the exclusive use of the patent in the United States, C. R. & Co. to pay certain license fees to 1ST. A few months-latcr hi. gave notice of the dissolution of the partnership with R., and claimed that R. had no interest in the royalties, and subsequently assigned to Y. all his remaining interest in the patents, subject to the contract with C. R. & Co. Held, in a suit by R, against O. R. & Co., that R. was entitled, under the contract, to his three-eighths of the royalties as proceeds of the patent, whether the same were payable before or after the dissolution of the partnership.</p> <p>3. Same — Equity—Trust.</p> <p>The fact that the royalties were payable to S', made him trustee of R., so that R.'s share was due N. at law, aud it, in equity.</p> <p>3. Same — Incoming Partner — Liability.</p> <p>Defendant M. entered the firm of 0. R. & Co. at the time the royalties began to accrue, and enjoyed the benefit of the license as a partner in. the firm under the contract, held, that.M. was liable, not on. an express contract, but , on the implied contract to pay for what he has had as a member of the firm, on the terms on which, the firm had it.</p> <p>4. Same — Termination of Contract — Notice—Waiver.</p> <p>The contract of N. and R. with C. R. & Co. provided that, on failure to make return or payment at the agreed terms, for 10 days, N. had the right to terminate the contract. Pending litigation between R. and N. in regard to the royalties, C. R. & Co. failed to make payment to N. for more than 10 days,' whereupon N. claimed the right to terminate the contract, but continued to accept payments. Subsequently N.’s assignee gave the notice of termination long after this default, but what was done seemed to have been done, not in order to terminate the contract, but to cut oS R.’s rights, and to leave it to continue for the benefit-of N., and those acting under him. held, that the provision was for the purpose of enforcing payment, and could be and was waived, and that C. R. & Co., by an acceptance of a notice of termination long afterwards, could not conclude R.’s rights without his consent;</p> <p>6. Accord and Satisfaction — Receipts—Evidence.</p> <p>. C. R. & Co. made payment for two months to R.’s attorney, pending R.’s litigation with N., which litigation resulted in N.’s favor. C. R. & Co. claimed that this payment was upon an agreement that R. would make no further claim on them, but would look to N. for further indemnity. The receipts were for the amounts paid, and specified that they were for the amounts due for those months. The attorney testified that there was no such agreement. Held, that the presumption is that the receipts show the transaction, since the verbal testimony was conflicting, and there could be no accord and satisfaction unless the understanding was mutual; that is, of R.’s attorney as well as C. R„ & Co,</p> <p>6. Patents for Inventions — License—Estoppel.</p> <p>Defendants questioned the validity of the patents, or of the reissue of one of them, but showed no eviction. Held that, in the absence of such a showing; they could not dispute their licensor’s title.</p> <p>7 Equity — Jurisdiction—Contract.</p> <p>There was a formal assignment to R. of his right by the master of chancery in the suit against N. in the Illinois courts. Defendants contend that this action, being a suit for an account of license fees by an assignee of the claim, was not in the jurisdiction of a court of equity. Held that, since R.’s rights accrued to him, not through the master’s assignment, but by reason of his interest as partner, and since, not being a party to the contract, he could not sue on it at law, though he had equities in it, a court of equity had jurisdiction'.</p> <p>8. Same — Parties.</p> <p>Defendants objected that N., and Y., N.’s assignee, were not made parties. Held that, since R. claimed nothing of them, and they had settled with defendants, they were not Decessary parties.</p> <p>9. Judgment — Conclusiveness—Parties.</p> <p>The judgment of the Illinois .court, though conclusive between R. and N., was not conclusive between R. and defendants, since they were not parties, though the members of, the firm had knowledge of the case, and expressed themselves as willing to abide by it.</p>

In Equity. Bill to confirm sale by trustee, and general relief. Certain plantations, (Yonges island and Anna Vista,) held in common by adults and infants, were sold for partition under an order of court. They ivere bid in by W. C. Simmons, who acted in the interest of all parties to the suit, at the request of the adults. His purchase was reported by the special master, and was confirmed by the court on certain conditions.

<p>1. Corporations — Promoters—Stock—Fraud.</p> <p>B. and C., as promoters of a projected corporation, negotiated an agreement between the owners of certain patents, and the corporation to be formed, by which B. and C. were to receive 3,700 shares of the capital stock of the new company, less 625 shares, which they were to assign to P. B. and O. offered the public an option to take stock in the new company, disclosing the purchase of the patents, and that a portion of the stock was to be issued to the former owners in part payment, but not informing purchasers that they were to have stock on any different terms or conditions. It was further agreed that B. should be president and C. treasurer of the corporation, and they were so elected, and placed a large amount of stock at seven dollars a share, obtaining their own stock for nothing. Held that, as promoters of the new company, they occupied a fiduciary relation towards it, and had no right to derive any'advantage over other stockholders without a full and fair disclosure of the transaction, and that any secret profits made must be refunded to the company -</p> <p>2. Same — Rishts of Corporation.</p> <p>In such a case, the corporation has a right to elect (1) whether the shares should be transferred back to it; or, (2) if the shares have been sold, their entire profits made by the sale should be turned over; or (3) that it should be paid the sum lost by reason of being deprived of the right to place such shares with other persons at seven dollars per share.</p> <p>3. Same — Partnership.</p> <p>B. and C., as promoters of the new corporation, having signed the secret agreement as parties of the second part, and acted in concert to promote a common purpose for their common benqfit, they became jointly and severally liable to account, as partners, whatever may have been their private intention.</p>

<p>1. Taxation — Aid to Railroads — Penalties.</p> <p>Notwithstanding that the law of Iowa restricts taxation in aid of railroads to the sum of o per cent, upon the taxable property in the township, still delinquents can be lawfully compelled to pay, in addition to such 5 per cent, tax and interest thereon, the penalty provided by law for delay in the payment of taxes; following Tobin v. Hartshorn, 20 K. W. Rep. 764.</p> <p>2. Same — Penalties—Repeal oe Statute.</p> <p>Under Code Iowa, § 45, par. 1, which provides that the repeal of a statute shall not affect any penalty incurred under that statute, Laws Iowa 1884, a. 109. § 1, repealing Laws 1876, a. 123, which authorized the voting by any township in the state of taxes in aid of railroads, does not repeal any penalties against delinquent payers of taxes so voted, which had accrued at the time of the passage of the act oí 1884; following Tobin v. Hartshorn, supra.</p> <p>3. Equity — Pleading—Demurrer—Bill eor Injunction.</p> <p>On demurrer to a bill to restrain the sale of realty for delinquent taxes, where it appears that, although the complainant did not lender the full amount due, the county treasurer demanded a penally in excess of what was legally due, and the complainant is therefore entitled to some relief, though not to the full relief asked, the demurrer cannot be sustained.</p>

<p>•CORPORATIONS — UNAUTHORIZED PURCHASE AND MORTGAGE — BONA PlDE AS-SIGNEE op Mortgage.</p> <p>A. and B., as officers of a corporation, bought a tract of land for the corporation, without authority from the directors. The title was made to B., who executed several mortgages on it to A. to secure him in advances of money he had already made to the corporation, and afterwards made for it. A. transferred the mortgages to a third person for value. B. subsequently conveyed the land to the corporation. Held, the transferee, having paid full value, acquired good title to the mortgages; and the corporation having become insolvent, and its property having passed into the hands of a receiver, who sold the land, the transferee of the mortgages was entitled to be first paid, before other creditors, out of the fund realized .from tho sale of the land. **</p>

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

In Equity. Demurrer to bill. Suit by creditors against M. Abrahams and S. Desbcrger, in aid of attachment suits instituted by them in this court, and still pending and untried.

<p>9. Same — Approval op Grant by Assembly.</p>

<p>At Law. Action to recover possession of real property.</p>

At Law Motion for new trial. Suit upon a negotiable note made by the defendants to their factors, and paid to them by shipments of produce as agreed upon, but while the note was held by the plaintiff bank, by a transfer under circumstances stated in the opinion of the court.

<p>Sale — Title—Bill op Ladino and Draft — Loss.</p> <p>On March 16,1886, S. telegraphed P.: “Offer 2 cars sacked oats. Can ship next steamer. 40 cents, f. o. b.;” to which P. answered: “Telegramreceived. Ship as soon as possible, if quality good and offer f. o. b. Last car poor; short weight, badly sacked. ” On 19th, S. shipped per steamer two car-loads oats to shipper’s order, and indorsed bill of lading, “Deliver to order of B. H. & Co., ” and attached a sight draft on P. for price and marine insurance. B. H. & Co. indorsed the bill of lading to a bank, and forwarded it with draft for collection. No bill of lading was forwarded to P., but S. wrote him of the shipment, and sent invoice and certificates of weights. The oats arrived before the bill of lading, and the agent of the steamer informed P. that there were two car-loads of oats that he could have on presenting indorsed bill of lading. On 29lh the bank received and presented to P. the bill of lading, and attached draft for collection, but the draft was not paid, and the bill of lading was not delivered. The oats were put in the steam-ship warehouse, and the same night destroyed by fire. Held, that the title had not passed, and that the loss must fall on S.</p>

Decision on Motion to Quash writ of mandamus and certiorari. This was a writ to Daniel Clark, judge, and Benj. F. Clark, clerk, of district court of New Hampshire, commanding them to perfect a record in the district court by entering on the docket the term when an opinion was filed in the above case.

This Is a proceeding by mandamus against the judges of -the county court of Bt.

<p>1. JUDGMENTS — SATISFACTION—CROSS-JUDGMENTS—SET-OFF.</p> <p>By the practice at common law, a court might set off cross-judgments in the same or different actions, in the same or different courts, between substantially the same parties, on the application of either to enter satisfaction in both actions for the amount of the smaller debt.</p> <p>2. Claims against United States — Set-Off—Judgment.</p> <p>The authority to settle claims due to and from the United States by setting one off against the other, as provided in the act of March 3, 1875, (18 St. 481,) is thereby conferred exclusively on the secretary of the treasury; and this court is not authorized to set off a claim allowed in the treasury department to the defendant in this action against the judgment therein.</p> <p> (Syllabus by the Court.) </p>

<p>EXTRADITION — INTERSTATE—SECOND WARRANT — HABEAS CORPUS.</p> <p>In extradition proceedings, where the first warrant of arrest is of questionable regularity, and no order is entered upon the first complaint and warrant, the district judge has power, under Hey. St. £ 5270, to issue a second warrant, the arrest of the defendant upon which will not be held void on habeas corpus.</p>

<p>Whits — Foreign Insurance Companies — Service.</p> <p>In Missouri, a foreign insurance company is prohibited from carrying on business until it has filed with the insurance commissioner a certificate stipulating that service may be made upon him: and, where it is alleged in the petition that a foreign company is doing business in the state, it will be presumed that it lias complied with the law, and default will be entered on service upon the commissioner, though he have refused to receive the summons.</p>

<p>1. Grand Jury — Drawing—Federal Courts.</p> <p>The act of congress of June 80,1879, with reference to drawing jurors for the courts of the United States, did not repeal Eev. St. U. S. §§ 800, 802, 804, or 808.</p> <p>2. Same — State Practice.</p> <p>There being no federal statutes regulating challenges to grand jurors, the federal courts may, under Eev. St. U. S. § 722, follow the practice of the courts of the state in which they are held, with reference to objections to indictments presented by a grand jury, on the ground of irregularity in the method of selecting the members of the jury.</p> <p>3. Same-Irregular Selection — Plea in Abatement.</p> <p>The directions in the Missouri statutes as to the manner of drawing grand jurors are merely directory; and, under the decisions of the supreme court of that state, objections to the manner of drawing the members of that body cannot be raised by jilea in abatement to an indictment presented by it, when it appears that the jurors irregularly chos'en were competent and qualified jurors, residing in the district, and that the only irregularity consists in the method of selecting them.</p> <p>4. Same — Pull Panel — Drawing from Wheel.</p> <p>Under Eev. St. U. S. § 808, providing that “if, of the persons summoned less than 16 attend, they shall be placed on the grand jury, and the court shall order the marshal to summon * ®. * from the body of the district, and not from the by-standers, a sufficient number of persons to complete the grand jury, ” the court has the right to determine of how many persons, up to 23, the grand jury shall consist; but if more than 16 and less than the number ordered attend under the first venire, and the court sees fit to, require an additional number to make up the full panel, as first ordered, the deficiency must be supplied by ordering additional names to be drawn from the wheel, and not by directing the marshal to select the additional jurors from the body of the district, or from particular localities of the district.</p> <p>fi. Same — Yiolent Partisan.</p> <p>The fact that a man is a member of a political party, and a strong partisan, does not affect his qualification as a grand juror. _ ,</p>

<p>PATENTS FOR INTENTIONS — ASSIGNMENT—1TERRITORIAL RIGHTS — INFRINGEMENT.</p> <p>II., who owned the right, title, and interest in an invention secured by patent for, to, and in the "state of New York, sold to defendant the exclusive right to make, use, and sell the patent in New York and Brooklyn, and “sell in the state of Now York, and elsewhere. ” Defendant furnished goods of the patent to dealers to be sold outside, and sought their custom for that purpose. Held an infringement by defendant, since sales by dealers would be infringements in which defendant participated, by furnishing the means for it, and by aiding and abetting it.</p>

In Equity. Rule upon John W. Gates, Alfred Clifford, and Charles H. Rowe, defendants in the above-entitled case, to show cause why they should not be committed for contempt in continuing to manufacture, as officers of the Southern Wire Company, wire adjudged by the court in this cause, to be an infringement of complainant’s patent.

<p>PATENTS EOII INVENTIONS — NOVELTY— 0kI.IjUI.OTD COLLARS.</p> <p>The mere turning down and cementing the edges of celluloid collars and culis in the form of a hem, is not new, and does not constitute invention.</p>

<p>In Equity. Suit for infringement of letters patent.</p>

<p>In Equity. Suit for infringement of letters patent.</p>

<p>Patents fob, Inventions — Novelty—Meciianicae Skint,.</p> <p>Letters patent, No. 302,006, issued July 29, 1884, to the complainant as assignees of Samuel G. McFarland, for an “improved water-closet basin,” held. void for want of invention, as nothing more than a combination of parts that were in use in other water-closets prior to the date of complainant’s patent, involving mechanical skill only.</p>

<p>In Equity. Suit for infringement of letters patent.</p>

<p>Patents pok Inventions — Patent No. 9,753 — Ineringument.</p> <p>Thirteenth and fourteenth claims of reissued letters patent No. 9,755, dated June 14, 1881, granted to Wade il. Hill, as assignee of Ahram A. Rhoutan, for improvements in machines for counting and packing envelopes, held not infringed upon the evidence, as it did not appear that the infringing machine hall ever been used by the defendant.</p>

<p>In Equity. Bill for injunction and an account.</p>

<p>Patents foe Inventions — Reissue—Validity.</p> <p>Reissued letters patent, containing a claim not mentioned in or covered by the original letters patent, are invalid, particularly where the reissued claim was refused upon the original application for the patent.</p>

<p>In Equity. Suit for infringement of copyright.</p>

<p>1. Copyright — Deposit of Title- — Proof.</p> <p>Where it is proved that the partj' claiming a copyright for a song deposited two copies in the mail, and got a receipt from the librarian of congress acknowledging the receipt of two copies of the publication by its title in full, with the date over the official signature of the librarian, this will be considered evidence that two copies were delivered to the librarian as required by the ac1 of congress.</p> <p>2. Hamm — 770X101’,—Titee—Aban donment.</p> <p>An edition of a song was issued having a front cover, with an engraving thereon, and a list of seven songs, including the song in question, by a part of its title, over the name of the publisher, who claimed the copyright, and on the page where the music commenced the full title was printed, with the words, “Copyright, 1878,” etc. Held, that this was a sufficient notice to the public of a claim of copyright, as required by act of congress of 1874 § 1, and that there was no abandonment of the copyright.</p> <p>3. Same — Musical Composition — Authorship.</p> <p>Mrs. Fannie Beane Qilclay held to he the author of the musical composition entitled “My Own Sweet Darling, Colleen Dhas Machree.”</p> <p>4. Same — Infringement.</p> <p>The copyright of the musical composition entitled “My Own Sweet. Darling, Colleen Dims Machree,” held infringed by the publication and sale of a song with music entitled “Call Me Back Again.”</p>

<p>Trade-Marks — Infringement—'“Kaiser” Mineral Water.</p> <p>A. adopted, in 1878, and registered in the patent-office in 1888, the name of “Kaiser,” as a trade-mark for natural mineral water, and used it in foreign commerce, selling the, water in bottles labeled “Kaiser Natural Mineral Water,’’with the words “Kaiser Water, Schwalheim,” blown in the glass. For many years mineral water known as “Kaiserquelle” or “Kaiserbrunnen, ” —which in English means “Kaiser spring;” “Kaiser fountain, ” — hadbeen sold in various places in Europe, with the addition of the name of the place where the spring from which the water was obtained was located. Held, that the word “Kaiser” was not a valid trade-mark, as other parties had acquired and exercised the right to use it.</p>

<p>1. Negligence — Personal Injuries — Liability of Vessel for Ijísecttre Ap-pro ach ks- -Oont hi is ittory Negligence .</p> <p>In cases of maritime tort, courts of admiralty are not bound by rules of the common and civil law governing eases of contributory negligence, and in suits for personal injuries contributory negligence on the part of the libelant is not a bar to his recovery, and will not cause the denial of relief to one whose negligence may have contributed to his injury.2</p> <p>2. Same.</p> <p>Where one has the right to use a ladder as a means of descent from the ship to the wharf, the vessel owes him a duty to see that it is properly secured, and, if personal injuries are caused by the negligence of the ship’s crew in this regard, the vessel will be liable therefor.</p>

<p>1. Demurrage —Mode oe Discharge.</p> <p>A consignee cannot iorce upon a vessel a substituted mode of discharge, involving delay or increased cost.</p> <p>2. Same — Consent to Change.</p> <p>If the evidence fails to disclose any consideration for the change, and if the substituted mode of discharge was wholly for the benefit of the consignee, and a detriment to the vessel, an agreement on the part of the latter to the substituted mode of discharge is not to be presumed merely from the circumstance that it was not objected to at the time.</p> <p>3. Same — Failure to Object — Waiver, oe Rights.</p> <p>If a vessel be detained in the stream until her lay-days have begun, and if the consignee then begins her discharge by lighter's, the vessel has a right to presume that the delay incident- to this mode of discharge will he borne by the consignee, and a failure to object thereto is not to be taken as a waiver of any rights secured by contract.</p> <p>4. Same — -Selection oe Wharf.</p> <p>When, by contract, tjie right to select a wharf is vested in the consignee, “provided that the depth of water ho guarantied, ” the wharf selected must he one to which the vessel can go without having recourse to lighterage.</p> <p>5. Same.</p> <p>_ If by contract the wharf is to ho select ed “immediately on arrival, ” the consignee is liable for any delay occurring by reason of his failure to select a suitable wharf with promptness.</p>

<p>In Admiralty. Hearing on exceptions to libel.</p>

<p>Action on Note. Removed from state court. Motion to pemand.</p>

<p>EQOTTY — SmTT.KMHNTAT.1 BlI.Ii — ACCOUNTING.</p> <p>A. brought a. bill in equity against B., alleging that A. and B. wore partners: that an attempt was made to incorporate, but the incorporation was not perfected, and the business continued to be carried on as a partnership; that certificates of stock were issued for the purpose of distributing evidence of the ownership of the property among the parties interested; that A. pledged to B. certain of the certificates of stock for advances made by B.; that ssiid advances were in realitv advances on account of A.’s share of the undistributed profits in B.’s hands, and that the pledges were void; and prayed for a partnership accounting, and that the pledges be declared void. An amendment to the prayer of the bill was allowed, to enable the plaintiff to redeem the stock, in case the court should find that the corporation was duly organized, and that the pledges wore valid. Held, that a. supplemental bill, averring that there was a corporation, and alleging facts relating to its management, such as wore claimed to entitle plaintiff to have the funds of the corporation, (which were in B.’s hands at his death.) divided between the stockholders, would not he allowed to be filed, although the facts alleged occurred subsequent to the filing of the original bill, as it made a case in antagonism to the case made by the original bill.</p>

<p>In Equity. Bill for injunction. Demurrer.</p>

<p>1. Competency op Witness — Transactions with Deceased Pebson — Line In-STJItANCR — INTERPLEADER—CODE Ga. § 3854-^KeY. St. U. S. § 858.</p> <p>On the trial of a bill of interpleader, between a life insurance company and the administratrix of a deceased policy-holder, and a claimant of the fund due on the policy, under an alleged assignment, the assignee is incompetent to testify to any transactions wi t3i the insured in the life-time of the latter, either by the law of Georgia, (Code, § 3854,) or Key. St. U. S. § 858.1</p> <p>2. Gaming^-"Futures” — -Delivery..</p> <p>If, under the guise of a contract to deliver goods at a future day, the real intent be to speculate in the rise or fall of prices, and the goods are not to be delivered, but one party is to pay to the other the difference between the contract price and the market price of the goods at the date, fixed for executing the contract, the whole transaction is nothing more than a wager, and is null and void; following Irwin v. Williar, 110 U. S. 499, 4 Sup. Ct. Rep. 100.</p> <p>8. Assignment — Chose in Action — Writing.</p> <p>An assignment of a chose in action in Georgia, to be valid, must he in writing.</p> <p>4. Interpleader — Costs—Damages—Lire Insurance — Code Ga. § 2850.</p> <p>Where the agents of a life insurance company show active sympathy with one who claims the proceeds of a policy, against the legal representative of the insured, and refuse to pay any part of the same until such claimant is satisfied, although such claim is for a portion only, it is evidence of had faith, in the meaning of section 2850 of the Code of Georgia, and the company may he proceeded against for 25 per cent, damages, and counsel fees.</p> <p>5. Same — Assignment of Policy — Stipulation.</p> <p>And this is especi.ally'true where the policy stipulates that “the company will not notice any assignment of its policy until a duplicate or certified copy thereof shall be filed in the company's home office,” and where the company admits it has no notice of such assignment, and no such duplicate has been</p> <p> {Syllabus by the Court.) </p>

<p>Assignment for Benefit of Creditors — By Partnership.</p> <p>Under the Missouri statutes, a conveyance by a member of a firm of individual property, in payment of a firm debt, will not be invalidated by or considered a part of a general assignment made by the firm a day or two later.2</p>

<p>1. Public Lands — Land Grant — Railroads—Pre-emption.</p> <p>A portion of an odd section within the limits of the Union Pacific Railway land grant, settled and entered under the pre-emption laws of the United States at the time of the filing of the map showing the definite location of the road, is not within the land grant of the road; following Kansas Pac,. B. Co. v. Dunmeyer, 113 U. S. 629, 5 Sup. Ot. Rep. 666.</p> <p>2. Same — Pre-emption Entry — Cancellation—Conclusiveness.</p> <p>Complainant entered a tract of land under the pre-emption laws of the United States, May 14,1864, paying for it with a land-warrant, and received a receiver’s receipt for it. December 12, 1868, the commissioner of the general land-office canceled this location and entry. Complainant having no notice in advance that such cancellation would he made, and not knowing of it till the following. summer, never appealed from the order of cancellation. KelA, that the decision of the commissioner was not conclusive against complainant, through his failure to appeal, since section 2273, Rev. St. U. S.; which provides for appeals from the decision of the commissioner, applies in terms only to contests between settlers, since complainant, in regard to the decision of the commissioner, was entitled to a day in court, which he had not had, and since the decisions of the land department are conclusive of questions of fact only, and not of questions of law.</p>

<p>Insurance — Life—Assignment oe Policy — Insurable Interest.</p> <p>Where A. assigned a policy of insurance upon his life to B., in full satisfaction of a debt due the latter, and B. assigned the policy to 0., to secure a debt which he owed him, and C. assigned the debt secured by the policy to D., and, after A.’s death, B. and D. both claimed the proceeds of the policy which the insurer paid into court, B. claiming on the ground that neither C. nor D. had ever had any insurable interest in A.’s life, and it appeared that neither B., C., nor D. had any insurable interest in A.’s life at the time of his death, held that, as between the two claimants, D. was entitled to the fund.</p>

A petition was filed in this action by C. H. Mallory & Co. and the New York & Texas Steam-Ship Company to obtain an order directing the receiver, appointed by the court for the Florida Railway & Navigation Company, to desist from further discriminating against the petitioner, and in favor of the Clyde, (a competing line,) in respect to rates on freight and passenger traffic, and to extend to petitioners all facilities of prompt carriage of freight and passengers as he has…

<p>1. Attachment — Non-Resident—JxmrsnTOTiox— Service.</p> <p>An attachment in a United States circuit court, in a case where no service 1 was made on defendant, and defendant could not be found in tile district, is void, under Rev. St. U. S. § 739, which exempts a party from suit in the United States courts, except in the district in which he is an inhabitant., or may be served with process.</p> <p>3. Same- — Appearance.</p> <p>A subsequent appearance of the defendant in the case does not waive the invalidity of the attachment proceedings.</p> <p>3. Same — Attack by Third Parties.</p> <p>A third party, claiming to own the goods attached, is entitled to set aside the attachment, the defect being jurisdictional.</p>

<p>Action on Insurance Policy removed from state court. On motion to retax costs.</p>

At Law. This is an action upon a policy of fire insurance. The loss occurred February 23, 1886. Proof was made, and the amount of the loss fixed by agreement, March 12, 1886, at $500. Action was brought upon the policy September 14, 1886.

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

<p>Sur motion for judgment for the defendant non obstante veredicto.</p>

<p>1. Perjury — Naturalization Laws — Affidavits.</p> <p>Tlie Revised Statutes of the United States, § 5395, which provide,! for punishment hyfine and imprisonment where any person knowingly swears falsely in an oath or affidavit made or taken under any law relating to the naturalization of aliens, are to he construed to refer to oaths which the naturalization law requires or authorizes a party to take.</p> <p>■2. Aliens — Naturalization—Affidavit by Applicant.</p> <p>The Revised Statutes of the United States, § 2165, relating to the naturali •' zation of aliens, which provide that it shall he made to appear to the satisfaction of the court admitting such alien that he has resided within the United States five years at lgast, and within the state or territory where such court is at the time held one year at least, hut that the oath of the applicant shall he in no case allowed to prove his residence, are to be construed as a prohibition forbidding the taking of the oath of the applicant himself as proof of his residence, and not a provision merely that the oath of the applicant shall he regarded as insufficient for the purpose.</p> <p>'8. Perjury — Extrajudicial Oath — Naturalization Laws.</p> <p>An oath made by an applicant under the naturalization laws, that he has resided in the state in which his application is made for one year next preceding the same, is extrajudicial, and not authorized by section 2165 of the Revised Statutes of the United States, and such applicant cannot he convicted on a charge of perjury for the same, brought under section 5895 of said Revised Statutes.</p> <p>4. Same — What Cokstitutes Offexse — Mateiuality.</p> <p>Where an oath is taken or made in a judicial proceeding by a party whose testimony is not competent, but is admitted, not by an excess in the exercise of jurisdiction, but by an error in judgment on the part of the court, which testimony becomes material in the cause, perjury may be assigned for false swearing; but where the oath is extrajudicial, and not required or authorized by law, perjury cannot be so assigned.</p>

<p>Indictment for Forging Signature on Money-order.</p>

<p>1. Patents fob Inventions — INFRINGEMENT—Injunction—Bkkaoii.</p> <p>Parties who llave been enjoined from infringing a patent are guilty of contempt if they contribute to a fund to defray the expenses of a person contesting the validity of the patent, since they will not be allowed to do indirectly what they cannot do directly.</p> <p>2. Same — Contempt—Absence of Intent — Punishment.</p> <p>The fact that they did not intend to violate the injunction, did not believe they were violating it, and acted on the advice of counsel, does not clear them of the contempt; though their disclaimer of intent to violate it will be considered by the court in imposing the punishment.</p>

<p>Patents for Inventions — Infringement—Injunction—Breach—Slue.</p> <p>A suit was brought against several, as partners in the steam-ship business, to recover damages for the infringement oí a patent by use upon one of their ships, and for an injunction. While the action was still pending, they sold out their business, ships, and property to a corporation, which assumed all their debts and liabilities. After the sale, the corporation was not made a party to the suit; but the suit progressed and an injunction was granted. Held, that the corporation, never having been made a party.to the suit, is not bound by the injunction; and neither it nor its agents can be punished for refusal to obey the injunction.</p>

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

In Equity. In November, 1885, this cause was before the court upon a motion for a preliminary injunction. 25 Fed. Rep. 466. It is now presented on final hearing, the facts being substantially the same as before. The defendants do not reargue the questions heretofore passed upon, but rest their defense upon proposHions of law not before brought to the attention of the court.

<p>1. Shipping — Stowage—Damage to Goods — Leakage—Perils of the Seas.</p> <p>A vessel is bound not only to stow goods securely, so far as practicable, but also to separate, so far as may be, sucb as are liable to injure each other, through accident, in severe weather.</p> <p>2. Same — Case Stated — Burden of Proof.</p> <p>Two tiers of oil barrels were stowed in the between-decks in front of and over bales of cork. The barrels got adrift in severe weather. Some were smashed, others leaked, and the bales below were injured by oil. Held, that the burden of proof was upon the vessel to show that the injury could not have been avoided by reasonable care, both as respects secure stowage of the barrels, and the separation of the barrels from the bales, wth reference to the liability to accident, and consequent leakage. Neither satisfactorily appearing upon the proofs, the vessel was held liable for the damage.</p>

<p>In Admiralty. Rule to show cause why decree should not be set aside.</p>

<p>Makine Insurance — Loss—Seaworthiness—Phsabing.</p> <p>In an action on a marine policy, unseawortliiness is a matter of defense, and must be pleaded and proved by the insurer. The presumption is in favor of seaworthiness, and the libelant, suing to recover a loss sustained by a peril of the sea covered by his policy, need not allege in his pleading that the implied warranty of seaworthiness was complied with.</p>

<p>Maritime Liens — Seamen’s Wages — - Set-Off — Payments in Charges for Wiitsky and Tobacco.</p> <p>Where a settlement was made with one of the crew, and excessive charges were made for whisky and tobacco furnished at the bar of the boat, held, that a court of admiralty would not sanction the settlement or the charges, but would reduce the set-offi to a reasonable allowance for these articles.</p>

<p>1. Infant — Contracts—Avoidance—Misrepresentation of Age — Estoppel.</p> <p>A minor’s fraudulent misrepresentation to a shipping commissioner for a vessel that he is of ago, does not estop him from avoiding his written contract for compensation, and recovering pay on a quantum, meruit.1</p> <p>2. Same — RATrarcATiON.</p> <p>Four months after coming of age a minor filed a petition to become co-libel-ant in a libel by certain seamen of a vessel, under their written contract, for wages, in which petition nothing was said in regard to his minority. It appeared that he was neither intelligent nor provident, but that having heard that his associates had brought a suit for wages, obtained the services of the lawyer who was acting for the rest. Held, that there was not sufficient evidence of intelligent action to show a ratification of the contract.</p>

<p>In Admiralty. Libel in personam for demurrage.</p> <p>Motion by libelants that the answer be amended.</p>

<p>1. Salvage — Abandonment—Remuneration.</p> <p>Where a schooner is run aground on an exposed bank, six miles out to sea, begins to pound heavily, and is abandoned by the master and crew, and is found by another vessel the next day eleven miles out to sea, and drifting' seaward, abandoned, with the hatches open, and the waves dashing over the deck, and in danger of filling, she is derelict, notwithstanding the master may have intended to return to her.'</p> <p>2. Same — Amount Allowed — Remuneration.</p> <p>“The principles on which the court of admiralty proceed, lead to a liberal remuneration in salvage cases; for they look not merely to the exact quantum, of service performed in the case itself, but to the general interest of the navigation and commerce of the country, which are generally protected by exertions of this nature. ” Lord Stowell.</p> <p>8. Same.</p> <p>Five hundred dollars allowed in this case for salvage services.</p> <p> {Syllabus by the Court.) </p>

<p>1. Salvage — Suit by Mortgagor.</p> <p>A mortgagor, before condition broken, can bring a libel for salvage, be being in lite use, possession, and control of the salving vessel.</p> <p>2. Same — Itrem’ to Recover.</p> <p>"While it may be that the mortgagee of a salving vessel may claim salvage, whore the circumstances put the mortgaged property in peril, proof that there exists against the salving vessel a recorded mortgage does not affect the right of the mortgagor to the compensation due; for salvage.</p>

<p>1. Collision — Pilot-Boats — Rules of Navigation — Answering Pilot’s Signals — Unexpected Maneuvers.</p> <p>A vessel at sea upon pilotage ground is subject to the usual rules of navigation, as respects a pilot-boat whose signal offering services she has not answered, and whose services she does not desire. She is not in fault for observing the usual rules in endeavoring to keep away from the pilot-boat, though the latter maybe navigating for the purpose of coming within hailing distance; nor for not guarding against dangerous maneuvers of the pilot-boat that could not be foreseen or expected. It is not a legal fault to give no answer .to a pilot’s flash-light, offering her services, there being no rule or fixed custom requiring an answer.</p> <p>2. Witkess-'-Examinatioit — ■Chedibiuty.</p> <p>In a conflict of testimony comparatively little weight is to be attached to the statements of witnesses in their own behalf, upon critical facts, differing from their first statements, and drawn from them by the strenuous pressure of leading questions by their own counsel.</p> <p>8. Cormisiox — Piuot-Boat and Bask — -Keeping Away AFouiiTKTSNTir Bulb.</p> <p>The pilot-boat C. W., in a clear, dark night, about IS miles off the Jersey coast, seeing the green light of the hark 0. off her starboard bow, bearing about S. W. by S., for the purpose of hailing her and tendering services as pilot, stood to 1he westward on her port tack, and crossed the O.’s bows for the purpose of going down upon the windward side. When she had brought the O.’s bearing- lo S. 10. by S., the pilot-boat came about on her starboard tack, headings. S. TO.; but, after proceeding two or three lengths, supposing that the bark was rounding to the westward, and lulling- for the purpose @f receiving the pilot, put her helm to starboard, to cross the bark’s bows again, and g-o down upon her lee side. While thus crossing her bows, she came in collision with the bark. The bark had already taken a pilot on hoard, and did not. answer the pilot-boat’s flash-light, to indicate that no pilot was desired, by exhibiting a white light a few times, as is sometimes done, but changed a couple of points to the eastward, as she saw the pilot-boat standing across her bows to the westward, and, after the pilot-boat had crossed, swung hack to her course, and perhaps half a point beyond. The bark was purposely proceeding slowly, and her sails were not trimmed as usual. Just before the collision, she again veered to the eastward, to keep away from the pilot-boat, which seemed to be coming dangerously near on her port side. Held, that the collision was due solely to the dangerous maneuvers of the pilot-boat; that her inference that the bark was lulling, drawn from the bark’s swinging back to her course, and from the trim of her sails, was unwarranted; that the pilot-boat was not justified in again attempting to cross the bark’s bows to the eastward, before the bark’s purpose to luff was made reasonably certain, by showing both her colored lights, which she did not do; that the pilot-boat’s starboarding was not required for her own safety; and that the bark was justified, under the fourteenth rule of navigation, in both changes of the helm, to keep out. of the pilot-boat’s way, as the bark was sailing free, and had the wind on her port side, and the pilot-boat’s last change was unreasonable and not to bo expected.</p>

In Admiralty. On the afternoon of May 5,1886, the schooner yacht Nokomis, 90 feet long, and of 51 tons burden, and the three-masted schooner B. C. Torry, loaded with timber, were coming in from soa, — the Nokomis bound for Stapleton, near the north end of Staton island; the Terry, for Hoboken. As they passed the Narrows, they met a violent squall. Both shortened sail.

<p>Ill Admiralty.</p>

<p>1. BOTTOMRY — NOTE FOR SURPLIES — MORTGAGE.</p> <p>. A nolo given by the master in a foreign port by the owner’s authority for necessary supplies, pledging the vessel for the payment 10 days after completion of her voyage, is a valid bottomry lien, and outranks a prior mortgage.</p> <p>2. Same — Arrest—Hulease under Agreement — Lten Continued.</p> <p>The vessel having been libeled at Boston to enforce the bottomry, and being in custody of the marshal, was released, and that suit discontinued, upon a written agreement between the parties that, she should go to .New York to take in cargo, and that the existing lien for bottomry should remain in lull force, to be enforced in the district court of .New York or New Jersey, by libel or otherwise, on arrival, and that the owner should pay all court expenses in Boston on arrival, to be secured as part of the lien. Meld, upon t'he arrival of the vessel in New York, under the agreement, that the libelant had a valid maritime lien for the amount due on the bottomry note, as well as for the court expenses in Boston, excluding, however, additional counsel fees.</p> <p>8. Same — New Charter — Re-arrest—Marshal’s Authority — Loading While IN C UST OD Y — D E LAY — D AMA GE S.</p> <p>The defendant, upon the above agreement, insisting that, before settling the bottomry claim, he had an option to send the vessel to Bayonne, New Jersey, to load under a charter which did not name the particular place of loading, held inconsistent with the written agreement; that loading without the charterer’s knowledge of the lien, and of the agreement for enforcing it, could not. proceed without, bad faith to the charterer, before a new arrest by the marshal; that the marshal had no authority to permit loading without notice after arrest; and that the owner’s damages, through delay in not loading under the charter after the re-arrest, were through his own"delay in settling for the lien, or releasing the vessel under stipulation, and that there was no cause of action or offset against the bottomry creditor therefor.</p>

<p>Removal oe Causes — Petition—Time eob, Filing.</p> <p>Section 3 of tlie removal act of March 3, 1887, requires the petition for removal he filed at the time the defendant was required hy the laws of the state, or the rules of the state court, to answer the complaint. In this case the defendant's time to answer would have expired March 2d, but, by stipulation, the time was extended to March 30th. The petition for removal was not filed till April 8th. Held, that the act applied to the action, although it was pending at the time of enactment, and that, since the statutory time for answering could be extended by stipulation, as was done, defendant lost his right to remove by his failure to file his petition before March 30th.</p>

<p>At Law. On motion to remand.</p>

<p>Constitutional Law — Interstate Commerce — Navigable Waters — Obstruction.</p> <p>Congress can lawfully confer upon a private corporation the capacity to occupy navigable waters within a state, and appropriate the soil under them, upon accpiiring the rights of the owners, in order to construct a bridge over such waters for the purposes of interstate commerce, without the consent and notwithstanding the protest of the stale.</p>

<p>1. SAM — RESCISSION—MISREPRESENTATION.</p> <p>Equity will rescind a purchase, upon the application of the purchaser, where the purchase was induced by a material misrepresentation of the vendor, although tho misrepresentation were innocently made by'the vendor.</p> <p>2. Samu — Materiality.</p> <p>Such relief will not be granted, however, if the misrepresentation was of a trifling or immaterial thing, or if it was vague and inconclusive in its nature, or if the complainant did not trust t o it, or was not misled by it, or if it was upon matter of opinion, or was of a fact equally open to the knowledge of both parties, and in regard to which neither could be presumed to trust the other.</p> <p>3. Same — Corporate Existence.</p> <p>Upon a purchase of shares of stock in an association, which was in legal effect merely a partnership, the vendor represented that the association was an incorporated company. Held, that such a representation, although untrue in fact, was not a misrepresentation of matters of substance, in the absence of any inquiries on the part of the purchaser concerning the character of the corporation, and was not a sufficient ground for decreeing a rescission of the purchase.1</p>

<p>1. Dedication — Evidence of — Plat Alteration.</p> <p>Upon an issue as to whether College street, in the city of Portland, Oregon, extends through block No. 138, by virtue of a dedication made by the original owner of the premises, who plaited a tract, including the block, as a part of the city, held that, although the record of the plat shows that, at some time, a line, since erased, was drawn across block 188, thus representing College street, as running through the block, yet the testimony of witnesses, and the appearance of the record itself, satisfactorily demonstrate that the line was drawn by mistake in recording the plat, and was erased-at the time, and that the erasure was not the result of a fraudulent alteration, made since.1</p> <p>2. Same — Estoppel—Reference to Maps.</p> <p>The sale, by the owner of the tract platted, of lols not bounding on College street, by reference to other maps, not made by him or recorded as his dedication, would not amount to a recognition of the correctness of those maps in regard to College street, and, although College street were represented on them as running through the block, a dedication should not be inferred therefrom, the official map showing the contrary; especially as against purchasers who purchased and made valuable improvements, relying- on the latter.</p> <p>8. Parties — Injunction—Trustee—Oestuis Que Trust.</p> <p>To a suit brought by a trustee to enjoin a city from improving as a street, private property belonging to the trust, the cestui que trust need not be made a parly, as the relief sought in no way affects the relations of the trustee and the cestui.</p> <p>4. Pleabinu — Variance—Suit in Capacity of Trustee.</p> <p>If, in a bill in equity to enforce the rights of a property owner, the plaintiff is alleged to be the holder of the legal title in trust for certain other persons. it is immaterial that his evidence shows that he had bought the interest of the beneficiary before the filing of the bill, and is, therefore, in reality, the absolute owner.</p> <p>Before Sawyer, O. o .</p>

<p>1. Public Lands — Swamp Lands — Fitness fob Cultivation.</p> <p>Lands which, by reason of swamp or overflow, become unfit for cultivation, are within the purview of the act of congress of 1850, granting certain swamp and overflowed lands to the state of Iowa.</p> <p>2. Limitation of Actions — Advebse Possession — Natube of.</p> <p>Where the lands in question are, by reason of overflow, unfit'for cultivation, and only of use for the purpose of raising grass and hay upon them, the use of the lands for that purpose openly, and to the knowledge of the neighborhood, for the statutory period, is sufficient to constitute adverse possession under color of title.1</p> <p>3. Estoppel — Equitable—Payment of Taxes.</p> <p>A mere payment of taxes by claimant in ejectment, with knowledge of defendant’s claim of title to the land, will not estop defendant from asserting his claim of title, because he tacitly permitted complainant to pay the taxes, where defendant made no concealment of his title, which was matter of record.</p> <p>4. Same — Pleading—Bubden of Pboof.</p> <p>To sustain a plea of estoppel, evidence in support of the facts claimed to give-rise to the estoppel must.be adduced by the party pleading it, for upon him is the burden of proof.</p>

<p>1. Injunction — Trespass by Corporation — Irreparable MiscniEP.</p> <p>A court of equity will not interpose by injunction to prevent a corporation, that is guilty of a trespass, from a repetition of tb.e same; it must be shown that there are sundry persons controverting the same right, each standing on his own ground; and that their acts work irreparable mischief.</p> <p>2. Same — Plaintiff not Stockholder.</p> <p>To entitle a party to relief by injunction against the illegal or fraudulent proceedings of corporate officers, the oarty seeking relief must be a stockholder of the corporation.</p> <p>3. Banks and Banking — National Bank — Power to Cut Timber to Collect Debt Secured on Land.</p> <p>A national bank that has loaned money on timber land may, to protect itself and collect the debt, purchase the land at foreclosure sale, and cut and sell the timber.</p>

<p>1. SiiERim? — Powers—Execution Sale — Auctioneer.</p> <p>The fees and poundage allowed by statute to a sheriff for levying and collecting an execution are the only charges to which he can lawfully subject the property of an execution debtor, and a sheriff has no right to employ an auctioneer to sell property seized under an execution, in the absence of authority from the owner in that behalf.</p> <p>2. Pbincipal and Agent — Liability oe Agent.</p> <p>In an action against an agent for money had and received, when the plaintiff does not make title through a contract with the agent, but has a title to the money in his hands paramount to that of the principal, the agent who has received the money is personally'liable, unless he has paid it over to Ms principal before notice.</p> <p>3. Equity — Juiusdiotion—Assumpsit—Discovery.</p> <p>If a portion of the proceeds of an execution sale, to which the execution debtor is entitled, is illegally withheld by an auctioneer who conducted the sale, and by an agent of the sheriff, a bill in equity will lie to recover the money, although there is a remedy at law by action for money had and received, when the facts are such as to entitle the plaintiff to come into equity for a discovery.</p> <p>4. Same — Remedy at Law.</p> <p>Where the peculiar circumstances of a case entitle the complainant to enforce his claim against one party in a court of equity, he cannot bo compelled to seek a remedy at law against another party, though such step be open to him, in preference to relief in equity.</p>

<p>Counties — Actions against — Juetsdictton.</p> <p>In Nevada counties are liable to be sued in the state courts, the same as “natural persons. ” Held, also, that they are liable to bo sued in the courts of the United States.</p> <p> (.Syllabus by the Court.) </p>

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

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

<p>1. LxmitatioN op Actions — Infringement op Patent — State Statute.</p> <p>The statute of limitations of a state is not applicable to an action brought for the infringement of a patent.</p> <p>2. Patents for Intentions — Infringement by County — Presentation op Claim.</p> <p>The provisions of section 2610 of the Code of Iowa, requiring the presentation of unliquidated demands to the board of supervisors before suit can be brought thereon against a county in Iowa, are applicable to actions for infringement of patent-rights. May v. Buchanan Oo., 29 Fed. Rep. 469, followed.</p>

The secretary of the treasury, having attempted to compromise a judgment obtained in the district court by the prosecutor against the defendant for the violation of section 5438 of the Revised Statutes, on which there was still due the sum of $23,576, for-the sum of $100, under section 8469 of said statutes, the district attorney moved the court for leave to enter satisfaction of the judgment, as well for the half belonging to the prosecutor as for that belonging to the…

Defendants were indicted under Rev. St. § 5403, for taking and carrying away, with the intent to steal or destroy, certain records belonging to the office of the internal revenue collector at Detroit, Michigan. The proof showed that, the government not furnishing sufficient accomoda-tions for their safe keeping, the collector stored them in the stable or barn at his private residence.

<p>Petition for Writs of Habeas Corpus and Certiorari.</p> <p>See U. S. v. Haynes, 26 Fed. Rep. 857, and Same v. Same, 29 Fed. Rep. 691.</p>

<p>In Equity. Bill ior injunction to restrain infringement of complainant’s copyright.</p>

<p>1. Patents nor Inventions — Patentability—Tnventton.</p> <p>An improved method of inserting and supporting artificial teetb, whereby former unsuccessful methods are altered, and a successful form of attachment supplied, is an invention a patent for which will he sustained, although the former methods, and the failure of the same, may have pointed out the way, and been utilized for perfecting the improvement.</p> <p>2. Sam e — Application—Abandonment.</p> <p>Where an application for a patent is refused, and a controversy thereupon ensues with the officials of the patent-office with respect to the same, in which the examiner suggests that instead of a reconsideration, and approval of an amended application, a new application be made, with certain modifications, and a new application is accordingly filed, differing from the first in the omission of superfluous matter, and changing the description in some particulars, and a patent is thereupon granted, such new application will he regarded as a more convenient way of prosecuting’ the first, and the two considered as parts of a continuous proceeding. Hence the allegation of two years' public use in contesting the patent will be referred to the date of the first application, and not the second.</p> <p>3. Same — Patentability—Mechanical Skill.</p> <p>Where a method of making and inserting artificial tooth crowns is practiced and demonstrated for years, a mere mechanical change in such method, which has no patentable novelty in itself, is not an invention for which a patent will ho sustained.</p>

<p>In Equity. On demurrer to bill for infringement of letters patent.</p>

<p>In Equity. Bill for infringement of letters patent.</p>

In Admiralty. Distribution of proceeds. On the tenth of February, 1886, the libel was filed in the first-named cause to recover 810,000 damages to the bark Strathay, for the alleged negligence of the tug Young America, while towing the bark, in causing her to run upon the rocks at Hell Gate on the twenty-ninth of January, 1886. Under the process issued, the marshal made a formal arrest of the tug on the tenth of February.

<p>lit Equity. On motion to remand.</p>

<p>Costs — Removed Cause — Continued Prosecution in State Court — Reversad by Ünited States Supreme Court — Application eor Stay Pending Payment oe Costs.</p> <p>Plaintiff having brought suit in a state court, defendant offered a proper petition and bond for the removal of the cause to the courts of the United States. Notwithstanding this, the suit was prosecuted in plaintiff’s favor to the court of appeals of the state of New York, from which a writ of error was taken to the United States supreme court. This held that the state courts had no jurisdiction after the filing by defendant of the petition and bond for removal, ’gave costs in that court to the defendant, and remanded the suit to the state court, with instructions to accept the bond, “and proceed no further in the suit. ” The mandate did not authorize the state court to award costs. Thereafter the state court awarded costs to defendant, which not being paid, this application was made by defendant to stay proceedings in this court until the payment by plaintiff. Held that, while it seems that the state court, under these’ circumstances, had no authority to award costs, the application for a stay being in the discretion of the court, and the proceedigs not having been vexatious in any way, and the highest court of the state having held that plaintiff was right in continuing his proceedings there, this court would not, under such circumstances, grant a stay, and plaintiff might continue his action on payment to defendant of the costs awarded in the supreme court of the United States.</p>

<p>Ill Equity.</p> <p>Bill to foreclose mortgage. Demurrers to cross-bill.</p>

<p>Assignment for Benefit of Creditors — Preferences—Insolvency.</p> <p>In Indiana, notwithstanding Rev. St. 1881, § 2662, providing that thereafter all assignments made by debtors in embarrassed or failing circumstances, except general assignments of all their properly, in trust, for the benefit of all their bona fide creditors, should be deemed fraudulent and void, such debtors may still prefer their creditors by confession of judgment, or by selling, mortgaging, or pledging their property; but an assignment by a partnership of all the firm assets, preferring certain creditors, is neither a sale, a mortgage, nor a sale in the nature of a mortgage, and, at the suit of an unpreferred creditor, will be declared to be an assignment for the equal benefit of all creditors.1</p>

In Equity. On demurrer to bill. The Bevised Statutes of Missouri of 1879 provide (section 354) that— “Every voluntary assignment of lands, tenements, goods, chattels, effects, and credits, made by a debtor to any person in trust for his creditors, shall bo for the benefit of all the creditors of the assignor, in proportion to their respective claims, and every such assignment shall be proved or acknowledged and certified and recorded in the same manner as is prescribed by…

<p>IiTFB INSURANCE — ASSIGNMENT—INSURABLE INTEREST — MUTUAL BENEFIT SOCIETY.</p> <p>Where, under the articles of association and by-laws of a mutual benefit society, the benefits are payable to the person designated by the member in his application for membership, or by his last will and testament, it is competent for such member by his own act, and with the consent of the company, at any time before his death, without the formalities of a will, to make a transfer of the benefit from the original beneficiary named to any other person he may select, whether the person so selected lias or has not an insurable interest in his life.1</p>

Indictment under section 5467, for destroying letter, embezzlement, etc. The defendant was employed in the post-office at Atlanta, Georgia, as distributing clerk, and had so been employed for years, lie also had charge of what was known as “nixes;” the term “nixes” being interpreted as meaning matter received in the post-office which could not be forwarded through the mail because incorrectly, insufficiently, or illegibly addressed, or addressed to points where there was no…

In Equity. Bill for the infringement by the defendants of five letters patent, viz.: No. 221,488, to J. C. White, granted November 11, 1879; No. 229,788, to J. C. White, granted July 6,1880; No. 241,008, to H. H. Hayden, granted May 3, 1881; No. 273,525, to H. H. Hayden, granted March 6, 1883; No. 273,526, to II. H. Hayden, granted March 6,1883. Complainants notified defendants that they did not propose to rely upon the Hayden patents Nos. 241,008 and 273,525.

<p>In Equity. Bill for infringement of letters patent.</p>

<p>In Equity. Suit for infringement of letters patent.</p>

<p>Patents for Inventions — 'Validity—Known Process — Improvement.</p> <p>A bill in equity to restrain the infringement of a patent will be dismissed where the patent alleged to be infringed is merely for an improvement in a previously known process, easily suggested by the tools used in the same, and the authorship of which improvement, if entitled to be called'an invention, belongs to the person who devised such original process, and not to the pat-entee.</p>

<p>1. Collision — Steamer and Ferry-Boat — East River Navigation — Keeping in Mid-Stream — Article 1G, International Regulations.</p> <p>Tlie steamer P. was coming down tie East river, near the New York shore, on the ebb-tide, when the ferry-boat A. started out from the New York shore to cross to Brooklyn. The P. thereupon blew two whistles, and sheered to port, to cross the bows of the A., relying, as she did so, upon the A.’s stopping. The ferry-boat, being upon the starboard hand of the P., did not stop, with the result that she was run into by the steamer. Hold, that a fault in the P. was in her not keeping in the middle of the river; that, the situation being governed by article 16 of the International Regulations, it was the duty of the A. to keep her course, and of the P. to avoid her; that the latter was therefore solely liable for the collision.</p> <p>3. Same — Custom:—Sound Steamers — Exemption from Article 16.</p> <p>If there is a custom which permits Sound steamers to claim exemption from the operation of article 16 of the Internationa] Regulations, when approaching the ferries in the East river on the ebb-tide, such custom is opposed to law, and cannot prevail.</p>

<p>Collision — Sailing Vessels — Vessel Hove to — Fog-Signals.</p> <p>A sailing- vessel, when hove to in. a fog, should ring a hell, and not blow a horn.</p>

<p>"1. Collision — Wharves and Slips — Burden op Proof.</p> <p>Where a vessel, moving out of the slip, injures another moored to the wharf, the burden of proof is upon the former to show that she was without fault.</p> <p>3. Same — Case Stated — Old Vessel — Suspicious Circumstances — Hale Dam-a&es.</p> <p>While the steamer C. of A. was being towed out of the slip, the libelant’s sloop, lying along the wharf, was injured by being jammed in consequence, as was alleged, of the steamer’s bowline not being cast ofl in time. Jleld, on a conflict of evidence, that the sloop was jammed by the steamer; but the sloop being old, and previous notice given to the sloop to move away, and other circumstances existing not satisfactorily explained, half damages only were allowed.</p>

In Admiralty. Sur exceptions to commissioner’s report. The bark Silica sailed from London for Philadelphia, on August 11, 1884, and arrived at the latter port on the seventh of October. There she was chartered for a voyage from Philadelphia to Fiume. She proceeded on her voyage in the tow of the tug Protector, and, owing to the negligent handling of the tug, and the faulty position of the Lord Warden, collided with the latter.

<p>1. Salvase — Services—Pilot as Salvor — Award.</p> <p>Libelant, a pilot, was on board the steamship W., but had not taken charge, when the vessel ran ashore. Thereafter he.rendered assistance by suggestions as to getting her oil, and by taking charge of her when she was floated in a rudderless condition. He incurred no risk; and was not called upon for "any extraordinary exeftion. Beld, that he should recover $1,000 salvage.</p> <p>2. Same — When Pilot may be Salvor.</p> <p>A pilot may be a salvor, although aboard the vessel, if he has not yet assumed the relation of pilot to her.</p> <p>3 Same — New Jersey Statute — Extraordinary Pilotage Services.</p> <p>The statute of New Jersey (section 16 of the issue of 1846) relates to extraordinary pilotage services. A case of pilotage services necessarily presupposes the vessel capable of being navigated. So a pilot, rendering aid to an unnavigable vessel, is not bound by the above statute, and his services may be not those of a pilot, but of a salvor.</p>

<p>Iii Equity. Bill for divorce.</p>

<p>1. Pubmc Lands — Patents—Mexican Grants — Fraud.</p> <p>In the absence of satisfactory proof of fraud in procuring the survey, or its approval, or the issue of the patent based upon it, where the- decree of the hoard of land commissioners created by the act of congress of March 3. 1851, confirming a Mexican grant is for a tract of land with designated boundaries, and not for a speciiie quantity, a patent based upon a survey following the boundaries of the decree is not void because it embraces a tract containing more than 30,000 acres, or very nearly 7 Mexican leagues, and the grant is for 1 square league and no more.1</p> <p>2. Limitation oe Actions — Burrs by United States — Fiibotc Lands.</p> <p>A suit to set aside a patent issued to one claiming land in California under a Mexican grant on the ground of fraud, cannot be maintained by theLnited States after the lapse of 19 years since the survey was made, 15 since the patent was issued, and 36 since the passage of the act of congress of March 8,1851. entitled, “An act to ascertain and nettle, private land claims in the state of California. ” Such a suit is part of the compulsory litigation forced upon claimants by that act; and, as the government consented to appear therein as an equal litigant, and impliedly waived all rights peculiar to it as a sovereign, the maxim, “nullum tempvs oceurrit regi,” does not apply.2</p>

<p>1. Equity — Reformation of Policy of Insurance — Omission of Provision.</p> <p>In order to obtain the reformation of a policy of insurance on the ground that a provision orally agreed upon has been omitted, it must be clearly and satisfactorily proved that before the policy was issued there was a distinct agreement that the policy should contain such provision, and that through inadvertence or mistake the stipulation was omitted. If the testimony is conflicting or of such undecisive character as to raise a substantial doubt in the minds of the court,the contractas written must stand.</p> <p>2. Same.</p> <p>Besides the ordinary burden of proof which rests upon every litigant who holds the affirmative of an issue there is in this class of cases the additional burden of overcoming the strong presumption created by the contract itself.</p> <p>3. Samis — Representations after Delivery — Agency.</p> <p>Where a party to whom a policy of fire insurance upon a buildinghadbeen issued, deposited it with the agent of the insurer for safe-keeping, and after-wards asked such agent how long the premises might remain vacant without violating the policy, and was told 30 days, whereas in fact the policy provided that it should be void if the premises remained vacant for more than 10 days, and a loss afterwards occurred, when the premises had been vacant for more than 10 days, held, that the assured had made the party with whom he deposited the policy his own agent; that his misstatement constitutes no ground for reforming the policy, and that the insurer is not liable.</p>

<p>1. Corporations — Sale op Attached Assets — Liability of Directors.</p> <p>Where an insolvent corporation is still “a going concern,’’the directors cannot be held personally liable, as for a breach of trust, because they have made a bona fide advantageous sale out and out of the corporate assets, all of which have been attached, to one of the attaching creditors, on condition that he would cancel his own debt, and discharge the debts of the other attaching creditors; the directors having no means with which to contest the attachment suits, and the transfer being advised by counsel.</p> <p>2. Same — ATTACHMENT.</p> <p>The assets of such insolvent corporation cannot be followed by its creditors as a trust fund in the hands of the attaching creditor.</p> <p>8. Same — Rights of Creditors.</p> <p>A creditor of an insolvent corporation will not be deprived of a lien obtained by him upon its assets by an attachment because at the time the writ was issued he knew that the corporation was insolvent.</p>

<p>1. RAILROAD COWPAXIKS — INTERSTATE CiXSlMKRCB — WHAT IS.</p> <p>Tlio transportation of properly from one state to another is interstate commerce, whether the carriers engaged in moving it, or the vehicles on which it is borne, cross the line of the state or not.</p> <p>2. S.VMK — “Interstate Commerce Act” — What Carriers Included— “Common Control” — “Continuous Shipment” — Carriage in Own State.</p> <p>Tliis ad; does not include or apply to all carriers engaged in interstate commerce, but only such as use a railway, or a railway and water-craft, “under common control, management, or arrangement for a continuous carriage or shipment” of property from one state to another; nor does it apply to the carriage of property by rail wholly within the state, although shipped from or destined to aplace without the state, so that such place is not in a foreign country. u</p> <p>8. Same — Case in Judgment.</p> <p>The Oregon Railway & Navigation Company carries certain kinds of goods on its steamers forth and back between Portland and 8an Francisco at special and reduced rates. The Oregon & California Railway, under the management of the petitioner, carries the same kinds of goods forth and back between Portland and Ashland, and way-stations in Oregon, at special and reduced rates. The Oregon Paoitic Railway Company carries the same kind of goods forth and back between certain points on the line of the Oregon & California road and Ban Francisco via its railway from Albany to Yaquina bay, and thence by steamer, at reduced rates, and thereby compotes with the Oregon & California Railway and the Oregon Railway & Navigation Company for business between said points and Ban Francisco. The Oregon Railway & Navigation Company and the receiver of the Oregon <& California Railway act, independently,"though concurrently, in making these reduced rates, but no through bill of lading or freight receipt is given, nor is either interested in or liable for the carriage of the goods beyond its own lino of transportation. Held, that the Oregon & California road and the steamers of the Oregon Railway & Navigation Company in tiie carriage of the goods in question are not “used under any common control, management, or arrangement for a continuous carriage or shipment” thereof to and from San Francisco, within the intent and meaning of the act, and that, the .carriage and handling of said goods, so far as the receiver is concerned, is performed wholly within the st.ate, and therefore specially exempted by the terms of the act from its operation, provided the same are not directly shipped to or from a foreign country.</p> <p> {Syllabus by the Court.') </p>

<p>1. Patents foit IsrvENTTONS — RovHL Device — Improvement in Drive Oiiatss.</p> <p>Letters patent wore granted October 16,1877, to one William B. Ewart, for an improvement in drive chains, fhe object of the same being to improve the construction of the link described in .letters patent So. 154,595, previously granted to said Ewart on September 1, 1874, and reissued April 20, 1875. The improvement consisted in casting the link with a hook in permanent form, and also in casting a small projection upon the hook which might be turned down around the end of the link for a fastening. Before the application was made for the patent in question, other patents were granted for cast links, and the mode of easting a projection upon the hook failed to show a novel device. Held, that a bill to restrain an infringement of said patent must be dismissed.</p> <p>2. Same — Sew Process.</p> <p>Said patent could not bo sustained as a patent for a new process of manufacture, as it in no manner described any process for the same.</p>

<p>1. Patents for Inventions — New Device — Improvements in Chain-Links.</p> <p>Letters patent were granted to one Sylvanus Locke, February S3, Í875, for an improvement in chain-links and chains, being a method of constructing a chain with links detachable from the adjoining links, and so arranged that the links, when turned into working' position, could not become disengaged The device effected an articulation of the links by thrusting an end-bar with a forward movement into the jaws of a hook, when the links, being turned backward, became safely united for working purposes. The proof showed that a patent was previously granted to one Ewaxt for a similar device, but the articulation was accomplished by a sidewise movement. Held, on a hill filed to restrain infringement, that the device described in the Locke patent was now in art, and said patent was not defeated by the prior Ewart patent, although its scope was limited by the prior state of the art as shown by said Ewart.</p> <p>2. Same — Improvement in Ciiain-Li nks — Infringement.</p> <p>The manufacture of links with the use of an end-bar arranged to enter the throat of a hook by a forward movement, the links being slightly fastened together by bending'down the point of the hook so as to narrow the throat of the same, the links admitting a severance by a small amount of force, is to all intents such a use of the characteristics of the said Locke patent as will be deemed an infringement of the same.</p>

<p>In Admiralty. Libel for wharfage dues.</p> <p>Appeal from district court.</p>

<p>Master and Servant — Negligenge — Fellow-Servant — Boatswain and Stevedore.</p> <p>Libelant, a stevedore, was employed by the ship-owner to assist in loading a vessel. While so engaged, he was injured bjr the falling upon him of lumber out of a sling. The boatswain of the vessel was in charge of the steam-winch, by which ttie timber was bandied. Held that, even if the accident occurred by the boatswain’s negligence, libelant could not recover, as, under the circumstances of their hiring,' he and the boatswain were fellow-servants.</p>

<p>Salvage — Ruddebless Vessel — Sebvices — Risk — Doubtful Weatheb— Awabd.</p> <p>The steam-ship W. went aslioro, and got oO' with, the loss of hor rudder. She approached close to. the harbor of New York, moving backward, when she was met and taken into the harbor by the steam-ship isf. The W. was sound and staunch, and in no especial danger, but the weather was doubtful, anti her master desired to be in the harbor before the fall of night, in view of her disabled condition. The N. incurred little.risk. Her value was $450,000. The "value of the W., her cargo and freight, was 8505,234.37. lleld that 84,000 salvage should bo allowed.</p>

<p>Removal of Causes — Phaottoe—Petition—'Time fob Filing.</p> <p>Under the act oí congress of March 3, 1887, which restricts the right of removal of an action from a state court to tho United States circuit court, as it then existed, a defendant must file his petition within the time in which, by the laws of the state or the rules of tho state court,, he is required to fUe his original answer or plea, and not within tho time when he is required or may elect to file an amended answer.</p>

<p>In Equity. Bill to reform deed.</p>

<p>1. Courts — Jurisdictional Amount-Distinct Demands.</p> <p>Under the act of March 8, 1887, an action may bo maintained in the United States circuit courts wliere the matter in dispute exceeds, exclusive of interest and costs, the sum and value of 82,000. although it. is made up of distinct demands of less value than 82,000, and although the plaintiff may have acquired such demands by assignment.</p> <p>2. Same — Fraudulent Conveyances — State Statute.</p> <p>IVlicre a statute of a state provides that in the case of fraudulent assignments a court of competent jurisdiction is authorized to declare the assignment void, although the assignee is not shown to have notice of the fraud, the equity courts of the United States having jurisdiction can enforce rights under such statute. Jaffrey v. Brown, 29 Fed. Iiep. 470, followed.</p> <p> {Syllabus by the Court.) </p>

<p>In Equity. Bill to restrain sale of lands in execution.</p>

<p>Judgment- — Setting Aside in Equity — Ooiuiuption as Judge.</p> <p>The trial judge went to the office of the defendant’s counsel to notify him to he present 'in court at a certain hour, when he would discharge a hung jury, hut merely sent a message to the same effect to the plaintiff’s counsel, (in the second trial, which was heard without a jury, he spoke harshly to the plaintiff for a formal omission hv her, when taking the oath, and he decided the case in favor of the defendant, upon the conclusion of one argument for the plaintiff, without hearing argument for the defendant or further argument for plaintiff from her principal counsel. The defendant’s counsel was seen during the progress of the case in the judge’s chambers adjoining the court-room, where he was waiting for court to open. Held, in a suit in equity by the plaintiff to set the judgment aside, because of the corruption of the judge, that these facts showed not even the slightest misconduct upon his part.</p>

<p>1. Railroad Companies — Mortgage—Marshaling Assets.</p> <p>In a suit to foreclose a mortgage upon a railway extending through several states, where original bill is filed in Tennessee, and ancillary bills in Georgia, Alabama, and Mississippi, upon application to the ancillary court, in Georgia, by a judgment creditor of the mortgagor, to have an order against the receiver to pay his claim out of the earnings of the mortgagor that wore on hand at the date of the appointment of the receiver, held, dismissing the petition without prejudice, that the court in Tennessee in which the original bill was filed, and upon whose orders the receiver had paid out all of the funds coming to his hands, is the proper tribunal to which a judgment creditor should make application for relief.</p> <p>2. Same — Judgment Creditor — Personal Injuries — Priority—Earnings or CoRPtrs on Estate.</p> <p>A creditor having a judgment for personal injuries against the mortgagor, growing out of torts committed by it before 'the receivership, is a general creditor, and his judgment, is not entitled to priority of satisfaction out of the earnings of the receivership, and a, fortiori not out of the corpus of the estate.</p>

In Equity. On demurrer. The bill of complainants in this case alleges that on the sixteenth of September, 1882, David Danziger, being then a dry goods merchant in New Orleans, entered into partnership with Leon Godchaux, by which Godchaux became a partner in commendam, and advanced to said Danziger the sum of $40,000; the said Danziger carrying on the business in his own name, as he was required by the law of Louisiana to do.

<p>Life Insurance — When Policy Becomes Binding — Contract -with Agent.</p> <p>A policy of life insurance, upon due application, was issued under a contract with the local agent, whereby it was substantially agreed that the agent should pay the first quarter’s premium, and take the applicant’s note for the same. The policy was mailed from the home office, July 28, 1885, and received by the local agent, August 5, 1885, but was never actually delivered into the possession of the applicant, who was taken ill August 6th, and died September 9,1885. Held that, as between the applicant and the company, the policy became effective and binding when placed in the mail, July 28, Í885; and, if not then, certainly when it reached the hands of the agent, August 5, 1885.</p>

At Law. Mrs. Gibson purchased, at Atlanta, Ga., two whole and two half tickets to Memphis, Tennessee, at emigrant rates. When she reached the Memphis & Charleston road, Conductor Ramsey refused to pass the boy, because he believed him to he over 12 years old, and the mother and her party left the train at Grand Junction. They remained there three days in the waiting-room, when the railroad company brought them to the city on the tickets that were rejected.

<p>1. RailROAd Companies — Municipal Aid — Power to Issue Bonds.</p> <p>Section 4 of tlie Kansas act for the organization of cities of the third class, (Comp. Laws Kan. 187,) which provides that such cities shall remain a part of the corporate limits of the townships in which they are situated, for various purposes, including that of subscribing stock in aid of constructing railroads, does not exclude such cities from the power to issue railroad aid bonds.</p> <p>2. Same.</p> <p>Under section 63 of the same act, which provides that the council of such cities shall take all needful steps to protect the interests of the city in any railroad leading from or towards the same, cities of the third class are authorized to become interested in railroad enterprises.</p> <p>3 Same.</p> <p>Laws Kan. 1876, c. 107, as amended in 1877, (Comp. Laws, 792,) relating to aid in the construction of railroads, expressly authorizes any city, upon certain conditions, to issue bonds for railroad purposes.</p>

<p>Limitation on Actions — Running on Statute — Absence from State —Tax Title.</p> <p>The Kansas tax law, § 141, (Comp. Laws, p. 967,) limiting the time for bringing an action to defeat or avoid a tax sale to five years after the recording of the tax deed, except in cases where the tax has been paid or the land redeemed, is to be construed in connection with Code Civil Proc. § 21, which provides that, if a person be without the state when any cause of action accrues against him, the period limited shall not commence to run until he comes into the state; and the running of the statute in favor of the holder of a tax title will be suspended during his absence from the state.1</p>

<p>Revival — Death—Order Striking out Decedent’s Name.</p> <p>Where an unconditional order signed by the judge and duly enrolled, striking the name of a decedent from the cause, was taken, and eight years thereafter application was made for leave to file a bill of revivor, in the absence of any explanation of the order of dismissal, leave to revive will not be granted.</p> <p> {Syllabus by the Court.) </p>

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

<p>Customs Duties — Exemptions—Animals Eit eor Breeding.</p> <p>In a proceeding to forfeit 11 stallions and a jack, the information charged that certain Canadians were engaged in importing animals from Canada for sale; that they were not engaged in breeding or raising animals; and that they caused certain citizens of Indiana to make their affidavit to the collector of customs that they were the owners of the animals, and had imported them expressly for breeding purposes, when in fact the animals were the property of the Canadians, who imported them for sale and profit. Held, that the fact that the animals were fit for breeding purposes did not entitle the importers to exemption from customs duties, under the act of congress of March 3, 1883, (22 St. at Large, 503,) exempting from duty animals specially imported for breeding purposes, if the animals were in fact imported for sale, and that the information sufficiently charged an offense against the customs laws.</p>

<p>Courts — Jurisdiction—Distkict Court op Kansas — “Cherokee Outlet”— Murder.</p> <p>The “Cherokee Outlet” is within, that portion of the Indian territory placed within the jurisdiction of the United States district court of Kansas by the act of congress of January 6, 1883, (22 St. U. S. 400,) and jurisdiction of a murder committed there is in that court, and not in the district court for ■ the Western district of Arkansas.</p>

<p>PATENTS FOR INVENTIONS — NOVELTY—IMPROVED SHIRT-BOSOMS.</p> <p>Tlie claims of letters patent No. 15(5,880, of November 17, 1874, to Robert Cluett, for an improvement in shirt-bosoms, do not cover a bosom of any designated. color, size, or shape, or a binding- of any particular variety, or the machinery or processes employed in the construction of the shirt. They are simply for the combination of a shirt bosom, bound on the outer edge with a folded and stitched binding, attached to the shirt-body by a separate line of stitching through the binding. This, in view of all that was known 1o the art in 1874, is not invention, and the patent is void for want of patentable novelty.</p>

<p>1. Seamen — PERSONAL Injuries — Defective Tackle.</p> <p>A vessel and her owners are liable to seamen for injuries caused by the use of weak and dangerous tackle by the order of the ship’s officers, after notice of its defects.</p> <p>2. Same — Case Stated — Rupture.</p> <p>The libelant, a weakly lad of 18. was tending the sling in the hold while the end was unloading. The iron hook, by which the tackle was attached to the yard above, broke, and the sling fell upon the libelant, injuring' him severely; causing, as alleged, a rupture near each groin. The hook broke in consequence of a flaw, which was indicated by its appearance, and was pointed out to the mate. Held, that the vessel was liable; but, upon disputed evidence as to the lad’s previous condition, §000 besides expenses was allowed.</p>

<p>Towage — Pjropkb Channel — Unknown Kock— Injury to Tow.</p> <p>The evidence indicating that the tug, when towing libelant’s boat, was proceeding in a proper channel, and that the canse of the accident was the presence of a rock up to that time unknown, upon which libelant’s boat struck, held, that the tug was not liable for the damage.</p>

<p>1. Seamen- — 'Wages—Desertion—Intent—Detention by Civil Autiiobities.</p> <p>Where a seaman went ashore without intention to desert, and while on shore was detained by the civil authorities as a witness, and meantime his vessel left the port, held, that this did not constitute a desertion.</p> <p>2. Same — Effects — Departure op Vessel — Effects Left Ashore — Loss — Liability of Vessel.</p> <p>When the vessel departed, the master left the seaman’s clothes on shore. The latter, not knowing of their disposition, did riot recover them, and sued the vessel for their value. Held, that the vessel was not liable.</p>