Volume 31 — Federal Reporter

<p>1. National Bank—Liability of Officers—Loans—Discounts.</p> <p>The officers of an insolvent national bank cannot be held personally respon- ' sible to creditors for losses on loans and discounts made by them, in good faith, and, as they thought at the time, for the best interests of the bank, merely because such loans and discounts appear to have been unwise and hazardous when looked back upon.</p> <p>2. Same.</p> <p>Under Rev. St. U. S. § 5200, directors of a national bank, who make or assent to (lie making of a loan to any one person of a sum exceeding one-tenth of the capital stock of the bank, become personally and individually liable for all loss sustained thereby: but where the borrower, in such a case, is also one of the directors, he is not so liable, but simply as a debtor to the hank.</p> <p>8. 8a uk —Di vidends—Losses.</p> <p>Bank directors cannot he held personally liable for money paid out for dividends “to a greater amount, than net profits after deducting losses and had debts.” (Rev. St. U. S. § 5204,) because there were debts bad in fact, hut supposed to be good, when the dividends were declared and paid. Bad judgment on the part of the directors, as to the condition of the assets, without bad faith, does not make them individually liable.</p> <p>4. Same—Loan—Knowledge.</p> <p>Directors of a national bank cannot he held to the common-law liability for mailention to duly as directors in not preventing a hazardous, imprudent, and disastrous loan, if such loan was made by their associates, without their knowledge, connivance, or participation.</p>

<p>1. Equity— Oreninu Degree eor Further Testimony.</p> <p>A party will not be allowed to open a case and have evidence retaken, whore his motion papers fail to show newly-discovered evidence, or evidence of which the party could not avail himself at the first hearing, and where it appears that the party merely wishes to deny what ho did not deny before, but which called for denial then as much as at, the time of the application for a rehearing.</p> <p>S. Same.</p> <p>No mistakes of judgment, or want of attention or capacity of counsel, afford any just or proper grounds for granting a motion to open a case.</p>

<p>1. Conflict of Laws—Contracts—Gaming.</p> <p>The rule laid down in Barnard v. Bachhaus, 52 Wis. 593, 6 N. W. Rep. 352, and 9 N. W. Rep. 595, that, “to uphold a contraot for a sale and delivery of grain at a future date for a price certain, it must affirmatively and satisfactorily appear that the contract was made with an actual view to the delivery and receipt of grain, and not as an evasion of the Wisconsin statute against gaming, or'a cover for a gambling transaction, ” does not apply to an action in the federal courts in that state by a broker, resident in Illinois, to recover advances and commissions growing out of orders given him by a citizen of Wisconsin, to be executed on the floor of the Chicago Board of Trade. The rights of the parties to such a suit are governed by the laws of Illinois.</p> <p>2. Contracts—Gaming—Options—Intent—Burden of Proof—Liability for</p> <p>Commissions and Advances.</p> <p>Under the Illinois statutes, a simple option, reserved by the seller to himself, as to time of delivery of property within certain limits, and the settlement of differences upon such a contract, does not render the contract void as a gambling transaction. The burden of proof, in an action on such a contract by a broker for commissions and advances for settlements made by the “ringing up” process, is therefore upon the defendant to show the gambling intent; and it does not follow, from the fact that he himself intended no delivery, that such was the intention of the broker and of the other principal, or that deliveries were not made as a matter of fact.</p> <p>3. Custom and Usage—“Ringing up”—Gaming.</p> <p>The custom of “ringing up, ” in vogue among brokers and commission merchants, is founded in commercial convenience, and when not adopted to promote a gambling transaction, is not in contravention of the law.</p> <p>4. Same—Effect of—Estoppel.</p> <p>A speculator who is familiar with the methods and usages of the Chicago Board of Trade is presumed, upon giving orders to his broker, a member of that body, to contract with reference thereto; and he will not be heard to set up, as a defense to a suit by the broker for commissions and advances, that the custom prevailing there, in obedience to which the advances were made, enlarged his liability under the contract.</p>

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

Indictment under B,ev. St. U. S., § 5512, for fraudulent registration of voters in St. Louis, Missouri. For Missouri statute relative to registration of voters in cities of over 1,000, see Sess. Laws Mo. 1883, p. 38. There was no formal arraignment and plea.

Appeal in Admiralty. In this cause, submitted on the transcript and evidence, the court finds the following facts: (1) The Queen of St. Johns was owned by the Favorite Navigation Company, a corporation created under the laws of Kentucky, at Covington, Kentucky, in November, 1884.

<p>1, Seamen’s Wages—Lien on Sim>—Ooxtiiagt with Charterer—Waiver.</p> <p>Where the vessel was chartered for a wrecking expedition, to be accompanied by tho owner and master, but the crew to be paid by the charterers; held, that the lien on the ship was not waived by the seamen because they knew of the contract with the charterers and hired to them. It requires some express agreement by the seamen to serve on the personal credit of the charterer, or else a state of facts from which that intention must necessarily he implied.</p> <p>2. Sam—Gonce at, hunt of Facts by Master or Owner.</p> <p>If the master and owner know that the charterers are insolvent and do not disclose that fact to the seamen at the time of engaging them for the charterers, tho concealment is a fraud upon them, and any agreement to release the lien on tho ship would be disregarded by the court.</p>

<p>Assault on the High Sea with a Dangerous Weapon.</p>

<p>I. Patents for Intentions -—Process of Sweating and Curing Tobacco — Infringement.</p> <p>Sui1 was brought to restrain infringement of the,first claim of letters patent No. 91.C01, granted June 22, 1869, to Loander Burdick and others for a process of sweating and curing tobacco. The proofs showed that other patents were previously granted to other persons for processes of similar character for renovating tobacco, and for coloring and curing tobacco stems. In avoidance of these prior patents, the plaintiffs urged that the patent in question pertained to the curing of green tobacco leaves, and not to renovating or re-sweating after they had been cured, and was therefore different from the prior patents. The proofs further showed that defendants conducted a process for resweating instead of curing the material. Held, that the defendants did not infringe.</p> <p>g. Samk— Tobacco Sweat-Houses—Infringement.</p> <p>The first claim of letters patent No. 228,928, granted Juno 15. 1880. to one Charles 8. Phillips, for a tobacco sweat-house, consisting of a metal-lined tray at the bottom, anintorior wooden bottom, steam-pipes, an interior chamber haying a slotted or slat i’oor, an inclined roof, and upright cleats on tile sides, is so far restricted by prior patents relating to the same subject that the heating of tobacco in boxes in a close room with the use oí a slatted floor, without, however, a metal-lined floor or cleats, does not constitute an infringement.</p> <p>3. Same—Process of Curing and Coloring Tobacco—Invention.</p> <p>The sole claim of letters patent Ao. 210,266, granted April 19,1881, to Charles S. Phillips, for a process of curing raid coloring tobacco by heating it in a sweat-room, fails for want of novelty and invention to support it by reason of prior patents covering the same subject, and a suit for infringement of the same cannot be maintained.</p>

<p>1. Patents for Inventions — Locks to Traveling Bags — Damages for. Infringement.</p> <p>A decree was made restraining further infringement of a patent for certain locks to traveling bags, and for an account of profits and damages. The plaintiff, in proof of his damages, showed that he personally made and sold the locks separately and with bags, and that his profit upon the locks was 91 cents per dozen, and that the defendants had sold a specific number of them, but did not show their profits. Held, that the facts did not furnish a sufficient basis for estimating the damages, and that nominal damages were therefore only recoverable.</p> <p>2. Same—Profits.</p> <p>In proving damages for the infringement of a patent, which is merely an incident atiached to an article in common use, it must be shown that the profits claimed were due to the patent itself, and could not have been made except in exercise of the patent right; and, in proving such damages, a plaintiff must show that he would have had an opportunity to make and sell the patented article which the defendants made and sold if they had not so made and sold it.</p>

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

<p>Patents for Inventions—Patentable Invention—Letter and Invoice Pile —“Iíe-enforce Piece. ”</p> <p>Letters patent JÑo. 283,275 were granted July 31,1883, to William A. Cooke, Jr., for a loner and invoice file, the principal claims of which wore a combination of tape called a “re-enforce piece” and the attachment of tapes to gussets in a certain manner. The said claims showed no new pari or function which was not known before, but merely a mode of strengthening such liles in places where they were previously weak, without requiring more than the skill of a good workman to reach the result obtained. Held, that said claims of the patent did not cover any patentable invention, and a bill to restrain infringement must therefore be dismissed.</p>

<p>In Equity. On rehearing. For original opinion see 27 Fed. Rep. 807.</p> <p>After the original decision, the defendant obtained leave to amend its answer and an order for a rehearing on the ground of newly-discovered evidence, -which consisted chiefly of the letters patent of Great Britain, No. 3,578, of November 3, 1873.</p>

<p>Patents for Intentions—Novelty—Sole Burnishers.</p> <p>Letters patent No. 173,384, to Helms, for an improvement in machines for burnishing sole edges, consisting of a combination of the burnishing tool, rest for the face of the sole, and finger-rest, considered, and 7ie/d void for want of novelty; the burnishing tool, with a guard, or, as Helms calls it, “rest for the face of the sole,” being old, and a finger-rest being described in the prior patent to B. J. Tayman, of March 11, 1873.</p>

<p>Patents eor. Inventions—Patentability—Novelty.</p> <p>Loiters patent No. 199,808 were granted January 29,1878, to one John Demarest. for an improvement in slop-safes for water-closets, consisting of a safe or safety-plate made of east-iron in a certain form. Slop-safes of substantially the same form and for the same purpose had been previously made of load or wood, covered with lead to such an extent as to become a matter of common knowledge, and in 1877 a patent was granted to another person for a similar device in which porcelain was used. Held, in a suit by said Demarest brought upon his patent, that his invention was wanting in patentable novelty, and his bill must therefore be dismissed.</p>

<p>1. Removal oe Causes—Original Jurisdiction.</p> <p>The circuit courts of the United States, sitting in Ohio, have no jurisdiction to try a controversy brought under the statutes of that state to contest the validity of a will by an original bill for that purpose; and, as under the act of congress of March 3, 1887, no cause can be removed from a state court to the United Slates circuit court, unless the circuit court would have had original jurisdiction of the controversy involved in the case, such a controversy is not, under that act, a proper subject for removal.</p> <p>2. Same—Separable Controversy.</p> <p>Under Rev. St. Ohio, § 5859, providing that "all the devisees, legatees, and heirs of the testators, and other interested persons, including the executor or administrator, must be parties” to a proceeding to contest the validity of a will, where the contestant is a resident of Ohio, and of the three, defendants two are also residents of that state, and the third of Mew York, there is no separable controversy, for the purposes of removal, between the contestant and such third defendant.</p>

<p>Suit in Equity to set aside Fraudulent Conveyances. Application to remand.</p>

<p>At Law. On Demurrer to Complaint.</p>

<p>1. Benevolent Societies—Constitution—Decision op Directors—Finality.</p> <p>A corporation was organized for the purpose of providing for its members in case of permanent disability, and for their dependents in case of death, by assessments to be levied on the surviving members. Its constitution provides that “all claims against the association shall be referred to the board of directors, whose decision shall be final,” and that “assessments shall not be made except on its authority. ” Held that, after the decision of the board refusing payment of a death claim no suit upon such claim can be maintained.</p> <p>2. Same—Membership—Striking oep Roll.</p> <p>Where the laws of such an organization provide that, if a member neglects or refuses to pay any assessment for a specified period, he shall cease to be a member, and the secretary shall strike his name from the roll, such laws are self-executing, and the member so omitting to pay loses his rights as a member, although the secretary does not strike his name from the roll.</p>

<p>Customs Duties—Interest.</p> <p>In an action commenced November, 1868, against a collector of customs, to recover excess of duties, and brought to trial in December, 1886; where the question of the right of the plaintiffs to recover interest on the principal sum thereof is submitted to the jury, if the jury And that the plaintiffs have been guilty of laches in prosecuting the action from the date of the commencement of the same until the date of the trial thereof, though entitled to recover the principal sum of such excess, the plaintiffs are not entitled to recover any interest. If the jury And that the plaintiffs have been guilty of such laches for a part only of such time, then the plaintiffs are not entitled to recover interest for such part thereof.</p>

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

<p>1. Patents for Inventions—Process—New Purpose—Patentability.</p> <p>A device or process, previously patented and used for one. purpose, cannot ' be patented to be used in the same way for another similar purpose, unless a new and useful result is thereby produced.</p> <p>2. Same—Infringement—Combination Patent.</p> <p>The unauthorized use of any valid claim of a patent is an infringement for which the patentee is entitled to recover; hut a person charged with the infringement of a combination patent must he shown to have used all of the devices or processes described in it. The use of one or more, less than all, will not constitute an infringement.</p> <p>3. Same—Anticipation.</p> <p>If the process described in the patent was publicly used by other persons, in substantially the same way and for the same purposes, before plaintiff made his invention, or if the same process for the same purposes are contained in and described, or are clearly suggested, by any foreign patent issued before the date of such invention, or in any publication prior to such date, plaintiff’s patent would be void for want of novelty. But these matters of defense must he shown to have existed, not only prior to the date of the patent, hut also prior to the discovery or the invention of the process or device.</p>

<p>1. Patents for Inventions—Improvements in Bongs for Casks—Patentable Novelty.</p> <p>Reissued letters patent No. 5,937 were granted June 80, 1874, to Rafael Pent-large, for an improvement in bungs for casks; tbe invention consisting in boring abóle from either side nearly tbrougb an ordinary wooden bung, tbe bole being filled by a tightly-fitting wooden plug. In tapping, tbe vent-plug is driven into this bole, the solid portion of tbe bung is broken off, and, with the wooden plug, passes into tbe cask. Tbe object of the' invention was to provide an easy method of inserting tbe vent-plug without permitting tbe gases generated by fermentation to escape. The proof showed that a prior patent was granted to one Kirby for a bung with a bole bored entirely tbrougb it; with a plug fitted tightly therein, which, in venting, was forced into the cask; and a prior linglisb patent was also granted to one Taylor for a similar device, tbe bole being conical in shape and, like tbe patent in suit, being bored partly through tbe bung. Held, that tbe patent in question was wanting in patentable novelty, and a bill to restrain infringement of tbe same must be dismissed.</p> <p>2. Same.</p> <p>Reissued letters patent No. 10,175 were granted August 1, 1882, to Frederick Pentlarge and Philipp Hirsch, also for an improvement in bungs; tbe bung being like Hint in the above-mentioned patent, except that the hole is bored from both sides, a thin web of wood being left between the holes in the interior of the bung, and the re-enforcing plug dispensed with. _ Held to be equally wanting in patentable novelty, in the light of the said prior state of the art.</p> <p>3. Same.</p> <p>Letters patent No. 203,316 were granted May 7, 1878, to George Borst, for another improvement in bungs; the bung being similar to those above mentioned, except that a cutting tool is used, which, instead of a hole, makes a circular incision, extending partially through the bung, the center core of the wood being left intact. It appeared that this method was described in a German paper in 1877. Held to be equally wanting in patentable novelty,</p> <p>d. Same—Foreign Patent.</p> <p>Whore a foreign patent describes a device which is covered by a later patent of the United States, or describes it so nearly that it is made patent to the public, and an ordinary mechanic can make the change from one to the other, the latter patent cannot be sustained.</p>

<p>1. Patents for Inventions—Improvement in Telegraph Keys — Construction of Claim.</p> <p>Letters patent No. 370,767 were granted January 16, 1883, to Edgar A. Edwards, for an improvement in telegraph keys, being a substitution of a torsional spring or strip of metal as the lever fulcrum, in place of the trunnions or pivots which were before in use. The first, second, and fourth claims of the patent made a “circuit-breaking lever” an ingredient in the combination. The third claim was as follows: “The combination in a telegraph key, of the lever, í'ulerumod upon the torsional spring1, with the adjusting screws for regulating the amplitude of the lever movement and retractile resistance of the torsion spring, substantially as described.” The defendants used a similar device in combination with a “sounder,” without, however, any “circuit-breaking lever, ” and contended that said third claim was limited to a “key, ” and. by implication, to a “circuit-breaking lever. ” It appeared that said Edwards'spring-was equally applicable to a “sounder,” without departing from the spirit or letter of the invention. IfeJd, that said third claim was broader than the other claims in omitting the “circuit-breaking lover. ” and was fairly to be construed to include a “sounder” in its meaning, without restriction to a key alone.</p> <p>2. Same—Invention.</p> <p>Tlie combination of torsional springs with keys or sounders, as described in said Edwards patent, is an invention which would not have occurred to a skilled artisan only. There was nothing in the prior art to suggest it except to an inventor.</p> <p>3. Same— Utility—Tnfiungeií.</p> <p>A patent will not he declared void for want of utility, at the instance of one who is deriving benefit by infringing upon its claims.</p>

<p>Patents for Inventions — Process for Shaping Lace Mitts—Patentable Novelty.</p> <p>The claim relating to a process for shaping lace mitts contained in letters patent granted November 9, 1880, to Warren P. Jennings, for a mitt-shaping machine, is wanting in patentable novelty by reason of the prior known state of the art, and a bill to restrain infringement of said claim will be dismissed.</p>

<p>Charter-Party—Time oe Sailing—Breach — Previous Acquiescence—Liability.</p> <p>Defendant agreed to ship cattle by the steamer N. H., “sailing from Now York about the middle of September.” The vessel was at sea when the contract was made. On September 14th defendant inquired the steamer’s probable sailing day, and was told, about September 27th, to which he made no objection. On September 22d, the defendant, being notified that the steamer would sail on the 29th, declined to ship cattle by her, on the ground that his contract did not require him to ship at so lato a day. Ifeld, that the ship having construed the indefinite phrase, “about the middle of September, ” to mean as late as the twenty-seventh of the month, and defendant having acquiesced therein, and that, too, on a day before the middle of September, it was not open to the defendant to say that a tender on the 2Qth was not a compliance with the contract. His refusal to ship was therefore a breach of the contract.</p>

<p>In Admiralty.</p> <p>Libel to recover damages for failure of claimants to ship cargo by her in terms of charter-party.</p>

<p>1. Wharfage—How Computed—Tonnage of Vessel—Registered Tonnage.</p> <p>The wharfage act of 1877 of the state of Hew York (Laws 1877, a. 815) regulates the rates of wharfage in Hew York and Brooklyn hy the tonnage of the vessel. Held, 1hat the tonnage so taken to calculate the wharfage is the registered, not the gross, tonnage.</p> <p>2. Same—British Vessels.</p> <p>The rule is the same for British vessels; the secretary of the treasury having hy the treasury regulations of 1884, art. 182, directed that their tonnage shall bo determined by reference to their certificate of registry.</p>

<p>S 'Aman’s Wages—Canal Boatman—Lten—Steam-Boat.</p> <p>Libelant was employed to work on claimant’s canal-boats. These canal-boats were propelled by claimant’s steam-boat, and libelant did some slight work on her. This action was brought against the steam-boat to recover for services rendered generally by the libelant. Held, that the relation between the canal-boats and the steam-boat was not such as to make the canal-boats a part of the steam-boat, and to charge the steam-boat with a lien for labor performed on the canal-boats.</p>

<p>In Admiralty.</p> <p>Libel to recover damages for personal injuries, received on board the steam-ship Theresina.</p>

<p>Collision—Steamer and Vessel in Tow—Rev. St. § 4238, Role 21. .</p> <p>A tug boat with a schooner in tow, connected by a tow-line 800 feet long, was passing through a narrow channel during a violent and sudden gale. A steam-ship was at the same time approaching from the opposite direction. The tug and tow were moving at the rate of three miles an hour, and the steam-ship at four miles an hour. The course of the steamer was south, a little west; and the schooner was oil her port bow heading north north-east, sagging north. No collision was at first anticipated, but when the steamer came within 150 feet of tlie schooner the relative positions of the two changed, and they approached each other almost bows on, probably by reason of the schooner shoering. The steamer, when at said distance, reversed her engines, but, notwithstanding this, struck the schooner, which became a total loss. The steamer was uninjured. Neither the tug-boat nor the schooner took any action to escape the collision, but kept on their course until it happened. Held, that as the steam-ship did not stop and reverse in sufficient time, as required by rulo 31, and offered no evidence to explain why she did not observe the rule, she is presumed to be in fault. Held, also, that the tug and tow wore, in law one vessel, a steamer, governed by the same rule 21, and that as they kept their course, and did not explain why they did so, they are also in fault, and the loss should be divided.</p>

<p>1. Federal Courts—Following State Practice.</p> <p>A plea to an action of ejectment, alleging that the defendant’s possession is in good faith; that ho has placed permanent and substantial improvements on the land, largely enhancing its value, which benefit the plaintiff; that the plaintiff knew he was erecting such improvements, and permitted him to proceed without notice of her title; and praying that he be allowed, against her claim for title, a sum amounting to the enhanced value of tho land by reason of 'the improvement,—although such plea is especially authorized by the state practice, it cannot be allowed in the courts of the United States.</p> <p>2. Same—Equitable Defense to Legal Action.</p> <p>Although the forms of proceeding and practice in the state courts have been, as near as may be, adopted in the circuit and district courts of the United Slates, yet this must not he understood as authorizing an equitable defense to an action at law, nor the blending of legal and equitable claims in one suit.</p> <p> (Syllabus by the Court.) </p>

<p>1. Equity—Jurisdiction.</p> <p>Equity will not entertain a bill to enforce merely the legal title to land.</p> <p>3, Injunction—To Restrain Waste.</p> <p>The ancient equity doctrine, which would refuse an injunction to restrain waste, where a bill is filed for an account, has been greatly modified; and in cases where irremediable mischief is being done or threatened, such as the extraction of ores from a mine, or the cutting down of timber, an injunction will issue, though the title to the premises be in litigation.</p> <p>'3. Same—Pleading.</p> <p>An act of the general assembly of Georgia, providing that in all applications to enjoin the cutting of timber, or boxing the same for turpentine purposes, it shall not be necessary to aver or prove insolvency, may be administered by the equity courts of the United States.</p> <p> {Syllabus by the Court.) </p>

<p>1. Equity—Reformation of Instrument—Scoff, of Decree.</p> <p>A court of equity of the United States will not, on a bill filed to correct a formal defect in an instrument constituting a link in a chain of title, pass upon the validity of the title itself.</p> <p>2. Power—Defective Execution—Aider.</p> <p>While generally the entire failure to execute a power will not be aided in equity, whore the parties have begun to execute it, and the execution is defective through accident or mistake, equity may decree a complete and perfect execution.</p> <p>8. Same—Equity Jurisdiction.</p> <p>This is an extraordinary jurisdiction, but it will be exercised to further the meritorious eqidties of purchasers, including mortgagees, lessees, and creditors.</p> <p>4. Same—Limits of Jurisdiction.</p> <p>Defects which will bo corrected in the execution of a power are matters of form, such as the want of a seal or witnesses, or of signatures, and not matters of substance or essence.</p> <p> (Syllabus by the Court.) </p>

<p>In Equity. Bill and cross-bill for an injunction, etc. On dismissal of original bill.</p>

<p>1. Alien—Presumption as to Status.</p> <p>The original status of an alien is presumed to continue until the contrary be shown.</p> <p>2. Same—Naturalization.</p> <p>The naturalization of an alien as a citizen of the United States is strictly a judicial act. The action of the court must be entered of record as its judgment, and, if valid, it is final and closes inquiry.</p> <p>3. Records—Proof of.</p> <p>In the absence of proof of the loss or destruction of a record, the record can be proved only by the record itself, or by an extract therefrom.</p> <p>4. Naturalization—Evidence of.</p> <p>The certificate of the clerk of the district court, reciting that the applicant has been duly admitted to citizenship, but failing to show or verify any extract from the record, or minute of the action of the court, is not competent evidence to show naturalization.</p> <p>5. Same—Record of Proceedings.</p> <p>The act of congress, April 14, 1802, (2 St. at Large 154,) expressly requires the record of proceedings for naturalization to bo recorded; and the rule that the record of the action of the court, in passing on the application, must be produced or accounted for, has not been departed from in a decided case.</p> <p>6. Record—Presumptions.</p> <p>■Where a court recites its own proceedings, unerring verity is attributed by the law to the record.</p> <p>7. Same—Defective Record.</p> <p>The record, if not correctly made up, or if lost or destroyed, should be perfected or replaced by appropriate proceedings in the court where the judgment was pronounced.</p> <p>8. Naturalization—Parol Proof.</p> <p>Naturalization cannot be proved by parol.</p> <p>9. Same—Expatriation.</p> <p>In this country expatriation is a fundamental right. The'domicile of birth easily reverts, and a very short residence, with the intention to regain the original domicile, is sufficient. A native of a foreign government may reassume his original citizenship, under such conditions as the government of his birth may require. The fact of expatriation is to be proved by any fact that will convince the judgment.</p> <p>10. Same—Order of Foreign Government.</p> <p>The authenticity of his order being admitted, the courts of the United States must presume that the Captain General and Governor of Cuba, possessing a high executive and superintending control, acted on this occasion with legitimate authority, and that he had sufficient evidence to satisfy him of Spanish domicile; and the defendant, having assorted such domicile before the Spanish authorities, will not now bo heard to deny it.</p> <p>11. Same—Foreign Naturalization through Fraud.</p> <p>A court of the United Stales will not recognize, as a citizen of this government. one foreign horn, who deliberately renounces his citizenship here, and who places himself under the dominion of another government, and who for 18 j ears has held himself out to all men as an alien, even though he may have imposed on the other government to obtain anew bis citizenship there.</p> <p> {Syllabus by the Gourt.) </p>

<p>Municipal Corporations—Public Improvements—Bonds—Bona Fide Purchaser—Principal and Agent.</p> <p>The defendant city, being-authorized hy its charter to contract for certain public works, agreed to pay to certain contractors one-half cash, and the balance in 10-year coupon bonds, for performing said works. A number of such bonds were issued in pursuance of said agreement, and this suit was brought by persons to whom these bonds before their maturity were transferred. Held, that the officials of a municipal corporation, which is vested with the usual powers of such bodies, are authorized to issue bonds or promissory notes to evidence the credit price of any works for which they are authorized to contract, which, in the hands of a bona fide holder, will be protected by the law-merchant; that the express authority in an agent to buy, provide for, or procure a thing for his principal, carries with it the implied power to give the hitler's negotiable note for the price of the thing, and that this rule of law applies to the officials or agents of such corporations.</p> <p>(Syllabus by the Court.)</p>

Suit upon certificates of life insurance in the endowment rank of the Knights of Pythias for $3,000. Defense, that the local lodge dues, amounting to four dollars, were unpaid at the time of the death of the member, and were “more than six months in arrears,” whereby the insurance was forfeited under the contract, as interpreted by the rules and regulations of the order.

<p>On Trial to the Court. Ejectment.</p>

<p>Proceedings for Disbarment,</p>

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

<p>Motion to Dismiss for want of jurisdiction.</p>

<p>1. Damages—Injunction Bond—Wrongful Interruption of Possession.</p> <p>Personal property of a debtor was sold at sheriff’s sale, and bought by the debtor’s wife for less than its real value. A creditor thereupon obtained the appointment of a receiver to take charge of the property so bought, and an injunction to restrain interference; alleging that the purchase was not an honest one. The Iona fides of the transaction was afterwards established, and the receiver settled his accounts, and was discharged, and turned over to the purchaser the residue of the property remaining in his hands; a portion of the same having been sold by him. The said purchaser then claimed damages upon the injunction bond, against said creditor, by reason of the wrongful interruption of her possession of the property. Held, that she was entitled to recover.</p> <p>2. Same—Mismanagement of Receiver—Discharge.</p> <p>After such receiver has settled his accounts, and been discharged, without objection, such purchaser cannot recover, as an item of such damages, any alleged loss by reason of such receiver’s mismanagement, for which, if established, the receiver might have been held responsible before his discharge.</p> <p>3. Batvie— Property in Hands op KECErvrai—Depreciation.</p> <p>The amount of an alleged depreciation in the value of 1he property, in such case, while in the receiver’s hands, cannot be recovered as an item of damage, when it appears that the receiver did all he could to dispose of the property to the, best advantage.</p> <p>4. Bame—Loss on Profits.</p> <p>The profits, in such case, which might have been made by the use of such property, if the possession of the receiver had not occurred, are so far speculative that, in the absence of clear testimony, they cannot be measured by any exact standard.</p>

<p>Perjury—Instruction.</p> <p>At the close of the instructions to the jury the court, in response to a question from a juror, said the jury might give the verdict in the case in which the defendant committed the alleged perjury such consideration as they thought it entitled to, when it also appeared from the record of the prior action, and the other evidence before the jury, that the jury therein must have disregarded the evidence of the defendant herein alleged to he false. Helé, that the instruction was erroneous; and, although the verdict of guiltyappeared to ho fully justified by the evidence, the court could not say, on a motion for a new trial, that the error had no appreciable influence on the result, and therefore granted a new trial.</p> <p> (Syllabus by the Oourt.) </p>

<p>1. Insanity—As a Defense—Burden of Proof. '</p> <p>When a defendant sets up a plea of insanity, he assumes the burden of proof to sustain the plea.</p> <p>2. Same—Evidence—Abnormal Strength.</p> <p>The possession of spasmodic and abnormal muscular strength, coincident with great and continuous wakefulness, a deranged system, great restlessness, an abnormal bulging of the eye, with a vacant expression, are evidences of insanity.</p> <p>8. Same—Mania.</p> <p>A party who believes that he has not slept a moment for more than eight years is suffering from a mental delusion which amounts to a mania on that subject.</p> <p>4. Same—Power to Distinguish between Right and Wrong.</p> <p>If one charged with crime possesses that degree of mental intelligence which enables him to distinguish between right and wrong, as to the particular matter involved in the crime for which he is on trial, he is held responsible for his action, although he may suffer from a mental aberration on other matters not connected therewith.</p> <p>5. Same—Manner of Testifying.</p> <p>While the prisoner’s manner of' testifying, his general bearing as a witness, the intelligibility and continuity of his testimony, are important matters , to be considered by the jury, these are not conclusive on the question of his mental soundness.</p> <p>6. Jury—Province of—Punishment.</p> <p>The jury can have no proper concern with the character or extent oí the punishment fixed by the statute.</p> <p> (Syllabus by the Oourt.) </p>

<p>1. Patents for Inventions—Improved Drive-Chain.</p> <p>Letters patent No. 154,594. were issued. September i, 1874, to one Ewart, for an improved drive-chain. Reissued letters were granted April 20, 1875, June 15, 1880, and February 15, 1884. The claim of the original patent was for driving-chain links, not,died or reduced at a particular place, and constructed with coupling hooks; the object, of the invention being the construction of a chain capable of easy detachment, hut not liable to casual separation. The specification of the third reissue differed from Use original only in clearness of description; the first claim of said reissue being for “the combination, in a drive-chain, of the coupling hooks, e, and side-bars sufficiently small, close to the end-bars, to pass through the opening of the hook, e, as'shown and do-scribed. ” In the drawings of the original and the reissued patents the hook was upon one end of the link, and an integral part thereof. On August 18, 1885, letters patent No. 324,734 were granted to one Seldner, under which, detachable drive-chains were made with a hook similar in shape to Ewart’s; the links, however, not being integral with the same. Held, that there was nothing in the Ewart method which required the links to be integral with the hooks, no difference of function being involved; and the Seldner patent, therefore, infringed said last reissue.</p> <p>2. Same—Construction of Claim.</p> <p>The second claim of said last reissue, viz.; “The combination, in the open link, of a drive-chain of the end-bar, 5, provided with a coupling hook, and an opposite end of the link adapted to be coupled to the hook of a correspondingly constructed link, to form a chain, substantially as sot forth, ’’—was broader than the original; the means of a notched 'or reduced portion of the side-bars being omitted, and the precise character of the coupling not being described. Held, that it would therefore he construed as limited to links coupled by the means described in the first claim above mentioned.</p>

<p>Design Patent—Photographic Album Leaf—Patentable Novelty.</p> <p>A design patent, No. 14,961, was issued April 15, 1884, to Stephen Meers, for a photographic album leaf. It consisted of an exterior plain border or frame, apparently elevated, inclosing a border or frame, with a roughened or pebbled surface, and. within this, pockets apparently raised for the purpose of holding the pictures; thus making three mats or frames. The defendant sold photograph albums with two borders surrounding the pockets, —one border pebbled, the other smooth,—not raised, but even with the surface of the sheet, As shown by the evidence, album leaves with pebbled surfaces surrounding the openings through which the pictures are seen were old; and smooth borders surrounding pebbled pockets, and pockets with ornamented edges, were also old. Held, that said patent, if limited to the specific design shown, might, be a good design patent; but if construed to include, generally, a plain border inclosing a pebbled border, which inclosed a pocket, it was wanting in patentable novelty, and a bill filed against the defendant to restrain infringement must bo dismissed.</p>

<p>1. Trade-Mark—Title, “Chatterbox”—Injunction.</p> <p>In tie year 1866, one Joinston originated tie title "Chatterbox” upon a series of books whiei ie caused to be compiled, containing illustrations and stories of a class and style adapted to young persons. Tie books iad a distinctive appearance and manner of cover and printing, and tiey became universally recognized in England and the United States as books which had attained a well-known and highly-appreciated character. The said Johnston afterwards assigned to tie plaintiff tie exclusive use of the title in the United States and Canada, and the publications were made simultaneously in England, by Johnston, and in this country, by the plaintiff. The defendant published juvenile hooks hearing tie title “Chatterbox” upon the cover, and similar in external appearance and general style to the plaintiff’s hooks, but with different contents. Tie plaintiff thereupon filed his bill to restrain-suci publication by the defendant. Held, that ie was entitled to therelief sought.</p> <p>2. Same.</p> <p>An exclusive right to said title, “Chatterbox,” used as name for characterizing a series of juvenile books, is not defeated, on the ground of a prior appropriation, by tie publication, in 1852, for two successive months, of a monthly newspaper called “Chatteris Chatterbox,” not intended for young people; nor by tie publication, in 1807, in a volume of poems called “ Original Poems for Infant Minds,” of a poem called “Tie Chatterbox;” nor by the publication, in 1861, of a book called “The Favorite Scholar,” containing a prose story called “Little Chatterbox.”</p>

<p>Negligence—Charter of Tug—Lower Cabin—Contributory Negligence.</p> <p>The tug J. S. was chartered to take a club of gentlemen to sea to witness the races. The libelant, the superintendent of the club, in searching for berths, was referred by a deck-hand to the lower cabin, which was in the bottom of the stern, and was approached by a stairway, the door of which was hooked open. The room had eight berths, not fitted for passengers, and used only by the engineer and two firemen as a sleeping room. It was somewhat dark, being lighted mainly by the open door. The propeller shaft ran just beneath the floor, a part of -which was made movable for the purpose, of oiling the shaft. The libelant, in crossing the floor, put his foot in the opening, which was partly uncovered, and received injuries for which this suit was brought, Meld, upon the facts, that the room was not ostensibly a private room, into which the libelant had no right to enter, hut one which, being open, the tug was bound to keep free from danger to those who might enter; hut that the libelant, not having exercised due care, should recover, as in the case of The Max Morris, 28 Fed. iiep. 881, his expenses and disbursements only.</p>

<p>1. Ship-Owner—Liability for Negligence—Unsafe Ladder.</p> <p>Libelant, a stevedore, in descending a ladder which led to the hold of the bark T., clasped a batten which had been nailed across the ladder in place of a missing round. The nails at one end of the batten pulled out, and libel-ant fell to the bottom of the hold, receiving injuries for which this suit was brought. The ladder was furnished by the ship-owner, who knew that it was to be used by the stevedores who were to load the vessel. Held that, in providing an unsafe ladder, the ship-owner failed to discharge a duty he was under to the libelant, and was guilty of negligence.</p> <p>A Same—Contributory Negligence—Failure to Inspect.</p> <p>Libelant failed to scrutinize the batten before using the ladder. Held, that he was as well able to judge of the security of the ladder as the shipowner, and was chargeable with knowledge of its insecurity equally with the latter; that his failure to so scrutinize the ladder was negligence.</p> <p>3i Same—Damage, Apportionment oe.</p> <p>But held that, as the contributory negligence of libelant was not willful, gross, or inexcusable, he was entitled to recover a portion of his damages, and was therefore allowed nothing for his pain and suffering, but was allowed the wages he would have earned but for the accident; following The Explorer, 20 Fed. Rep. 135; The Max Morris, 24 Fed. Rep. 860, 28 Fed. Rep. 881.</p>

<p>1. Negligence—Wharves and Slips—License to Cross Intervening Boat.</p> <p>Vessels necessarily mooring in the slips oí this harbor, outside of other vessels next the wharf, have an implied license for their officers and men to cross the intervening boat for necessary purposes on shore; but such a license does not impose any duty upon the owner, as respects the licensee, to keep all possible modes of crossing safe, but, at most, only such passage-ways as are designed or known to be customarily used as such.</p> <p>2, Same—Case Stated—Open-Deck Boat—Hatch Covers Misplaced.</p> <p>The canal-boat L. E. having properly moored within a slip, along-side of n scow lying outside of the steamer M., the libelant undertook to go across the scow to roach the wharf. The scow was an open-deck boat, with a roof beginning two and one-half feet above the deck, formed by numerous hatch covers. The libelant, instead of going around and passing along by the deck, clambered upon the roof of hatch covers in order to go straight across. As he stepped upon the hatch covers beyond the peak, he fell through into the hold, through some insecurity of the covers, and soon after died. Held,, that the scow was not answerable for damages, for the reason that crossing over the hatch covers, though sometimes practiced, was not the mode of passage designed, nor a passage-way that the owner was bound to maintain as such for the benefit of licensees, there being a sale passage by the deck; and that there was no invitation or inducement from the scow to the libelant to cross the hatches, nor anything- in the nature of a trap or pitfall in the passage he would be naturally expected to take.</p>

<p>1. Maritime Lien—Filing Specifications—Sale of Vessel—Distribution.</p> <p>"When a domestic vessel is libeled for supplies furnished her, and is sold before the expiration of the 30 days within which tho state law requires specifications to be filed, and no specifications are filed at any time, held, that the proceeds in court should be distributed according to the lions upon her at the time tho libels were filed.</p> <p>2. Same—Specifications—Filing after Vessel Libeled.</p> <p>"Whether in any case the filing of specifications can be deemed necessary to the preservation of the lien after the vessel has been rightly libeled, and is in the custody of tho court, and so continues until sold, quarre.</p>

<p>Collision—Vessels at Piers—Mutual Fault.</p> <p>The harbor-master indicated a berth at the wharf for the incoming Niobe where the small sloop Pleasant Day with no one in charge was lying, and the Niobe swung in without making effort to remove the sloop, sinking the latter. Held, that the iliobe and the Pleasant Day were both at fault, and the recovery is reduced accordingly.</p> <p> (Syllabus by the Oourt.) </p>

<p>Collision—Steam-Boat and Tow—Night—Attempt to Overtake and Pass.</p> <p>The steam-boat C., in attempting to pass on the port side of a tow which she had overtaken, at night, in the channel between Blackwell’s and Long Island, ran into a canal-boat on that side of the tow. The tug had previously, by whistles, assented to the steam-boat’s passing her. Hetd, that as it was the steam-boat’s duty to have kept out of the way, and as the evidence indicated that the canal-boat had a proper light, and that the tug did not crowd over to the Blackwell’s island shore, the steam-boat was in fault for the collision.</p>

<p>1. Salvage—Foottsituee vok Misconduct.</p> <p>To cause a forfeiture of salvage, there must be evidence of misconduct on the part of the salvors. The thoughts or desires of salvors are immaterial, unless their conduct be influenced thereby.</p> <p>2. Same—Bond—Excessive Demand.</p> <p>Though, in view of the value of the services of the salvors upon final hearing the bond originally demanded appear grossly excessive, tbe court will consider all of the circumstances which attended its taking, and will not decree a forfeiture of salvage in consequence, unless it be made to appear that it was the intention of the salvors to thereby harass or oppress the claimants, or to enforce compliance with an exorbitant demand.</p> <p>3. Same—Fire—Disobedience to Orders.</p> <p>AVhen a vessel is on fire along-side of a wharf, a salvor disobeying either the orders of the master of the vessel, or the chief of the fire department, will be guilty of misconduct.</p> <p>4. Same—Amount of Compensation.</p> <p>Though the principles upon which salvage compensation is regulated are well known, it is almost impossible for different minds to contemplate the same case without forming different conclusions with regard to compensation.</p>

<p>Salvage—Tug at Wharf—Fire.</p> <p>The lug T. discovered a fire in the engine-room of the tug G., while the 'utter lay at a wharf, and, proceeding to her, extinguished it. While the T. ivas on iier way to the G., the watchman on the pier discovered the fire, and summoned the fire department. JleM, that the service was a salvage service, but that the G. had not been saved from total destruction on account of the summons sent to the fire department. Three hundred dollars was allowed as salvage award.</p>

<p>Salvage—Towing Lighter—Burning Pier—Tender.</p> <p>The libelant’s tug towed the lighter R., laden with cotton, from the vicinity of the Morgan Line pier, which was on fire, to a place of safety. Claimant, admitting that the service was a salvage service, offered to pay §140, together with costs after the action had been begun. Held, that the offer was a liberal one, and should have been accepted; that libelant should have a decree for §140 and taxable costs up to the time of filing the answer, less the taxable costs which accrued after the answer was filed.</p>

<p>In Equity. Bill and cross-bill.</p>

<p>Motion for Receiver and Injunction Pendente Lite.</p>

Attachment. This is an attachment under the statute in Tennessee for having fraudulently disposed of property, or being about to do so, to which the defendant pleaded in abatement, denying the charges made. The facts appear in the opinion of the court.

<p>Life Insurance Companies—Attachment — Sections 1, 2, Laxvs Conn. 1875, Pages 12, 18.</p> <p>Laws Conn. 1875, pp. 12, 13, §§ 1, 2, provide, in the event that the capital of a life insurance company becomes impaired, it shall become, the duty of the insurance commissioner to proceed against the company to'annul its charter; and to wind up its affairs. The scheme of liquidation provided contemplates the audit and allowance of all demands against the corporation, including therein the reserve due on all outstanding policies, and an equitable application of all the corporate assets to the payment of the demands so audited. The defendant, a mutual insurance company of Connecticut, having-become insolvent, the insurance commissioner, on September 21, 1888, began proceedings in the supreme court of errors of Connecticut to annul its charter, and wind up its affairs. On September 38th, policy-holders in Missouri commenced suits by attachment to recover the reserve value of their policies. Haiti, that all policy-holders of the company, whether residents of Connecticut, or Missouri, were presumed to know the terms of its charter, and the laws regulating its existence, and were bound thereby, in the absence of special provisions for the benefit of its own citizens by the state of Missouri when the defendant was licensed to do business there;'that, as the fund attached was not deposited íot the benefit of resident policy-holders in Missouri, they can claim no lien thereon; and that the plaintiff must be remitted to his share in the equitable distribution under the proceeding previously commenced bythe state of Connecticut, through its insurance commissioner, on behalf of ail the policy-holders of the company.</p>

<p>1. Insurance Policy—Proof of Loss—Fraud.</p> <p>The policy of a Are insurance company contained the following clause: “All fraud or attempt to defraud, by false swearing or otherwise, shall cause a forfeiture of all claim on this company under this policy. ” Held, charging' jury, in suit on policy, that it is incumbent on the defendant, under this clause, to show that the insured, knowingly and intentionally, swore falsely to the proofs of loss in some material respect pertaining to the extent of the loss, in order to maintain the defense of fraud.</p> <p>2. Same—Evidence.</p> <p>In such case, however, a serious discrepancy between the true value of the property and that sworn to in the proofs of' loss, or between the quantity of any kind of persona] property actually destroyed and that stated m the proofs, would he evidence hearing upon the issue of fraud, and a fact to be considered by the jury in determining whether there was fraud or false swearing, within the meaning of the policy, in the proofs.</p> <p>3. Insurance—“Wholly Destroyed”—“Total Loss.”</p> <p>Iiev. St. Wis. 1878, § 1943, provides that “wherever any policy of insurance shall bo written to insure any real property, and the property insured shall bo wholly destroyed without criminal fault on the part of the insured or lus assigns, the amount of the insurance Written in such policy shall be taken conclusively to be the true value of the property when insured, and the true amount of loss and measure of damages when destroyed.” Held, that the expression “wholly destroyed,” in this statute, is equivalent to “total loss,” and that “total loss, ” as applicable to a building, does not. mean that the materials of which it is composed are all utterly destroyed or obliterated, but that the building, though some part of it may remain standing, has lost its identity and specific character as a building, and has become_a broken mass, so that it cannot any longer be properly designated as a building.</p> <p>4. Same—Real Property—Fraudulent Representations—Forfeiture.</p> <p>Under this statute a fraudulent overestimate in the proofs of loss as to the value of real property would not work a forfeiture, although tho policy of insurance expressly provided that such representation should have that effect.</p> <p>5. Same—Personal Property.</p> <p>In such case, however, fraudulent representations as to the value and quantity of the personal property covered by the same policy of insurance will work a forfeiture as to the whole policy, and defeat the right of the insured to recover anything whatsoever upon the real property included in such policy.</p> <p>6. Same—Evidence.</p> <p>In such case, moreover, fraudulent representations as to the value of tho real property may bo taken into consideration by the jury in determining whether the statements made as to the quantity and value of personal property destroyed were or were not fraudulent, where such statements were not in fact correct.</p>

The parlies to this suit, in 1881, entered into a contract in writing by which the plaintiff, a manufacturer of bottles at Ottawa, Illinois, agreed to make and furnish to the defendants, a firm then engaged in the business of bottling beer in Milwaukee, 6,000 gross of bottles, known as “quart export-beer bottles,” to be delivered free on board cars at Ottawa, between December 1, 1881, and September 1, 1882; and to be shipped at the mutual convenience of the parties.

<p>1. Municipal Corporations—Power to Issue Bonds—Notice to Purchaser,</p> <p>The power of a municipal corporation to issue coupon bonds is derived from the legislative authority of the state, and the laws conferring such power form a part of the bonds themselves. Accordingly every person dealing with such corporation must, at his peril, take notice of the existence and terms of the law by which it is claimed the power to issue such bonds is conferred.</p> <p>2. Same.</p> <p>The charter of the defendant, a municipal corporation, empowered it to give interest-bearing coupon bonds, payable at any length of time agreed upon, to any creditor agreeing to receive the same, etc., “provided that nothing herein shall be so construed as to prevent the mayor and councilmen from calling in and paying off, at any time they may deem proper, the whole or any part ,of said bonds; and if the principal of any such bonds, or any part thereof, shall be tendered to the holders of the same, and they shall neglect or refuse to receive it, all interest shall cease on the sum so tendered from the date of said tender. ” Held, that a tender of payment of the principal of bonds dated July 1, 1871, payable 20 years after date, and bearing 10 per cent, interest, payable on the first days of July and January, duly made prior to July 1, 1886, was a defense to an action on interest coupons, maturing January 1, 1887, brought by a transferee thereof.</p>

<p>1. Statute—Construction—Bill of Exchange—Code Ala. 1876, § 3094.</p> <p>Code Ala. 1876, § 3094, provides that “bills of exchange and promissory notes, payable in money at a bank or private banking-house, or a certain place of payment therein designated, are governed by the commercial law. ” Held, on examination of the provisions of the laws of Alabama in pari materia,, and the antecedent legislation of the state upon the same subject, that the qualifying words, “payable in money at a bank, ” etc., apply only to promissory notes, and that negotiable bills of exchange, whether payable at a specified place of payment or not, are still governed by the general commercial law.</p> <p>3. Same—Common-Law Rule.</p> <p>The common law of negotiable paper will not be deemed altered by statute so as to subject a bill of exchange, in the hands of a bona fide purchaser for value, to the equities existing between the original parties, unless the statute evinces an intention to do so in clear and peremptory terms.</p>

<p>Suit in Equity. Suit for infringement of letters patent. Hearing upon bill, answer, and proof.</p>

<p>1. Collision—Steamers—Leaving Pif.r—Unjustifiable Start.</p> <p>The steamer G. It. left her pier in the East river on (he ebb-tide, as the tug Greenpoint « as coming up about the middle of the stream, and nearly abreast of the pier. The G. E. blow two blasts to indicate that she would go ahead of the tug. to which the latter replied with two. In the strong tide the G. It. drifted a little down and, before she got headed up river, collided with the Greenpoint, which backed, but was unable to avoid collision. Held, that, the start of the G. It. was dangerous and unjustifiable, having reference to the position of the Greenpoint, unless she should proceed slowly, and go astern of the tug; that the tug was at first entitled to assume that the G. It. could keep out of her way by going ahead, and when danger was apparent the tug did what she could'to avoid collision, which was all that was required of her, notwithstanding her previous assenting signals; and that this assent meant only that she would do nothing to embarrass the G. It. in keeping out of the way by going ahead of her.</p> <p>2. Same—Insi-motor's Hulks—Rules of Congress—Assenting Signals.</p> <p>The inspector's rules as to whistles do not repeal or supersede the old rules of navigation enacted by congress, and still applicable to harbors, and do not purport to do so. Two whistles, assented to, do not shift the burden of keep ing- ont of the way. The duty to st op and back arises wholly from the danger of collision, and begins when 1hat danger is obvious. It is the same whether the prior signal was of one blast or two.</p> <p>8. Same—International Rui.es— Api-lioabtt.tty to Harbors.</p> <p>The new international rules are not applicable to harbors in merely local navigation.</p>

<p>Collision—Vessels in Tow—High Wind—Unmanageable Tow—Improper Maneuver.</p> <p>The tug G., having started out from a wharf in the East river in a high wind, with a heavy car-float in tow along-side, turned the float partly around before proceeding down stream. In this situation she gave two whistles to the tug P., which was coining down river with libelant’s schooner in tow. The G., in consequence oí her angling position, found herself unable to back or to go ahead, lest either motion should swing the float against the schooner. Meanwhile the high wind drifted the float into collision with libelant’s schooner. Held, that the G. was in fault in taking tho float out in a wind so far into the river, when she could not control her; that she was further in fault in turning the float only partly around, instead of more nearly down river, and thus getting into a position where she could neither advance nor retreat; and that she was solely in fault for the collision, the other vessels not being able to anticipate the G.’s movements.</p>

<p>Collision — Between Steamer and Sailing Vessel — Immoderate Speed— Lookout.</p> <p>A collision occurred a short distance south of the Scotland light-ship, oil New Jersey, during a dense fog, between the steam-ship Seneca, outward bound on a S. -J W. course, and the schooner William S. McCabe, inward bound on a N. to N. -J E. course. The S. was proceeding at the rate of above seven miles an hour, was blowing her fog-whistle every minute, and had a proper lookout forward. The McC. was sailing at a speed of two and one-half or three miles an hour, and had no lookout forward. Her mate stood on the forward part of the poop, about 75 or 80 feet aft from the stem, from which point the view forward was unobstructed, and was engaged in the triple duty of lookout, blowing the fog-horn, at intervals of a minute or minute and a half, and of navigating the vessel. The S.’s fog-whistle was heard on board the McC. three or four minutes prior to the collision, but-the latter’s foghorn was not heard on the S. The S. was sighted at from 300 to 400 yards off. The McC. was sighted from the S. about 300 feet away. The S. immediately ported her helm, and stopped and backed her engines. The master of the McC. mistook the course of the S., and starboarded his helm, turning his vessel across the S.’s course. The McC. was struck between the fore-rigging and her starboard cat-head, and sank in a few minutes. Held, that the S. was in fault for proceeding at an immoderate speed in a fog; but that .the McC. was in fault for not having a properly stationed lookout forward; and that the libelants having failed to prove that the absence of such lookout did not contribute and could not have contributed to the disaster, there must be a decree for only half damages, with costs, for the libelants.</p>

<p>1. Federal Courts—State Decisions.</p> <p>Whore a question involving the title to land in a state is well sellled by the decision of its court of last resort, it will be followed hjr the courts of the United States, oven though they may have understood the law otherwise.</p> <p>2. Same—Conflicting State Decision.</p> <p>The courts of the United States will follow the latest settled adjudication. But they cannot be expected to follow oscillations in the process of settlement.</p> <p>3. Wills—Construction—Testator’s Intention.</p> <p>A cardinal rule for construction of wills in Georgia is to seek diligently for the intention of the testator, regardless of technical rules, and, when such intention is ascertained, to allow its full operation, provided it does not contravene any law or public policy.</p> <p>4. Same—Bife-Estate.</p> <p>In a clause of a will in these words: “To hold in trust for my niece Abigail Kelson, the daughter of my sister Elizabeth Nelson, and her heirs, and if she, the said Abigail, should die without issue living at her death, then, in default of such issue, to my sister Elizabeth Nelson, the mother of said Abigail, for life, remainder in fee-simple to my nephews Augustus, Francis, Sheldon, and Mitchell Doughtery, the sons of my brother Lemuel Doughtery, and their heirs,’’—the word “heirs,” as used, is a more desoriptio persoiiaruui of the issue of the life-tenant living at the time of her death.</p> <p>5. Same—Perpetuities.</p> <p>This clause does not create a perpetuity, but provides simply for the root of a now inheritance. It is tantamount to “heirs of the body,” and indicates persons intended to take the estate.</p> <p>6. Same—Marital Bights of Life-Tenant’s Husband.</p> <p>This clause casts the title on the plaintiff, the only child of the life-tenant living at the time of her death, and excludes the husband of the life-tenant, who claims by virtue of his marital rights.</p> <p> {Syllabus by the Court.) </p>

<p>1. Removal of Causes—Sham Defendant—Municipal Corporations.</p> <p>Plaintiff, a citizen of Connecticut, brought in a state court of Connecticut an action of assumpsit against several non-residents, and tke borough of Dan-bury, a municipal corporation of Connecticut. A motion to remand will bs denied where the corporation defendant has been made such without, according to the testimony of the plaintiff, and each of the defendants, so far as they have testified, any legal claim against it in such action, and where it appears that the corporation is in fact a sham defendant, though not made so for fraudulent purposes.</p> <p>8, Same—Section 5, Act March 3, 1875.</p> <p>If it should thereafter appear in such case that the finding, which is based on the testimony of the plaintiff, is unwarranted, and that there is any ground for making the corporation a defendant, the cause can be remanded under section o of the act of March 3. 1875.</p>

<p>1. Equity—Bindings op Master— Conflicting Testimony.</p> <p>Where the findings of a master that a certain train was moving, within the limits of a city, at an unlawful rate of speed, that the train-men were not exercising proper vigilance, and that a mishap to a boy occurred in a certain way, are supported by testimony, the findings will not be interfered with by the court, although the testimony is conflicting.</p> <p>2. Contributory Negligence—Boy.</p> <p>A boy six years old, struck by a train, is not chargeable with contributory. negligence.</p>

<p>In Equity. Consolidated cause.</p>

<p>1. Swamp Lands—Conveyance by County—Validity.</p> <p>A conveyance by a comity of swamp lands in violation of the act of congress of January, 1855, prohibiting the sale or disposal of such lands until the title thereto is perfected in the state, is void.</p> <p>2. Same-—Purchasers.</p> <p>Where the conveyance by a county of certain lands is expressly forbidden by act of the legislature, purchasers are bound to know that the county cannot convey.</p> <p>3. Deeds—Operation—After-Acquired Title—Public Lands—Taxation.</p> <p>B. received a conveyance of certain swamp lands from a county violating said act, and by mesne conveyances the title vested in one S. The con veranee by the county to B. was set aside in a suit brought for that purpose. Subsequently thereto the county became empowered to grant a valid deed of the lands, and anew deed was given by the county to B. The latter again conveyed the premises, and by mesne conveyances they became vested in the complainant. In a suit by him, under Code Iowa, § 893, to redeem the lands from a tax sale and deed given by the treasurer, held that, as the original conveyance by the county was void, the grantees thereunder obtained no title by reason of section 1931, Code, providing that “when a deed purports to convey a greater interest than the grantor was at that time possessed of, any after-acquired interest of such grantor, to the extent of that which the deed purports to convey, inures to the benefit of the grantee;” that the proper title was in complainant to allow him to bring the suit under section 897 of the Code, providing that no person shall be permitted to question the title acquired by a treasurer’s deed without first showing that he or his grantor had title at the time of the sale, etc.</p> <p>4. Same—Equity.</p> <p>Where a conveyance of land is made to one who knows that his grantor has no title, a court of equity, in the absence of evidence of good faith, or that said grantee claimed any interest in the lands, is not bound to hold that the acquisition of a good title by the grantor, long after the date of the deed, shall at once inure to the benefit of said grantee.</p> <p>5. Tax Sale—Redemption—Title—Judgment.</p> <p>Where, in a suit relating to the title of lands, a decree is sought to bind the parties, not through jurisdiction of the land, and a-sale thereof, but by enjoining defendant from asserting a right or title to the land, the suit is a personal one; andif defendant was served only by publication, and made default, the right of himself or his successors in title to appear and be heard in a suit to redeem the lands from a tax sale is not barred.</p> <p>6. Same—Notice of Redemption—Affidavit of Publication.</p> <p>The requirement of Code Iowa, § 894, providing that in the case of non-residents the notice of the .time for the expiration of the period of redemption to be given by the holders of certificates of tax sales may be made by publication, that service of such notice shall be deemed complete where an affidavit of such service, and of the mode thereof, verified by the holder of the certificate of sale, his agent or attorney, is filed with the treasurer, is not satisfied by the mere filing with said treasurer of the affidavit of publication by the publisher of a newspaper.</p> <p>7. Same—Piling New Affidavit.</p> <p>Nor is the failure to file such affidavit cured, as against one suing to redeem, by filing an affidavit in due form, and obtaining a second treasurer’s deed, the suit for redemption having been commenced before such filing or deed given, and after a formal tender by complainant, within the time limited by the statute for the bringing such suits.</p>

<p>At Law. Demurrer to amended petition on behalf of intervenors.</p>

<p>1. Corporation—Contract or Treasurer—Liability.</p> <p>The treasurer of a railroad corporation for .several years had been in the habit of borrowing money on the notes of the corporation signed by himself as treasurer. Most of these notes wore indorsed by one of the directors; some, by himself individually. The by-laws of the corporation did not confer such authority on the treasurer. In an action against the corporation, on an agreement signed in its behalf by the treasurer, whereby a loan obtained from a banking house took the form of a purchase of exchange on London, it appeared that railroad corporations were not in the habit of borrowing money in ibis mode, while on the other hand it was shown that banking houses which, like the plaintiff, had foreign capital to lend, were in the habit of lending it in this manner. Held, that the directors, by their course of conduct, had held out their treasurer to the public as the fiscal agent of the corporation, and as having authority to make and indorse notes for it; and that there was nothing in this transaction so unusual as to have put plaintiff on inquiry.</p> <p>2. United States Circuit Courts—Jurisdiction—Diverse Citizenship—Combo ration ob two States.</p> <p>Where plaintiff is a citizen of Massachusetts, and defendant a corporation created by tito law of Rhode Island, as well as by the law of Massachusetts, the suit may be brought in the federal court for the Rhode Island district. For the purposes of the suit, defendant is to be deemed a citizen of Rhode Island.</p>

<p>1. Customs Duties—Rate—Ingredients—Alizarine Assistant.</p> <p>Alizarine assistant, used as a mordant by calico printers, the principal ingredient in which is castor-oil, is chargeable with a duty of 80 cents per gallon, under section 2499 (known as the ‘’similitude clause”) of the act of March 3, 1883, which provides that, on all articles manufactured from two or more materials, the duty shall ho assessed at the. highest rates at which the component material of chief value may be chargeable, that being the duty on castor-oil.</p> <p>2. Same—Construction on Law—Exception.</p> <p>The phrase “chemical compound or salí, ” in section 3503 of the act of March 3, 1883, imposing a duty of Sopor cent, ad valorem, is too general to bo considered an enumeration, so as to fake an article out of the operation of the similitude clause of section 2199 of said act.</p>

<p>1. Revende Laws—Reappratsement—Rees—Section 2930, Rev. St.</p> <p>Section 2930, Rev. St. U. S., provides that, where an importer is dissatisfied with an appraisement, he may forthwith give notice in writing to the collector, who, on receipt thereof, shall select one discreet and experienced merchant, familiar with the character and value of the goods in question, to be associated with one of the general appraisers, to examine and appraise them; the collector, in case they disagree, to decide between them, and that such appraisement shall be final. There is no statute declaring who shall pay the merchant appraiser, but article 472, Regulations Sect. Treas. 1883, directs collectors not to deliver merchandise thus reappraised without payment of the fees of the merchant appraiser by the importer, at the rate of five dollars per diem. Held, that such charge on the importer is an unlawful exaction, and that the expenses of reappraisement must be borne by the government. Fielden v. Lawrence, 3 Blatchf. 120, distinguished.</p> <p>2. Same—Illegal Rees—Section 2636, Rev. St.</p> <p>Section 2636, Rev. St. U. S., provides that “every officer of the customs who demands or receives any other or greater fee, compensation, or reward than is allowed by law, for performing any duty or service required of him by law, shall be liable to a penalty of í¿200 for each offense recoverable to the use of the party aggrieved. Held, construing this section in connection with sections 1987, 2931, 2932, in pari materia, that it is intended to apply only to extortion, and does not contemplate mulcting a collector for exacting a deposit to cover the fees of a merchant appraiser, pursuant to the regulation of the secretary of the treasury.</p>

<p>Bond of Indemnity—Exaction Codore Officii—Commtssioneb of Internad Revenue.</p> <p>A boiifl of indemnity for the cost of manufacture, in advance of orders, of an estimated three-months supply of private die-stamps, made in accordance with a regulation of the commissioner of internal revenue, and given by the obligor in order to obtain, in the transaction of his business, an accommodation" which the commissioner might properly extend, but was not legally required to grant, is not void upon the ground that it was exacted colore officii, or for want of consideration.</p>

<p>Bankruptcy—Statute of Limitations—Section 5057, Rev. St.</p> <p>Section 5057, Rev. St., provides that no suit, either at law or in equity, shall he maintainable between an assignee in bankruptcy and a person claiming an adverse interest touching any property transferable to or vested in said assignee, unless such suit be brought within two years from the time when such cause of action accrued for or against such assignee. Hold, where the defendant obtained two tax deeds made and recorded in 1877 and 1880, to property of which the plaintiff as an assignee in bankruptcy had become seized in 1873, that a suit to set aside said deeds, commenced by the plaintiff as such assignee in 1886, was not maintainable, it not having been brought within two years from the time the cause of action accrued.</p>

An examiner of tho department of justice in October, 1886, made a report charging William W. Gilbert, a commissioner of the court, residing at Eochester, New York, with irregular and illegal conduct. This report, with the accompanying affidavits, was transmitted by the attorney general to the court for such action as was deemed advisable.

<p>1. Trade-Mark—WriAT it May Cover.</p> <p>A manufacturer of chewing gum cannot obtain a trade-mark for the form of the sticks in which the gum is made, nor for the peculiar shape and decoration of the boxes in which it is put upon the market, nor for the particular manner in which the gum is arranged in the boxes.</p> <p>2. Save—Dkclaratiox—Ciiewixg Gum.</p> <p>Manufacturers of chewing gum filed their declaration to the following effect: “Our trade-mark consists in the arbitrary word ‘Sappota.’ This has generally been arranged * * in ornamental block letters, printed in pink, gradually increasing in depth of color from the letter ‘S’ to the letter ‘A,’ on an inclined line, and in connection with the word ‘Tolu.’ Above the right-hand part of the words ‘Sappota Tolu’ is the word ‘Adams,’ and below the left-hand part are the words ‘Chewing Gum;’ but other forms of typo may be employed, or it may be differently arranged or colored, or the words ‘ Tolu,’ ‘Adams,’ and ‘ Chewing Gum ’ may be omitted or changed at pleasure, without materially altering the character of our trade-mark, the essential feature of which is the word ‘ Sappota.’ ” Held, that the trade-mark was confined to the name adopted, with the form and color of the letters used in the printed label on the inside of the lid of the paper box, and that it could not bo broadened, for the purposes of a suit for infringement, so as to cover the whole box, with all its ornaments and forms of putting up the gum, and the colors used in such decorations.</p> <p>8. Same—IXambs—Ixfrinoembnt.</p> <p>The vending of a variety of chewing gum under the name of “Heisel’s Elastic Tolu” is not an infringement of the trade-mark “Adams’ Sappota Tolu Chewing Gum, ” the similarity and resemblance between the two names not being such as to deceive a purchaser in buying the first for the second.</p>

<p>1. Patents for Inventions—Improvement in Dating-Stamps—Combination —Novelty.</p> <p>Letters patent-No. 185,862 were granted January 2, 1877, to Benjamin B. Hill, for an improvement in dating-stamps, the object of the invention being the production of a cheap hand-stamp in which the year, month, and day might be printed to represent any given date. The invention consisted of a stamp the case of which was made in two parts. A series of rolls were arranged within the case, and there was a fixed bridge at the lower end. Endless rubber bands passed around these rolls, and also around and over the bridge. By turning the rolls in one direction, the figures or letters upon the bands were successively brought into position for printing, and supported there by the square edge at the bottom of the bridge. The invention also consisted of an annular recess around the rolls, where the bands had their bearing filled with a substance which would adhere to the bands, and thus increase traction, prevent slipping, and aid in bringing the characters upon the rolls into the proper position for printing. It appeared that each element of the combination was known in the art prior to the invention, but the combination in question, in its entirety, had never been produced. It also appeared that the invention had been received by the trade as a patented article, and had been previously recognized as such by the defendant, who was contesting its validity. Held, that the patent was not void for want of patentable novelty.</p> <p>2. Same—Combination—Construction.</p> <p>Where all the elements of a combination are old in art, but a patent is granted for a particular combination of them, the validity of which depends upon the novelty of such combination, the patentee will be confined strictly to the combination as described and claimed by him.</p> <p>3. Same—Equivalents.</p> <p>Where several patents exist for combinations, all producing the same results, but different in their forms of combination, the doctrine of equivalents has no application, and cannot be invoked by one patentee to suppress the combination of another.</p> <p>4. Same—Infringement.</p> <p>The said Hill patent is not infringed by the manufacture of stamps under letters patent granted October 33, 1883, to Willard W. Sawyer, wherein endless rubber printing bands were used in a combination in which the frame was not made in two parts, and in which there were toothed wheels near the bottom of the frame for turning the bands in a method differing from that of the Hill patent.</p>

<p>In Equity. On demurrer to the prayer for relief.</p>

<p>Patents fob Inventions — Impboved Machine fob Cutting Files—Equivalents.</p> <p>Letters patent No. 29,286, were granted July 24, I860, to Ktienne Bernot, and subsequently extended, lor an improved machine i'or cutting files. The purpose of tho invention was to keep tho edge of the cutting cbise.l parallel with the surface ol' the tapered file blank, along the line where the cut was to he made, so that the cut should have an equal depth across the face of tho blank. This was accomplished by an adjustable presser-foot or guide, set parallel with tho chisel, and hearing- on the file blank in a line slightly in advance of the edge of the chisel. As the blank moved along under the pressor foot,.¡i rocking bed yielded as variations in tie thickness of the blade might require. In the defendant’s machine a fixed presser-foot was used, with an adjustable cutter, in operating which adjustability, however, the cutter and blank were thrown out of parallelism, instead of being kept in the same, as accomplished by the Bernot device. Held, that the difOerence between the two machines was such that the doctrine of equivalents did not apply, and the defendant, therefore, did not infringe.</p>

<p>Patents for Inventions — Infringement—No. 244,944—Amendment of Decree.</p>

<p>Patents for Inventions—Improvement in Pump Buckets—Infringement— Gontempt.</p> <p>A decree was entered enjoining the defendants from infringing the first claim of letters patent No. 178,735, granted June 13, 1876, to John A. Churchill, for an improvement in pump buckets, in which claim a grooved screw-bolt was made a part of the combination. See 30 Fed. llep. 440. The defendants afterwards manufactured rubber buckets for chain pumps, but used a solid screw-bolt instead of a grooved one. According to the proofs, it appeared that such use of a solid bolt was probably no infringement. Meld, that the court would not determine the question of infringement upon a proceeding for contempt, but would leave the plaintiff to an original suit wherein the defendant would have a right of appeal.</p>

<p>Motion to Set Aside Service of Process.</p>

<p>1. Demurrage—Bin, or' Lading.</p> <p>Where a bill of lading designates a particular dock at the port of delivery as the place of discharge, the carrier cannot claim demurrage for detention arising from the state of the elements prior to the vessel’s arrival at the particular place; but, after arrival at the place designated, the consignee takes the risk of any ordinary vicissitude, or of vis mayor, which may occur to prevent the release of the’ship at the expiration of the running days.</p> <p>2. Same.</p> <p>The master of the schooner S. received on hoard at Baltimore a cargo of coal to he transported to New Haven, and there delivered at the “Consolidated lioad Docks. ” The bill of lading provided that lay-days should begin to run 24 hours after arrival at New Haven, and notice thereof to the consignee, and that one day should be allowed for the discharge of each 100 tons of cargo, after which the cargo consignee or assignee should pay demurrage at the rate of eight cents a ion per day on the entire cargo until the same was fully discharged. The S. arrived January 80th, and on the 81st reported to the consignee, who directed the discharge tó take place at “Shop Dock,” one of the consolidated docks mentioned in the hill of lading. The entrance to this dock was through a channel about 80 foot wide. Another vessel was ordered in the channel ahead of the S. The S. was towed to the entrance of the channel, and, while waiting for the other vessel to discharge, and on February 8d, ice formed in the channel so thick that the S. could not proceed. On February 5th the consignee directed the master to proceed, but he declined unless the consignee paid for opening the channel, and offered to discharge at another dock. On the 16th the discharge, by agreement, was commenced at another dock, and was completed on the 23d. Held, that 10 days’ demurrage, from February 13th to 23d, should be allowed; affirming the decision of the district court, 26 Fed. Rep. 923.</p>

<p>Ship-Owners—Liability for Agent’s Advances—Payment—Insurance.</p> <p>The agents of the owners of a vessel advanced, at the owners’ request and for their benefit, the money necessary to enable the vessel to make a voyage,, and took out a policy of insurance to secure the amount advanced. The vessel was lost, and the insurance money collected by the agents. Meld, that the receipt of the money extinguished and satisfied the debt, and that neither under an assignment to the insurance company, nor under the doctrine of subrogation, could the company maintain an action against the owners to recover the amount from them.</p>

<p>ADMIRALTY—TOW AND STEAMER PASSING- IN NARROW CHANNEL—NEGLIGENCE.</p> <p>While the sloam-tug M., with two barges, made fast on each side, was passing' through the north channel, between the Sunken Meadows and the Middle Ground, beyond Hell Gate, the steamer D. passed on the starboard side at full speed, and caused the M. and her tow to sheer so that the outside barge on the port side ran upon the rocks of the Sunken Meadows, and was sunk. The channel is between 300 and 400 feet wide. TheM., on entering, chose a course close to the Sunken Meadows, and was making loss than three miles through the water. The D., then about 500 feet astern, blew one whistle, indicating she proposed to pass the tow on the starboard side, to which the M. made no reply. The 1). continued her course, making about 10 miles through the water, anil passed within 2o feet of the M:, on the starboard side. The M. sheered to port, and, although the helms of the tug and barges were ported, she was unable to keep the outside barge off the rocks. Held, that the M. was in fault in choosing a course so close to the Sunken Meadows as to bo unsafe, and in not answering the signal of the I). in protest, of her passing in the channel as proposed; and that the 1). was in fault in passing the M. in a narrow channel at a high rate of speed, or in not waiting until the M. had got out of the channel; also that, as between the vessels and their stipulators, each must, pay one-half of the amounts due the respective libelant and co-libelants, and, iñ case of default on the part of either vessel or her stipulators in the payment of her half, the deficiency must be made up by the other vessel and her stipulators.</p>

<p>Corporations—Receivers—Insolvency—Jurisdiction.</p> <p>A life insurance company, organized under the laws of Connecticut, owned real estate and had policy-holders in Iowa, and, having become insolvent, a receiver was appointed by the Connecticut court. Afterwards, in a suit by Iowa creditors, the Iowa court appointed a receiver of the property located there, it being claimed that Iowa creditors had a superior right to such property, and that a foreign receiver did not control assets outside the state where he was appointed. Held that, as the statutes of Connecticut provided for receivers, it was a part of the contract with policy-holders that, in case of insolvency, such receiver should marshal all the assets, so that his powers were not limited as those of a receiver usually are, and the Connecticut receiver controlled all the company’s assets; following Relfe v. Rundle, 103 U. S. 222.</p>

<p>In Equity. Bill for infringement of letters patent.</p> <p>The defendant filed an answer which pleaded, (1) failure to make demand on the comptroller of the city of New York before bringing suit, as required by Laws N. Y. 1882, c. 410, § 1104; (2) denial of title; (3) non-infringement; (4) insufficient specification; (5) surreptitiously obtaining patent for invention of another; (6) want of novelty; and, (7) public use for more than two years. The complainant filed exceptions to the first defense stated, on the ground of impertinence, and other exceptions for insufficiency, in failing to answer the interrogatories in the bill.</p>

At Law. Plaintiff brought an action for breach of contract, and tendered in evidence copies ol' certain telegrams which were relied on to show the contract. Defendant objected, and the objection was sustained under the following ruling of the court. Plaintiff being thereupon unable to proceed, a juror was withdrawn by consent, and the case continued.

<p>Petition for Instruction.</p>

<p>1. Insurance—Renewal oe Policy—Condition—Waiver.</p> <p>An insurance company was in the custom of sending to its agents renewal receipts signed in blank, with authority to countersign and deliver them as they were required. The policy contained a clause making the actual payment of the premium a condition precedent to its binding force, and providing that no waiver should be claimed by reason of anything done by any agent, unless specially authorized in writing. The custom of the agents was to give credit on the premiums, and the'company, with knowledge of the facts, received and retained the premiums paid at the expiration of such credits. Held, that the delivery of the renewal receipts to the insured continued the policy in force from year to year.</p> <p>2. Same—Delivery oe Renewal Receipt.</p> <p>Before the expiration of the previous renewal, the agent of the company, under the direction of the insured, filled out and countersigned a receipt purporting to renew the policy for another year, and also, at the request of the insured, retained the receipt in his office, where it remained to the time of the death of the insured. Held, that there was a delivery of the renewal receipt which continued the policy in force.</p> <p>3. Same—Accident Insurance—Cause oe Death—Evidence.</p> <p>Deceased, who was subject ¿o epileptic fits, was found dead in a plunge-bath in an almost standing position, the water having a temperature of about 100 deg. There was an abrasion between his eyes, and a bruise on one side of his head. His physician testified that the entrance into the bath of one in his then condition would be likely to result in an epileptic attack, and that the fall or blow which caused the abrasion or bruise were not sufficient to have caused death. Held, upon the evidence, that the deceased came to his death through other causes “than external, violent, and accidental means, within the intent and meaning” of the policy in suit.</p>

At Law. The defendant, having been granted leave to plead double, filed several pleas—First, the general issue; second, the statute of limitations; third, a release of all claims, causes of action, etc.., under the patent granted to Knibly, and set forth in the declaration; fourth, a plea denying infringement, etc.; fifth, license; sixth, public use of the alleged invention, etc.;—and asked the court for a hearing on the third plea, on the ground that if that is sustained by…

<p>Indictment for Subornation of Perjury.</p>

<p>1. Perjury—Affidavit to Support Pension Claim.</p> <p>The offense of perjury, as defined by section 5392, Rev. St. U. S., may he predicated upon an affidavit to support a pension claim sworn to before a justice of the peace.</p> <p>2. Pensions—Regulations of Commissioner—Affidavit.</p> <p>Regulations of ihe commissioner of pensions prescribed that “all evidencie in a claim for pension (other than the declaration) may he verified before an officer duly authorized to administer oaths for general purposes. ” Held, that a justice of the peace is an officer duly authorized to administer oaths, within the purview of said regulations.</p> <p>8. Same.</p> <p>Such regulations are proper, under section, 4748, Rev. St. TI. S., directingthe commissioner of pensions to furnish claimants or applicants with “all such printed instructions and forms as may he necessary in establishing and obtaining said claim. ”</p> <p>4. Perjury—Indictment—Sufficiency.</p> <p>An allegation in an indictment under section 5392, Rev. St. IT. S., charging perjury in an affidavit to support a pension taken before a justice of the peace, sufficiently avers, under section 5396. Rev. St. U. S., the official character of the officer taking the affidavit, by- alleging that said officer “ was th,en and there a person having; competent authority to administer said oath. ” The officer’s special authority need not he set forth.</p>

<p>1. Actions non Penalties—Patents—Time op Stamping—Demurrer.</p> <p>Upon statutory actions for penalties brought under section 4901 of the United States Revised Statutes, for stamping patented articles without consent of the patentees, etc., the pleader, in accordance with the state practice adopted by section 914, Rev. St. U. S., is not required to allege the stamping to have been on a precise day, as at common law; an averment that it was done “in or about June, 1886, ” is sufficient on demurrer.</p> <p>2. Same—Statute to be Pleaded with Certainty.</p> <p>Under section 1897 of the New York Code of Procedure, the statute relied on, and the section thereof, must be referred to with certainty. It is insufficient to refer to different statutes, without specifying which.</p> <p>3. Same—Pleading—Essential Facts—Statutory Exceptions.</p> <p>All the essential facts must be distinctly alleged. Exceptions forming a part of the statute constituting the offense should be negatived. In this case, held, on demurrer, necessary to allege (a) that the defendant had no patent; (J) that the stamped article contained the patented improvement; (e) that if was stamped without consent of the plaintiff's “assigns or representatives. ”</p>

<p>Patents for Intentions — Improvements in Sewing-Machines—Infringement.</p> <p>Letters patent No. 24,022 were granted May 17, 1859, and extended seven years from May 17, 1878, to Joshua Gray, for improvements in sewing-machines. The first claim of -the patent related to an improvement in the details of construction of the feeding mechanism, in which four movements are required,— upwards when engaging the cloth, forwards when feeding, downwards when disengaging, and backwards to the point of beginning. The patent described a long reciprocating bar, actuated by a rock-shaft, and engaging the feed-bar, which transversed it. The longitudinal motions were given by two inclines on the sides of the reciprocating bar, acting in connection with two stops on the feed-bar, one adjustable and the other fixed. The upward movement of the feed was caused by an incline on the face of the reciprocating bar, acting with the feed-bar.' The feed-bar was moved upwards, against the pressure of a spring, which forced the feed downwards after the upward movement ceased. The defendant made sewing-machines in which the feeding mechanism had two cams, arranged one above the other, on a vertical rotating shaft. The cams were so arranged that one moved a bar or rod back and forth, and the other from side to side. At the end of the rod was the feed-bar, which closely embraced the rod between two fixed jaws. The rod had an adjustable fulcrum about midway between the driving end of the machine and the feed-bar. Held, that the motion and operation of the defendant’s device were not sufficiently similar to that described in the Gray patent to constitute an infringement.</p> <p>2. Same—Equivalents—Different Mode of Operation.</p> <p>While a cam and a wedge are regarded as plain equivalents, yet the use of two cams in the defendants’ device, in place of the two inclines or wedges in the plaintiffs patent, are not to be regarded as the substitution of equivalents, considering their different modes of operation in connection with the rods as arranged in the defendants’ machine.</p>

<p>1. Patents fob Inventions—Patentability.</p> <p>The ease of Cary v. Wolff, 24 Fed. Rep. 139, followed; and letters patentNo. 116,266, dated June 27,1871, granted to Alanson Cary, sustained.</p> <p>2. Same—Spibal Springs—Use of Heat.</p> <p>The Cary invention, being based on the discovery that a single application of heat to hard-drawn steel wire, weakened by winding into spiral forms, would restore its strength and elasticity, such application being novel, and producing a new and highly useful result, the process was patentable, notwithstanding previously heat had been applied to wire clock-bells and other articles, but for purposes and with results entirely diiferent.</p>

<p>Patents for Inventions—Improved Coffee and Nut Roaster — Construction of Clatm—Mechanical, Equivalent.</p> <p>Reissued letters patent, No. 9,260 were granted June 15, 1880, to William E. Vernon, for an improved coffee and nut roaster, containing in the combination a boiler heated by burners or lamps, and a nut receptacle placed over the boiler, into which the roasted nuts wore delivered and kept warm by the lioat radiating from the boiler and burners or lamps. The defendants manufactured a machine in which a second pan was placed below the nnt-pan, into which steam was carried by a pipe from the steam-chest and cylinder of an engine after its use in moving the engine. The steam so carried into the second pan kept the roasted nuts warm in the pan or receptacle above. The proofs showed that the elements of the Vernon patent were all old. Held, that said patent must be limited to the specific combination described and claimed, and that defendants’ machine, therefore, could not he regarded as a mechanical equivalent infringing the same.</p>

<p>Patents nor Inventions—Improvements in Piston-Rod Packing—Infringement.</p> <p>In 1882 an injunction was granted, and final decree made, restraining the defendant, Thomas Tripp, from infringing reissued letters patent No. 9,365, granted August 31, 1880. to Martin Schneble, for improvements in piston-rod packing. The packing made by defendant, when so restrained, had two disks placed at the head of the stuffing-box, one with a concave recess, and the other with a convex projection which fitted into the recess. By means of this arrangement, the packing was capable of a rocking or oscillating movement, and could so accommodate itself to a bent piston or to a rod not set parallel with the axis of the steam cylinder. The defendant afterwards made packing with a changed form of disks, one having a conical projection, and the other a beveled edge fitting over the projection. The result was the same in producing a rocking or oscillating movement, although imperfectly. Held, that the change was colorable only, and that an injunction should be granted to restrain such manufacture.</p>

<p>1. Collision—Slips—'Warps across—Custom.</p> <p>Tugs accustomed to do business in private slips are chargeable with notice of tbe customs of tbe occupants, as respects breasting off', and the use of warps across tbe slip.</p> <p>2. Same—Case Stated—Notice—Obstruction.</p> <p>Tbe steamer l!\, on arrival at her slip at Jersey City after dark, was sought to be breasted off, as usual, some 25 feet from tbe wharf, the wind and tide being against her. A warp or hawser was thrown across tbe slip, 100 feet from its' entrance, to aid in the work, as usual, under such difficulties. A tug having business in the slip, shortly after, on entering at considerable speed, ran against this hawser, and carried away her pilot-house and smoke-stack. Held, that the steamer, in using a warp after dark, was bound to provide reasonable notice of the obstruction to other vessels having- business there, and likely to come there: that the partial lighting up of the slip by the ship’s lights, without any other signal or precaution, was insufficient. Held, also, that the tug was chargeable with knowledge of the usages of the slip, and was hound to approach it with more caution than she used; and the damages were divided.</p>

<p>1. Navigation—Obstruction to—Gas Main.</p> <p>The defendant company, having authority under the laws of Pennsylvania to lay and maintain pipes for transportation of natural gas across the Allegheny river, laid an eight-inch main across and resting on the bed of the river, wholly exposed, so as to interfere with the free and safe passage of boats. Seld. that the pipe should have been buried underneath the river bed, and as laid it was a wrongful obstruction to navigation.</p> <p>2. Ships and Shipping—Injury to Vessel by Obstruction in River—Liability.</p> <p>A steam-boat descending the river through a ripple hard to navigate by reason of low water, crookedness of channel, etc., grounded her bow on a small hidden lump; whereupon, the engines being stopped, the cross-current swung the boat around until her bottom came in contact with and stuck fast on said pipe. The river was falling, and, apprehending that the boat would break in two if left on the pipe, the libelants (the owner and those in charge of the boat) essayed to pull her off by warping, i. e., fastening a line to shore, and attaching the other end to the boat’s capstan, which was worked by steam. Under the strain the pipe parted at a flange put thereon to repair a previous break made by another boat. There was an escape of gas, which instantly filled the boat, and, igniting, caused personal injuries to libelants, and the burning of the boat. HeM, (a) that the pilotwas not culpable in not avoiding the lump; (b) that the grounding on the lump was of no moment, as the boat would have swung or could have backed off, save for her entanglement with the pipe; (c) that libelants were not chargeable with negligence, either because of failure to communicate with defendant before undertaking 1,o free the boat, or on account of the method resorted to; (d) and that the defendant’s wrongful act was the proximate cause of the disaster, and defendant was answerable for the damages sustairfed.</p> <p>3, Same-—Coxtbxbutoby HegtjIQekce.</p> <p>The libelants are to be judged by the standard of common prudence and experience; and, acting in an emergency, they are not to he held responsible for a mere mistake of judgment.</p> <p>4. Same—Pkoximatb Cause.</p> <p>Having wrongfully placed in the channel of the river a natural gas main, which was exposed to rupture by steam-boats running foul of it, defendant cannot be heard to say that the ill'consequences experienced by libelants were such as could not have been foreseen.</p>

<p>Libel for Master’s Wages—Counter:Claim for Damages.</p> <p>The balance of wages decreed on the admission in the pleadings, and the counter-claim for damages resulting from an injury to the boat while in libel-ant’s charge, by a collision with the steamer Oregon, found not proven.</p> <p> (Syllabus by the Court.) </p>

<p>Pilots—Pilotage Rates—Discrimination.</p> <p>Section 2466, Pol. Code Cal., provides a schedule of pilotage rates into or out of San Francisco, and further provides that when a vessel is spoken inward or outward bound, and the services of a pilot are declined, one-half of the schedule rates shall be paid. Section 2468 provides that all vessels coasting between San Francisco and any port in Oregon, or Washington or Alaska territories, and all vessels coasting between the ports of California are exempt from all charges for pilotage, unless a pilot be actually employed. Section 4237, Rev. St., provides that no regulation or provision shall be adopted by any state which shall make any discrimination in the rate of pilotage or half pilotage between vessels sailing between the ports of one state and vessels sailing between the ports of different states' Meld, that the above provisions of the Political Code are unconstitutional and invalid, so far as they relate to coasting vessels, but that they are valid in respect to vessels engaged in foreign trade.</p>

<p>1. Equity—Jurisdiction—Relief from Hard Bargain.</p> <p>The fact that a needy borrower of a large sum of money ($61,000, for example) is compelled by his necessities to agree to pay a high rate of interest, (1C) per cent., for instance,) and to submit to other hard exactions, affords no reason for the interference of a court of equity, especially where the security consists chiefly of stock on a western ranch, which must be marketed and sold before the loan can be repaid.</p> <p>2. Mortgage—What is—Accounting.</p> <p>Plaintiff, to secure the loan of $61,000, conveyed his ranch, and the stock thereon, to defendants, it being agreed that defendants should manage the property, and reimburse themselves from sales. Held, that the status of defendants was that of mortgagees in possession, bound to exercise reasonable care and diligence in preserving the property, and in disposing of it, for the benefit of all concerned; that if defendants unnecessarily removed stock to a distant and inhospitable region, where it was abandoned to the rigors of winter, defendants were chargeable for the consequent loss; that charges amounting to $60,000, for transporting and marketing cattle sold for $70,000, were, prima fade, so large as to challenge the closest scrutiny; that plaintiff was not bound to be content with charges in gross, in the accounts rendered by defendants, but was entitled to be furnished with explicit and itemized statements of expenditure; that certain charges, on their face extraordinary, should be investigated; and that the case was a proper one for reference to a master to state a true account between the parlies, in accordance with the principles above suggested.</p> <p>8. Same—Settlement—Effect.</p> <p>A mortgagor, in order to get possession of the mortgaged property from the mortgagee in possession, and to save it from probable loss from mismanagement and abandonment, the mortgagee’s management and accounts being suchas to afford proper subjects for investigation at the hands of a court, agreed with the mortgagee on a certain sum as the balance due. Held, that he did not preclude himself from invoking the aid of a court of equity to compel a true account from the mortgagee. A payment made under such agreement should be treated merely as an item to be credited to the mortgagor.</p>

<p>Creditors’ Bill. Cross-Bill. Jurisdiction.</p>

<p>1. Equity—Jurisdiction—Creditors’ Bill.</p> <p>A court of equity has jurisdiction to reach the property of a judgment debtor justly applicable to the payment of his debts, which cannot be reached by an execution at law.</p> <p>2. Same—Grounds of Jurisdiction.</p> <p>For the exercise of this jurisdiction the debt must be clear and undisputed, and there must exist special circumstances requiring the interposition of equity, and it must generally be shown that legal means for its collection have been exhausted.</p> <p>8. Same—Remedy at Law.</p> <p>In order to defeat and oust equity jurisdiction, where such “special circumstances” and other grounds for its interposition exist, it is not enough to show that it is not absolutely necessary to appeal to equity, and that there is a legal remedy, but the remedy at law must be in all respects as satisfactory and as ample as the relief furnished by a court of equity.</p> <p>4. Same—Remedy by Garnishment.</p> <p>Where A. fraudulently transfers property to B., to avoid the payment of his debts, the remedy by garnishment against B. is not so full and complete as a proceeding in chancery; and this is especially true where there are several complainants, and a fund to be distributed according to the priority of their liens.</p> <p>5. Same—Discovery.</p> <p>The equity jurisdiction in cases of fraud, misrepresentation, and concealment does not defend on discovery.</p> <p>6. Same—Trust.</p> <p>The allegations in the bill, if true, create a trust in the hands of Perlinski for the benefit of the creditors of Appel Bros.</p> <p> (,Syllabus by the Oowrt.) </p>

Application to Stay Proceedings. Defendant has been sued in this court upon a negotiable promissory note of which he is the maker. The plaintiff claims title by successive indorsements from Solomon Solmson, the original payee.

<p>Counter-Claim—Joint Cause or Action.</p> <p>A cause of action arising on the liability, promise, or undertaking of a partnership is a, joint one only; and under section 72 of the Code of Civil Procedure, in an action thereon against the members of the firm, one of the defendants cannot maintain a counter-claim arising on a cause of action existing in his own favor.</p> <p> (Syllabus by the Court.) </p>

<p>1. Evidence—Foundation eob Secondaey.</p> <p>On a motion to introduce secondary evidence of a deed, the amount of evidence to show the existence of the original will vary with the circumstances of each case. Whore no direct issue is made upon the fact, slight evidence will be sufficient.1</p> <p>2. Ejectment—Deeunses—Fbdebai, Oouets.</p> <p>In the courts of the United States an equitable defense cannot be heard to defeat the legal title in an action of ejectment, nor will a homestead exemption under the state laws, taken on land to which the plaintiff has the legal title, defeat his action.</p> <p> (Syllabus hy the Court.) </p>

<p>1 Widow's Allowance—Parties to Application.</p> <p>[n a proceeding to have sot apart a year's support for the widow of an intestate, tlie administrator of the estate is a necessary party.</p> <p>2. Removal op Causes—Citizenship.</p> <p>Where a non-resident creditor of the estate resists the application, and removes the entire proceeding to the United States court, it will be remanded, where the administrator is a resident of the same state as the widow.</p> <p> (Syllabus by the Court.) </p>

<p>Juror— Exemption—Disqualification—Federal Courts.</p> <p>That one summoned as a juror in the United States courts was an officer of the navy anterior to the late war; that lie resigned, and thereafter served in the Confederate army; and that his disabilities have not been removed,—will not support a personal claim for exemption from jury duty.</p> <p> (Syllabus by the Court) </p>

<p>1. Inspection—Fertilizers—Brand.</p> <p>Under a state statute requiring that commercial fertilizers shall be “branded' or tagged with the manufacturer s guarantied analysis, ” showing the percentages of certain determinations specified in the statute, held that, if the analysis branded on the package shows the percentages of ingredients the fertilizer is guarantied to contain, it need not specify other ingredients mentioned in the statute, about which there is no guaranty;</p> <p>3. Same—Tags.</p> <p>If a manufacturer’s guarantied analysis is branded on the sacks, and it appears that the fertilizer has been inspected, it does not invalidate the sale that tags showing the inspection and analysis were not appended.</p> <p> (Syllabus by the Court.) </p>

<p>Motion to Direct a Verdict</p>

<p>1. Patents eob. Inventions—Combination oe Old Devices—Invention.</p> <p>Letters patent 296,210 were granted to the complainant for an improvement in “circular knitting-machines,” intended for the manufacture of “plush-back stockinet.” The improvement consisted, primarily, in combining with the other parts of the machine a divided push-back and a “landing” wheel, and a “presser” wheel, situated where the push-back was intermitted or divided, which structure enabled him to elevate the “plush” thread by elevating the fabric, the fabric being then pushed down again to enable the subsequent acts of the machine to be performed. The improvement consisted in very slight changes in the old machine. The old machine had been found virtually unsuited to the use for which it was designed. The improved machine made plush-back stockinet successfully. Held, that, as the combination was novel, very useful, and productive of essentially a new result, it possessed patentable invention.</p> <p>2. Same—'Validity—Evidence.</p> <p>The presumption in favor of the validity of a patent, arising from the action of the patent authorities in granting it, can be overcome only by reliable and certain proof.</p>

<p>1. Admiralty—Practice—Arrest oe Vessel—Marshal’s Fees.</p> <p>The marshal, in preserving: property arrested under process, acts as bailee, and is responsible to all parties interested for its proper care. In the absence of any statute or rule of court, he is entitled to be paid his fees at the time he delivers up the property by the person entitled to receive it.</p> <p>Same—Rev. St. U. S. § 857—State Practice.</p> <p>The stste practice, as respects fees of the sheriff upon arrest of a vessel dr other property by attachment or replevin, requiring the payment of the sheriff’s fees by the person receiving the property, is made applicable by section 857 of Rev. St. U. S. The English practice in admiralty is the same.'</p> <p>Same—District Court Rules -15 and 65—Case Stated—Laches.</p> <p>The libelants sued as seamen, under rule 45, without giving security. The vessel was arrested, and 19 days afterwards was released on a deposit; by the claimant in the registry of the amount, sued for, with interest, costs, and officer’s fees, under rule 65. The libel, on trial, was dismissed. Held, that the object of rule 65 was not to deprive the marshal of his security for fees, but to confirm and regulate it; that he was entitled to be paid his fees out of the deposit in the registry; and that it was laches in the claimant not to apply to the court, under rule 45, immediately upon arrest of the vessel, to require security from the libelant, or the release of the vessel.</p>

<p>Libel in rem. Seizure.</p>

<p>1. Shipping—Cargo—Apparent Condition—Secret Yices.</p> <p>Tbe master is responsible only for tbe apparent condition of tbe cargo wben talcen on board, not for its secret vices or defects.</p> <p>8. Same—Charterer—Stevedore—Bad Stowage.</p> <p>Tbe ship is liable for bad stowage by a stevedore employed by a charterer, where her officers retain control over the disposition of tbe cargo.</p> <p>8. Same—Provisions and Hoops—Sweat—Stowage—Negligence—Statement of Case—Damages.</p> <p>Part of tbe cargo of tbe brig Keystone, consisting of provisions, was damaged by the sweating of hoops, etc., which formed another part of tbe cargo The evidence showed that it was customary to carry the two articles as parts of the same cargo. It also appeared that the sweating doubtless arose in part from the general unseasoned condition of the hoops, which condition the master had no means of knowing before the cargo was shipped. The hoops being apparently lawful cargo which the master had no right to refuse, and which the charterers required him to take, and which is customarily taken with provisions, held., that the master could not be charged with negligence for taking them on board. It subsequently appearing that the proper place to stow provisions in such a mixed cargo 'was in the hold, in the after-part of the ship.., and not in the main hatchway, and that the master knew the quantity of pro-, visions to go aboard, held, that the ship was liable for injury by sweating to bags of flour stowed in the hatchway, in excess of any injury caused by sweating to similar bags stowed in the proper place below.</p> <p>4. Admiralty—Amendment at Trial—When Disallowed.</p> <p>An amendment of the libel will not be allowed at the trial, introducing a wholly new' ground of claim, where proper evidence on that subject has not been taken and the defendant’s witnesses are gone.</p>

In Admiralty. On motion to dismiss the petition. The collision, which was the subject of the original suit, occurred in November, 1883. The libel was filed in December, 1884, and the opinion of the district court, finding the Mary Lord solely in fault for the collision, is reported in 26 Fed. Rep. 862.

<p>Shipping—Negligence—Liability for Personal Injury—Fellow-Servant— Independent Contractor.</p> <p>The libelant, an employe of the master stevedore, who was loading a vessel under contract, was injured by stepping into a small trimming hatch, in the hetween-decks, while engaged in storing cargo. The light in the between-decks was dim, and libelant did not know of the existence of the hatch, or that it was uncovered. When the vessel was turned over to the master stevedore to be loaded, this trimming hatch was covered. It was subsequently uncovered by the stevedore’s foreman. Held, that the vessel was not liable for the injury.</p>

<p>1. Demurrage—Transfer of Cargo—Notice.</p> <p>To relieve the owner of a cargo, when he has transferred it, from responsibility for demurrage, he must show that notice of such transfer was given to the master of the ship.</p> <p>2. Same—CestOm of Port.</p> <p>Demurrage will not be allowed for delay caused by unloading in accordance with the custom of the port.</p>

In Admiralty. The case came up on libel anc! exceptions, of which the following are copies: The libel of William Buzby, owner of the bark Samuel Welsh, against the Phcenix Insurance Company of Mew York, in a cause of insurance, civil and maritime, showeth: (1) That on the twenty-sixth day of February, 1886, the Phcenix Insurance Company caused the libelant to be insured, on account of whom it may concern, in the sum of twenty-five hundred dollars on the bark Samuel Welsh,…

<p>Saltase—Seuvioes—Btousihg Vessel.</p> <p>Where a tug provided with a steam pump ior extinguishing Are is first to reach a burning vessel and pumps water in the hold for five hours, and the fire is finally extinguished by flooding, the tug is entitled to salvage, although larger pumps and the city tire engines rendered greater service.</p> <p> (Syllabus by the Court.) </p>

<p>1. Collision—Tug and Tow and Steam-Ship—Liability.</p> <p>The rule in Sturgis v. Boyer, 24 How. 110, that the lug is alone responsible for damages upon a collision between her tow and other vessels, is applicable only when the tow is wholly under the charge and control of the tug.</p> <p>3. Same—Tog-Signals—Inspector’s Rules.</p> <p>It is gross negligence in a tug, when taking a tow in a fog across the harbor of Now York, in such manner that outgoing vessels are on her starboard hand, neither to blow fog-signals, nor to give the three blasts that indicate a tow, under the supervising- inspector’s rule 10.</p> <p>8. Same—Duty of Tow.</p> <p>Under like circumstances, it is negligence in the tow sufficient to charge her with fault, if, though fitted with a whistle, and having the general direction of the tug, she does not use her own whistle to indicate her position, nor give any directions to the tug, when it is observed that the tug is silent. Reasonable signals of danger are obligatory in all dangerous situations.</p> <p>4. Same—Length of Hawser—Tog—Calm. Sea—Fair-Way.</p> <p>In a fog, with a calm sea, a towing- hawser 400 to 600 feet in length is unnecessarily long and dangerous in crossing a fair-wav; and if the length of the hawser is under the control of the tow, and accident results, the tow will be held jointly in fault.</p> <p>o. Same—Steam-Ship and Tow—Speed—Approaching Fog-Bank—Apportionment-Statement of Case.</p> <p>The tug- A. was taking the dredge Q. from Gednoy’s channel to Sandy Hook, on a hawser 400 to 600 feet long. Both were enveloped in a bank of sea-fog; but neither the tug nor the dredge, which had a'steam-whistle, sounded signals. The steam-ship Oity of A., going out to sea by way of the Swash channel, and just entering the fog-bank, which did not extend into the Upper</p> <p>• bay, did not slack her full speed of 11 or 12 knots. When about 500 yards off she first discovered the tug, and nearly ahead, and crossing her course to starboard, received two whistles from her, but no signal to indicate a tow. The steamer, being then unable to se.e the tow or the hawser, accordingly sheered to port, and ran into and sank the dredge. Held, that the tug was’in fault for not sounding whistles of any kind; that the dredge was in fault for not whistling herself, nor directing the tug to whistle, and for the length of her towing hawser; that the steam-ship was in fault for her immoderate speed in the fog. The tug not being a party to the suit, the damages were divided between the dredge and the steam-ship.</p>

<p>1. Carrier—Damage to Cargo—Bill oe Lading—“Breakage or Leakage”— Liability.</p> <p>The steam-ship B. delivered in New York certain cases of olive oil. Some were entirely empty, and some partly empty, on delivery. The bill of lading exempted the carrier from responsibility for “breakage or leakage. ” Jt appeared by the evidence that the leaks were caused by some persons tampering with the cases while in the carrier's custody. Held, that for such violence to the cases the carrier was responsible. The presumptions are against reasonable care on the part of the ship when such a cause of loss is proved.</p>

<p>At Law. Plea in abatement.</p>

<p>1. Judgment—Res Adjudicata.</p> <p>Where-a suit to recover a sum of money, claimed as a legacy, has been dismissed on general demurrer, it cannot be pleaded in estoppel to a hill by the same party for the same sum, claimed under a trust, especially where new defendants are joined, and the record entry dismissing the suit specifies as grounds therefor only “reasons appearing to the court. ”1</p> <p>2. Slaves—Contracts.</p> <p>All agreements, contracts, trusfs, and instruments to which a slave is a party are null and void. If not emancipated, it matters not what efforts have been made for freedom, or what privileges are enjoyed.</p> <p>8. Same—Abolition of Slavery.</p> <p>Slavery was abolished in Virginia by the Alexandria constitution, adopted April 7, 1864</p> <p>4 Contract—For Benefit of Third Person.</p> <p>If two persons, for a valuable consideration as between themselves, covenant to do something for the benefit of a third person, who is a stranger to the consideration, the latter cannot enforce the covenant.2</p>

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

<p>Mandamus Proceedings. Motion for security for costs.</p>

At Law. This was an action to recover the amount of customs duties alleged to have been wrongfully exacted from the plaintiff by the collector of the port of Philadelphia. The case was tried before Judge Butler, and a jury. In a special verdict the jury found as follows: “special verdict. “The jury tind: (1) In the year 1883 the plaintiffs were merchants in the city of Philadelphia, and the defendant was collector of the customs for the district of Philadelphia.

<p>Customs Duties—Cutlery—-SnEER Shears.</p> <p>Sheep shears are included within the meaning of the word “ cutlery, ” as used in Schedule 0 of the tariff act of March 3, 1883, and the duty thereon is 33 per cent, ad valorem.</p>

<p>Customs Duties—Smokers’ Aetici,e:'—Lamps.</p> <p>Small lamps, such as are mainly used for lighting pipes and cigars, and are usually carried in stock by those'v.iio deal in pipes and other articles of that sort, are “smokers’ articles,” wit bin the meaning of that termas used in Schedule IT of the tariff act of 1880, and are chargeable with a duty of 70 per cent, ad valorem.</p>

<p> Habeas Corpus. . </p>

<p>.. Demurrer to Indictment under Rev. St. U. S. § 5512, for Fraudulent Registration.</p>

<p>Trade-Mark—Infringement—Deceiving Public—Similarity in Names.</p> <p>Where the complainant sold a medicine called “Brown’s Iron Bitters,” which had been compounded by one Brown, and the defendants subsequently began to sell ¡i medicine called' “ Brown’s Iron Tonic,” prepared under a different formula by another Brown, who, bona fide, gave it his name, the bottles, wrappers, and labels of the defendants bearing no resemblance to those of the complainant; and the medicine itself being distinguished from that manufactured by complainant, in the circulars issued by defendants, held, that there was no infringement of any symbol, device, or word constituting a trade-mark, nor any evidence of fraud or intent to deceive the public; and that the more similarity in the sound of the two names furnished no ground for equitable interference.</p>

In Equity. This is a suit for the infringement of the third claim of letters patent No. 830,850, granted to Tillman Puetz, November 17,1885, for an improved plug-tobacco machine.

<p>1-. Patents for Inventions—Novelty—“ Olay Pigeons ” or “ Flying Targets. ” The “flying target” covered by letters patent No. 231,919, of September 7,</p> <p>1880, to Ligowski, is of the same kind of material, and of the same shape, as those covered by letters patent No. 281,183, of July 10, 1883, to Nicholas Fischer, and letters patent No. 311,768, of February 3, 1885, to the Ligowski Clay-Pigeon Company. The only difference is that under the patent of 1880 the “target” is slotted at or near its? periphery, and provided with a detachable tongue. A later patent to Ligowski (letters patent No. 246,401, of August 30, 1881) did away with the slot or gyoove, and attached a tongue, by glue or cement, to the exterior of the periphery. Held that, considering the state of the art of furnishing for marksmen a substitute for live birds, in 1880 and 1881, the “target” could not have been thrown from traps as then made without the detachable tongue, and that the patents of 1883 and 1885 were void for want of novelty, being anticipated by those of 1880 and 1881.</p> <p>2. Same—Suits Touching Interferences.</p> <p>The fact that the plaintiff to a suit under Rev. St. U. S. § 4918, providing for suits touching interfering patents, is not entitled to a decree for infringe-merit because the patent sot np by his bill is anticipated by bis own prior patenls. does not prevent the court-from decreeing that the defendant’s patent is void, as being anticipated by those patents. Under the statute, the court is limited to the question of priority between the interfering patents. Tt may declare either, hut cannot declare both, void.</p> <p>8. Same—Cuoss-Bn.r,.</p> <p>Although where a bill is filed under Rev. St. U. S. § 4018, providing for suits touching interfering patents, affirmative relief may he granted tiro defendant without- the filing of a cross-bill, yet, if counsel choose to file such a bill^they have the right- to do so.</p>

<p>In Equity. Bill for injunction to restrain infringement of letters patent and for an account.</p>

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

In Equity. The patent litigated in this case was issued May 3, 1870, to Michael Lei decker, of Rochester, New York, under No. 102,688, and reissued tt> Leideckor, September 26, 1876, under No. 7,320. The patent related to barbers’ and dental chairs.

<p>1. Sim*—Latent Defect in Construction—Negligence.</p> <p>Where a vessel is constructed and equipped in the mode usual and customary with other vessels of like character, and In a mode approved by competent judges and previous experience, then, in case of an accident happening by reason of a latent defect in the equipment and construction, there is no negligence on the part of the owner.</p> <p>2. Same—Duty of Owners towards Seamen.</p> <p>While the ship-owner is bound to provide a seaworthy ship, he is not an insurer or warrantor of the seamen against latent and undiscoverable defects in the vessel.</p> <p>3. Seaman-Injury in Service—Eights of.</p> <p>A seaman who is injured in the service of the ship, without the fault either of himself or the ship, can recover no compensation by way of damages from the ship, but is entitled to be healed at the expense of the ship, even after the voyage lias terminated, and the seaman is discharged.</p> <p>4 Same—Remedy—Admiralty Practice.</p> <p>Where a libel is filed by a seaman for damages, and also praying other relief, the admiralty is competent to administer a suitable remedy; and, although the court finds no damages due, it may make a decree for such expenses in healing the libelant as have been already incurred. But it cannot decree for prospective expenses.</p>

<p>Towage—Loss or Tow—Liability.</p> <p>The tug Argus left the Delaware breakwater with an ocean tow, on a morning when no storm signals were ujj, and at a time when other tugs and vessels were going to sea. Later in the day a violent storm, with blinding snow, set v in, during which the master of the Argus could not find a harbor, and deemed it unsafe to anchor. Being o£E a lee shore, he put out to sea, and the low broke loose, and was lost through the stress of the weather. Held, that the tug was not liable in damages for 1ho loss of the tow, there being no negligence on the part of the tug, and there being no implied liability under the contract of towage for the use of more than reasonable care and skill in the management of the tow.</p>

<p>1. Shipping—Damage to Cargo--Presumptions—Burden oe Proof—Unseawortiiiness—Decks/Leaking -Bad Weather.</p> <p>Upon proof of injury to cargo by sea-water leaking through the deck, the burden of proof is upon the ship to show a sea peril adequate to cause such leaks to a seaworthy ship. This is done prima facie by general proof of seaworthiness, and that there was no leak until just before arrival, after a week of very severe weather. The burden of proof then returns on the libel-ant to rebut tbis presumption, or show some fault in the ship that made the sea peril efficient.</p> <p>2. Same—Experts.</p> <p>On contrary testimony by experts as to whether a deck properly caulked would leak through straining of the ship in severe weather, without visible injury to the hutts at the side" of the ship, and also as respects the mode of caulking, held, that negligence in caulking and unseaworthiness in that respect, when the ship sailed, wero not proved.</p> <p>8. Admiralty—Pleading—Amendment at Trial—New Cause of Action— Negligence.</p> <p>Upon a libel for damage through negligence specifying unseaworthiness, leaky decks, want of proper care and improper stowage, the specifiaotions of negligence are in the nature of a bill of particulars. Evidence of a wholly independent kind of negligence, or new kind of damage, as from coal-dust, will not be admitted at the trial, nor an amendment of the libel, when tbe circumstances make it inequitable,—such as the dispersion of the goods, long lapse of timo, and loss of defendant's witnesses, no satisfacto^r explanation appearing why the new claim was uot made a part of the original libel.</p>

<p>1. Shipping—Carriers—Loss by Leakage and Breakage—Burden of Proof'.</p> <p>A carrier is released by his contract from all liability for loss from leakage and breakage, when so stipulated, unless his negligence or misconduct co-operated in the loss. The burden of proof is upon the shipper to show such Contributory or co-operating negligence. National Bureau of Engraving v. The New Orleans, 26 Fed. Rep. 44, followed.</p> <p>2. Admiralty—Costs—Appeal.</p> <p>When the libelant has not properly presented his case by pleadings and evidence until after it has reached the appellate court, he ought not to recover costs.</p>

<p>Charter-Party—Principal and Agent—Authority Exceeded—Failure to Ratify—Cross-Suits—Dismissal.</p> <p>In the charter-party of a vessel were inserted two clauses, one of which required the vessel to fit up oil-tanks. In signing this charter, the broker for the foreign owners exceeded his authority, and this fact was known at the time to the charterer’s broker. The foreign owners refused to confirm the inserted clauses, while the charterers never receded from their position requiring their retention. Nevertheless, the vessel made one voyage for the charterers; but, as soon as the question of the disputed clauses arose, the original dispute was renewed. The owners afterwards fitted up the tanks, at considerable expense and delay. The owners sued to recover the expense of fitting up the tanks, and the charterers brought a cross-suit to recover their damages because the tanks were not fitted up earlier. Held, that the written charter never became a binding contract as a whole, though it was evidence of the implied contract in the subsequent use of the vessel so far as it was adopted without objection; and that neither side could found a claim against the other on the disputed clauses, upon which they had never agreed; and therefore both libel and cross-libel should be dismissed.</p>

<p>Tug and Tow—Lake Champlain—Long Tows—Negligence.</p> <p>A tug upon Lake Champlain, in taking tows of great length,—nearly 2,000 feet,—is bound, at her own peril, to take precautions, by dividing the tow or getting other help, as may be necessary, to prevent the tow's swinging far out of line, in winds not extraordinary, to the damage of the tow by running over buoys that mark the channel.</p>

<p>Admiralty—Libel—Evidence—Seamen’s Wages. u</p> <p>Evidence will not be admitted to carry a seaman’s claim for wages back of the date named in the libel, unless the libel has been previously amended.</p>

<p>1. Removal oe Causes—Petition for Executory Process.</p> <p>A suit instituted in the state court, on a petition for executory process on a title importing a confession of judgment, is removable to the United States circuit court, after executory process has been ordered, and the debtor has tiled an opposition denying the plaintiff’s right, and asking the revocation of the order; the requisite averments as to amount involved and citizenship being conceded.</p> <p>2. Same.</p> <p>Oppositions filed to orders for executory process, under the provisions of the Louisiana Code of Practice, do not constitute mere ancillary proceedings to a suit already tried and determined.</p>

<p>Bill to Set Aside Decree, etc.</p>

In Equity. This was a bill in equity by the assignee of a purchaser at an execution sale to procure the annulment of a deed made by John Clark, defendant in the execution, to the defendant Townsend, prior to the sheriff’s sale.

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

<p>In Equity. The facts appear in the opinion.</p>

<p>1. Contract—Lex'Loci.</p> <p>The law of the place where the contract is made, not that of the place of performance of the contract, is the law which determines whether the contract is void for illegality.</p> <p>2. Same—Conflict oe Laws.</p> <p>If the contract is sanctioned by the law of the state in which it is made, and is not immoral, the courts of another state will treat it as lawful, although the laws of that state prohibit such a contract.</p> <p>3. Same—Usurious Contract—Place oe Making. , -</p> <p>A contract was made in the state of Rhode Island, and promissory notes were given thereunder and negotiated in the same state. The notes purported to he made at New York, were payable there, and New York was the place for substantial performance of the contract. The maker of the notes subsequently alleged usury in the transaction, and filed a bill on this ground for a surrender and cancellation of the contract and notes. Held, that the same being valid and free from usury in Rhode Island,, where they were made, the complainant was not entitled to the relief prayed for.</p>

<p>Mortgage—Co-Tenancy—Claim for Rents and Profits—Priority.</p> <p>Tlie lien of a mortgage executed by one co-tenant prior to the institution of a suit for partition, and for the recovery of rents and profits, is superior to the claim for rents and profits decreed in such suit.</p>

<p>1. Equity—Pleading—Amendment—Discovery.</p> <p>An amendment of a bill for discovery, by making it one for discovery and relief, is such a change as justifies an amendment of the answer, since making the bill one for relief entitles the defendants to set up all their defenses; and, if the amendment of the answer were not allowed, they would be cut off from a full defense.</p> <p>2. Same—Irregular Motion eor Decree—Practice.</p> <p>An irregular motion by defendant for a decree does not invalidate a subsequent answer and decree on the bill and such answer.</p> <p>8. Same—Reopening Case—Surprise.</p> <p>Plaintiff, after decree on a hearing for which he has set the cause, on supplemental bill and answer thereto, cannot have the case reopened because he was surprised by the allegations in the bill.</p>

<p>On Motion for an Injunction Pendente Lite, and upon a counter-motion to dissolve a restraining order.</p>

<p>1. Mandate on Appeal—Dismissing Bill—Amended Bill.</p> <p>Where a cause was remanded to the circuit court from the supreme court, with directions to dismiss the bill of complaint, held, that such mandate included the whole hill upon which plaintiff's case rested, and that, a decree of this court dismissing not only the original, but also the amended, bill of complaint, did not go beyond the mandate.</p> <p>2. Same—Commoting Error in Decree.</p> <p>If there was any error in the decree, it could only be corrected at that term, or by proceedings for review under the rules or on appeal, not by motion at a subsequent term.</p>

<p>Railroad Companies—Negligence—Damage from Fire.</p> <p>Where the evidence shows that the fire complained of originated from Sparks or other fire from a locomotive of the defendant railway company, in a manner so as to make it reasonably probable and certain enough to raise the presumption of ignorance in the operation of said engine, the defendant company will be held responsible for the damages resulting from the fire.</p>

<p>On Exceptions to Master’s Report.</p> <p>Petition of E. M. Pierpont, ex-employe, praying for compensation for persona] injuries.</p>

<p>1. Master and Servant—Liability of Master—Servant’s Knowledge of Danger—Orders of Foreman.</p> <p>Plaintiff, one of a gang of workmen employed by contractors, while excavating a tunnel, was injured by an earth slide produced by a crack in the soil from blasting, and sued his employers for damages. HeM, denying his motion for a new trial, that, as the danger was apparent to plaintiff personally, he could not recover, though the foreman of the gang, also knowing the danger, ordered plaintiff to work, without notifying him thereof.</p> <p>2. Same—Fellow-Servant—Foreman of Gang.</p> <p>The foreman of a gang of laborers, employed by a contractor, is a fellow-servant of one of the gang.</p>

At Law. Action to recover damages for death of the plaintiff's intestate through injuries caused by the defendant's negligence. On motion for new trial.

This action is brought by plaintiff, the personal representative of Charles McCrorv, deceased, to recover damages for the killing of said McGrory by defendant’s train.

<p>1. Insurance—Cancellation on Policy—Notice.</p> <p>A policy of insurance provided that it might be terminated at any time on giving notice to that effect,' and that, on surrender of the policy, the insurance company should refund any premium that might have been paid, reserving pro rata rates when terminated by the company. The policy was taken out by A., who gave his obligation for the premiums, and made payable to B., a mortgagee. Subsequently the policy was confirmed to B., who had become the owner of the property, and was made payable to C., a now mortgagee. The company notified B. and C. by mail on Friday, which notice was reoeived about 10 o’clock Saturday, that the premium was unpaid, and that the policy would be canceled unless the same was paid on or before the next day. On Saturday the company notified B. and 0. by mail, which notice was received about 10 o’clock Monday, that the policy was canceled, and demanded a return of the policy, and payment of the earned premium. The premium was not paid; and the property was destroyed by fire between noon and 2 o’clock on the same day. Held, that no notice having been mailed to A., who was alone under any obligation to pay the premium, B. and 0. were not guilty of any fraud or default authorizing the attempted cancellation of the policy, and that the company was liable for the loss.</p> <p>2. Same—Reasonable Notice—Question oe Fact.</p> <p>The question of reasonable notice in such case should be submitted to the jury, when it appears that the property was of such a nature that insurance companies would not take a risk upon it without a survey, and the fact was controverted as to-whether there was sufficient time for such survey and reinsurance after the first notice was given, and before the time of the fire.</p> <p>8. Same—Surrender oe Obligation—Submission to Jury.</p> <p>In such case it would seem that a surrender of the obligation given by A., the original mortgagor, for the premiums, was requisite to effect, a termination of the risk; and if this was so the plaintiff was entitled, in a suit on the policy, to the direction of a verdict in his favor, and the defendant company was not, therefore, wronged bv the submission of the case to the jury.</p>

<p>1. Fraudulent Bevresentations—Sale.</p> <p>On the trial oí an action against an electric lighting company, to recover the price of certain material and machinery sold, to he used in producing electric light, defendant’s evidence tended to show that the order for (he goods was induced by a representation of plaintiff's agent that a gas company was about to order and install such a plant in the territory operated by defendant, if the defendant did not do so. Held, that, there being no evidence that the agent made any statement which ho did not substantially believe to be true, or that the goods were not as ordered, there was no such fraud shown as would invalidate the sale.</p> <p>2. Sale—On Trial—Neglect to Try—Effect.</p> <p>Plaintiff sold and delivered to defendant certain material and machinery for producing electric light, to be set up, installed, and operated by defendant, and to be paid for at specified prices, 30 days after satisfactory operation and receipt. Defendant did not set up, install, or operate the goods. lleld, in an action for the price, that .defendant’s failure to make the trial could not defeat plaintiff’s right to recover.</p>

<p>Application for a Writ of Mandamus to compel the common council to include relator’s judgment within the budget for this year.</p>

<p>Public Lands—Grant to Union Pacific Railroad—School Lands.</p> <p>It was the evident intention of congress by the act of July 1, 1862, (12 St. U. S. 491,) giving a right of way to the Union Pacific Railroad Company, to-grant such right of way through those lands which by surveys should be found to be sections 10 and 86, the school sections which it intended to give to the future state of Nebraska, pursuant to the provisions of the organic act of 1854, (10 St. U. S. 283,') creating the territory of Nebraska.</p>

<p>1. United States Courts—Pleading—Set-Off.</p> <p>A set-off may be pleaded as a defense to an action brought in the United States courts in any state where that plea is permissible by the laws of the state.</p> <p>2. Same—Reply to Set-Off.</p> <p>It is not, in the courts of the United States, a proper reply to a set-off showing a moneyed indebtedness to the defendant, for the plaintiff to show that the defendant has personal property in his possession belonging to the plaintiff, which the defendant will not restore to the plaintiff.</p> <p> (Syllabus by the Court.) </p>

This was an action against principal and sureties upon a bond given by defendant Saylor, as postmaster at East Saginaw, in this state. Two breaches wore averred in the declaration: First, that defendant had returned vouchers for rent to a much greater amount than the rent actually paid; second, that he sublet to different persons portions of the post-office building, and received rent therefor, which he failed to report to the department.

<p>1. Verdict—Setting Aside—Perfecting.</p> <p>Where a verdict was not complete at the term when it was rendered, the court has power to set it aside at any subsequent term at which the case is before the court for the purpose of perfecting the verdict.</p> <p>2. Same—Mistake.</p> <p>Where, in a suit against a collector of customs, commenced March 4, 1861, and put in verdict May 27, 1864, by consent of counsel, a motion was made more than 20 years after the date of the verdict to set it aside, held, that the motion would not be granted, unless the fact of such mistake be made clear.</p>

This suit was one originally brought at law in this court against the three railroad companies named in llie caption, and others, for damages claimed by the plaintiff in the sum of $J 0,000, resulting to him from the laying of defendants’ railroad tracks on a street of Memphis in front of his abutting property.

The plaintiffs brought this action originally in this court, for damages in the alleged sum of §4,950, for the unlawful expulsion from defendant’s cars of the plaintiff Mrs. Gibson anti her two children, as passengers. The case was tried by jury, resulting in a verdict for the plaintiffs for §100, whereupon plaintiffs moved the court for judgment upon the verdict, and for costs.

<p>On Petition for Beview in Bankruptcy.</p>

<p>Patents for Inventions—Combinations—Infringement.</p> <p>To infringe a patent for a combination, it is necessary to use each member of the combination, or its equivalent, substantially as set forth; and, if the use of less than the whole be an infringement, it is only where the part used, separate and apart from the rest not used, was new and patentable to the inventor.</p>

In Equity. Bill for injunction. Buit for infringement of two letters patent granted to complainant upon lever lifting-jacks, as follows: (1) No. 168,(363, dated October 11, 1875, as to the following claim: “The block, I), provided with several teeth that calcli simultaneously in those of bar, A, and pivoted to the lever, E, as and for the purpose specified.” Also (2) No. 172,471, dated January 18, 1876, as to the following claim: “In a lifting-jack, the toothed…

<p>Letters patent No. 121,385 were granted November 28, 1881, to Win-field Scott Keyes, for an improvement in furnaces for smelting lead and other ores. An action at law was afterwards brought in the circuit court of the United States for the district of Colorado, against one Grant ctaL, to recover damages for an alleged infringement of this patent. The defendants relied principally on the want of patentable novelty in the invention, and it was shown that an invention similar in character had been described in a publication printed in Berlin in 1831-32, called “System der Metallurgie,” by one Dr. J. B. Karsten. Upon the trial of the cause the circuit judge directed the jury to find a verdict for the defendants, which was accordingly done, and judgment entered thereon. Upon writ of error to the supreme court, this direction was held to be ■error, on the ground that the questions involved should have been submitted to the jury, with proper instructions as to the laiv, and the case was reversed, and remanded with directions to grant a new trial. 118 U. S. 25, 6 Sup. Ct. Rep. 974. Before such new trial took place the plaintiff filed his bill against the present defendants, to restrain infringement of the same patent, and moved for a preliminary injunction. The defendants interposed the same defense as had been set up in said action at law. It further appeared that the defendants had been using the kind of smelter in question for nine years before the hill was filed, and that they were abundantly rich to compensate the plaintiff for any damage which he might show that he had sustained. The defendants made a counter-motion that the matter in issue be referred to a jury under the provisions of the act of congress.</p>

<p>Patents for Inventions—Injunction—Dissolving.</p> <p>Where a preliminary injunction, restraining the infringement, of a patent, has been allowed to stand for three years, and it is within the power of the parties to bring the cause to final hearing, the court will allow the injunction to remain until such hearing, and will deny a motion to dissolve it, which is made on the ground that the invention of the patent in controversy was described in a prior patent to the same inventor, and that a certain authority was not before the court when the injunction was granted.</p>

<p>1. Collision—Mutual Pault—Division of Damages.</p> <p>In a ease of collision on the high seas, between a stoam-ship and a pilot-boat, the steam-ship was held to be in fault for not having and maintaining a proper lookout, and because her officer in charge absented himself so long a time from his proper position on the main-bridge, during which the collision occurred; and the pilot-boat, was held to be in fault for not carrying a white light at her mast-head, visible all around the horizon, and in not.exhibiting a fmre-np light or lights at short intervals while she was cruising, and in not taking any precautions by way of unlashing her helm, and calling the watch below, when it became apparent that the collision was imminent,— all of which faults of both vessels contributed to the collision, and therefore the damages were divided.</p> <p>2. Same—Pilot-Boats.</p> <p>When a pilot-boat, is cruising, looking, or waiting for ships wanting pilots, although hundreds of miles oil the port to which it belongs, it is a “pilot-vessel, engaged on her station on pilotage duty,” within the meaning of article 9 of the act of congress approved March 3,1885, (chapter 354, 23 St. at Large.)</p>

<p>Cou.tptok—1Tug—Ltjsoeb.</p> <p>In a collision between a tug-boat and a lugger in the port of New Orleans, the tug-boat was held not to be in fault when the signals of her master, intended to mean that he refused to take the lugger in tow, were misunderstood by the lugger; and those in charge of the lugger were hold bound to observe that no precautions were being taken on the tug to take the lugger in tow with safety.</p>

<p>1. Collision—Wharves and Slips—Projecting Boats.</p> <p>Vessels moored in slips along-side piers, witb bowsprits extending beyond tbe ends of the piers, in violation of the local regulations, and being in the way of the usual course taken by other vessels accustomed to enter the slip, will be held in fault in case of collision, though the obstruction was visible, and might have been avoided by the other vessel by proper lookout and care.</p> <p>2. Same—Case Stated—Ferry-Boat—North River.</p> <p>The ferry-boat F. L., coming down the North river from Fort Lee to her slip at One Hundred and Thirty-First street, in entering the slip on the strong ebb-tide, going as usual, near the corner of the upper pier collided with the projecting bowsprit of the schooner R. B., moored near the outer end of the pier. The schooner had been warned to move further back in the slip, and the projection of her bowsprit was contrary to the regulations of the harbormasters. NelA, both vessels in fault,—the schooner for wrongfully remaining in the ferry-boat’s way, and obstructing her rightful course; the latter, for not observing the schooner’s position, and keeping away from her, as she might have done by a proper lookout and reasonable care.</p>

<p>In Admiralty. Salvage. Libel in rem.</p>

<p>Admiralty Appeal.</p>

<p>1. Admiralty—Practice—Appeal—Motion to Dismiss.</p> <p>It is no ground to dismiss an admiralty appeal because the record shows that there was no evidence, nor agreed statement of facts, nor assignment of errors. Admiralty cases on appeal to the circuit court are tried de nooo, on the original or amended pleadings, and on such evidence as may be properly offered, whether the same was offered in the district court or not.</p> <p>% Same—Transcript.</p> <p>An appeal will not be dismissed on account of the transcript not having been properly made up or certified, when the fault thereof is not attributable solely to the appellant.</p>

<p>1. Removal of Causes—Plea to the Jurisdiction.</p> <p>A party against whom a case has been removed from a state to a national court may contest any allegation of fact on which such removal was had, by a plea in the nature of a plea to the jurisdiction of the latter court; and this, whether such allegation is contained in the pleadings proper or the petition for removal.</p> <p>2. Same—Residence and Citizenship.</p> <p>An averment in a plea that a party is a citizen of Oregon is not neutralized by an admission therein that such party is residing1 abroad. Residence is ‘prima facie evidence of citizenship, but not conclusive; and a person may be a citizen of one state or country, and reside for the time being in another.</p> <p>3. Same—Domicile.</p> <p>Primarily, a person’s domicile is his logalhome; but domicile implies more than mere residence in a country.</p> <p>4. Equity Pleading—Argumentative Plea.</p> <p>A plea must be positive and direct, and not merely argumentativo; and when a fact is controverted simply by alleging one contradictory thereof, the plea must go further, and directly negative or traverse the facts inconsistent with the fact alleged.</p> <p>5. Same—Answer in Support of Plea.</p> <p>A plea, to the jurisdiction that one of the parties to the case is a citizen of a state other than that alleged in the petition for removal, need not be supported by an answer.</p> <p> {Syllabus by the Court.) </p>

<p>Suit in Equity to Enforce the Lien of a Mortgage.</p>

In Matter of Exceptions to Master’s Report, disallowing claims against purchaser of railroad property under mortgage sale. D. Is.

<p>In Equity. Bill to set aside conveyances as in fraud of creditors.</p>

<p>In Equity. On motion to set aside order allowing service of cross-bill.</p>

At Law. Action to recover amount due under certificate of insurance upon the life of Joseph Lazensky. On motion for new trial.

Ejectment by Frank- W. Hastings against P. C. Nissen and Ole Holethe. The case was tried to the court, a jury being waived, on the following agreed statement of facts: “It is agreed that the evidence on the part of the plaintiff to support and maintain the issue herein on his part is as follows, to-wit: Exhibit A, on which it is agreed the patent for the land in controversy issued to John F. Kimmel; Exhibit B, deed from John F. Kimmel to Jacob Shoff.

<p>1. Counter Claim—Action upon Contract.</p> <p>In an action for breach of a contract of partnership, defendant’s answer set up a. counter-claim, alleging that the plaintiff failed to bring to the firm the amount, and kind of business he had agreed to. Held, that under section 501, Code Civil Proc. N. Y., the cause of action set forth in the complaint arising on contract, the counter-claim, which also arose on contract, might be sot up.</p> <p>3. Courts—Following State Practice—Equitable Counter-Claim—Action at Law.</p> <p>In such a case, a counter-claim set up in the answer was for an accounting and adjustment of the affairs of the partnership. Held, that an equitable defense. though admissible in a slate court, cannot be interposed to an action at law, in an action at- law in the United States courts, notwithstanding the provision of Kev. St. § 914, that, in causes other than those in admiralty and equity, the practice of the state courts shall be followed.</p>

<p>Customs Duties—Opium in Transit.</p> <p>Opium shipped on board a steam-ship at Honolulu, for Panama, by way of San Francisco, intended tobe transferred, without landing, to another steamer at San Francisco, running to Panama, in connection with the steam-ship from Honolulu, and entered on the manifest and bills of lading, and reported to the collector, as being in transit for Panama, the owner having applied to th.4 collector for a permit to make the transhipment, and offered to give the serarity prescribed by the statute, and a permit having been refused, was held not to be liable to duties,—and a seizure for non-pajrment of duties adjudged to be illegal. Sections 2502, 2931, and 2979, Rev. St., construed.</p>

<p>1. Custom Duties—Treaties—Exemptions—Dominican Republic—Hawaiian Islands.</p> <p>Tho treaty with the king of the Hawaiian Islands, and the act of congress giving it effect, (19 II. 8. St. at Large, 200,) by which molasses from those islands was admitted into the United States free of duty, did not operate upon the previous treaty with the Dominican Republic, so as to establish a like exemption as to molasses imported from the latter country; following Bartram v. Robertson, 15 Fed. Rep. 212, affirmed 7 Sup. Ct. Rep. 1115; Whitney v. Robertson, 21 Fed. Rep. 566; Netherclift v. Robertson, 27 Fed. Rep. 737.</p> <p>2. Same—Act op Congress op 1883.</p> <p>The eleventh section of the tariff act of 1883, referring to the sanctity of treaty obligations, notwithstanding that act, was not intended to revive and set in motion the inert features of the Dominican treaty; following Netherclift v. Robertson, supra.</p>

<p>1. Patents por Inventions—Abandonment.</p> <p>A delay oí 10 years in applying for a patent, when the inventor had sufficient means, coupled with the sale of machines with tho improvement by the patentee, during that time, held to he an abandonment by him of his invention 1,o the public.</p> <p>2. Same—Improvement in Harvesters.</p> <p>Letters patent No. 135,256, dated September 22,1874, for an improvement in harvester or header, held void; the invention having been abandoned to the public before application for the patent was'made.</p>

<p>1. Surprise—Stowage—Negligence—Macaroni and Green Fruit.</p> <p>Under the existing state of knowledge, it is a want of due care of cargo for a vessel to stow macaroni and green fruit in the same compartment of the hold.</p> <p>2. Same—Custom—“Heating Cargo”—Existing State op Knowledge.</p> <p>There is now no such general custom of stowing macaroni and green fruit together as to constitute a usage exempting the ship from the consequences .of damage arising therefrom in the existing state of knowledge.</p> <p>3. Same—Bill op Lading—Exception—“Sweat”—Negligence.</p> <p>The steam-ship B. delivered in the port of New York certain macaroni which had heen damaged during the voyage by the fumes of heated and decaying green fruit, which had been stowed in the same compartment. The hills of lading excepted “damage from other goods by sweating or otherwise. ” Held, that, though the exception covered this damage, the vessel was liable for her negligence in stowing the two articles in the same compartment.</p>

<p>• In Admiralty. On report of commissioner under order to compute, damages. For decision on the merits see 22 Fed. Rep. 662.</p>

<p>Stoppage in Transitu—Delivery.</p> <p>By a substantial delivery of goods by a common carrier to the consignee thereof., consignors lose any right they may have had to Stop the consigned goods in transitu.2</p>

<p>1. Maritime Lien—State Law—Money Paid on Order of Owner.</p> <p>A bank with whom the owner of a steam-boat keeps an account, and which pays the checks of the latter drawn in favor of third persons in payment of materials furnished said boat, has no lien thereon, under the lien law of Oregon, for any balance due it on said account.</p> <p>2. Same—Limitation. ■</p> <p>Under the law of Oregon, a lien on a vessel is lost unless due proceedings are taken for its enforcement within a year from the time the right of action accrues on the debt; and such limitation will be recognized and enforced whenever such lien is asserted or set up in a court of admiralty.</p> <p> 1Syllabus by the Court.) </p>

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

<p>Admiralty Appeal.</p>

<p>Collision—Wharves and Slips—Projecting Boats—Dangerous Situation.</p> <p>While vessels may be charged with contributory fault, for voluntarily assuming an exposed and dangerous situation, this rule is not to be applied, in the absence of any statutory or local regulation, except to an exposure clearly liable to receive or to inflict injury in the ordinary chances of navigation, and where injury is to be reasonably apprehended.</p> <p>2. Same—Case Stated.</p> <p>The barge S. lay along the south side of the Twenty-fourth street pier, North river, with her bow projecting from 10 to 20 feet beyond the end of the pier, 1)1^ not extending beyond the line oí another vessel lying against the end of the pier. The passenger steamer M. P., on leaving the Twenty-second street pier, which was 550 feet helow and 100 feet shorter, in a strong northwest wind, ran against the S., inflicting a blow not outside of the line oí the Twenty-fourth street pier. Held, that the S. was not chargeable with contributory fault; that there were abundant space and means for the M. P. to have kept oft', by being headed more out into the river before casting of£ from the Twenty-second street pier; that the S. did not encroach upon the space or water that the M. P. was entitled to use; her situation was not an obstruction to the M. P., nor did it make her navigation dangerous; and that the JVL P. was legally hound to provide against the contingencies of wind and tide, and was therefore solely chargeable with fault.</p>

<p>Costs—Taxation—Removal of Cause—Costs in State Court.</p> <p>After tiie removal of a clause into the federal court a party cannot, on recovering judgment, be allowed the costs proscribed by the state statutes up to the time of removal, unless such items are taxable under sections 823, 824, Rev. St.</p>

This cause is now before the court upon the application of the plaintiff to attach said Frank Pierce for contempt. The alleged contempt consists in the refusal of said Pierce to deliver to the United States marshal, in obedience to the command of a writ of replevin issued in said cause, certain spirituous liquors, valued at about $6,000, which said Pierce had seized under the Iowa liquor law.

<p>Courts—Conflict of Jurisdiction—State Courts.</p> <p>Where property has been attached by process issued out of a state court, the jurisdiction of the state court, having first attached, cannot be interrupted or interfered with by writ of replevin issued out of a federal court, at the suit of a chattel mortgagee.1</p>

<p>1. Assignment for the Benefit of Creditors—Validity—How Contested.</p> <p>To secure a hearing on tlie validity of an assignment, it. is necessary that an independent process'should be instituted, as by garnishment, or, if the invalidity is apparent on its face, by a hill in equity. The jurisdiction over such process to test the validity of the assignment is not limited to the court, in which the assignee has filed his bond and inventory, but exists in any court, state or federal, of otherwise competent jurisdiction.</p> <p>2. Same—Garnishment—Conflict of Jurisdiction.</p> <p>A court, of competent jurisdiction, other than the one in which his bond and inventory are filed, will compel a voluntary assignee to respond to a writ of garnishment, if the property is not already within the possession or control of the court of concurrent jurisdiction.1</p>

This was an action for false and malicious imprisonment brought by plaintiff against the'defendant, who is a justice of the peace, residing at Glyndon, Minnesota.

<p>'Fraudulent Conveyances—Indebttsdness---Gaiintshment.</p> <p>A debtor assigned to Ms four brothers, to whom it was claimed ho owed about §57,700, an unsettled claim for tire insurance money, for an expressed consideration of §60,000, the difference between the two amounts being made up by cash contributed in varying sums by the several brothers. The brothers. who were all under 40 years of age, were mechanics, working for wages which were large, but hardly sufficient to enable them to maintain themselves, and to accumulate so much money. Afterwards the claim against the insurance companies was fixed by settlement at, §57,500. Held, in a controversy between the brothers and an attaching creditor, whose claim was due when the assignment was made, that, although the testimony was open to suspicion, yet, being uncontradicted, the bona fldes of the transaction was established, and that the assignees should take the fund.</p>

<p>Action on Promissory Notes.</p>

This is an action on an attachment bond executed in a former suit brought by the defendant herein against the plaintiff in this action, in which suit a large number of locomotives and cars belonging to this plaintiff were attached. The defendant fuel company, in its answer, sets forth the contract between itself and the plaintiff, and claims damages for an alleged total breach thereof by the plaintiff.

Motion of Defendants to Retax Costs. In these cases there were 41 “depositions taken by consent of parties, * * * to be used as evidence on the part of the defendant in each and both of the above-styled causes.” The caption of the depositions is entitled as of both suits, and they are marked filed, and are docketed in both cases.

Those wore suits for damages sustained by the plaintiffs by reason of the construction by defendant of its railroad tracks along the street in front of their property, whereby the ease of ingress and egress was impaired. There were several such suits, brought by other owners having property abutting on the street so occupied by the railroad, and all resulted' in judgments against the defendant.

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

This is an action at law to recover from tlie personal representatives of George Greene 80 per cent, unpaid upon 910 shares of stock issued to him by the Burlington, Cedar Rapids & Minnesota Railway Company. The amount claimed is the sum of §65,523 20, with interest. It seems that George Greene was a stockholder of said company, and also a member of a construction company by which tho work of building had been dono.

<p>1. Principal, and Surety—Release of Surety—Change of Parties.</p> <p>Where the condition of an indemnifying bond is that the sureties thereon will save harmless A. and B., proposed sureties of the principal on a probate court bond about to be given by him as trustee, the sureties have a right to stand on the very terms of their contract, viz., reimbursement of A. and B. for any damage accruing to them bjf reason of their signing the probate bond: and the execution of a guaranty by B. to A., without the knowledge of such sureties, which by its terms releases A., so far as B. is concerned, from all liability on the probate bond, operates to discharge the sureties on the bond of indemnity.1</p> <p>2. Same—Acceptance of Principal’s Note—Ignorance of Rights.</p> <p>A surety on the bond of an insolvent defaulted trustee, who, in ignorance of his right to proceed against a sound surety on an indemnifying bond executed in bis favor, accepts notes of the trustee in payment of the loss entailed upon him by his suretyship on the trust-bond, is estopped thereby to proceed against the surety on the indemnifying bond.</p>

<p>Laundry Ordinance—Constitutionality.</p> <p>, ' Á city ordinance, which, makes it an offense to keep a laundry, wherein i clothes-are cléansed for hire, within the limits of the larger part of a city, with- , .¡¡¡.opt. regard;to the character of the structure or the appliances used for the ", 'púrp'ohé, of the manner in which the occupation is carried on, is unconstitu- ■ tional on various grounds, and void.1</p> <p> ’■•{Syllabus by the Court.) </p>

<p>1. Admiralty—Jurisdiction'—Injunction.</p> <p>A court of admiralty has no power to grant an injunction enjoining the defendants from enforcing a claim against a cargo, nor to enforce specific performance, nor to compel the execution of a contract.</p> <p>2. Charter-Party—Parties—Remedies.</p> <p>Where a charter-party which is made with the owners only, the master not being a party to it, stipulates that the master is to sigm the hills of lading, an action in personam will not lie against the master for failing to sign a clear bill, but the remedy is against the owners, or in rem against the vessel.</p> <p>3. Master—Personal Liability—Vindictive Damages—Conversion.</p> <p>Where a master, whose duty it is to sign his ship’s hills of lading, indorses on a hill of lading a claim for demurrage which lie honestly believes to be well founded, he is not liable for vindictive or exemplary damages on its being proven that there was no legal or just claim for demurrage, nor under these circumstances is he liable for conversion.</p> <p>4. Same—Nominal Damages.</p> <p>Where there is no legal and just claim for demurrage or otherwise, it is the master’s duty to give a'clear bill of lading; and he is liable for nominal damages for indorsing an unfounded claim upon it, though honestly believing such claim to be valid.</p> <p>5. Charter-Party—Construction.</p> <p>Where a charter-party provides that “from the computation of the time allowed for delivering timber to the ship shall he excluded any time lost by reason of drought;” and it appears that at the shipping point agreed upon between the parties it was customary to float the timber down certain streams and livers to the point of shipment, which were liable to be dried up, but the harbor and booms were never endangered by drought, the word “drought”1 will be held to apply to the rivers and streams, and will not be held as surplusage.</p>

<p>■Oollwon—Exccsaule Breach op Hulk.</p> <p>"Whore a vessel sailing on the ocean on the starboard tack, and having the right of way, crosses the track of another vessel sailing in an opposite direction, on the port tack, and the laUer fails to fall off and give the former the right of way, the former, on finding that a collision is imminent, is justified in starboarding her helm, and letting her main sheet run, in order to lessen the force of the collision, and will not be liable for a breach of rules in doing so.</p>

<p>1. Railroad Comrasiks—Receivers—Discrimination.</p> <p>The receiver of an insolvent railroad company cannot unjustly discriminate in the charges imposed upon rival shippers over his road, in order to increase his revenues, and, if guilty of discrimination, may be removed by the court. - therefor.</p> <p>2. Same—Removal.</p> <p>The Standard Oil Company having- threatened to store its oil until it could lay a lino of pipes to Marietta, unless the receiver of a railroad company should give it a special oil rate, the receiver agreed to carry its oil at 10 cents per barrel, to charge rival shippers 3.'> cents per barrel, and to pay 25 cents per barrel of the sum collected from rival shippers to the Standard Oil Company. Held to be such gross and wanton discrimination on the part of the receiver as to require his removal.</p>

<p>In Equity. Bill for accounting, and to establish vendor’s lien.</p>

<p>Equity Practice—Motion to Dismiss.</p> <p>The court will Rot, upon an ordinary notice of motion to dismiss, anticipate the regular trial of a cause, hy examining the pleadings and proofs, to determine whether the court has jurisdiction of the action, or whether the complainant is entitled to the relief sought.</p>

<p>1. Jury—Questions of Law and Fact—Fees of Officer.</p> <p>Tlio question in this case, whether a consular officer was entitled to retain certain moneys received by him as received for non-official services, or whether he was obliged to account for them as received for official acts, held, upon the evidence, not to present a question of fact for the jury; there being no conflict in the evidence as to the character of the acts for which the moneys were received.</p> <p>S. Pleading—Amendment at Trial—Refusal of.</p> <p>To refuse an amendment of the complaint on the trial, the effect, of which would be to change a fully stated cause of action for money had and received into one upon an account stated, thus introducing technicalities not tending to the promotion of justice, is a just exercise of the discretion of the trial court.</p> <p>8. Consular Officer—Non-Official Fees—Accounting.</p> <p>Foes received by a consular officer for taking affidavits, acknowledgments, and authentications for individuals, in transactions having no relation, direct or remote, with the official business of the government, are for services not required by consular regulations, and are the personal emoluments of the officer, for which ho is not required to account to the treasury department.</p> <p>4. Department Regulations—Interpretation.</p> <p>The conuruction and interpretation by the state department oí the regulations issued to consuls by the secretary of state, defining- what acts are to be deemed official and what non-official, are controlling as to their meaning in case of doubt, and should conclude the accounting officers of the treasury-department.</p>

<p>1. Attorney and Client—Authority—General Aoenoy.</p> <p>Tie fact that an attorney has been accustomed to attend to all the litigation which his brother has had, does not, in the absence of instructions or authority from the brother to institute a particular suit, or to sue out the writ of attachment therein, constitute him “the agent or attorney” of the brother, who, under Code Pr. Ky. § 550, may make the affidavit in attachment when the plaintiff is absent from the county in which the proceedings are commenced.</p> <p>2. Attachment—Issuance of Writ—Affidavit by Attorney—Authority.</p> <p>The provision of Code Pr. Ky. § 550, to the effect that, in the absence of the plaintiff from the county, the affidavit required by the statute for a writ of attachment may be made by his agent or attorney, intends a relationship of principal and agent existing at the time the affidavit is filed; and where the suit is begun and the affidavit made by an unauthorized attorney, a ratification by the plaintiff subsequent to the issuance of the writ, of all that had been done in the case; does not constitute a compliance with the statute, and is insufficient to sustain the writ on a motion to quash.</p>

At Law. On motion to take off nonsuit. This was an action brought to recover damages for the alleged malicious procuration of an injunction. Previously to the granting of the injunction in question, which was subsequently dissolved, similar ones had been granted in several other circuits.

<p>1. Bankruptcy— Claims against Estate—Priority of United States—Liability of Assignee.</p> <p>Tlie priority of the United States, in eases of the bankruptcy or insolvency of their debtors, under the provisions of sections 3466 and 3467 oí tiio Devised Statutes, extends to all classes of debts, and to all the debtor’s estate which conies to the hands of his assignee. The assignee becomes a trustee for the United Slates, and, when he has notice of the debt due the government, lie cannot escape personal liability for the amount of it, to tlm extent of tlie value of the assets coming to ids hands, if he fails to provide for it before making distribution to other creditors.</p> <p>• 3. Same—Judgment as a Defense.</p> <p>The judgment of a court of competent jurisdiction, directing such distribution, will afford the assignee no justification, in such a case, where it does not appear that the United States were made a party to the proceeding in which such judgment was rendered,</p> <p>3. Same—Omission to Prove Claim.</p> <p>The Unit ed States, by omitting to prove its claim in the bankruptcy proceedings until after such distribution is made, does not lose its right to proceed against the assignee personally. The doctrines of waiver, laches, and estoppel cannot be invoked against the sovereign.</p>

On complaint before the district judge, as committing magistrate, for murder upon the Fort Wayne military reservation.

<p>Indictment for Robbing the Mails.</p>

<p>Indictment for Robbing the Mails.</p>

<p>1. Patents por Inventions—Infringement—Acts Warranting Injunction-Belt. Telephone.</p> <p>Letters patent No. 174,465 were granted March. 7,1876, to Alexander Graham Bell, for certain improvements in telegraphy, the fifth claim of which, relating to the transmission of speech by electricity, became entitled, by judicial construction, to a broad interpretation in favor of the inventor. Prior to 1885 the Globe Telephone Company was incorporated under the laws of New York, the object of its formation being to manufacture, sell, license, and lease telegraphic, telephonic, and electric instruments, and supplies therefor, and to acquire and dispose of patents, patent-rights, and inventions relating thereto. The company acquired certain patents, which were shown to be infringements upon the Bell patent, and put up in their office sample instruments of an infringing character. They also, by advertisements, invited the public to purchase their instruments, and become licensees of their patents and claims. No instruments, however, were ever actually made or used, except experimentally, and none were ever sold. Held, that the acts of the company were sufficient to warrant a decree restraining infringement.</p> <p>2. Same—Invention of Meucoi—Priority.</p> <p>The experiments and invention of one Antonio Meucci, relating to the transmission of speech by an electrical apparatus, for which invention a caveat was filed in the United States patent-office, December 28,1871, renewed in December, 1882, and again in December, 1883, do not contain any such elements of an electric speaking telepbone as would give the same priority over or interfere with the said Bell patent.</p>

<p>Patents for Inventions—Infringement—Concrete Pavements.</p> <p>The Schillinger patent for an improvement in concrete pavements is confined to a pavement laid in detached blocks, formed on the ground, with a water-tight joint between them produced by the interposition of a strip of tar-paper, or other suitable material, between said blocks; and a concrete pavement laid between scantling in sections six feet by twelve, more or less, with a vacant space between each, of three feet by twelve, in which the pavement is laid as soon as the adjoining sections are sufficiently set to work over, while each section, as soon as laid, is marked off, or cut with a marker or trowel, into blocks three feet square, or other convenient size, is not an infringement of such patent.</p> <p> ■{Syllabus by the Court.) </p>

This cause was argued at the June circuit, 1884, and resulted in a decision for the complainant. 20 Fed. Rep. 848. In November, 1884, the defendant presented a petition for a rehearing, which, after argument and due consideration, was denied. 22 Fed. Rep. 252. On the thirtieth of March, 1887, the master submitted his report, in which he finds the complainant entitled to nominal damages only. The complainant filed exceptions to this report.

<p>1. Costs—Taxation—Depositions—Commissioner in Admiralty.</p> <p>■ The provisions of section 824, Eev. St., allowing the taxation of $3.50 “for each deposition taken and admitted in a cause, ” does not apply to testimony taken before a commissioner to distribute the proceeds from the sale of a vessel in the registry of a court of admiralty.</p> <p>2. Maritime Lien—Advances at Home Port.</p> <p>A bank discounting a note for a steam-boat, or making her a general loan at her home port, has no lien against the vessel, either under the general maritime law, or the Pennsylvania act of April 20, 1858, relating to boats navigating the rivers Allegheny, Monongahela, or Ohio.</p> <p>3. Same—Wages—Steam-Boat Clerk.</p> <p>The Pennsylvania act gives no lien to a clerk who performs none of his duties on board the steam-boat, but wholly on shore.</p> <p>4 Same—Towage—Home Port.</p> <p>Nor does the act give a lien for towing service at the home port.</p> <p>5. Same—Seaman’s Board.</p> <p>One who boards a hand while engaged in taking care of disabled barges which had been in the tow of a steam-boat, but which she had left behind her at a port in another state, has neither a maritime lien, nor a lien under the Pennsylvania act, against the steam-boat.</p> <p>6. Same—Material and Labor.</p> <p>One who, upon the order of the master, provides the material for, and does work on, a pair of chimneys for a steam-boat, has no lien for the value thereof, under the Pennsylvania act, where the chimneys were not delivered or completed, and no work was done on the boat; work having been stopped by order of the master, on account of the seizure of the boat by the United States marshal.</p>

<p>1. Towage—Stranding or Tow—Negligence or Tug—Liability.</p> <p>The tug Y. A., while towing a flotilla of’ canal-boats, among which was libelant's boat, inward bound, through the Yarrows, met an ice-fleld floating on the flood-tide, which caught, the tug and tow on the starboard side, and swept them in towards Staten island, so that libelant’s boat struck upon the shore rocks, and subsequently became nearly a total loss. Held, on the evidence, that the stranding was not caused by negligence on the part of the tug.</p> <p>2. Same—Leaving ,]'<hv Abtee Steandun,..</p> <p>After the accident, the tug W., a helper of the Y. A., detached libelant's boat from the flotilla, and beached her at a safe place. Subsequently the W., with the acquiescence of the libelant, and with him on board, came to Yew York for assistance, leaving no one in charge of the boat. On their return the boat was found in possession of a local wreck-master, under color of authority, who refused to yield her up to the W. and her wrecking party, and subsequently took out the coal, cut, up the boat and sold her as old wood. Títere was no allegation in the libel of negligence on the part of the Y. A. after the stranding. Held, that there was no liability on the part of the tug-for damages arising after the stranding, (1) because the absence of a charge in the libel of negligence, if it did not preclude the court from permitting a recovery on that ground, tended to show the libelant himself did not consider the tug”negligent in that, regard; (3) because the damages arising from the acts of the wreck-master were not a sequence fairly to be anticipated from the act of the "VV. in leaving the boat with no one on board; (8) because the libelant acquiesced in the departure of the W., and went with her, whereas, if any one was required to remain in charge of the boat, he should have remained himself.</p>

<p>1. Kavigabue Waters—Obstruction—Draw-Bridge.</p> <p>The “main channel” of a river, within the meaning of the act of congress authorizing the building of a draw-bridge over the Mississippi river at Keokuk, Iowa, and requiring that, the draw shall be over the main channel of the river, and at an accessible and navigable point, is that be„d over which the principal volume of water flows.</p> <p>2. Same.</p> <p>The measurement of the length of a draw, within the meaning of the act of congress authorizing the building of a draw-bridge over the Mississippi river at Keokuk, Iowa, and requiring the draw to be 100 feet in length, must be on ° a line at right angles to the piers, upon the surface of the water at low-water mark.</p> <p>3. Same.</p> <p>Under that section of the act of congress requiring the piers to he built “parallel to the current, ” the bridge company is required to use only reasonable care and foresight in the location of its piers. If the piers at the time of location are parallel to the current, and by some act of the government subsequent to the erection of the bridge, or 'by any other means not within the control of the company, the current is so changed as to prevent navigation through the piers, it is incumbent upon the company to conform its piers to the new condition of things. But if the company has constructed its piers with reference to the subsequent acts of the government, and has used reasonable diligence and skill in forming and executing its plans, and the change is such as not to unreasonably endanger navigation, negligence is not to be imputed to it.</p> <p>4. Same.</p> <p>Upon the question whether a draw-bridge is a structure dangerous to navigation, in consequence of a failure to comply with the requirements of the act of congress authorizing its construction, and whore there is conflicting testimony as to whether the structure does substantially meet the requirements or not, the jury have a right to consider the actual facts of navigation at the draw in question through the long period during which the draw has been used.</p> <p>5. Same.</p> <p>A pilot, in navigating a stream over which there is a draw-bridge, is only obliged to use ordinary skill and care in passing through the draw; and the question whether he did so, under all the circumstances, is one for the jury.</p> <p>6. Same.</p> <p>In an action for damages growing out of a steam-boat running into a drawbridge, the jury will consider, in view of the navigation oí a great river by steam, where such navigation meets numerous bridges, that the injury may be the result, of purely physical causes, and unavoidable by the intervention of human agency.</p> <p>7. Same.</p> <p>It is not proper to instruct a jury that, if a bridge over a navigable stream is a lawful structure, and a steam-boat is run down against it, injuring one of the piers, the verdict, shall be for the bridge company.</p>

Libel for personal injury to a grain-trimmer while engaged in rigging the tackle preparatory to stowing a cargo of grain, occasioned by the breaking of an oyc-bolt, set in the deck, to which a block was attached, and in use for the purpose of moving- the vessel along the dock. After the bolt broke a latent defect was disclosed below where it was countersunk in the deck. ■

<p>Ships and Shipping—Inspection and Regulation of Steam-Vessels.</p> <p>He'd, that-the steam-vessels belonging to the state of Maryland, and used l>3r its officers in the enforcement of the state fishery laws, in the Chesapeake bay, to protect the state oyster-beds and fishing rights, and to give relief to vessels in distress, are required by sections 4417 and 4418 to have their boilers and hulls inspected by the United States steam-boat inspectors, and are liable to the penalties prescribed by section 4499 for non-compliance with the provisions of Hie United States law regulating steam-vessels.</p> <p> {Syllabus by the Court.) </p>

<p>Motion to Enforce a Penalty of $100 against David Settle, marshal, for not duly executing process.</p>

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

<p>Trade-Mark—What Constitutes-—Common Use.</p> <p>A manufacturing company adopted and used the capital letters “LL” as a stamp or mark upon cotton sheetings of a certain class manufactured by it. The letters were used in connection with the words “Lawrence Mills,” and also sometimes in connection with the figure of a rampant bull or a bull’s head. The defendant manufactured cotton sheeting of a similar class upon which it stamped the words “Cumberland LL Sheeting—4-4. ” The said first-mentioned company thereupon filed its bill against the defendant, claiming a trade-mark in the said letters “LL, ” and praying for an injunction to restrain the use of them by defendant. The proofs showed that the letters “LL” were commonly known in the trade to indicate sheetings of a particular grade and class; that they had been used for some time by another manufacturer before the plaintiff made use of the same; and that they had also been used by several other manufacturers for a number of years without objection by the plaintiff. It further appeared that the plaintifE had stamped the same letters upon other goods of its manufacture inferior in grade to the sheetings to distinguish which they were claimed as a trade-mark Held, that the plaintiff was not entitled to the exclusive use of the letters, and the bill must therefore be dismissed.</p>

<p>1. Principal and Agent—Action bob Commission—Pleading—Avebment on Title.</p> <p>A complaint in an action at law set out that the defendants “represented to the plaintiff -that they were the owners of Fort Brown reservation, in Texas;” that they duly authorized him to represent them in negotiations with the general government for the adjustment of their claims against the United States, arising out of the taking and use of the reservation hy it, and in that connection to sell the property, if need be,—agreeing to pay him for his services a commission on what was actually collected; that, through his exertions, a bill was introduced in congress, which was passed, appropriating money for the purchase of the reservation, upon a complete title being made to the United States; and that the defendants had refused and neglected to obtain the money hy their refusal to execute the necessary papers to convey a title, and that such refusal was owing to a private dispute among- themselves, and that the non-collection of the money was wholly owing to their default. Held, on demurrer, that the complaint sufficiently sets out the present ability of the defendants to execute the necessary papers, their power to obtain the money, and their refusal to collect it. A positive averment that they had a good title is not also necessary.</p> <p>2. Same—Separate Counts.</p> <p>The third count of same declaration was to the effect that, after the passage of the act authorizing the purchase of the reservation, the defendants employed the plaintiff to represent them in respect of certain adverse claims made by other persons, so as to enable them to obtain the money appropriated, aiid agreed to pay bim $118,000 out of the amount so appropriated, and that, they had failed to make such payment, having neglected to convey a clear title, etc. Held, that the count was had on demurrer; the statement of the cause of action not being complete either by itself or by reference to any other count.</p>

<p>On Petition for Habeas Corpus,</p>

<p>Information for Desertion from a Coasting Vessel. On demurrer.</p>

<p>Indictment for Unlawful Retailing of Liquor.</p>

<p>1. Patents fob Inventions—Vacating and Reinstating Injunction—Effect of Foreign Patent and Litigation.</p> <p>An injunction granted upon rendering an interlocutory decree for complainant, in a suit for infringement of a patent, was dissolved upon its being shown that there was a prior foreign patent for the same invention whose term had expired, and thereby terminated the life of the domestic patent, but such order of dissolution was afterwards vacated by the court by reason of the fact that a court of the foreign country had, since the making of such order, declared the foreign patent void ab initio. Such decree of the foreign court, declaring the foreign patent void, having afterwards been vacated by the same court on the ground that it was obtained by collusion, held that the order dissolving the injunction should now bo reinstated.</p> <p>2. Same—Following Former Decision in Case.</p> <p>Upon a hearing on petition for such reinstatement before a judge other than the one who originally ordered the dissolution of the injunction, held, that the decision of the former judge, holding that the provision of Rev. St. U. S. § 4887, that “every patent granted for an invention which has been previously patented in a foreign country shall be so limited as to expire at the same time with the foreign patent, ” includes foreign patents granted pending the application for the domestic patent, should be followed, without considering the question de nono; the question being at least a doubtful one, and the former decision having been followed in other circuits.</p> <p>8. Same—Foreign Patent—Taking Effect—Term of.</p> <p>A Canadian patent takes effect from its date, although the delivery of it to tlio patentee is postponed on account of his neglect to file a model as required by law; and tbe term for which it is originally granted should, as affecting the continuance of an American patent afterwards granted for the same invention, be considei'ed as its whole term, although it is subject to renewal, and is afterwards renewed.</p> <p>4. Same—Legislation Extending Term of Foreign Patent.</p> <p>An act of the Canadian legislature, passed after the issuance of a certain Canadian patent, extending the term of patents theretofore issued, and providing that such patents shall he deemed to have been originally issued for such increased term, can have no effect to extend the life of an American patent whose term is limited by the term of the Canadian patent.</p> <p>5. Same—Forfeiture of Foreign Patent—Effect.</p> <p>If a foreign patent is granted for a term certain, provided that, if the patentee shall not pay a stamp duty within a certain time, the patent shall cease and determine, an Amex-ican patent, afterwards granted for the same invention, will not he affected by a forfeiture of the foreign patent, subsequently</p> <p>■incurred by failure to perform the condition.</p> <p>6. Same—Misnomer—Late Objection—Ignorance of Existence of Patent.</p> <p>Where, in a suit for infringement of .a patent, the defendant was sued as a corporation under an erroneous corporate name, hut appeared and answered under that name, without exception; participated in taking testimony; received notice of final hearing; instituted proceeding^ in another court under the same name; and, after a lapse of four years, sought to open the decree, and set aside all proceedings against it in the suit, because of the erroneous name and character under which it was sued, and because of surprise and ignorance of the existence of the patent: held that, under the circumstances, , the defendant was estopped from denying the name and character in which it was sued; that ignorance of the existence of the patent was no defense; and four years was an unreasonable delay in seeking such relief.</p>

<p>Patents for Inventions—Reissue—Extension of Original Claim.</p> <p>Reissued letters patent No. 9,616, issued March 22, 1881, were granted to Redmond Gibbons for an improvement in pantaloons and similar garments, by bridging the crotch of the fly-front with a check-piece of cloth, or other inelastic, pliable material, thus adding to the durability of the garment by preventing the stretch of the cloth or stitch at the crotch. Claim 2, was designed to include a check-piece which, instead of bridging the crotch, was, when integral with the button-hole strip, a continuation of it around, instead of across, the apex of the fly-opening. Held invalid, as an extension of the claim of the original patent, and therefore not infringed by the defendants’ manufacture, which was substantially the same as that of claim No. 2.</p>

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

<p>1. Patents for Inventions—Valid only in Part—Use of Remainder—Vulcanizing Apparatus. '</p> <p>In the patent issued to Burritt M. Hotchkiss and George M. Alierton, complainant’s assignors, May 23,1871, for an improvement in vulcanizing apparatus, consisting of the application of hydraulic pressure to the moulds in a vulcanizing chamber, the invention claimed was a cylinder and piston outside the vulcanizing chamber, and pipes connecting with a supply of fluid or liquid under pressure, whereby ihe power exerted to hold the moulds together with a yielding force is independent of the vulcanizing operation. The evidence showed that the patent granted to George E. Hayes, January 14,1868, and the condition of the art of vulcanizing rubber prior to this time, anticipated and invalidated all of complainant’s patent, except the vulcanizing chamber. The defendants used machinery substantially covered by complainant’s patent, except that they used no vulcanizing chamber, lidd no infringement.</p> <p>2. Same—Suit for Infringement-—Failure to Plead Prior Use—Effect.</p> <p>Where notice is not given in the answer of a specified prior use of, the invention described in the patent, it cannot be set up as an anticipation of such invention; but, as exhibiting the state of the art, the evidence is competent, to aid the court in putting a proper construction on the patent.</p>

<p>Suit in Admiralty to Recover Damages for the Death of a Person.</p>

<p>1. Damages—Wrongful Detention of Cattle—Fall, in Pjbich.</p> <p>During a wrongful detention of a shipment of cattle by ship-owners, to compel tho payment of an unfounded claim for one day’s demurrage, the market price declined. Held, that the ship-owners were liable for theAoss in the price of the cattle.1</p> <p>2. Same—Reefing Down the Damages.</p> <p>The owner of the cattle tendered tho freight, but refused to pay tho demur-rage, the amount of which was trilling compared with the value of the whole 367 head of cattle detained. Tho ship-owners detained the whole shipment, against the demand of the whole by the owner, and did not oiler to deliver any. although two or three of the animals would have been ample to have secured tlio demurrage claimed. Held that, if the ship-owners would have been willing to deliver all but two or throe of the cattle, the oiler should have come from them, but that, having detained the whole without an offer to deliver any, and their claim for demurrage having proved to be unfounded, they were liable for tho loss occasioned bythe detention, and could not now be hoard to say that the owners of the cattle might have made the loss less by offering 1 o leave two or three animals as security, or by paying the demurrage under protest.</p> <p> (Syllabus by the Court.) </p>

January 8,1887, Gustaf Werner and others, seamen oh the baric Mary K. Campbell, filed their libel in the district court, Southern district, New York, against said bark, her tackle, etc., praying for her condemnation to pay libelants’ claims. No 'claim being filed by the owners, the bark was duly sold by the marshal for $3,800, which was paid into the registry of said district court.

On the first of June, 1886, Edward Carr filed a libel against the schooner 'Honora Carr, to recover $281.67, the alleged balance due to him for services as seaman and first mate from May 3,1885, to and including November 10, 1885, at the rate of $50 per month.

<p>1. Shipping—General Average—E nr airs.</p> <p>When a vessel, disabled at sea, puts into a port of refuge for repairs, the ordinary expenses incurred, including pilotage, towage, quarantine dues, docking, wharfage, surveys on the ship and cargo, cost of unloading, storing, and reloading cargo, and an allowance for wages of the crew, and provisions from the moment of departure from the course of the voyage until its renewal, or so long as its renewal remains in expectancy, are chargeable to general average.</p> <p>2. Same—Cargo.</p> <p>Where the interests are temporarily separated, as by unloading and storing the cargo in order to repair the vessel, and it is expected to reload the cargo, and complete the voyage, then, even though by reason of unforeseen circumstances, as the inability to repair the vessel and make her seaworthy again, this expectation is not realized, the entire expenses of savihg and protecting the different interests, until the hope of reuniting them is abandoned, are chargeable to general average.</p> <p>3. Same—Abandonment of Voyage.</p> <p>The cost and expenses incident to repairs to the vessel, incurred in the expectation of continuing the voyage, are not chargeable to general average, when the voyage is subsequently abandoned.</p> <p>4. Same—Freight.</p> <p>Freight pro rata iiineris is not earned where, from necessity, cargo is accepted before arrival at the port of destination; accordingly there is no contribution on freight.</p>

This is a petition for an injunction to restrain the defendants from the prosecution of certain proceedings in a civil suit originally commenced in the district court of Wapello county. Iowa, but since removed into this court, where said suit is now pending.

The original cause of State v. Suess was removed from the district court of Jefferson county, Iowa, to this court upon the petition of said Suess, and the same is now pending here. The transfer was made in pursuance of the decision of the circuit judge, Brewer, in the case of State v. Walruff, 26 Fed. Rep. 178. The purpose of that proceeding was to have the brewery owned and maintained by said Suess declared a nuisance, and as such perpetually enjoined and abated.

<p>1. Mortgage—Foreclosure—Interest—Default.</p> <p>Where a mortgage on real estate in Illinois is given to secure payment of two negotiable notes, containing a covenant that, upon failure to pay any installment of interest, the principal of both notes shall become due, a bona fide purchaser of such notes and mortgage before maturity, upon default in the payment of the interest, may avail himself of that covenant, and foreclose the mortgage for the entire principal sum, without regard to equities existing between the original parties.</p> <p>2. Same—Maturity of Motes.</p> <p>That one of the notes, to secure which the mortgage was given, will not become due till 1891, does not affect the right of a bona fide holder to foreclose the mortgage upon default in the payment of interest, as the mortgage, with all its covenants, was given to secure the notes, and add to their commercial value, by giving the holder the right to collect the entire debt when the makers fail to pay any installment of interest; and such bona fide holder may enforce the covenant without destroying the negotiable character of the notes.</p> <p>3. Courts—State Decisions—Foreclosure of Mortgage.</p> <p>The rule established by the supreme court of Illinois that a negotiable note and mortgage, transferred to a bona fide holder before maturity, are held subject to all equities between the original parties, is not binding on the federal courts, which follow the rule laid down by the United States supreme court, that where a mortgage to secure negotiable notes is transferred, before maturity, to a bona fide holder for value, and a suit in equity brought to foreclose the mortgage, no other defenses are allowed against the mortgage than would be allowed in an action an law to recover on the notes.</p>

<p>Mortgage—Eight of Heirs to Foreclose—Estate of Decedents.</p> <p>An administrator having paid all debts and expenses of administration, and distributed the surplus to the heirs designated as the only persons entitled, under the order of the court, nf'r.or approval of the distribution, and without further direction of the court, handed over to such heirs certain mortgage notes, which, being deemed of little value, had not been brought to the attention of the probate court. The distribution was approved by the court, but it did not appear that the administrator was ever discharged. Held, in a suit to foreclose the mortgages by the heirs, that a demurrer to the complaint could not be sustained on the ground that, the notes being part of the personal estate, and never delivered to the heirs by the administrator, under the direction of the probate court, suit to foreclose the mortgages could only be brought by the personal representatives of the mortgagee, but the heirs, being the equitable owners, could sue.</p>

In the Matter of the Petition of Receivers for advice in relation to the construction of the fourth section of the interstate commerce act.

<p>Contract—Completion of—Carriers.</p> <p>A shipper's order calling for a specific number of cars for a specified day will not, unaccepted by thd carriers, constitute a contract binding on either.</p>

<p>The plaintiff alleged in his complaint in this action that in the year 1884, being a subject of Great Britain, he filed a petition in the high court of justice, chancery division, in England, to annul a certain patent granted to one Herbert John Haddan; that the defendant, Horlick, appeared in the case by his solicitor; and that such proceedings were thereafter had, that an order or decree was duly made by the court, referring the matter to the taxing-master to tax the costs of the petitioner, and to set off against such costs the sum of £56 3s. 4d., theretofore deposited in court as security for costs, and the interest thereon, and to certify the balance. It was further alleged that the court, before which said proceeding was pending, further ordered and decreed that the defendant, Horlick, pay to the petitioner, Mcllin, the balance of such costs; that thereafter the taxing-master ivas attended by the solicitors of the parties, and taxed the costs of the petitioner at the sum of £215 5s. 6d., deducted therefrom the sum of £56 3s. 4d., in court, as security for costs, and 5s. 10d., the interest thereon, and found the balance to be £188 16s. 4d., —all of which the taxing-master thereafter duly certified to the court; that said order and decree, and said taxation and certification, were, according to the practice of the court, final, and thereafter remained in full force, unexcepted to, unreversed, and wholly unsatisfied. It was then alleged that, by reason of the premises, the defendant became indebted to the plaintiff in the sum of £188 16s. 4d., with interest thereon from March 16, 1886, at the rato of 4 percent.,—that being the rate prescribed by the laws of England; and judgment was demanded accordingly. To this complaint the defendant demurred, on the ground that it did not state facts sufficient to constitute a cause of action.</p> <p>Dofige tí' Fish, in support of the demurrer, contended that this was a suit on a foreign judgment; that such a judgment has no standing in this country as a record; that a decree or judgment of a, foreign court is not regarded as a record outside of the jurisdiction .in, which it ivas pronounced; and, therefore, that'no action can bo .maintained on such a judgment or decree. They further argued that, if any action could be sustained iu respect of sucb a judgment, it must be brought upon the original consideration; and if, in point of fact, there ivas no antecedent consideration, and the claim made was merely for an incident of the judgment, e. g., costs, no action at all could be maintained in respect of it in a foreign jurisdiction. They cited Phillips v. Hunter, 2 H. Bl. 403, 411; Railway Co. v. McHenry, 17 Fed. Rep. 414; Story, Confl. Laws, § 599; and Freem. Judgm. § 220.</p> <p>Van Dyke & Van Dyke, for plaintiff, replied that assumpsit or debt will lie on a foreign judgment; that assumpsit will also lie on a decree of a foreign court of equity for a specific sum of money; and thaf a decree of such a court, for costs, stands on the same footing as a-judgment at law. They further insisted that the present action was one in assumpsit, and that it was not necessary to allege in the complaint the ground of .the foreign recovery. The decree itself imported an obligation to pay the amount therein adjudged to be paid.</p>

<p>1. Bridges—Maintenance of—Petition to Road Supervisor—Requisites of.</p> <p>Under Illinois act of March28,1883, -whichamends the act, of May 28, 1879, g 107, authorizing the maintaining o£ bridges over streams near town-lines by the two towns interested, at their joint expenso, and authorizing one of the. two towns interested in such bridge to build the same at its own expense if the other town refuses to join in the building, it is not requisite that the petition (which, by said amending act, is required to be presented to the road supervisor as a preliminary to the call of a town meeting by him to pass upon the proposition as to whether this town shall build at its own expense) shall request that the question of borrowing money to buy or build the bridge be submitted to the meeting, but it is sufficient ii' it merely request that a meeting .be called to vote on the question of building or not building a bridge, a.nd it is for the supervisor, if necessary, to include a proposition as to borrowing in his call.</p> <p>2. Same—Location of Bridge—Highway Commissioners.</p> <p>Section 106 of the above act, which authorizes the building of bridges over-streams near county or town lines, will be held to give the highway commissioners of the town or towns electing to build such a bridge power to determine its location, within a mile or any other reasonable distance from I,lie town-line.</p> <p>3. Same—Advertising for Bids—Change in Location.</p> <p>Where the commissioners of highways, in accordance with the above act, advertised for bids, and have received bids giving separate estimates on the material and the different kinds of work required in the construction, and have accepted one of such bids, with the understanding that, when the location is fixed, the amount to bo paid will be determined by the length of the bridge, upon the basis fixed by the bid, they are not required, when they have located the bridge, to advertise again for fresh bids, though the location fixed upon may require a shorter bridge than that contemplated by the accepted bid.</p> <p>4 Damages—Breach of Contract.</p> <p>In awarding damages to a bridge-builder lor the breach, of a contract entered into with him for the construction of a bridge over a river, the measure of damages will be held to be the difference between the oo'ntracl price and the cost of doing the work, less a reasonable deduction for the less time-engaged in the work, and for the release from the care, trouble, risk, and responsibility attending a full execution of the contract, which, in a case where the contractor has made no allowance for contingencies in estimating his profits, may be reckoned at 30 per cent, of the theoretical profits. Cash paid to subcontractors will be added as damages; but no damages can be claimed for loss sustained in adapting material purchased to use in other bridges, nor for the construction of patterns, nor for plaintiffs expenses iii obtaining the contract.</p>

<p>Limitation of Actions—Promise not in Writing—Appropriation in Aid of Railroad.</p> <p>In an action against a town to recover the amount of certain bonds issued by its supervisor and town clerk, it appeared that the town was authorized by statute to appropriate money and levy a tax to aid in the construction of a railroad, upon the vote of a’majority of the legal voters in favor of the measure; that it appropriated a subsidy by a legal vote; that, when the subsidy fell due on completion of the railroad, the supervisor and town clerk executed bonds to the railroad company for the amount of the appropriation, which bonds were assigned by the railroad to plaintiff. The supreme court, in the case of Middleport v. Ætna, Life Ins. Co., 82 Ill. 562, held these bonds void as being unauthorized by the statute authorizing the appropriation, and plaintiff brought action to recover the appropriation. Meld, that plaintiff’s claim being based on no written contract, was barred by section 3 of Illinois act of November, 1849, amending the law concerning the limitation of actions, (Purple, St. 111. 731,)wliich limits actions on accounts or promises not in writing to five years, and neither the record of the vote of the subsidy, nor the issuance of the invalid bonds by the town officers, made a written contract with .the railroad company which would take the case out of the statute.</p>

In the circuit court of the United States for the district of California, declarations by aliens of their intention to become citizens of the United States are contained in bound volumes, which constitute records of the court. Printed forms of declaration, with blanks to be filled with the name of the applicant and of the country oí which he is a citizen, or of whose ruler he is a subject, are bound in the volume, and are filled up and used as applications are made.

<p>Customs Duties--Antiquities—Entry—Ihiim«miTffi.</p> <p>Where an oil painting that would have been entitled to be passed free of duty as an “antiquity,” under the act of congress of March 3, 1883, (clause 66!), Hoyl, part 2, p.. 38,) if regularly entered as free, has been brought into the United States by the owner without such entry, or payment of duty, but with full opportunity to the custom-house officials for examination and demand of duty, and with no intent on the part of the owner to defraud, and in the actual belief that it was not subject to duty, a proceeding to forfeit it will be barred by seciion 21 of the act of June 22, 1874, if not brought within one year from tiio time of its importation.</p>

<p>Customs Duties—Assessment on Duty—Artists’ Colors.</p> <p>An importation of “artists’ colors, ” in tubes, composed of ochre and umber, but. elaborately prepared for that use, is not subject to duty under clause 87 of the new tariff index, which provides that “colors and paints, including lakes, whether dry or mixed, or ground with water or oil, and not specially enumerated or provided for in this act, 25 per ceut.um ad valorem;” but should bo assessed under clause 89, which provides that “ochre and ochre earth, umber and umber earths, and sienna and sienna earths, when dry, one-hall' of one cent per pound; when ground in oil, one and one-half cents per pound.”</p>

<p>Customs Duties—Assessment of Duty—“Photographic Mounts.”</p> <p>Enameled cards called “photographic mounts, ” which have passed through a printing-press, and have printed thereon the name and address of the photographer for whom they are intended, are subject to a duty of 25 per centum ad valorem, as “printed matter not specially enumerated or provided for, ” under clause 384 of the new tariff .Index.</p>

<p>1. Public Lands—Grant op Materials to Railroad Companies.</p> <p>Defendant, a railroad companjq was empowered by special act of congress to take timber from the public lands adjacent to its right of way, for the repair and construction of its road, with the proviso that the road should be built to a certain point witbin a certain time. Defendant, having forfeited ‘ its rights under the special act, continued to take timber; and, upon being sued by the government for the value of the timber taken after such forfeiture, justified its action under the provision of a subsequent general act of congress giving railroad companies generally a right of way over public lands, and the privilege of taking material therefrom for the construction of their roads. Held, that the two acts were not inconsistent, and that the defendant, having enjoyed the bounty of the special act. was not thereby disqualified from claiming the privileges granted by the general law.</p> <p>2. Same—Adjacent Public Lands.</p> <p>Under the provisions of the special act of congress of Juno 8, 1872, (17 St. 339,) and of the general act March 3, 1875, the defendant railroad company was authorized to take from the public lands “adjacent” to the line of its road the timber and other material necessary for the construction and repair of its railway. Held, that the language used was intended to indicate such timber and other materials as could be conveniently reached by ordinary transportation-by wagons, and that the privilege granted did not include the right to take timber from public lands, and transport it by rail to distant parts of the road, for use in construction and repairs.</p> <p>3. Same—Action of Trespass—Burden op Proof.</p> <p>In an action of trespass by the government against a railroad company, for cutting timber upon public lands, the burden is upon the government to show that the timber was taken from public lands. That it was taken from public, lands “adjacent” to defendant’s road, and used at a point authorized by the statute granting the privilege of taking it, is a matter of defense peculiarly within the knowledge of defendant, and, in the absence of evidence to that effect, plaintiff is entitled to judgment.</p>

<p>Action to Recover Damages for Gutting Timber on the Public Lauds.</p>

<p>Í. District op California—Act op 1886 Construed.</p> <p>Section 11 of tlie act of 1886. creating the Southern district of California, (St. 1886, p. 310,) continues the district of California in existence for the trial and punishment of all offenses committed prior to the passage of the act.</p> <p>*3. Grand Juror—Challenge—Setting Aside Indictment.</p> <p>Under the statutes of California, the absence of the name of a citizen from, the last preceding assessment roll of the county from which he is summoned, is not a ground of challenge to a. grand juror, or one for which an indictment can he set aside.</p> <p>\3. Statutory Construction.</p> <p>Several statutes in pari materia must he construed together, and, where there is an apparent conflict, the spec ial provisions applicable to a particular subject following general provisions on that subject will be held to repeal or modify the latter.</p> <p>i. Same—State Practice.</p> <p>Notwithstanding the federa! courts require for their jurors similar qualifications with those of jurors in the state courts, and enforce like objections and challenges to them, they have the power, and it is their duty to exercise it, to enforce any other objection to jurors which from their nature, if well founded, would unfit them to act.</p> <p>5. Same.</p> <p>A plea in abatement to an indictment that the names of some of tlie grand jurors wJLio found the indictment were not on tlie last assessment roll of their respectivo counties, without any averment that the defendant was prejudiced thereby, is insufficient. The defect in such ease is cured under section lOáo of the Revised Statutes.</p>

<p>Patents for Inventions—Suit for Infringement—Restraining tiie Bringing of Other Suits.</p> <p>I., having brought suit for infringement of a patent, B., one of the defendants, before answering, filed an intervening petition, in which it was alleged! that B. had a good defense to the suit; that he was able and competent to pay any damages that might he assessed against him; that I. had threatened to sue purchasers of the defendant for the same infringement; and praying that plaintiff be restrained from bringing such threatened suits pending the docisión in this case. The petition was also accompanied by affidavits supporting B.’s claim to a good defense. Held, that the court had the power to make the restraining order prayed for, and that the petitioner was entitled to such order.</p>

<p>1. Patents for Invention—Patentable Novelty — Improved Process for making Celluloid.</p> <p>In an action for tbe infringement of letters patent issued to JóhnW. Hyatt, February 0, 1878, for an “improvement in the manufacture of sheets of celluloid and other plastic compositions, ” the specifications and claims describing the invention as relating to an apparatus and process consisting in piling a number of rough sheets of celluloid upon a grooved plate in a chase or mould; subjecting the celluloid to heat and great pressure, by which it is solidified into a single compact, rectangular slab, and portions of it are forced into the grooves; then cooling it, so that it shrinks, and those portions operate as clutches to hold the'slab firmly in place; then planing the slab into sheets; and finally stretching these sheets upon a frame to prevent their wrinkling or wiirping while drying; held, that the process and apparatus was a patentable novelty.</p> <p>3. Same—Infringement.</p> <p>Letters patent issued February 5, 1878, to John W. Hyatt, for an improvement in the manufacture of celluloid and other plastic compositions, describing in the apparatus the plate for retaining the plastic composition in place, provided on its upper surface with grooves, apertures, or indentations, upon which the material in shrinking can exert tension, held infringed by defendant’s device employing an iron plate perforated by holes with screw threads, with plugs of zylonite screwed in, and depressions left around the heads of the plugs, into which portions of the celluloid are pressed and welded to the zylonite plugs, and pressed into the apertures around the heads of the plugs.</p> <p>8. Same.</p> <p>Letters patent issued February 5, 1878, to John W. Hyatt, for an improvement in the manufacture of cellidoid and other plastic composition, the process consisting of subjecting the slab of celluloid to pressure, then heating the mass from below, then applying the heat above, held infringed by defendant’s process, in which the heat is first applied from above and afterwards from below.</p>

<p>Patents for Inventions—Effect of Foreign Patent.</p> <p>•Upon application made May 31,1871, letters patent of the United States, for an invention, wore granted on February 6, 1872. On October 12, 1871, the inventor caused application to be made in England for letters patent for the same invention, and a provisional specification was then filed. Pursuant to this application, letters patent of Great Britain for said invention were sealed April 3, 1872, and dated October 12,1871. The complete specification for the English patent was filed April 12, 1872, the same having been subscribed March 22. 1872. Jteld. that the invention was not “first patented, or caused to be patented,” in England, within the meaning of the twenty-fifth section of the act of .July 8, 1870, and that the life of the United Blates patent was not abridged by the antedating of the foreign patent.</p>

<p>1. Patents foe Inventions—Malt-Kiun—Infringement.</p> <p>Betters patent ¿panted April 27, 1880, to Wenzel Toepfer, for a “mall-kiln,” held not to be infringed by a device for tilting the sections of the floor of a malt-kiln by means of a round tilting-rod or rock-shaft, passed through the sections to be tilted; the patentee having limited his claim to a square or polygonal rock-shaft passing through square holes in the journals.</p> <p>2. Sauk.</p> <p>A claim in the above patent for a locking device to fasten the levers used for tilting the floor sections of a malt-kiln, by means of a hook pivoted on ono shaft, and arranged to catch over either of the adjoining ones, held not to be infringed by an old and well-known device of a latch or pin applied to this purpose.</p>

<p>Application for Rehearing. For original decision sec 20 Fed. Rep. 839.</p>

<p>Admiralty Appeal.</p>

In Admiralty. On petition by sureties on release-bond for relief. On June 12,1886, a libel was filed by Alexander Francis against the schooner Madgie for $70.50 seaman’s wages, and on the same day Charles Zueca intervened as claimant of the vessel, filing the usual stipulation “for all costs and expenses” that might be awarded by final decree in the suit in a penalty of $250, with John Marques as surety, Marques duly justifying in that amount before the clerk.