Volume 32 — Federal Reporter

<p>On Exceptions.</p>

<p>In Equity. Bill to redeem certain realty from tax sale, and to quiet title.</p>

<p>1. ’Water Company — Exclusive Privileges.</p> <p>An injunction will not issue to prevent defendants from procuring water from a, river in pipes, in a city where the exclusive privilege to do so has been granted to a company, when such company has no mains, or no adequate maius, for the delivery of water in sufficient quantities for the wants of the defendants.</p> <p>3. Same — “Contiguous Person” — Louisiana Statute.</p> <p>The charter of the New Orleans Water-Works Company (Acts La. 1877, p. 51) provides, in section 18, “that nothing in this act shall be so construed as to prevent the city council from granting to any person or persons, contiguous to the river, the privilege of laying pipes to the river, exclusively for his or their-own use. ” The supreme court of the United States decided in WaterWorks Go. v. Rivers, 115 U. S. 074, 0 Sup. Ct. Rep. 373, that the proprietor of a building live blocks from the river was not “a contiguous person.” Therefore no lot can bo contiguous unless it actually fronts on the river, or is separated from the river only by a public highway, with no private owner intervening, or, possibly, on a block or square so situated.</p>

<p>CORPORATIONS — RECEIVES—CONSTRUCTION OI’ Oil!) EB — ASSESSMENTS.</p> <p>Iii a suit brought by a stockholder, on behalf of himself and of other stockholders who may join him in the suit, against the corporation, its direi. ,rs and superintendent, seeking an injunction to prevent waste, and asking for a receiver, a receiver was appointed, and the order contained these words: “And, if there shall he any sums due upon the shares of the capital stock of said company, the said receiver will proceed to collect and recover the same, unless the persons from whom the said sums may be due shall be wholly insolvent, and for this purpose may prosecute actions, ” etc. Held, that the authority intended to be conferred was merely to bring suit in case the court should levy an assessment, and that the order of itself did not amount to a call, from which prescription would begin to run.</p>

<p>1. Constitutional Law — Power “to Regulate Commerce”— Interstate Bridge.</p> <p>The act of congress of June 16, 1886, authorizing the Staten Island Rapid Transit Company, a corporation of New York, and the Baltimore & New York Railroad Company, a corporation of New Jersey, or either of them, to construct and maintain a railroad bridge across the Staten Island sound, known as “Arthur Kill,” and establishing “the same as a post-road,” is within the power “to regulate commerce” vested in congress by the constitution of the United States, it being competent for congress, under that grant of power, to open up commercial communication between different states, by land as well as by water.1</p> <p>3.Same — Consent oe the States.</p> <p>The power of congress in this respect being supreme, and the act in plain terms granting authority to build the bridge, the privilege is not promissory in its character, and may be exorcised without the consent or concurrence of the states in which the structure is authorized by the act to be placed.</p> <p>3. Same — Grant-ConstRuisd.</p> <p>The grant by congress, in the exercise of its power to regulate commerce, of the privilege of erecting and maintaining a bridge across navigable water, from one slate to another, is, in effect, a grant of the mere use of the soil, needed for the structure, and not an assumption of exclusive jurisdiction over such territory. Cession of the soil by the state in which the land lies is, therefore, not necessary to the exercise of the privilege.</p> <p>4. Same — Corporations—Citizens oe Another State — Fourteenth Amendment.</p> <p>The New Jersey act of April 6,1886, prohibiting any person or corporation from erecting any bridge, etc., over or in any part of the navigable waters where the tide ebbs and flows, and separating that state from other states, without permission from the legislature of that state, is unconstitutional so far as it is sought to be put into operation against the Staten Island Rapid Transit Company, a corporation of New York, claiming to exercise the privilege conferred upon it by the act of congress of June 16,1886, of erecting and maintaining a railroad across Staten Island sound, or “Arthur Kill. ”</p> <p>5. Eminent Domain — Littoral Hi guts — State and Federal Jurisdiction.</p> <p>The shore and lands under water of the navigable streams and waters of New Jersey, which, prior to the Revolution, belonged to the king of Great Britain as part of the jura regalia of the crown, passed to the state at the close of that war, but the state succeeded to them as trustee of the people at large; and, the right of the state therein not being such property as is susceptible of pecuniary compensation, it is not “private property,” within the moaning of Const. U. S. amend. 5, providing that private property shall not be taken for public use without'just compensation.</p>

<p>Constitutional Law — Interstate Commerce — Corporations.</p> <p>Article 236 of the constitution of Louisiana, which provides that no foreign corporation shall do any business in this state without having one or more known places of business, and an authorized agent or agents in the state upon whom process can be served, is null and void, being an attempt on tbo part of the state to interpose a restriction on navigation, and therefore in conflict with the provisions of the act of congress approved eighteenth February, 1793, passed in pursuance of a clear authority under the constitution of the United chates.2</p>

<p>Ejectment. Question of law reserved.</p>

<p>1. Counties — Defective Highways — Bridges.</p> <p>By the law of Oregon, a county has charge and supervision of all the public roads therein, and, by means of road-districts, supervisors, and local taxation, is provided with the means to open and keep them in repair, and is therefore on principle liable at common law for any injury to person or property resulting from its act or omission in the construction or maintenance of a bridge on such highway.1</p> <p>2. Constitutional Law — "Remedy by Due Course of Law.”</p> <p>Section 10 of article 1 of the constitution of the state declares that “every man shall have remedy by due course of law for injury done him in person, property, or reputation. ” At and long prior to the formation and adoption of the constitution the statute of Oregon gave any person an action against a county for an injury to his rights arising from some act or omission thereof, which statute was continued in force by section 7 of article 18 thereof. Held, that such remedy for such injury, or its equivalent, was secured to the party by the constitution, and therefore it is not in the power of the legislature to deprive him of it</p> <p>8. Statutory Construction — Repeal.</p> <p>A statute of Oregon passed in 1854 gave an action against a county for an injury arising from its act or omission, which was continued in force after the adoption of the constitution by section 7 of article 18 thereof, and on the adoption of the Code of Civil Procedure, in 1862, the provision was carried into section 847 thereof; but on February 21, 1887, the legislature amended said section so as to omit such provision, without making any express provision as to any existing right of action thereunder. Held that, in the absence of any express provision to that effect, the act of 1887 ought not to be construed so as to affect or take away any such rights, and did not affect this action then pending in this court for damages for such an injury.</p> <p>4. Highways — Notice of Defect.</p> <p>A supervisor of roads is the agent of the county within his district, and notice to him of a defect in a highway therein is notice to the county; and what he may know of such defect in the diligent discharge of the duties of his office he has notice of, and the county also.</p> <p> (Syllabus by the Court.) </p>

<p>1. Municipal Corporation — Liability for Defective Way — Evidence—Previous Accident.</p> <p>In an action for injuries occasioned by a defective sidewalk, it is not error to permit a witness to testify that, about two months before the accident, he and his wife met with an accident at the same place.</p> <p>2. Same — Experiment before Jury — Unsworn Expert.</p> <p>Where the plaintiff claimed to be paralyzed by the fall, it is not errof to permit her medical attendant, who had not been sworn, to demonstrate her loss of feeling to the jury, by thrusting a pin into the side plaintiff claimed to be paralyzed.</p> <p>3. Same — Condition of Sidewalk Near by.</p> <p>Evidence is properly admissible as to the condition of the sidewalk in the immediate neighborhood of tbe spot where the accident occurred, if it be so near the place of the accident that a person examining the walk there would be likely also to notice the defect where tbe accident occurred.</p> <p>4. Same — Subsequent Repair.</p> <p>It is also competent to show that tbe walk was repaired about a week after tbe accident, as tending to show that the walk was out of repair at the time of tbe accident.</p> <p>5. Same — Statute Limiting Recovery — Retrospective Operation.</p> <p>A statute passed after the accident had taken place, limiting the amount, of recoverv in such cases, was held to bo prospective only, and having no bearing upon the plaintiff’s right to recover full damages. A statute should be held to operate prospectively only, unless its terms show clearly a legislative intent that it should have a retroactive effect.</p> <p>6. Same — City Property Occupied by Agents oe State.,</p> <p>The accident occurred upon a sidewalk in front of property belonging to the city, but in charge of the police commissioners, who were appointed by the governor of the state. Held, that it was the duty of the city to keep the sidewalk in repair, and that such duty was not lessened by the fact that the lot was occupied by agents of the state.</p> <p>7. Samp. — Contributory Negligence.</p> <p>The testimony showed that plaintiff walked along the street without paying attention to the sidewalk, and that it was notoriously rotten, so that any one could see the earth beneath the plank. Held, that the question of contributory negligence was for the jury.</p> <p>8. Same — Proximity to Police Station.</p> <p>There was no error in calling the attention of the jury to the fact that the accident occurred in front of the police station, and within sight of the officers whose duty it was to have charge of the station.</p> <p>9. Same — Delay in Calling Physician.</p> <p>The fact that the plaintiff did not send for a physician until sometime after the accident had occurred, was held proper evidence of contributory negligence to go to the jury, but not conclusive.</p> <p>10. Same — Amount op Recovery.</p> <p>Where the plaintiff suffered a complete paralysis of the right side, held, that a verdict of S10,000 was not excessive.</p> <p> {Syllabue by the Court.) </p>

<p>Intervening Petition in Brassey v. New York & N. E. R. Co.</p>

On Motion for a New Trial. Tins was an action upon a policy of insurance upon the following property owned by the plaintiff, viz.: “$250 on her stock of candies, confectioneries, toys, fruit, and all such other stock as is usually kept for sale in confectionery stores; $100 on her soda fountain, generators, and appurtenances belonging thereto; $400 on her store, ice-cream parlor, and shop furniture and fixtures, including brick oven and belongings; $125 on her saloon…

<p>1. Sale — Jus Disponendi — Liability of Carrier for Misdelivery.</p> <p>Where a shipper attaeh.es his bill of lading to a draft upon the consignee, he thereby expresses his intention to deliver the goods upon payment of such draft, and to retain control of 1hem until such payment, and the carrier who, under such circumstances, delivers them while in transit to the shipper, is liable to the consignee who has duly taken up the draft.</p> <p>2. Damages — Expense Incurred in Pursuit of Property — Evidence.</p> <p>Tinder Civil Code Cal. § 8886. providing that, in an action brought by a consignee against a carrier for wrongfully delivering up goods in transit to a party other than the consignee, the measure of damages shall be the highest market value of the property at any time between the conversion and the verdict, without interest, and a fair compensation for the timo and money properly expended in pursuit of the property, it is incumbent on the plaintiff to show the circumstances under which the expenditure claimed by him to have been incurred was made, so that the court can decide whether it was proper.</p>

<p>1. Principal and Agent-Purchasing Agent — Ratification by — Retention on Goods Sold.</p> <p>In an action for goods sold and delivered, tlie evidence showed that defendants, engaged in a large mercantile business, employed a superintendent in their retail cloak and suit department, with authority to purchase goods as needed for that department, and to whom invoices of and all correspondence relating to such goods were intrusted; that defendants had discovered that the superintendent was inclined to carry more goods in that department than was desirable, and that he had been ordered to keep down the stock; that, when plaintiff's salesman applied to him shortly after for orders, ho told him that he was already carrying more goods than the Arm allowed, but that, if the plaintiffs would not, have any statements of account or dunning letters sent to the house, the goods might bo sent, and the invoices might be sent as usual, for they would come to him anyhow; and that he would pass the invoices as fast as he could. This scheme was communicated to the plaintiffs, and assented to by them, and, in pursuance thereof, large quantities of goods were shipped, received by the superintendent, some of the bills paid by his direction, and many of tlie goods disposed of in the usual course of trade. When defendants at last discovered what the superintendent had been doing, and with knowledge that plaintiffs claimed that all the goods had been sold to tlie house, they laid out all the goods remaining on hand which had come from plaintiffs, in order to ascertain whether any of them were goods which had not been paid for, but were unable to determine whether they were or not, and they wore thereupon put back into the stock, and sold; that after the discovery other goods were received from plaintiffs, under the same arrangement. and were refused and returned. Held, that the defendants did not ratify the unauthorized acts of the superintendent by retaining and selling the goods after discovery, and that plaintiffs could not recover tlie price of them.1</p> <p>2. Same — Know-ledge on Principal — Mailing Invoice — Course of Business.</p> <p>In such action, it was sought to charge the defendants with knowledge by showing that the invoiees for goods purchased by the superintendent under the unauthorized arrangement had been mailed to the defendants at their placo of business. The jury were instrueted'that the fact that the invoices wore so sent would not in law establish the fact that the defendants received them, and would not bo proof of that fact, and that the presumption arising from mailing notices in cases of negotiable instruments did not apply. Held, in view of the evidence showing the course of business to be that such invoices were received by the superintendent, and not by the defendants personally, that tlie instruction was practically correct.</p> <p>3. Trial — Instructions to Jury.</p> <p>In the trial of a case, a correct apprehension by the court of all the principles of law involved is not demanded; hut it is sufficient if the instructions are correct, as applicable to the case presented, and that the court should not, be wrong to the extent of misleading the jury.</p>

<p>Verdict for Plaintiff, $15,000.</p>

<p>This action was brought June 20, 1885, against the defendant to recover an alleged excess of duties exacted of plaintiffs by him as collector of customs. Thereafter the plaintiffs, under section 3012, Rev. St., served a bill of particulars of such duties claimed by them. Subsequently it was determined that the amounts of such duties claimed by them in the case of five importations was less than the real amounts exacted. They thereupon moved the court for permission to amend their bill of particulars by substituting the real amounts for the amounts claimed therein. The affidavit upon which this motion was based set out:</p> <p>That, in the official adjustment of the items in the bill of particulars in the above action, it has been found that several errors have occurred in said bill of particulars, as will appear in the annexed schedule marked “A;” that the figures in column ilo. 2 are found to be the correct amounts, and should be substituted for those in column Ho. 1, and the bill of particulars amended accordingly.</p> <p>SCHEDULE A.</p> <p>Name of Steamek. Date of Entry. Amount No. 1. Amount No. 2.</p> <p>Oder. July 3, 1883 $ 10 00 $ 19 00</p> <p>France. July 5, 1883 208 50 345 50</p> <p>Main.... July 9, 1883 8 50 13 00</p> <p>Rhein... July 18, 1883 20 00 36 50</p> <p>Werra.. July 23, 1883 26 00 41 25</p>

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

<p>Use of Mails — Indecent Language.</p> <p>A creditor deposited in tire mail letters inclosed in envelopes directed to a debtor, on one of which, was indorsed: “Carry me hack in due time to-, the Regulator, for publication, 82 South Washington, Minneapolis, Minn. Persons who want us to collect from Dead Beats should send their accounts to 32 Washington avenue south, Minneapolis, Minn. Send five cents to insure postage for a large letter to the critter;” and on another: “Return in 10 days to-, the Collector of Bad Debts, 82 Washington Av. S., Minneapolis, Minn. I am looking for an Old Bill. The Dead-Beat Collector hires me to look them up. ” He also mailed a postal card addressed to the debtor, containing the following writing: “Sir: Considering how near you can come to fill a bill, I have decided to post you on all Dead-Beat lists I know of in the city, and have accordingly given the different agencies a chance at you.” Held, that the creditor was not liable to prosecution under Rev. St. U. S. § 3893, as amended, making it an offense for any person to deposit in the mail any “letter upon the envelope of which, or postal card upon which; indecent, lewd, obscene, or lascivious delineations, epithets, terms, or language may be written or printed, ” as the statute was intended to exclude from the mails only such writings as were impure or immodest, and tended to corrupt the morals of the people.</p>

In Equity. Bill for an infringement of claim 1 of letters patent No. 245,157, granted to Messrs. Goodenow & Owens, August 2, 1881, for an improvement in hot-air furnaces.

<p>1. Patents iron Inventions — Right to Preliminary Injunction — Presumption or Vai-huty.</p> <p>To entitle a complainant to a preliminary injunction, restraining the infringement of letters patent, there must be a special presumption in favor of the validity of the patents, arising from an adjudication in a federal court, acquiescence by the public, or a successful interference in the patent-office.</p> <p>2. Same — Fire-Extinguisher.</p> <p>A preliminary injunction, restraining the infringement of letters patent No. 307.456, November 4, 1884, and No. 357,987, February 15, 1887, for automatic “fire-extinguisher,” denied, as nothing appeared in the motion papers showing such a former adjudication, public acquiescence, or successful interference in the patent-office, between tbe parties or their privies.</p> <p>3. Same — Presumption—Parties to — Restriction of — Interference.</p> <p>A presumption of validity arising from a successful interference in the patent-office only applies against the parties to the interference and their privies. It does not extend to litigants who do not make the infringing article under a grant from the interferer.</p>

<p>1. Patents por Inventions — Electric Insulator — Prior State of the Art.</p> <p>In Idlers patent No. 272,600, granted to Alfred A. Cowles, February 20, 1888. for an improvement in insulated electric conductors, the alleged invention was a fire-proof insulator. The wire, having been covered with a layer of fibrous material, was passed through a vessel of metallic paint, and a second layer of fibrous material was added while the paint was fresh, thus forcing the saturation of both layers. The non-combustibility is the result of filling the pores and interstices of the fibrous layers with the metallic paint. In previous English patents, paint had been applied to insulators in connection with inflammable materials, and solely for the purpose of protecting the insulators. It was not shown that, previous to the Cowles invention, paint had been knowingly used, except experimentally, to make a non-combustible insulator. Held, that, the defenses failed, so far as based upon the previous English patents, and the known use of paint as a fire-proof covering for electric wires.</p> <p>2. Same — Want on Invention.</p> <p>But it having been shown that, for the purpose of procuring perfect, insulation, insulators bad been previously composed of a double layer of fibrous material, each being separately painted, and the second layer being applied before the first was dry, held, that the Cowles patent was void for want of invention.</p>

<p>Patents for Inventions — Infringement.</p> <p>In letters patent No. 827,820, issued to Emery Parker, October 6, 1885, for an improved door-knob attachment, each knob bad an independent shaft. One shaft, at its free end, had a shoulder, and was inserted in a hollow shank on the other shaft, conforming in shape to the spindle, except, that on one sido was an enlargement to allow the insertion of the spindle obliquely past a pin projecting inwardly from the side of the shank opposite the enlargement. The pin interlocked with the shoulder on elevating’ the knob. In letters patent No. 818,084, granted to Charles II. Beebe, May 20, 1885, the spindle, which at one or both ends was provided with a locking hook, was inserted in the knob-neck, one side of which was enlarged so as to allow the spindle to pass a locking-hook on the enlarged side of the neck. Elevation of the knot) interlocked the hooks. Held, in view of the state of the art, that the Parker patent is limited to a device in which the enlargement is opposite the pin, and that the Beebe patent is no infringement.</p>

<p>Patexts fob Ixvextioxs— linraovKirEXTs ix Sofa Bedsteads — Infrixcemext.</p> <p>The second claim of a palent issued to William Ott, on the twenty-third January, 1887, for an “improvement in sofa bedsteads,” which is as follows: “In combination with the sections, A and B, the folding rods, F, F, and headboards, I) and E, supporting the latter when extended to sustain the bolster, substantially as set forth:” held not tobe infringed by a device which makes the folding rods rest upon the end-pieces of the lounge-frame, instead of upon head-boards, which are dispensed with.</p>

<p>Ill Equity.</p> <p>This is an action for alleged infringements of letters patent No. 139,-332, granted to the National Horse-Nail Company, as assignee of Robert Ross, May 27, 1873, and No. 177,287, granted to Nelson W. Goodrich, May 9, 1876, for an improved machine for beveling and trimming horseshoe nails. Complainants charged that the alleged inventions in these two patents were capable of conjoint use in one machine, and that the defendants had so used them, and prayed for an injunction and an accounting.</p> <p>The Ross patent described a machine for beveling and trimming the points of horseshoe nails, and contained eight claims of novelty; but, under the complainant's proof, the infringement was restricted to the first claim, which was for a combination of a constantly revolving feed-screw, and a bar parallel to it, and point beveling dies, so arranged that, ■while the operation of the dies was intermittent, their movement was so timed as to operate on the nail blanks without practically stopping them in their passage through the machine,,</p> <p>The Goodrich patent also described an improved machine for beveling and trimming horseshoe nails, containing throe claims; hut by complainant's proof the infringement was restricted to the second claim, which was for a carrier consisting of a horizontal and intermittent carrier ring, resting on a stationary ring, and "provided with teeth projecting downward below its lower surface, serving to retain it in its place on the stationary ring, and also adapted for carrying and holding the nails to the dies. The defendants’ machine consisted also of an intermittent carrier ring, operating in a horizontal plane, but, was not provided with the downward projecting teeth, and the beveling machine or dies operated while the nail blanks were held at rest. The defendants, in their answer and proofs, claimed that, in view of the prior state of the art, and the language of the specifications, each of the claims in this controversy is restricted to the particular elements of the combination therein recited, and deny that they employ these particular elements.</p>

<p>1. Trade-Mark — -Newly-Coined Word.</p> <p>The plaintiff was incorporated in 1871, by the name of the “Celluloid Manufacturing Company, ” and from that time used its corporate name in the manufacture and sale of various compounds of pyroxyline, which it designated as “ celluloid, ” to distinguish it from similar compounds made by others. The word “celluloid” was originally coined and used to a limited extent by certain individuals who assigned their interests in the same to the plaintiff, when incorporated, and the plaintiff from that time stamped said word on the articles manufactured by it, and registered the word in the patent-office in 1873, and again in 1883. The defendant was incorporated in 1886, by the name of the “Cellonite Manufacturing Company,’’the corporators having been previously associated under a different name, and prepared to manufacture and sell compounds of pyroxyline under the name of “cellonite,” stamped with said word; which compounds they had previously designated as “pasboseno,” and by other names. The plaintiff thereupon filed its bill to restrain infringement of its trade-mark. Held, that the similarity was sufficient, under the circumstances, to mislead an ordinarily unsuspecting purchaser, and that the plaintiff was entitled to the relief sought.</p> <p>2. Same — Corporations.</p> <p>In dealing with corporations, an unlawful imitation of a name is subject to the same rules of law which apply where the parties are unincorporated firms or companies.</p> <p>3. Same — Abandonment.</p> <p>Where a word is coined and used as a trade-mark, and stamped on articles manufactured from a certain substance, the fact that such word subsequently becomes the common appellative of such substance cannot impair the rights acquired in the 'word, and while others can use it to designate the product, they cannot apply it in any way as a trade-mark.</p> <p>4. Same.</p> <p>The existence of companies doing business under the names of the “Celluloid Brush Company, ” the “ Celluloid Collar & Cuff Company, ” and the like, which names refer to special branches of trade, cannot be set up to show acquiescence in tile public use of the general word “celluloid. ”</p>

<p>ColltsioN — Tuo and Tow — Imprudent Increase op Speed.</p> <p>A steam-tug with two tows, one behind the other, entered the south branch of the Chicago river abreast of a steam-barge, going in the same direction at the rate of about four miles an hour. Within half a mile the tug so increased her speed that the stern of her roar tow came abreast of the wheel of the barge, which maintained her speed of four miles. The suction of the wheel caused the tow to sheer, so that she came into collision with a passing steamer. Held, that the tug was responsible for the collision, having, by increasing her speed so as to bring her tow abreast of the barge’s wheel at a time when another steamer was passing, caused a dangerous situation, which she was able and ought to have anticipated.</p>

<p>In Admiralty. Forfeiture. In the matter of informer’s moiety.</p> <p>Proctors for petitioners, viz.:</p>

<p>Pilots — Compulsory Pilotage — Evidence.</p> <p>Where the evidence fails to show a refusal by the master of a vessel to accept the services of a pilot, whom, under the law, he was bound to employ, a libel filed by such pilot to recover the-value of services, which were never rendered, will be dismissed.</p>

<p>1. Salvage — Duties os Salved Property.</p> <p>Where property is salved on the high seas, and brought by the salvors within the limits of the United States, the salvage claims are entitled to priority over the claims of the government for duties.</p> <p>2. Same — Imported (loons — Customs Laws.</p> <p>Goods so brought into the United States are not Imported goods, in the sense of the customs laws, so as to necessarily attach the right to duties.</p> <p>3. Same — Sale o'e Salved Property.</p> <p>But where the goods so brought within the United Slates, subsequently, by virtue of a sale, pass into consumption within the United Statesman equitable right on the part of the government to be paid duties arises; not taking precedence, however, of the salvage claims.</p>

<p>1. Salvage — Pilot as Salvor — Award.</p> <p>Libelant, a pilot, v'as on board the steam-ship W., but had not taken charge, when the vessel ran ashore. Thereafter he rendered assistance by suggestions as to getting her off, and by faking charge of her when she was floated in a rudderless condition. lie incurred no risk, and was not called upon for any extraordinary exertion. Held, that he should recover $1,000 Salvage.</p> <p>2. Same — When Pilot may be Salvor.</p> <p>A pilot may be a salvor, although aboard the vessel, if he has not yet assumed the relation of pilot to her.</p> <p>3. Same — Extraordinary Pilotage Services.</p> <p>Tlie statute of New J ersey (section 16 of the issue of 1846) relates to extraordinary pilotage-services. A case of pilotage services necessarily presupposes the vessel capable of being navigated. So a pilot, rendering aid to an unnavigable vessel, is not bound by the above statute, and his services may be not those of a pilot, but of a salvor.</p>

<p>1. Maritime Liens — Machinery for Discharge of Cargo — Damages.</p> <p>A lien arises against a vessel for damages occasioned by failure to provide safe machinery for the discharge of her cargo.</p> <p>2. Same — Personal Injuries.</p> <p>As a hogshead was being hoisted from the hold of the steam-ship Carolina, a guy-rope, belonging to the ship, and used for.the hoisting, parted, and the fall of the hogshead injured libelant. The officers of the ship knew of the insufficiency of the rope. No fault could be attributed to libelant, jSeld, that he was entitled to damages against the ship.</p>

<p>Collision — Steamer and Tug — Overtaking Vessel.</p> <p>The tug Glen Island, while proceeding down the bay of New York, was overtaken and run down by the steam-ship Cephalonia, of the Cunard Line. The tug was sunk, and several lives were lost. Prior to the collision the tug did not alter her course. On suit brought against the steam-ship to recover for the loss of life and property, held, that the Cephalonia, as the overtaking vessel, was bound to have avoided the tug; that the fact that she blew whistles in time to enable the tug to get out of her way was no excuse for the collision; and that she was solely responsible for the collision.</p>

<p>1. Usury — What is — Commissions.</p> <p>R., having applied to I). & M., agents of the C. B. Co., for a loan of $2,000, was made to sign an application for a loan of $2,500. The application also contained a statement expressly constituting D & M. agents of R. in the transaction, and authorizing them to retain S500 as “commission.” Subsequently, R. gave a note for S2,500 at 8 per cent., payable to S. at the office of the C. B. Co. R. only received $2,000; the other $500 being divided between D. & M. and the C. B. Go. Held, in a suit by S., that the retention of the $500 as commission was clearly usurious, under Code (la. § 2057, forbidding any one to “reserve, charge, or take for any loan or advance of money * * * any rate of interest greater than eight per cent, per annum, either directly or indirectly, by way of commission for advances, discount, exchange, or by any contract or contrivance or device whatever.1,1</p> <p>2. Same — Agency.</p> <p>The evidence showing that D. & M. were the regular agents of the C. B. Co., and that the latter received a portion of the usurious commission, the court will not suffer the statutes to be evaded by the fact that R. authorized D. &M. to act as her agent s in the transaction.</p> <p>8. Same.</p> <p>While authority to make a usurious loan will not be presumed where the agency is special, and limited to a single transaction, it will be presumed where the agency is general. A fortiori will it be presumed where it constitutes a great and comprehensive business, and where the courts have rendered decisions making manifest and public the nature of the business.</p> <p>4. Same — Notice.</p> <p>The fact that S. was accustomed to lend money habitually through the agency of the C. B. Co. was sufficient to charge him with notice of the character of the contracts made by that firm or its agents.</p> <p>5. Same.</p> <p>Where there is a regular business of lending money, with an elaborate system, one who lends money by such system will be chargeable with knowledge of all the facts which he could have learned by inquiry. The case of Call v. Palmer, 116 U. S. 98, 6 Sup. Ct. Rep. 301, distinguished.</p> <p>6. Same — Court and Jury.</p> <p>When the commission retained for services in negotiating a loan is so large as to bo. usurious on its face, it is the duty of the court, in the absence of explanatory proof, to say so. It is not, in the federal courts, a question for the jury.</p>

<p>1. INJUNCTION — AFMBAVm-CONFLICT OF TESTIMONY</p> <p>Complainant, a> holder of bonds which a certain tract of land in the delta, of the Orinoco was mortgaged to secure, applied for a preliminary injunction restraining defendants from committing any injury to said land. Nothing appeared in the moving papers to show that defendants were in any way interfering with the land in question except by claiming title to it, and the affidavits disclosed a conflict of testimony which could be passed upon safety only on the trial of the action. Held, that the determination of the rights of the parties should be postponed until the trial, and the motion for a preliminary injunction be denied.</p> <p>2. Same — Pkeyention of Waste — Foreign Land — Power to Enjoin.</p> <p>A defendant, properly served, may be enjoined from committing waste-upon, or otherwise impairing the value of, property in which the complainant is interested, even though the property is situated abroad, provided a case for the interposition of a court of equity is made out.</p>

<p>1. Equity — Pleading-Multifauto usness — Prayer foe Accounting and INJUNCTION.</p> <p>Complainant, a stockholder, trustee, and creditor of an unincorporated association, brought, a bill against his co-trustees for the winding up of the affairs of the company on account of gross mismanagement, for an accounting, and the appointment of a receiver; also praying for an injunction against a proposed fraudulent, sale by the trustees of a large portion of the property of the association. Held, that such a prayer did not make the bill multifarious.</p> <p>2. Same — Enjoining Salk — Vendee Proper Party.</p> <p>In a bill for an accounting by a member of an unincorporated association, and praying an injunction against a proposed fraudulent sale, it is proper to make the proposed vendee a party to the suit, although he may have no interest in the accounting.</p>

<p>1. Executors — Payment of Legacies — Insufficiency of Assets — Transfer of Bank Stock to Residuary Legatee.</p> <p>An executor representing that he had sufficient assets to pay all legacies, hut filing no inventory, obtained a decree that he pay the legacies, and that the residue he paid to the residuary legatee, and afterwards transferred to the residuary legatee, with her assent, certain shares of hank stock belonging to the estate, the dividends on which were afterwards paid to the executor, who was the husband of the residuary legatee.' The remaining assets were insufficient to satisfy the legacies. In an action brought to charge the estate with an as. sessment on the stock, held, that the transfer was valid, and passed the title to the residuary legatee.</p> <p>2. Same — Conveyance by Executor — Residuary Legatee.</p> <p>A conveyance by an executor to the residuary legatee, who is his wife, is good at common law.</p> <p>3. National Banks — Liability of Shareholders — Estate of Shareholder-Liability of Legatees and Devisees.</p> <p>Under Rev. St. U. S. § 5151, rendering shareholders individually responsible for the liabilities of a national bank to the extent of the value of their stock; and section 5152, providing that the estate of a shareholder in the hands of the executor shall be liable in like manner and to the same extent that the testator would be if living, — assets which have been transferred to devisees or legatees cannot be subjected to liabilities of the bank accruing after the transfer.</p> <p>4. Same — Assessment on Stock — Liability of Legatee.</p> <p>On the representations of the executor that he had more than sufficient assets in his hands to satisfy all debts and legacies, he was decreed to pay defendant S. S. her legacy, but neglected to do so until after the failure of the national bank in which the testator was a stockholder, when he delivered property to her trustee in satisfaction of the legacy. Held, that under the statutes above quoted, the legatee and her trustee were chargeable with an assessment upon testator’s stock to meet the liabilities of the bank accruing before actual delivery to the legatee.</p> <p>5. Same — Sale of Stock for Taxes — Transfer on Books of Bank.</p> <p>In 1865, a tax collector assumed to sell 50 shares of testator’s bank stock for delinquent taxes, and they were bid in by defendant E. S., but they were never transferred on the books of the bank. E. S. received the dividends until the validity of the tax was adjudged, and afterwards they were received by testator. Held that, under the laws of Vermont then in force relating to the enforcement of taxes, no title passed, and that there was no such acquiescence on the part of testator as to make the sale good.</p> <p>6. Same — Transfer of Stock — Consideration—Title.</p> <p>Where an executor, without consideration, transfers bank stock in trust for his own benefit, and to enable.the transferee to become a director of the bank, the title, for the purposes of assessment, remains with the executor.</p> <p>7. Same — Insolvency—Assessment—Set-Off.</p> <p>In an action by a receiver of an insolvent bank to charge the estate of a shareholder with an assessment on his shares, the executor claimed, by way of set-off, that property belonging to the estate.had been delivered to the bank, upon the understanding that it should be applied or the assessment if the bank should fail. Held not a proper subject of set-off, even though the bank examiner assented to the agreement.</p> <p>8. Taxable Property — Sworn Inventories — Disclosure of Contents — Evidence.</p> <p>Under Laws Vt. 1882, No. 2, §§ 26-28, providing for sworn inventories by tax-payers of taxable property, the listers of the town, -in an action between a receiver and stockholders of an insolvent national bank, will not be allowed to disclose the contents of such sworn inventory; nor will the town clerk, having it in custody, ho allowed to produce it; but a witness who assisted the tax-piyer in malting the invent ory, and saw its contents, with her permission, before it was taken by the lister, may bo examined as to its contents.</p> <p>9. Same — "Rule in Vermont — 'Enforcement in United States Court.</p> <p>The rule of the Vermont statutes, prohibiting the disclosure by listers, or the production by the town clerks, of the sworn inventories of tax-payers, will be enforced in an action in the United States circuit court for the district of Vermont.</p> <p>10. National Banks — Assessment—Suit to Charge Estate — Pleading.</p> <p>In a suit in equity, brought by the receiver of a national bank, to charge the assets of the estate of a testator, in the hands of the executor and devisees and legatees, with an assessment on certain shares of the capital stock of the hank, the bill was framed so as to charge defendant M. with the assets in her hand’s as legatee, with the payment of the assessment on the testator’s stock. Held, that she could not be charged in this action as owner of the stock.</p> <p>11. Equity — Decree—Correction before Signature or Entry.</p> <p>Before the decree is entered or signed, the court, at the suggestion of cither party, or on its own motion, will correct any error or oversight that may appear in the decision or decretal order.</p>

<p>Minors — Knmstment in United States Army — Consent op Parents.</p> <p>iipv. St. U. S. §§ 1110, 1117, authorizes the enlistment in the army of the United States of men above the age of 16 years, and provides that no person under the age of 31 years shall be mustered into military service without the written consent of his parents or guardians. Held, that a contract of enlistment entered into by a minor, over 16 years of age, without the consent or knowledge of his parents, could not bo avoided by the minor himself, but could only be avoided by the parents, who might claim the right to his custody before majority.</p>

After the demurrer to tbe plea in abatement in tbe case of United Staten v. Benson, 81 Fed. Rep. 896, and several other similar cases, including the above, was sustained, and the defendants ordered to plead to tbe indictments, the defendants filed a demurrer to the indictments, and tbe demurrer to the indictment in tbe above case was argued. The indictments in the other eases (14 in all) are substantially alike, with the exception of the fourth count, hereafter mentioned.

Motion in Arrest. Defendant was indicted under section 5515, Rev. St. U. S., for knowingly doing an act unauthorized by law, with intent to affect the result of a congressional election, while… Held: require the names of all candidates voted for to be printed or written on a single ticket.

<p>1. TRADE-MARK — “MONTSERRAT LiME-FbUIT JUICK’’ — IMITATION OF BOTTI.ES.</p> <p>In a suit to restrain the infringement of a trade-mark, the only resemblance between the defendant’s and complainants’ packages was in tile color of the labels, the use of the words “Montserrat Lime-Fruit Juice,” and the form of the bottles, hut. the evidence disclosed that most lime-juice bottles wore quite similar in size and design. Held no deception.</p> <p>T Same — Geographical ííame.</p> <p>. Montserrat being the name of an island from which both partios import lime juice, the complainants, in the absence of fraud, are not entitled to the exclusive use of the word “Montserrat” as a designation for lime juice, although their article may have acquired a high reputation for purity and strength, while that of defendant may he of an inferior quality.</p> <p>?, Same — Use oe Bottles Stamped with Comi’lainants’ Name.</p> <p>Where both parties are dealers in lime juice, the defendant has no right to sell lime juice in bottles stamped with complainants’ name.</p>

<p>Patents for Inventions — Novet.ty—Set/p-Feeding Lubbic atoes.</p> <p>The claim of letters patent No. 108,150, granted August 9, 1870, for an improvement in self-feeding lubricators, is wanting in patentable novelty by reason of prior inventions of substantially the same form and character.</p>

<p>1. Patents for Inventions — Patentability—Ksw Combination of old Devices — Fire-Extinguishing Apparatus.</p> <p>Letters patent Ho. 216,821 were granted June 24,1879, to Charles Barnes for an apparatus for extinguishing fires, and letters patent No. 283,393 were also granted to him October 19, 1880, for an “automatic fire extinguisher.” The patents describe a system of distributing pipes passing through the various rooms of a building at their ceilings, and fitted with a number of downward projecting sprinkling nozzles, A reservoir is placed in the lower story, above the supply pipe, leading to the street, filled with a fire-extinguishing liquid, which will be discharged upon the fire by force of water from the street main. A supply-valve has an actuating le'ver which is held up to keep the valve closed bv' a wire passing up to and united in each room by a fusible joint. The sprinkler consists of a perforated rose-head, with a cap soldered upon its neck with fusible metal, and certain other attachments. In case of fire the said fusible joints and caps are melted, the water rushes through the supply-valve, forcing and following the fire-extinguishing liquid. Until the occasion of fire the pipos are kept free from fluid. The details of combina - tion in the two patents differ in some respects. The proof showed that the constituent parts were old, but that the combinations wore new. Held, that the devices wore patentable inventions.</p> <p>2. Same — Infringement.</p> <p>The defendant manufactured and sold a device for extinguishing fires under letters patent Ho. 318,608, dated May 20, 1885. A reservoir was used in it charged with a fire-extinguishing liquid, which generates a gas, thus producing pressure, and the distributing pipes being thus at all times filled with liquid. A pipe connected the reservoir with the street main, cut off by a check-valve kept closed by the pressure from the reservoir. In case of fire, the pressure was relieved by the flow through the distributing pipes, and the valve opened, letting in the water. Held, that this device was not sufficiently similar to -those above mentioned to constitute an infringement.</p> <p>3. Sam® — Doctrine of Equivalents.</p> <p>The sprinkler or distributer, manufactured by said defendant under said patent Ho. 318,508, is, by the doctrine of equivalents, an infringement upon the fourth, fifth, and sixth claims of the above-mentioned patent Ho. 233,893, but does not infringe the first claim of said patent Ho. 216,821.</p>

<p>1. Patents fob, Invention — Time-Locks—Reissue—Enlargement oe Okiginal Patent.</p> <p>Reissued letters patent No. 8,550, to Samuel A. Little, for improvements in “time-locks, ” by which the multiple bolt,-work of a safe or vault door could be automatically both dogged or locked and unlocked at predetermined times, — the dogging and releasing being caused by the operation of the time mechanism, and the time for locking or unlocking being capable of alteration atfthe will of the operator, without disturbance of the clo.ck-work, — contained, inter alia, the following claim: “(7) In a time-lock the combination * * * of the time movements and two adjustable devices: one for determining the time of locking, and the other of unlocking. ” The original letters of the same patent contained, among others, the following claim: “(2) The wheels, B and C, with the depressions, d and/', and the projections, e and g, located relatively to each other as described, to increase and diminish the surface' of a common cam, i, or depression, h, by rotation on each other. * * *” Held, that the seventh claim of the reissue was not an enlargement of the second claim of the original patent; because the latter should be construed broadly, and should not be confined to “a common cam, ” or to a device which was connected with the compound wheel in the same way in which the cam was connected, but was broad enough to include equivalent means of connection with the dog.</p> <p>2. Same — Rejection of Claim — Subsequent Application and Reissue.</p> <p>The third claim of the application for a second reissue of the Little patent for time-locks was for devices consisting of “a compound disc, composed of two single discs of the same shape and size, placed face to face on a common axis. ” When these two discs or wheels were fastened together by a thumbscrew, they formed one wheel or disc. In said third claim this compound, disc was called “two adjustable devices. ” The patent-office held that the compound disc constituted but a single adjustable device, or single disc, and rejected the third claim, to which rejection the owners of the patent assented. Held, that they did not thereby abandon the right to claim, in a subsequent reissue, a double or compound disc, and obtain a valid patent therefor.</p>

<p>1. Patents for Inventions — Improved Lubricator — Infringement.</p> <p>In letters patent No. 188,218, dated April 29, 1873. issued to John Gates for an improved lubricator, the first claim was upon the “method of feeding oil, consisting in delivering the oil from the reservoir up through a body of water inclosed in a glass chamber, and discharging the same through the feed-cocks.” Tlie second was upon “the combination of an oil chamber with a water chamber, the latter being located over the former, and adapted to receive oil from it, and deliver the same above the body of water inclosed in it. ” Tiie defendant’s lubricator, called the Lunkenheimer, adopted the device described in the first claim of the Gates patent, but the oil chamber was located at the side of the water in the feed-glass, instead of under, as in the second claim. IMd an infringement</p> <p>2. Same — Anticipation—Specifications.</p> <p>The patent taken out by John Absterdam, November 21, 1854, for an improved lubricator, neither the specifications nor drawings disclosing a sight-feed where the oil is delivered up through the water, was not an anticipation, of the Gates patent.</p> <p>S. Same — Evidence.</p> <p>Absterdam testified to having' invented and put in operation, 30 years' before, a lubricator of the Gates design, and several witnesses testified tO' having then seen the lubricator in use. The alleged improvement was not described in Absterdam’s patent taken out about that time. Held, that the evidence was insufficient to show an anticipation of the Gates patent.</p> <p>4. Same — Construction of Claims.</p> <p>In letters patent ?fo. 111,881, dated February 14, 1871, granted to Nicholas Seibert for an improved lubricator, the first claim covers mechanism whereby steam is communicated to a tube, and an annular space between the two tubes within the oil-cup is kept hot. This device is not found in defendant’s lubricator. The second claim is upon “the improved lubricator, consisting of the parts herein described, constructed and arranged substantially as herein specified. ” Held, that the second claim embraces all the parts specified in the first claim, and therefore defendant’s lubricator is not an infringement.</p>

<p>1. Maritime Liens — What Contracts Give Rise to.</p> <p>Maritime liens are striati juris, and do not arise on all contracts made by the owners to result in profit to the ship. The testis to be applied to.the subject, and not to the objoct. It is the subject-matter of the contract which must be maritime, and not the mere object, — the ship.</p> <p>2. Same — Compressing Cotton.</p> <p>No maritime lien exists for the compressing of cotton, when the compressing was performed inland, and before any contract of affreightment, binding on 'the ship, was made.</p>

On Exceptions to Libel. The libel averred that libelant was the owner of a wharf at Port Hope, one of the regular stopping places of the steamer; that it was customary for the Saginaw to deliver her consignments for that port upon this wharf, subject to her claim for freight and advance charges, which were collected by the libelant, and credited to the steamer; that the steamer, upon the other hand, was charged with such collections for freight and advance charges as were…

<p>1. COURTS — CONFLICT OI? STATE AND FEDERAL JURISDICTION — REPLEVIN— Confusion o» Goods.</p> <p>An action of replevin was brought in a state court to recover a quantity of f>aving stone alleged to have boon wrongfully taken from plaintiffs quarry, and the property was seized by the sheriff. Pending this action, the defendant. brought suit in the United States circuit court for the recovery of the property so seized, together with other stone that had been quarried subsequent to the seizure. Meld, that the United States court had no power to determine the rights of the parties to the property seized, under process of the state court, as the same question was before the state court; and that if, through the fault of plaintiff, the other property sought to bo recovered had become so mixed with that seized by the sheriff that the two lots could not be distinguished, none of the property could be recovered.1</p> <p>2. License— Revocation— Oiiat, License to Quarry Stone--Possession of Stone after License Revoked.</p> <p>An oral license to take out stone from a quarry for a term of years is subject to revocation at any time, upon notice to the licensee, and he is not entitled to possession of the stone taken out subsequent thereto.</p>

<p>Courts — Conflicting State and Federal Jurisdiction — Assignment for Benefit of Creditors.</p> <p>Pending proceedings in the state court under an assignment, for the benefit of creditors, a creditor who was not a party to such proceedings, and who was a non-resident of the state in which the assignment was made, brought suit in the United States circuit court, to determine the validity of a deed of trust made prior to the assignment, and covering a large amount of the assets assigned. The assignee had entered upon the duties of his trust, but had taken no steps to contest the deed. Held that, as the question of the validity of the deed was one which was so entirely separate and distinct from those questions involved in the general proceedings that it, could properly be eliminated therefrom without prejudice to such proceedings, it was one which the United States court had jurisdiction to determine.</p>

<p>1. Removal of Causes — Act of Mabch 8, 1887.</p> <p>Under section 1 of the removal act, as amended by an act of March 3, 1887, the circuit court cannot take cognizance of a suit brought against a party in a district of which he is not an inhabitant; and section 2 does not authorize the removal of a suit brought in a state court against a party not an inhabitant of the district.</p> <p>2. Same.</p> <p>Section 2 of said act, as amended, does not authorize the removal of a suit from a state court to the United States circuit court, which could not have been originally brought in said circuit court.</p> <p> {Syllabus by the Court.) </p>

<p>Railroad Companies — Mortgage— Compensatioh of Trustees.</p> <p>A mortgage for $2,600,000, given to trustees for the security of the holders of the mortgage bonds, provided that the trustees should be allowed a reasonable compensation for executing their trust. Held that, in the defense of an action to set aside the mortgage, the trustees were entitled to only 1 per cent., the compensation allowed by Rev. St. TJ. S. pt. 2, e. 6, tit. 8, art." 2, §58, to trustees for receiving and paying out sums of more than $10,000.</p>

<p>Receivers — Insolvent Railroad — Compensation.</p> <p>Tutt and Humphreys, receivers of the "Wabash, St. Louis & Pacific Railway Company, allowed §70,000 each for their services to date.</p>

<p>1. Taxation — Assessment—Over-Valuation.</p> <p>Any person who has property listed on the assessment roll oí a county for taxation is “interested” in the proceedings of the county board of equalization, and may appear before it, and have redress against an unjust and unequal valuation of property on said roll, to his injury, whether the same is causedby an over-valuation of his own property, or an under-valuation of that of others.</p> <p>2. Same — Injunction.</p> <p>A person who is aggrieved by the wrongful action of an assessor, in the valuation of his own or other's property for taxation, cannot maintain a suit in equity to enjoin the collection of any portion of the tax resulting from such action, unless he first seeks redress at the hands of the county board of equalization, as provided by statute.1</p> <p> (Syllabus by the Court.) </p>

<p>1. Publics Lands — Cutting Timber — Entry of Homestead — Procuring Patent.</p> <p>One K. sold to defendants timber cut from the land that ho had entered as a homestead, but for which ho had not yet paid or procured the patent. After the commencement of an action by the government for the recovery of tho timber, K. commuted his entry as provided by Rev. St. U. S. §§ 3801, 2350, and paid for tho land, receiving the receipt therefor from the land-office. Held, that this proceeding made a completed purchase of tho land, and so changed the status of the original entry as to deprive the United States of the right, to recover for timber previously cut from the land.</p> <p>2. Same — Right to Homestead — Government as Trustee.</p> <p>\V here the right to a patent for land has become vested in a purchaser, the government holds the legal title in trust for the purchaser until the patent is issued.</p>

Indictment under section 5512, Rev. St. U. S. This was an indictment under that clause of section 5512, Rev. St. U. S., which provides that “if at a registration of voters for an election of representative or delegate in congress * * * any officer of registration, * * * who has any duty to perform in relation to such registration, * * * does any act unauthorized by law relating to or affecting such registration or election, or the result thereof, * * * shall be punishable,”…

<p>1. Copyright — Compilation op War Records.</p> <p>A compilation from voluminous public documents, so arranged as to show readily the date and order of battles fought during the civil war, together with a list of casualties, may be copyrighted.</p> <p>2. Same — Action eor Infringement — Legal Title Sufficient to Maintain.</p> <p>An action for the infringement of a copyright may be maintained by the holder of the legal title thereof, though the beneficial ownership be in another.</p> <p>3. Same — Preliminary Injunction — Situation of Parties to be Considered.</p> <p>Application was made by the plaintifE for an order pendente lite, restraining the defendant from circulating a guide-book containing matter infringing upon the copyright of plaintiff. Held, that the question of the damage that might be sustained by the defendant upon granting the order, as compared with that to the plaintiff by denying it, and the financial ability of the defendant to respond to any damages assessed against him, and the fact that there was no intent on the part of the defendant to appropriate the property of the plaintiff, and that it was done without the knowledge of the defendant by one employed to compile the work, are all considerations which it is proper for the court to weigh in determining the question of granting or denying the application.</p>

<p>1. Trade-Marks — Infringement—Beverage Containing Adcoitot,.</p> <p>Where, in an action for the infringement of the trade-mark of a beverage, it is sought to be shown in defense that the beverage contains alcohol, and the evidence shows that some chemists found a teaspooni'nl of alcohol in a quart, and others much loss, and that it was used to cut the flavoring oils and mostly evaporated, the defense is not sustained.</p> <p>2. Same — Suit by Licenser against Stranger.</p> <p>The owner of a trade-mark is not estopped from bringing suit to enjoin an infringement of it by the fact that he has made a third party his licensee for the territory in which the defendant carries on the business as to which the infringement is charged.</p> <p>3. Same — Injunction to Restrain Infringement.</p> <p>In suit to enjoin an infringement on a trade-mark, it appeared that complainant, in 1883, owned and used a trade-mark, consisting of the word “Moxie, ” with a label containing a picture and descriptive words, in the sale of a certain beverage; that it also used a champagne bottle wrapped in a peculiar light brown paper, with the words “Moxie .Nerve Food” printed prominently thereon; that after complainant had carried on business for some time, and acquired a largo sale, defendant began to manufacture a preparation similar in taste, color, and flavor to that of plaintiff, and similarly put up in a champagne bottle, with a label and wrapper sufficiently resembling complainant’s label or trade-mark and wrapper to deceive the general public, and bearing the words, “Standard Nerve Food, ” with the words, “ Genuine. Beach and Olaridge, ” written across the label. Held, that defendants would be enjoined from putting on the market for sale any packages or bottles of the style of champagne bottles in use by complainant, when such similar bottles contained a fluid resembling that manufactured and sold by complainant as Moxie nerve food, in taste, flavor, or appearance, and from using the words “Nerve Food, ” either alone or with other words, upon the outside or upon the wrapper of any package containing such a fluid.</p> <p>4. Corporations — Organization—Non-Residents.</p> <p>Under Rev. St. Me. a. 48, § 16 etseq., providing that “three or more persons may associate themselves together by written articles of agreement, for the purpose of forming a corporation to carry on any lawful business, including corporations for manufacturing, ” etc., and that “from the filing of the certificate of incorporation, duly certified as required by that act, the signers of such articles shall he a corporation, as if incorporated by a special act,,” etc., it is no defense to an action brought by such a manufacturing corporation, when it is shown that its office is located and its elections are carried on in the state where it is incorporated, and its annual return made to the secretary of such plate, to allege that the incorporalors were and are all residents of another state, and that it has not manufactured hi all in its parent state, but carries on all its manufactures in another state.</p>

<p>1. PATENTS FOE INVENTIONS — BELL TELEPHONE — ANTICIPATION.</p> <p>In the apparatus made by Reis, of Germany, in 1860, with its several modifications, as described by Legat, Pisco, Vanderwyde, and others, an intermittent or pulsatory current of electricity was employed, the transmitter, when actuated by the sound waves, making and breaking the circuit at each vibration. Held, that the apparatus was from its very nature unable to send and receive articulate speech, and was not an anticipation of letters patent No. 174,465, of March 7, 1876, .to Alexander Graham Bell for improvements in telegraphy, the essential elements of which are the employment of the un-dulatory, as contradistinguished from the pulsatory, current of electricity, to transmit and copy air vibrations corresponding exactly in amplitude, rate, and form to those produced by the human voice, and the apparatus therefor.</p> <p>2. Same.</p> <p>One Holcomb, who in May, 1860, obtained a patent for an extremely sensitive polarized electro-magnet, constructed in the fall of that year an apparatus which he claimed was capable of sending and receiving articulate sounds. The only witness besides himself who testified that it did such work was his wife. Others testified that he then made no such claim. He filed no application for a patent until January, 1878, and the only parts of the instrument produced were a permanent steel magnet, a sounding box, a steel bow with a brass attachment, a brass clamp, and some broken pieces of the diaphragm. Held, that the evidence was insufficient to overthrow the presumption of pri ority and validity arising from the grant of the telephone patent to Bell</p> <p>3. Same.</p> <p>Holcomb got one Beardslee interested in his apparatus who made several organizations to test for his own satisfaction the correctness of Holcomb’s claims. He became satisfied that the apparatus would not operate at great distances, and abandoned it. Held, not an anticipation of the Bell telephone patent.</p> <p>4. Same.</p> <p>The fifth claim of letters patent No. 186,787, of January 30, 1877, to Alexander Graham Bell, for improvements in electric telephony is as follows: “The formation, in an electric telephone, such as herein shown and described, of a piagnet with a coil upon the end or ends of the magnet nearest the plate. ” Held, the claim not being for the combination of which the magnet is a constituent, that that part of the patent was void, being anticipated by the magnet in Hughes’ printing telegraph as described in Schellen’s work.</p> <p>5. Same — Bell Telephone — Extent of Claim.</p> <p>The fifth claim of letters patent No. 174,465, of March 7,1876, to Alexander Graham Bell for improvements in telegraphy, is for “the method of, and apparatus for, transmitting vocal or other sounds telegraphically, as herein described, by causing electrical undulations, similar in form to the vibrations of the air accompanying the said vocal or other sounds substantially as set forth. ” Held, that the claim and method were not confined to an apparatus in which a magneto-transmitter is used and that the use of a telephone apparatus consisting of a speaking microphone transmitter and a magneto-receiver was an infringement.</p> <p>6. Same — Infringement.</p> <p>Such an apparatus is also an infringement of the sixth, seventh, and eighth .claims of letters patent No. 186,787, of January 30, 1877, to Alexander Gra--ham Bell for improvements in telephony.</p>

<p>Patents for Inventions — Needle-Machine-—Subsequent Patent oe Needle Void.</p> <p>The patentee of amachine, capable of producing needles of a superior quality. subsequently obtained a patent upon the product of such machine. Held, that, the latter patent was void, as an attempt to patent the function of the machine, and thus extend the monopoly of the invention beyond the time allowed by law, and that an action could not be maintained against one manufacturing the same kind of needles by the use of the machine after the expiration of the patent thereon, when the right to use it had become vested in the public.</p>

<p>Patents for Inventions — Buckles—Letters Patent No. 8,541 — Anticipation.</p> <p>The second, third, and fourth claims of reissued letters patent No. 8,541, of January 14,1879, to Henry S. Woodruff for an “improvement in buckles” call for a buckle frame provided with a loose loop ana having a rigid tongue projecting outward on the outer face of its forward cross-bar, and the combination of the frame, loop, and tongue. The improvement has for its object the relief of the tug at the point where the tongue enters it, and this is accomplished by the loop pinching the tug and holding it firmly to the frame when draught is applied. In the Cole buckle (letters patent No. 69,181, of September 34, 1867, to B. Cole) the plate or cross-bar of the loop is broader than in the Woodruff, and the construction is different, but the service performed by it is substantially the same. In both buckles the loops arealoose. Held, that the Woodruff patent was anticipated by the Cole patent.</p>

<p>Patents for Inventions — Infringement—Preliminary Injunction.</p> <p>Complainant was the owner of letters patent for an improved dress shield for the under part of the armhole of a dress. The shield was made of “stockinet, ” and coated on one side with a thin layer of India rubber. After being stretched upon a proper form, it was vulcanized by heat, to hold it in shape. The shield was of a crescent form, and without seam. Defendant’s shield was similar, except that it had stockinet upon both sides of the rubber. It appeared that the idea of a seamless shield was not new with complainant, nor was there any patentable novelty in vulcanizing or heating the shield so that it should permanently hold its shape. Held, that the validity of complainant’s patent was not sufficiently apparent to sustain a motion for a preliminary injunction against defendant for infringement.</p>

<p>On Rehearing. For opinion on former decision and rehearing, see 25 Fed. Rep. 94, and 29 Fed. Rep. 915.</p>

<p>Appeal — Rehearing—Misquotation oe Testimony.</p> <p>A rehearing will not be granted because the court in its opinion misquoted the testimonj', where such misquotation does not change the opinion.</p>

The libel in the above case was filed to recover damages for refusal to deliver certain boxes of fruit forming part of the cargo of the steam-ship Tangier from Palermo to New York. The libelants on the thirteenth of March, 1884, chartered the steamer from the owners to take a cargo of fruit at the lump sum of .-€1,550, or about 17,500, the balance, after certain specified payments, to bo paid “on the true delivery of the cargo ” at Now York.

This was a libel by a seaman on the propeller Oakland. On the seventeenth day of September, A. D. 1883, by the order of her captain, the crew of the propeller, including the libelant, left the propeller, then water-logged and in a foundering condition, in a storm on Lake Erie. They saved the yawl-boat, compass, barometer, clock, and marine glasses. The propeller was still afloat when left, and it was uncertain whether she_ would continue to float or go to pieces.

<p>1. COLLISION — Tow AKD FERRY BOAT — RlTLK OE THE STARBOARD IlA-YD — Sl’ECIATj Rule — Duty to Stop avd Back — Rule 21.</p> <p>As the lug S. was coming down 1,he North river, she saw, according to her witnesses, the green light of the ferry-boat P., some two points on her star-hoard bow. Hite whistled twice, and the P. once, whereupon the 8. stopped and backed. The witnesses for 1 he ferry-boat testified that they saw ahead the green light of the 8., a little oil the port bow; that one whistle tvas given her. and then a second single blast, to which the S. replied with two; that at the last signal the P. had commenced to round into her slip, and she continued on at full speed, until struck by a railroad float which the 8. was towing. The rounding course of the ferry-boat was known to the pilot of the 8. Hi Id that, as the ferry-boat, and her course were recognized by the S.,1ho laiter was bound to have avoided her, not only under the general rule of the starboard hand, but also under the special rule relating to ferry-boats approaching their slips; and, for attempting to cross ahead of the P., the 8. was in fault. Held, also, that, the continued view of the green light of the 8. on about the same bearing should have indicated to the P. that the 8. was swinging across her course, mid was such evidence of '‘risk of collision” as made it obligatory upon the P. lo stop and back, under rules ál and 21; that for failure to do so she was also in fault.</p> <p>2. Same — Right op Wat.</p> <p>Though a boat having the right of way may keep her course, she is not absolved from stopping and backing, when there is risk of collision.</p>

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

<p>Collision — Steameb and Schooneb — Change or Coubse — Evidence.</p> <p>As a schooner was approaching New York harbor, she was run into and sunk by the steamer K. The schooner’s witnesses testified that from the time the steamer’s lights were sighted, the schooner’s course was never altered until the collision, and that her red light was continually exhibited to the steamer. The evidence for the K. showed that the green light of the schooner was first seen a little on the steamer’s port bow, whereupon the latter ported; that, when the schooner’s light had come to bear over the starboard bow of the steamer, the schooner ported, and this change of helm brought her under the bows of the K. Held, that the schooner was alone responsible for the collision.</p>

This is an application of the Pacific Railway Commission, created under the act of congress of March B, 1887, “Authorizing an investigation of the books, accounts, and methods of railroads which have received aid from the United States, and for other purposes,” for a.n order requiring a witness before it to answer certain interrogatories propounded to him.

<p>1. Streets — Rights of Abutting Property Owners — Easement—Ownership on Eee.</p> <p>An abutting property, owner has no other interest in the streets of Chicago than an easement in common with the public. The city owns the streets in fee.</p> <p>2. Eminent Domain — Appropriation op Property — Damages.</p> <p>Under Const. Ill. art. 2, § 13, providing that “private property shall not be taken or damaged for public use without just compensation, ” only damages for injuries caused by an actual appropriation of private property need be paid in advance.</p> <p>3. Street Railroads — Damages—Remedy—At Law — Injunction.</p> <p>Special injury to property, resulting from the construction and maintenance of a street railway in front thereof, must be remedied by an action at law for the special damage, and not by an injunction. For an injury sustained in common with the public at large there is no remedy.</p> <p>4. Principal and Agent — Repudiating Unauthorized Acts — Silence—Ratification.</p> <p>Silence in not repudiating the unauthorized act of an agent, when such act is brought home to the knowledge of the principal, amounts to a ratification on the part of the principal.</p>

<p>Corporations — Subscription—Tender of Full Amount — Befusal—Failure of Corporation— Subsequent Liability of Subscriber.</p> <p>A tender, during the solvency of a corporation, by a subscriber to its stock, of the full amount of his subscription, and demand for issue of certificate, which tender is, without legal cause, declined, and the issue of certificate refused, extinguishes the obligation to pay the subscription, as against the as-signee of the corporation, when it has become insolvent.</p>

Action upon a life insurance policy issued by defendant upon the life of plaintiff’s husband.

<p>At Law. On motion for new trial.</p>

<p>1. Asstonvext’ for Benefit of Creditors — Preekrexoes.</p> <p>Under the statute of New Jersey (Revision, p. 80,) declaring void all preferences in assignments for tlio benefit of creditors, an assignment for the benefit of creditors containing preferences, made in New York by a firm doing business there, is not void against a firm of creditors doing business in New York, one of whose members is a resident of New Jersey.1</p> <p>2. Same — Attachment nr Another State.</p> <p>Where one made an assignment for the benefit of creditors in New York, the subsequent attachment in New Jersey by a New York creditor of a debt owing to the assignor is not of itself a defense to an action by the assignee for the recovery of the debt.</p> <p>8. Same.</p> <p>The attachment of a debt in New Jersey by a resident of New York, after the execution in New York, by the owner of the debt, of an assignment for the benefit of creditors, will not prevent the federal courts front entertaining a suit by the assignee for the recovery of the debt.</p>

<p>Patents for Inventions — Infringement—Preliminary Injunction.</p> <p>On motion for preliminary injunction to restrain the infringement of letters patent No. 126,347, granted to 1). W. Thompson, in 1872, foriire-ldndlers, held, that in view of the fact that in another action pending in another district of the same circuit, brought by complainant against the manufacturers from whom defendants obtain the article alleged to infringe, a similar motion had been made and denied, with leave to renew, and in view of the fact that defendants vigorously assail the validity of complainant's patent, the motion should be denied, with leave to renew when an injunction is obtained against the manufacturers.</p>

<p>1. Patents eor Inventions — Dress-Fomis—Infringement.</p> <p>Letters patent No. 233,240, issued October 12,1880, to Jobn Hall, for a new and useful dress-form, to be employed to support and extend a lady's dress while in process of construction, the second claim of which is fora combination, one essential element of which is double braces extending in opposite directions, held not to be infringed by the dress-forms made by defendants, as the braces employed in making the latter dress-forms are not of the same length, and do not extend in opposite but in the same direction.</p> <p>2. Same — Lack of Invention.</p> <p>In letters patent No. 236,887, granted January 25, 1881, to John Hall, for a dress-form to be employed to support and extend a lady’s dress while in process of construction, the second claim which is for the combination with the adjustable ribs of a dress-form of a non-elastic band or tape, which is provided with a scale and secured to the ribs, involves no invention, and the patent, so far as said claim is concerned, is void.</p>

<p>1. Patents fob Inventions — Claims—Elements of Combination.</p> <p>In tetters patent No. 811,554, granted to Paul E. Wirt, February 8,1885, for an improvement in fountain pens, the first claim was for “the combination of an ink reservoir with a nozzle lifted thereto, and carrying the pen, and the rubber shaft extending through the nozzle in ths space between the inner facts of the latter and the upper face of the pen, and held within the nozzle at an intermediate point of its length, one end of the shaft extending beyond t,ho nozzle into tho ink reservoir, so as to draw the ink downward from the same, and the other end lies over the pen. so that when the latter is pressed downward in writing, it comes in contact with the shaft to produce capillary attraction, and cause the feeding of tho ink downward upon the pen.” jleld, that a shaft having a fulcrum in the nozzle, so that vibration of.the lower end of the shaft by the action of the nibs will cause vibration of the upjter end. and thus agitate the ink in the reservoir, was not an element in tho combination described in the patent.</p> <p>3. Same — Fountain Pens — Patentable Difference.</p> <p>The only difference in the pens made by plaintiff and those made by defendant was that in plaintiff’s pens there was a single shaft, secured at an intermediate point of its length in the nozzle, one end extending up into the ink reservoir, and the other downward over the pen, while in defendant’s pens this shaft, was divided into two parts, the respective sections having the same functions as the corresponding ends of the shaft in plaintiff’s pens. Held, that this was not a patentable difference, and that defendant’s manufacture was-therefore an infringement.</p> <p>8. Same — Construction—Specifications and Patent — Solicitor's Letter to Patent-Office.</p> <p>"Where tho specifications of the application and of the letters patent are not ambiguous, and are capable of a definite construction, the language of a solicitor employed to obtain the patent, used in a communication with the patent-office to express an idea of his own, will not override the language of the patent; especially when there is ho evidence to show that the idea was ever adopted by the patent-office.</p>

<p>1. Patents por Inventions — Infringement—Joint Infringers.</p> <p>Under a lease made by the P. Telephone Company to defendant and (I., G. put up several telephone instruments made by thé P. Telephone Company which infringe complainant’s patent. Defendant became a party to the lease merely for the accommodation of G., who could not, alono, obtain it from the company, and allowed G. to transact all the business and to have all the benefits of the lease. Defendant had acknowledged in the present suit that the lease is binding upon him. Held, that the infringement is the joint tort of defendant and G. for which defendant is responsible equally with G.</p> <p>2. Judgment-Satisfaction — Proof of.</p> <p>Defendant and G. were sued separately for the same infringement of complainant’s patent, and in the suit ag-ainst. G. complainant obtained a decree for an injunction and account, and waived the account and took a decree for nominal damages of one dollar, and costs to be taxed. The costs wore taxed at 0298.09. G. testified that ho sent one dollar to complainant’s attorneys in a registered letter in settlement of the damages and received a roturn'card acknowledging receipt of the registered letter. He did not give a copy or state the contents of the letter, and no answer appeared to have been returned. Held, insufficient to show satisfaction for the infringement.</p> <p>8. Same — Joint Trespasser — Bar of Recovery.</p> <p>A judgment against one joint trespasser or wrong-doer, without satisfaction, is no bar to a recovery against the others.</p>

<p>1. Patents for Inventions — Contract for Royalty — Breach.</p> <p>By the terms of a contract between the plaintiff and the defendant, the latter was licensed to manufacture and sell a plow, of which the plaintiff was the inventor, upon payment of a royalty for each plow so manufactured and sold. Meld, that the manufacture by the defendant of plows called by a different name, but substantially the same as defendant’s invention, was a breach of the contract, if defendant failed to pay the royalty, and that plaintiff might elect whether to sue for the royalty or fop infringement.</p> <p>2. Same — Anticipation—Plows.</p> <p>Patent No. 127,878, for an “improvement in plows, ” consisted of a sleeve around the axle which is revolved by a lever affixed to it; the sleeve having two arms projecting towards the rear, and pivoted to the plow-beam underneath. By the operation of the lever the elbow is raised, and a trigger pivoted on the lever falls into a notch on a circular plate fastened on the right of the axle, or its connections, with arms running to the tongue. The plow is thus held up while turning or being taken from the field. It can be locked in the ground, or out of it, by inserting a pin in holes made for the purpose in the circular plate, but the plow cannot be regulated while in motion. The plaintiff’s invention consisted of a crooked axle, a crank-bar, bent twice at right angles, and a lever so arranged that while in motion the point of the plow could be raised by the operation of the lever, and the horses made to raise it out of the ground; or it could be locked in the ground at any depth, or out at any height. Held, that the former invention did not have the same combination as the latter for raising and lowering, and therefore was not an anticipation of the plaintiff’s.invention.</p>

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

Iii Equity. On application to review an order of the master. At the hearing- an infringement was found of reissued letters patent No. 5,940, of June 30, 1874, to William M. Welling, fora process for the manufacture of artificial ivory, and as to the patent a decree was entered for an injunction and accounting; “the injury upon the accounting to be confined to infringement, consisting of the use of shellac and talc in equal parts substantially.” 12 Fed. Rep. 875.

<p>1. A DMIRALTY— PRACTICE — INTERRO GATORIES.</p> <p>Under admiralty rule 23 of the supreme court, which requires libelant’s interrogatories to be propounded “at the close of the libel, ” libelant may not, of course, propound interrogatories to the claimant after the filing of the answer.</p> <p>2. Same — Amendment of Libel.</p> <p>The libelant’s proper practice is to apply to the court for leave to amend his libel, and to add at the close of the amended libel the desired interrogatories.</p> <p>3. Same — Rules.</p> <p>Rule 99 of this court is controlled and superseded by rule 23 of the supreme court.</p>

<p>1. Salvage — Towing Burning Lighter Away from Vessel.</p> <p>While a steamer was discharging a cargo of saltpeter into a lighter, and after about 100 tons had been delivered, the saltpeter on the latter took fire, and spread with such rapidity as to compel the men to abandon the lighter, which was at once cast loose, and drifted under the port quarter of the steamer. The flames rose very high, but the wind blew them from the steamer, which was an iron-built one. There still remained on board the latter about 550 tons of saltpeter. While in this situation, the libelant's tug made fast to the lighter, and pulled her out of the slip, into the river, where she burned to the water’s edge in about 40 minutes after first taking fire. Held, that the libelant was entitled to salvage.</p> <p>2. Same — Amount Awarded.</p> <p>Five hundred dollars was held to be a proper compensation for salvage services rendered by the tugs of libelant, worth about 9? 17,000, in pulling a burning lighter loaded with saltpeter away from a steamer valued at §115,000, there being other tugs present who would have performed the same service.</p> <p>8. Same — Costs.</p> <p>Where the court decrees that libelant is entitled to salvage, he is also entitled to costs, although his original claim may have been exorbitant, the defendant having refused to oiler any compensation whatever.</p>

<p>In Admiralty. On exceptions to libel.</p>

<p>1. ADMIRALTY — PERSONAL INJURY — STATE STATUTE OS' LIMITATIONS.</p> <p>The requirement of the New York state lnw, that an action for a personal injury must be begun within three years from the occurrence of such injury, has no effect to bar a suit in admiralty, begun after that limit.</p> <p>2. Same — 'Lashing Spare-Wheel — Rendering Wheel Dangerous — No Notice TO SEAMAN — INJURY—LIABILITY.</p> <p>Defendant, master of a vessel, caused the spare-wheel, which in its ordinary condition rested loosely and unfastened upon the drum of the steam-wheel, to be lashed so that it would rotate with the drum, thus rendering the apparatus dangerous to one engaged in cleaning it. No notice of the changed condition of the wheel was given to libelant, a seamaá, in consequence of which, while the latter was engaged in his duty of cleaning the apparatus, his hand was caught and so injured as to require amputation. Held, that defendant was liable for the injury.</p> <p>3. Damages — Loss of Hand-Four Thousand Dollars not Excessive.</p> <p>Where an accident occurred through the negligence of defendant, resulting in the loss of libelant’s hand, held, that a judgment for $4,000 was not excessive.</p>

<p>Collision — Vessel at Pier — Canal-Boat.</p> <p>The steam-ship C., coming up North river to make a landing on the south side of pier 47, caught sight of the canal-boat R. lying over 500 feet away moored on the north side of pier 48, with her bow projecting 10 or 15 feet into the river beyond the end of the pier. This pier did not extend into the stream by over 50 feet, the distance of the other piers, and the place where the R. lay was 250 feet to the north from the intended berth of the C. The C. meant to back in, and as she came up to pier 47, she took a line from that pier to her starboard bow, but kept on with the flood tide until her bow was opposite to or beyond the north line of pier 48, when her bow was drawn in by the line and her stern carried out in the river by the tide, and thus she swung in towards pier 48 until her starboard bow struck the starboard bow of theR, which immediately sank. There was no one in charge of the B. at the time of the collision. Held, that the C. alone was in fault, the B. owing no duty to her or to any vessel intending to land at the south side of pier 47, and the captain of the K. being under no obligation to anticipate such an event as took place.</p>

<p>Collision — Tugs and Tows — Narrow Channel — Overtaking Vessel — Premature Start.</p> <p>The evidence indicating that the tug B., after she had turned to the side of the narrow channel of Newtown creek, and had slowed to allow the tug M. and her tow to pass her, started her engine again while the M. was passing, and thereby ran against the latter’s tow, forcing libelant’s boat against a dock, held, that the tug B. was solely liable for the resulting damage.</p>

<p>1. Mortgage — Foreclosure—Receiver—Action by, to Determine Adverse Claims.</p> <p>Although the order appointing a receiver pendente lite in mortgage foreclosure authorized him to bring such suits as he might be advised, he cannot maintain a suit in equity to obtain an adjudication that certain real property is subject to the lien of the mortgage, and that all liens claimed thereon by parties in possession and parties out of possession are invalid against him, and to obtain possession thereof, against one claiming adversely, where neither the mortgagor nor mortgagee is made a party, and no assignment by them to him of the property or cause of action is shown.</p> <p>2. Same — Bill by Receiver for Accounting — Contract with Mortgagor.</p> <p>A receiver, appointed in an action to foreclose a mortgage given by a telegraph company, claimed to cover all subsequently acquired property of the mortgagor, cannot maintain a bill for an accounting for damages suffered by the mortgagor from breach of a contract to construct certain telegraph lines.</p> <p>3. Equity — Jurisdiction—Bill to Try Title to Property in Adverse Possession.</p> <p>Equity will not entertain a bill to try title to, and obtain possession of, property in the possession of one claiming adversely, although at the same time complainant seeks relief in the nature of removing clouds upon title.</p> <p>4. SAme — Costs on Dismissing Bill after Hearing — Failure to Demur.</p> <p>Costs will not be granted on dismissing a bill after a hearing upon the merits, for objections which might have been taken by demurrer, but which defendants failed to take at any stage of the case.</p>

Mandamus. The relator alleges that he is the editor and proprietor of a newspaper periodical called “Medical Classics,” and has requested the defendant, who is the postmaster of New York, to enter and transmit through the mails this publication as second-class matter. This request was refused by the defendant, and the publication was charged a higher rate of postage, as third-class matter, because held to bo designed as an advertising medium.

<p>1. Attachment — Grounds or — Burden op Proop.</p> <p>The affidavit for attachment charged that the defendant had (1) fraudulently conveyed or assigned his property so as to hinder and delay his creditors; (2) fraudulently concealed, removed, or disposed of his property with the same intent; and (3) fraudulently contracted the debt sued for. Held, that proof of all the grounds stated in the affidavit was not necessary to entitle the plaintiff to a recovery, but that proof of one or more was sufficient.</p> <p>2 Same.</p> <p>Where .the attachment is based upon a charge of fraud on the part of the debtor, the burden of proof upon that question is on the plaintiff.</p> <p>8. Same — Grounds op — Fraudulent Intent.</p> <p>A fraudulent intent upon the part of the debtor in attachment, whether in contracting the debt sued for, or in concealing or disposing of his effects, need not lie established by direct testimony. His conduct, actions, financial situaüon, and the method oi' dealing adopted by him on a particular occasion, may bo shown, and such an intent inferred therefrom, provided that a careful examination of all the details warrants such an inference.</p> <p>4. Same.</p> <p>But if the circumstances relied upon by the plaintiff to establish the fraudulent intent are just as consistent with honesty as dishonesty of purpose, no such inference arises.</p> <p>5. Sam-:.</p> <p>IV hen a merchant buys goods on credit with a preconceived intention of getting them inlohis possession, and disposing of them, and of not paying for them at any time, the debt is contracted with a fraudulent intent, anil attachment will lie.</p> <p>6. FRAUDULENT CONVEYANCES — By Debtor — Insolvency.</p> <p>A debtor, even though insolvent, has a right in Missouri to prefer one credit or over another; and, although such preference has the effect, of preventing other creditors from collecting thei» debts, it is not fraudulent if made in good faith.</p> <p>7. Same.</p> <p>A conveyance of property made by a debtor for the purpose, and with the intent, of hindering or delaying some of his creditors, is fraudulent so far as the debtor is concerned, and will authorize an attachment against him, even though the debtor, by means of such conveyance, pays some other creditor whom he justly owes.</p> <p>8. WITNICSS — CllEDI BILITY.</p> <p>The jury may ignore the testimony of any witness who they believe has willfully testified falsely as to any material fact in controversy.</p>

<p>Suit by Attachment by the holder of a death claim in a mutual life insurance policy.</p>

<p>1. Tender — Sufficiency—Effect.</p> <p>When, upon a claim for money, the debtor, before suit brought, tenders a certain sum in lawful tender, absolutely and without condition, to his creditor, and this is refused, he may retain the money, and, on suit brought against him, will be relieved from payment of interest after the date of tender, and from payment of costs, if plaintiff recover no more than the sum tendered.</p> <p>2. Same.</p> <p>But, if the offer to pay be made pending the suit, it cannot avail him, unless he follow it up with an offer to pay the money into court, or, at the least, submit to a judgment for the sum admitted.</p> <p> {Syllabus by the Court.) </p>

<p>1. Patents for Inventions — Assignment—Jurisdiction oe Federal Courts.</p> <p>Plaintiff ass;gned to defendant one-third of the right to an invention. The patent-office divided the application for the patent into three applications for as many inventions. The question in issue was whether this subdivision of the claims divested defendant of his interest in one of the patents issued. Held, that this was a question purely of patent law of which the circuit court of the United States had jurisdiction.</p> <p>3. Same — Suit for Infringement — Pleading.</p> <p>In an action by plaintiff for infringement of a patent, a cross-bill by defendant, asking that plaintiff be compelled to assign to him a one-third interest in the invention to which he laid claim, is not germane to a defense. The matter should be made the subject of demurrer to the complaint, or other appropriate form of defense.</p> <p>3. Same — Suit for Infringement^-Former Adjudication.</p> <p>In an action for an assignment of an interest in a patent, defendant pleaded a former suit in bar. Plaintiff claimed the former suit decided the question of an interest in the invention, and not the question of an interest in the patent. It appeared that in the former suit it was alleged in the bill, and denied in the answer, that plaintiff was “ the sole and exclusive owner of the patent, ” and the decree was in terms to the same effect. Held, that the plea in bar was a good plea.</p>

<p>1. Patents for. Inventions — Infringement—Spark-Arrester. -</p> <p>Letters patent issued April 11, 1871, to Kearney & Tronson for an improved locomotive spark-arrester, tbe specifications and claims showing a grating with vertical bars placed at the foot of the spark or petticoat pipe, etc., held infringed by a spark-arrester with grating consisting of upright cast-iron bars, with connections between them at intervals, leaving long spaces or slots between the bars, and only interrupted by the connections, exactly like the spaces between the bars required by the patent.</p> <p>2. Same — Priority of Invention.</p> <p>Complainants’ application for a patent was made prior to the date of the patent of one S., introduced in evidence as anticipating it, but was not dated until after the date of the S. patent. Held that, in the absence of evidence showing that S.’s invention antedated complainants’ application, the presumption was in favor of the priority of complainants’ patent.</p> <p>3. Same — Anticipation—Spark-Arrester.</p> <p>Letters patent issued April 11,1871, to Kearney &'Tronson for an improved locomotive spark-arrester, the specifications showing a circular grate of longitudinal upright bars, marked D, and a tube, E, on top of it, extending upward into the smoke-stack, with the netting, marked E, around the top of this tube, to prevent cinders from escaping into the smoke-stack, held not anticipated by Vanclain’s spark-arrester, consisting of a perforated cylindrical box^or screen in which the perforations or apertures consisted of latitudinal (horizontal) slots, cut out of sheet-iron, nor by any other patent.</p> <p>4. Same — Restriction of Claim — Spark-Arrester.</p> <p>In letters patent issued April 11, 1871, .to Kearney & Tronson for an improved locomotive spark-arrester, the specifications showed a grating with vertical bars placed at the foot of the spark or petticoat pipe, etc. Held, that the patent was not to be restricted to the use of a petticoat pipe, but such pipe might be of any form or dimensions.</p> <p>5. Same — Reissue—New Matter.</p> <p>In an application for reissue of a patent, paragraphs explaining the difficulties and defects of prior inventions of the same character, and how they have been avoided by the new invention, is not that sort of new matter which renders a reissue void.</p> <p>6. Same — Utility.</p> <p>In an action for the infringement of a patent, the defense of lack of utility will not be sustained unless there is the clearest evidence that the invention claimed is utterly frivolous and worthless ; and the fact that defendants have used it, and infringed the patent, is a strong argument against such defense.</p>

<p>1. Admiralty — Practice—Security on Appeal.</p> <p>On appeal from the district court to the circuit court it is not necessary for an appellant, who has given sécurity on the release of the vessel, to give a new stipulation for the whole amount of the decree and costs. New security to cover the damages for delay, and the costs and interest on the appeal, is sufficient. A rejustification of the sureties on the original stipulation will, however, he ordered, if reasonably required.</p> <p>2. Same — Bond to Marshal.</p> <p>It seems that in the case of a bond to the marshal a new bond on appeal, for the whole amount, may be required.</p>

<p>Application for Rehearing. 25 Fed. Rep. 158.</p>

The Italian bark Olga, hailing from Castellainare, Italy, contracted to the libelant company above named, at New York, in August, 1886, a debt for copper-sheeting. For the unpaid balance of that bill the master gave a bottomry draft, by which he bound his vessel and freight for repayment upon return of the bark to New York, and provided that any other draft he might draw upon his consignees should be secondary to the lien of this obligation.

<p>Pilots — Half Pilotage — Discrimination—Statutes.</p> <p>Section 2460, Pol. Code Cal., providing rates for pilotage and half pilotage to ho charged vessels entering the port, of San Francisco, is not, so affected by ihe joint operation of section' 2-168, Pol. Code Cal., exempting vessels sailing between Ban Francisco and ports in Oregon, Washington, and Alaska from half pilotage, and Rev. St. U. S. § 4287 forbidding, discrimination in rates for pilotage and half pilotage, as to exempt vessels sailing from a foreign port to Ban Francisco from liability for half pilotage, hut section 2466 will prevail, and section 2468 fail, so far as its provisions come within the United States statute forbidding discrimination in pilotage rales.</p>

<p>Collision — Lights and Signals — Costs.</p> <p>The canal-boat C., while in tow of the tug N. on a short hawser, was injured by a collision with the ferry-boat F., off Eighth street, New York, at near 6 o'clock p. m. The N. with her tow was decending the East river, which was quite full of ice, extending from the Brooklyn shore beyond the middle of the river, on an ebb-tide Her course lay as far ofi: the New York shore as was convenient, having regard to the ice. Between Eighth and Ninth streets the tug and tow met a flotilla of two tugs and two car-flats, bound up the river. The N. had the regulation lights set and burning, and pursuant to signal, the tug and tow.and flotilla passed starboard to starboard. As they passed, the N. was at least 400 feet off the Ninth-street pier. The ferry-boat F., starting from the slip at Seventh street, had stopped to allow the flotilla to pass, and now exchanged signals with the N. to pass on her course across the bow of the P. The P.'s pilot did not see the N.'s lights indicating she had a tow, and, as soon as the flotilla passed, the P. started ahead, and collided with the canal-boat C. Held, the collision was caused solely by the fault of the P. Held, also, as the circumstances probably justified the libelant in joining the N. as a co-respondent with the P., that he was entitled to the costs of the district court against the F., and the N. was entitled to the costs of the circuit court against the P.</p>

On Motion to Remand. On the eleyenth day of May, 1887, plaintiff filed suit in the circuit court, city of St. Louis, Missouri, against Edgar H. Brown as principal, and the several other defendants as sureties, on a penal bond conditioned for the proper performance by said Brown of bis duties as manager of the St. Louis office of the plaintiff company; alleging breaches of said bond, and praying judgment for §10,000, the penalty of the bond.

This action is to recover §1,500,000 damages alleged to have been suffered by the plaintiff’s intestate, ‘William L. Burt, because of the failure of the defendants to perforin certain contracts made… Held: and there is no question of fact upon this branch of the clause to submit to the jury, that Burt was entitled to a credit of fifteen hundred thousand dollars without paying a dollar in cash.

<p>Corporations — Preferred and Common Stock — Rights op Holders op Common Stock.</p> <p>A certificate of organization and articles of association of a railroad, reorganized after insolvency and judicial sale under 1 How. St. Micli. § 3314, provided for the issue of (1) preferred stock, upon which a 7 per cent, dividend was to he paid for five consecutive years, if the net income, after paying interest on prior bonds, repairs, expenses of equipment, and renewals should be sufficient; and (3) of common stock, which was not to be issued or represented at any meeting until after the payment of such five annual dividends. Complainants had received certificates entitling them to common stock, when it should be issued. They filed a bill alleging that the accounts of the company had been kept wholly in the interest of the preferred stockholders, that permanent improvements had been paid for out of income, and that, if the accounts were adjusted, and the actual net income ascertained, they would show that it had been sufficient to pay the live annual dividends to the preferred stockholders. The bill further claimed an injunction prohibiting the preferred stockholders from voting at any meeting until the common stockholders were permitted to vote upon the question of the issue of stock to themselves, and prohibiting the company from disposing of any moneys until the hearing of the case, and that meantime such moneys should be paid into the income account applicable to dividends. As it did not, however, appear by'the bill and affidavits that such a diversion and misappropriation of the revenue as would threaten the rights of the common stockholders was imminent, held, that a preliminary injunction ought not to be granted.</p>

In Chancery. Plea in intervention. The Fanners’ Loan & Trust Company, a corporation created under the laws of the state of New York, and a citizen of New York, filed its complaint against the Texas Western Railway Company and the Texas AVestern Narrotv-Gauge Railway Company, both corporations organized under the laws of, and’ having their principal offices in, the state of Texas, and citizens of the state of Texas, seeking the foreclosure of a certain mortgage wbicb had been…

<p>1. Railroad Companies — Negligence—CROSSINGS—Duty to Maintain.</p> <p>In an action against a railroad company to recover for injuries resulting from its negligence in not constructing and maintaining a sufficient crossing, as required by Laws Mo. 1885, p. 87, the defendant can be relieved of liability therefor only by showing that the crossing was constructed in strict compliance with the statute; that it has always been maintained in a safe condition; and that it is located in that part of the street that is graded and usually traveled by vehicles; or that the failure to do any of these things was not the direct cause of the injury; or that the accident was the result of the negligence of the person injured; or that it was the result of the negligence of neither; or when the plaintiff, upon whom the burden of proof rests, fails to show by a preponderance of evidence that the defendant has failed to discharge its duty in some respect.</p> <p>2. Negligence — Action nor Death of Husband — Damages.</p> <p>In an action brought by a wife against a railroad company, to recover damages for her husband’s death caused by the failure of the company to construct and maintain a sufficient crossing, it is proper for the jury, in assessing the damages, to consider the age of the husband, his health and habits of life, and his capacity for earning a livelihood for himself and his family.1</p>

<p>Witness — Privileged Communication — Letters from Husband to Wife.</p> <p>Tbe wife's administrator found among ber papers letters from ber busband wbicb made against bim in a suit in wbicb be was then interested. Tbe administrator, in a spirit of hostility to tbe busband, delivered the letters to tbe other side, wbicb sought to use them. Held, that tbe letters were privileged.</p>

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

<p>Witness — Fees.</p> <p>Plaintiff was a witness in a case under recognizance, and also at the same time a grand juror. He was paid his per diem as such juror. Held, that he was only entitled to the per diem of a witness from the time he was discharged as grand juror.</p>

<p>1. Public Lands — 'When Title Passes — Quitclaim.</p> <p>On payment of the purchase price and issue of the receiver’s final receipt, the full equitable title passes to the person who has entered the land, and this title he may convey by quitclaim prior to obtaining the patent.1</p> <p>2. Same.</p> <p>As against the grantee under an unrecorded quitclaim executed, after issue of final receipt, by one who had entered the land under a warrant, a grantee under a subsequent quitclaim executed after patent issued takes no title.</p> <p>8. Deed — Validity.</p> <p>Where a deed is regular on its face and duly recorded, the burden of proof is on the party attacking it to show facts establishing its invalidity.</p> <p>4. Same.</p> <p>The fact that, at the time the grantor in a quitclaim deed executed it and left it with ids agent for delivery, the name of the grantee and the amount of the consideration were not written in, does not Tender the deed void, where the agent had authority to fill out the blanks in a certain way and did so fill them out before the deed was delivered.</p> <p>5. Trusts — Implied..</p> <p>In Wisconsin, where money or other securities of one person are used by another to purchase property in his own name, an implied trust arises in favor of the party with whose means the purchase is made.</p> <p>6 Judgment’ — Emect os Third Parties.</p> <p>Where A. and B. are the only parties to a suit affecting the title to one of several tracts of land conveyed by a quitclaim, a judgment in that suit declaring the deed to be void is, as to C. and 1)., neither of them privies with A. or B., simply res inter alios acta, and, in a suit by C. against D. to quiet title to another of the tracts covered by the quitclaim, is neither binding as res adjudicata nor estoppel.</p> <p>7. Evidence — Ancient Peed — Conditional Admission.</p> <p>In a suit to quiet title the court intimated before the argument was closed that judgment would go for the plaintiff. The defendant thereupon moved to open the ease and to introduce parol testimony to show that, the deed under which plaintiff claimed title was in fact void. The deed in question was 80 years old, and the parties to it as well as those who were cognizant of the circumstances of its execution were dead. IleM, that it was competent, for the court to impose', as a condition of the opening, that the defendant should consent to admit in evidence testimony of those who know the facts about the execution taken in other eases and between different parties, and subjected to cross-examination therein.</p>

<p>1. Public Lands — Cutting- Timber — Homesteader’s Rights.</p> <p>While holding land under a homestead entry, the homesteader can only cut and sell the timber from such portion or parts of the land as are being cleared for cultivation or settlement.1</p> <p>2. Same — Cutting Timber — Mistaken View op Rights.</p> <p>The fact that defendant was induced, through the wrong representations of the register of the land-office, to believe in the unrestricted right of the homesteader to cut timber from his entry, does not estop the government from prosecuting him for such unlawful cutting.</p> <p>3. Same — Cutting Timber — Criminal Intent.</p> <p>• It is no defense to a prosecution for unlawful cutting of timber from public land that there was no criminal intent in the cutting.</p> <p>4. Same — Acts Relating to — Construction op, by Secretary op Interior.</p> <p>The interpretation placed upon public land acts by the secretary of the interior is not binding upon the courts.</p>

<p>Indictment for Trespass on Government Lands, cutting and removing timber.</p>

<p>Indictment for False Swearing with respect to a foreign entry of goods at the custom-house.</p>

This was a bill in equity to restrain defendant from infringing rights in the nature of a trade-mark, and to prevent unfair competition in business, and was heard upon a motion for a preliminary injunction.

<p>Team; Mark — Cohtkact foe Royalties —Bbeach:.</p> <p>By the terms of a written contract between the plaintiff and the defendant, in which it was stated that it was for the mutual interest of both parties thereto that the defendant should have the sale of certain mineral water, known as “Clysmio Water, ” taken from plaintiff’s spring of the same name, for the purpose of increasing the sale thereof, it was agreed that, in consideration of the payment of a certain royalty, the defendant should have, for a long term of years, the exclusive sale óf such waters in the United States and foreign countries. Held that, during the life of the contract, the defendant had no right to sell other mineral waters, under the same name, in competítion with the waters of plaintiff’s spring, notwithstanding the fact that ho had himself given the name to the waters before plaintiff acquired title to the spring.</p>

Bill in Equity for Infringement of Patent. Action for infringement ofletters patent No. 123,797, dated February 25, 1872, and granted to William A. Slaymaker for an improvement in school-desks.

<p>1. Patents eor Inventions — Claims in Reissue — Subcombinations.</p> <p>Subcombinations may be claimed in a reissue of letters patent, if shown in the original as performing the same function, even though claimed only as a part of a larger combination.</p> <p>2. Same.</p> <p>Where a reissue is applied for less than six months after the grant of the original patent, in which combinations are described which are found in the original patent, being merely subcombinations of the combination therein described, such reissue will not be held void simply for the absence of a showing of inadvertence or mistake.</p> <p>8. Same — Broader Claims in Reissue.</p> <p>Reissued letters patent, granted December 24, 1872, to J Hyslop, Jr., for an improvement in machines for making shoe-shanks, described an arrangement of a fixed bending-die for bending a plate to form the middle curve of the shank, and actuating devices therefor, in a machine for cutting and punching said blanks, so as to receive the blanks from said cutting devices, and bend and discharge them automatically. Reissue of April 9.1878, described, in such a machine, a plate, a convex-faced bender-plate, and a concave face, in combination. J-Ield, that the latter description, embracing fewer elements than the former, was broader'in its claims, and the reissue so far void.1</p> <p>4. Same.</p> <p>Reissued letters patent, granted to J. Hyslop, Jr., December 24, 1872, for an improvement in machines for making shoe-shanks, described bending-dies constructed and arranged to form the middle bend and the reverse bends by one and the same operation of the dies. Reissue of April 9, 1878, claimed a fixed bending-die, movable bending-die, and projections whereby the middle and reverse bends of the shoe-shank are formed. Held that, while the second claim was more specific, it described the same elements, and was not broader than the first.</p>

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

Hearing upon Writ of Habeas Corpus. Petitioner was charged before a United States commissioner with having committed an assault with a dangerous weapon with intent to kill one James Downs, on board the steamer Alaska, an American vessel, then navigating the Detroit river. Petitioner was examined, and committed, in default of bail, to await the action of the grand jury.

<p>1. ADMIRALTY — TERRITORIAL JURISDICTION — WATERS OF HUDSON RlYER — NEW York and New Jersey.</p> <p>Tiie limits oi' the jurisdiction of the federal Southern district of New York, and the district of New Jersey, over the waters of the Hudson river lying west, of Manhattan island, are coincident with the boundaries of the jurisdiction of the states of New York and New Jersey over the same waters, as settled by the agreement between New York and New Jersey, entered into September 16, 1833, and approved by congress June 28, 1834.</p> <p>2. Same — Vessel at Wharf in Jersey City.</p> <p>By that agreement New Jersey retained exclusive jurisdiction over the wharves on her shore, and over all vessels fastened to such wharves. Held, therefore, that a vessel seized by the marshal while at a wharf in Jersey City was attached in the district of New Jersey, outside of the Southern district of New York, and a suit begun in the latter district by such attachment must fail for want of jurisdiction</p>

<p>Makitime Lien — Wages op Master — Foreign Vessel.</p> <p>Tlic libelant, a United States citizen, made a contract with P., also a citizen, to actas master ol the bark J. L. P. P. was the real owner of the bark, although she was built in Quebec, carried the British flag, and was registered in the name of a British subject; and he was in possession as owner under a mortgage and irrevocable power of attorney. The libelant did not know the J. L. P. was of British register until a fortnight after the contract was made. Held, that the libelant dealt with P. as owner, and that, as between the parties, the bark was an American vessel, and that therefore libelant did not acquire a lien for wages under the British merchant shipping act of 1854, § 191, which could be enforced m ram; reversing decision of district court. See The J. L, Pendergast, 29 Fed. Rep. 127.</p>

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

<p>1. Removal of Causes — Local Pke.iudioe — Affidavit.</p> <p>The provision in section 2 of the act of 1887, (21 St. 553,) authorizing the court to examine into the truth of an affidavit for removal of a case from a state court, on account of prejudice or local influence, applies only to coses removed before the passage of said act on the application of the plaintiff; and otherwise than this, such affidavit being not a matter of jurisdiction, but only a condition imposed of the party seeking the removal, it cannot be questioned or contradicted; nor is it necessary that the affiant should state the grounds of his belief.</p> <p>2. Same — Local Prejudice — "Who Entitled to Removal.</p> <p>Subsection 8 of section 689 of the Revised Statutes, as amended by_ section 2 of tbe act of 1887, gives the right to remove a suit “in which there is a controversy between a citizen of the state in which the suit is brought and a citizen of another state, ” to “any” defendant, being such citizen of another state, on account of prejudice or local influence, without reference to the citizenship of other persons who may be parties thereto.</p> <p>8. Same — Jurisdiction.</p> <p>The judicial power of the United States extends to “controversies” between citizens of different states, which include a “case” in which such controversy exists without reference to the citizenship of the other parties therein.; and congress may confer jurisdiction of such controversy, including the case in which it is involved, on the circuit courts, by removal or otherwise.</p> <p>4. Same — Time of Application.</p> <p>An application for the removal of a case from a state court, if made while the case is pending for trial, is made “before the trial thereof,” within the intent of the removal acts, although there may have been any number of mistrials, or trials in which the verdict was set aside or the jury disagreed.</p> <p> (.Syllabus by the Court.) </p>

<p>Equity — Pleading—Supplemental Bill.</p> <p>Under tlie liberal practice in the circuit court touching applications, under the fifty-seventh rule of practice in equity, for leave to file supplemental bills, the court will not, on such an application, proceed to try the cause, and to determine questions which may more appropriately be raised by demurrer, but will grant such leave although, upon the facts set forth in the supplemental bill, there may be grave doubts as to the complainant’s right to the relief prayed for therein.</p>

<p>1. Limitation ov Actions — Estoppel to Plead Statute — Equity.</p> <p>The fact that a debtor adds a name to his real name, removes to another state, and remains in such state under his assumed name until the cause of action against him on the demand is barred by the statute of limitations, affords no ground, under the statute of limitations of California, for enjoining the debtor from setting up the statute of limitations as a bar to an action at law to recover on the demand.</p> <p>3. Same — In Equity.</p> <p>The statute of limitations of California applies to suits in equity as well as actions at law.</p> <p>3. Same.</p> <p>The statute of limitations of California provides for every exception to the running of the statute intended to be allowed, and every case wherein the time for the running of the statute is postponed beyond the time prescribed by the general provisions of the act. These exceptions are as available at law as in equity, and, the remedy at law being complete, there is no ground for equitable relief.</p> <p> (,Syllabus by the Court.) </p>

<p>At Law. On motion to strike out or make more definite certain paragraphs of the answer.</p>

<p>Suit for Infringement of Patent. Motion to vacate service.</p>

<p>1. Property — Letters—Sale.</p> <p>An advertising solicitor entered into a contract with a “specialist,” to furnish him with 60,000 letters which were in the possession of the Voltaic Belt Company, of Marshall, Michigan, that had been written to that company in response to its advertisements of the curative qualities of the instruments'and articles in which it dealt. The solicitor paid $500 to the company for such letters, and delivered them to the specialist, who agreed to pay him therefor §1,200, and did pay him §500, but refused to pay him the balance, claiming that the letters had already been used by other specialists, and were valueless. The solicitor sued to recover the imlance, llthi, that, the receiver of private letters has not such an interest therein that they can be made the subject of a sale without the writer’s consent, and that the contract in this case was void.</p> <p>2. Coktraot — Validity—Public Policy.</p> <p>A contract by an advertising solicitor to sell to a “specialist” letters written by persons afflicted with diseases, to another person who advertised articles and instruments that it was claimed would cure them, in order that such specialist might send his advertisements to them, is contrary to good morals, and void.</p>

<p>1. Insurance — Forfeiture—Waiver.</p> <p>When a policy of life insurance provides that payments of premiums should ho made on a given day or days, and that, in default of such payment at the time specified, the policy should he void, but the company issuing such policy afterwards pursues a practice of accepting premiums after the time of payment specified in the policy, without insisting upon the forfeiture, then such practice of receiving premiums overdue operates as a waiver of the right of forfeiture.</p> <p>2. Same.</p> <p>A receipt of an insurance company for an overdue premium contained the following condition: “It being understood that the receipt by this company of payments after date due is only on condition that the member is alive, and in good health, at the date of such receipts.” Held, that such receipt, even though it be for an assessment paid after it was duo, does not tend to show a waiver by the company of its right of forfeiture for non-payment of dues at maturity, except in tlie event that the assured is alive and in good health when payment is tendered.</p> <p>3. Insurance — Proof of Death — Waiver.</p> <p>Plaintiff, in an action on a policy of insurance, was under no obligations to make out formal proofs of death of her intestate after the insurance company had advised her that they did not, recognize the policy as being in force, and had refused payment on that ground.</p> <p>4. Interest — On Insurance Policy.</p> <p>In estimating damages in an action on a policy of insurance, interest may be computed on tbe face of tbe policy from tbe time it was payable.</p>

<p>Judgment — In Pavor oe Co-Deb’jbndant — Res Ad,judicata.</p> <p>In an action brought in a Missouri state court against four defendants, judgment was rendered in favor of one of them and against the others, as is permitted by Code Proc. Mo. § 3078. The latter made a motion for a new trial, and in arrest of judgment, which was overruled in the court below, but sustained on appeal on the ground of insufficient evidence. The action was subsequently dismissed in the stale court, but recommenced in the federal court against all four defendants on the same cause of action. Held, that the former judgment, as far as it related to the defendant in whose favor it was rendered, not having been appealed from, was a bar to the action against him in the federal court.</p>

<p>On Exceptions to Master’s Report.</p>

<p>1. Public Lands — Railroad Grants — Souviturn Pacific Railroad Company.</p> <p>The land grant to the Southern Pacific Railroad Company of California under the act of congress of March 8. 1871, incorporating the Texas Pacific Railroad Company, is valid; and a road having been completed from Tehach-api pass, along the lino provided for, to the Colorado river, as required by the act, the title to the lands granted has fully vested in the Southern Pacific Railroad Company of California.</p> <p>S. Same.</p> <p>The twenty-third section of said act (Í6 St. 579) grants to the Southern Pacific Railroad Company of California “the same rights, grants, and privileges as were granted to the"same company by 1.he act of July 37, 1806, incorporating the Atlantic & Pacific Railroad Company.” And those “rights, grants, and privileges” were the same, along its authorized line, as were granted to the Atlantic & Pacific Railroad Company. 14 St. 299, § 18.</p> <p>3. Same — Amending Articles of Incorporation.</p> <p>The original articles of association of the Southern Pacific Railroad Company of California did not specify, as one of the objects of the incorporation, the construction of a line of railroad from Tehaoliapi pass to the Colorado river, in the south-eastern part of the state: but, at the time of the passage of the act of congress of 1871, incorporating the Texas Pacific Railroad Company, there was in force the act of the legislature of California of March 1, 187(5, authorizing any corporation then existing, or thereafter to he formed, to amend its articles of association, by making and filing amended articles in the same office where the originals were filed; also, a statute authorizing railroad corporations to consolidate with each other. And the articles of association of said company were amended immediately after the passage of the Texas Pacific act, so as to embrace the road therein provided for in the objects of Iho corporation, and the company consolidated with other companies in pursuance of the statute. The road constructed as provided for in the Texas Pacific act, was thereafter completed in accordance with the provisions of the act. Held, that the proceedings were valid, and the road after-wards built was constructed in pursuance both of the laws of California and of the acts of congress, and that the title to the lands granted vested in the Soul hern Pacific Railroad Company of California, as it existed after the amendment of its articles of association, and its consolidation with other roads.</p> <p>4. Same — Refect of Piling Map of General Location.</p> <p>'file filing of the map of general location of the line of the road, by the Southern Pacific Railroad Company of California, in pursuance of the act of congress, inured to the benefit of the Southern Pacific Railroad Company of California, as it existed after its consolidation, and the amendment of its articles of association, as the successor in interest of the corporation, as it existed at the time of the passage of the act of congress, and of the filing of said map, even if the two corporations cannot be considered as, technically, the same corporation.</p> <p> (Syllabus by the Court.) </p>

This is an action to recover possession of certain lands situate in Tulare county. The plaintiff claims title under a congressional grant made to aid in the construction of the Southern Pacific Railroad, and a patent issued in pursuance of the grant; and the defendant claims as a pre-emptioner. The Southern Pacific ltailroad Company became duly incorporated under the general statute of the stale of California of 1801, providing for the incor-pore.

<p>Railroad Companies — Mortgage of Property — Railway Hotel — Receivers —Insurance.</p> <p>The St. Louis, Kansas City & northern Railway Company executed a mortgage to the United States Trust Company, covering the line from Pattonsburg, Missouri, to Council Bluffs, Iowa, “as said road is or may be hereafter constructed, maintained, operated, or acquired, together with all privileges, rights, franchises, real estate, right of way, depots, depotgrounds, side tracks, water-tanks, engines, cars, and other appurtenances thereto belonging. ” Subsequently the line to Council Bluffs became part of the Wabash system, being known as the “ Omaha Division. ” After the consolidation the Wabash Company purchased a lot in Stanberry, Missouri, and built a hotel thereon to afford accommodation for their employes and passengers. The title to the lot was taken in the name of a trustee, in order that the company might sell the hotel if proper arrangements could be made, and to prevent the mortgage from becoming a lien on the property. The trustee in the mortgage had no knowledge of this arrangement. The receivers of the Wabash system, who had been previously appointed, insured all the property in their hands, including the hotel, for the benefit of all parties interested therein. The hotel was leased and kept for the benefit, not only of the employes and passengers of the Wabash system, but of all persons desiring to stop thereat, until it was entirely destroyed by fire. After the fire, a receiver of the Omaha division was appointed, and the receivers of the Wabash system turned over to him said division, and the property appurtenant thereto. Held, that the hotel was to be deemed appurtenant to the railway, and that the insurance thereon was payable to the receiver of the Omaha division for the benefit of the mortgagees holding under the mortgage, and not to the receivers of the Wabash system, representing the general creditors of the Wabash, St. Louis & Pacific Railroad Company.</p>

<p>Claims against the United States — Indictment for Fraud.</p> <p>One is guilty, under section 5438,.Rev. St., wtio presents a claim which, he believes to be true and just, but which he seeks to substantiate by affidavits, certificates, or depositions of persons who to his knowledge depose or certify to material facts of which they know nothing.</p> <p> (Syllabus by the Court.) </p>

<p>Motion for Preliminary Injunction to restrain defendant from infringing the fifth, sixth, seventh, and eighth claims of reissue No. 8,291, to George Westinghouse, Jr., for improvements in pipe couplings. The motion was resisted, on the ground, among others, that certain claims, which were not embraced in the moving papers, were expanded and void, and should have been disclaimed before suit brought.</p>

<p>1. Maritime Liens — Repairs—Home Port.</p> <p>Held, that there was no lien in favor of material-men for repairs and supplies furnished in the port of Baltimore to two British steamers upon the - orders of charterers, who were owners pro hac rice, and who were well-known residents of Baltimore.</p> <p>3. Same-Pilot’s Services.</p> <p>Held, that there was a lien in favor of the pilots rendering services to the steamers on their inward and outward voyages.</p> <p> (Syllabus by the Court.) </p>

<p>1. Bills op Lading — Payment oe Dkaet — 'Transeek oe Title.</p> <p>A printed form of a bill of lading was signed in blank by the master of a canal barge before any cargo was put on board, and was tilled up by the intended shipper as for a cargo of wheat to be delivered to a merchant, who, on the faith of it, accepted and paid a draft to which it was attached. Held, that as against the vendors of the wheat, who were ignorant of theissuing of the bill of lading, it did not transfer to the acceptor of the draft the title to a cargo of wheat, which was subsequently put on board under an agreement between the vendors and the shipper that they should retain their title to the wheat until it was paid for, and under an agreement that the barge should not be allowed to proceed on her voyage until payment was made.</p> <p>2. Same.</p> <p>Held, under such a state of facts, that the vendors of the wheat,, having exercised their right to reclaim it, the holder of the antedated bill of lading could not proceed in rem against the barge for its value.</p> <p> {Syllabus by Hie Court.) </p>

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

<p>Rule to Show Cause why a mandamus should not issue to levy a tax for the payment of a judgment.</p>

<p>EvideNce — At Former Trial — Reversal and Remand on Cause.</p> <p>In an action in which a new 1rial has been ordered in a United States circuit court in New York, to recover damages for breach of a contract to purchase a quantity of iron which defendant, refused to accept because it was not of the prop.er quality, the power of the court is doubted to grant a motion of defendant to he permitted before trial to take borings from pigs of iron, the property of the firm, for which plaintiff is agent, and in his possession, and to make an analysis of said borings, to be used as evidence upon the second trial, on the ground that, as the pigs were offered in evidence on the former trial, and would be offered again, they were under the control of the court.</p>

The plain!iff has filed a bill against the city and county of San Francisco, its mayor, supervisors, and pound-keeper, to prevent any obstruction by them to the execution of a contract between him and the city and county, known as the -Dead-Animal Contract.” Avid lie applies for a provisional injunction against the municipality to restrain the passage of any resolution, order, or ordinance, which will impair the obligation of that contract.

<p>1. Payment — Confederate Money.</p> <p>A. and B. entered into a contract for the sale of land in 1856. The deferred payments under the contract, came due during the years of the civil war, and were paid by the vendee, B., to the personal representative of A. with depreciated Confederate money. Held, that as against the heirs of A. not ratifying it, such payment did not extinguish the indebtedness; the original contract contemplating payment in lawful money of the United States.</p> <p>2. Executors and Administrators — Payment of Debts Due the Estate— CONFEDERATE MONEY.</p> <p>The act of a fiduciary in accepting Confederate money in payment of debts due the estate, and investing the proceeds in bonds of the Confederate States, issued for the avowed purpose of waging- war against the United States, is wholly illegal and void.</p> <p>3. Same.</p> <p>Where the necessity of the estate requires it, a fiduciary may accept depreciated currency in payment of indebtedness to the estate; but not where it appears that the estate is not embarrassed by debt, and there is little or no need of the money for any legitimate purpose.</p> <p>4. Limitation of Actions — Suspension—War.</p> <p>In an action to enforce a deed of trust made in 1856, a recovery on one of the notes secured was barred by the statute of limitations. Jfelcl, that the period during the war should be deducted from the operation of the statute.1</p> <p>5. Same — Action to Enforce Trust Deed.</p> <p>A deed of trust can be enforced within 20 years after the maturity of the debts secured by it.</p>

Action to Recover Lands. The lands are situated within the limits of the pueblo of San Francisco, and within the corporate limits of the city under the charter of April 15, 1851. In August, 1853, E. C. Marshall filed what is called a pre-emption claim, embracing the lands, took possession, and fenced it. He afterwards conveyed undivided portions to various parties.

<p>1. GlTABDTAN AND WaKD — SUIT ON BOND — LEAVE OH' COUBT.</p> <p>Rev. St. Wis. a. 170, § 3908, provides that “in case of any breach” of a guardian’s bond, the bond “may be prosecuted in the name of the ward for-the use and benefit of such ward, or any person interested in the estate, whenever the county court shall direct. ” Held, the bond running tw the ward by name, and it being the duty of the guardian, by its terms, to settle with the ward personally, the ward', after coming of age, could maintain suit in his own name on the bond, against the sureties, without first obtaining authority to do so from the county court.</p> <p>2. Same — Suit on Bond — Limitation of. Actions.</p> <p>The death of the guardian before the ward comes of age operates to “discharge” him, within the meaning of Rev. St. Wis. c. 170, § 3968, providing that “no action shall be maintained against the sureties on any bond given by a guardian, unless it be commenced within four years from the time when the guardian shall have been discharged and the special limitation in that section in favor of the sureties begins to run from the date of the death.</p> <p> 3. Same. </p> <p>The guardian was appointed in 1866, and died in 1875; his estate being closed in 1888. An accounting was had in 1874, which disclosed a balance in favor of the ward. This balance was proved against the estate, and allowed by the probate court in 1876, but it was never paid in full. Held, that a suit against surety on the bond, commenced in 1886, to recover the balance, was barred by the four-years limitation of Rev. St. Wis. c. 170, § 3968; the guardian “having been discharged,” at the latest, by the proof and allowance of the claim against his estate in 1876.</p> <p>4. Same.</p> <p>Rev. St. Wis. e. 170, § 3968, provides that “no action shall be maintained against the sureties on any bond given by a guardian unless it be commenced within four years from the time when the guardian shall have been discharged.” Held, that the bond being statutory, and the limitation a special one for the benefit of the sureties as contradistinguished from the guardian, the limitation entered into and formed a part of the sureties’ contract.</p> <p>5. Limitation of Actions — Confmot of Laws — Action on (tUabdian’s Bond.</p> <p>Under Code Iowa, § 2534, providing that, “whenever any cause of action has been fully barred by the laws of any country where the defendant has previously resided, such bar shall be the same defense here as though it had arisen under the provisions of this chapter, ” the fact that the surety on a guardian’s bond in Wisconsin removed from that state into Iowa does not prevent him from setting up the Wisconsin statute of limitations as a defense to a suit in Iowa on the bond, where at the time he left Wisconsin the bar of that statute had already fallen.</p>

<p>1. Attorney and Client — Compensation of Attorney — Compensation of Masters and Counsel.</p> <p>Counsel are entitled for their services to what those services could have been obtained for under a contract made in advance.</p> <p>2. Equity — Compensation of Master.</p> <p>The compensation of masters, whos.e functions are judicial, may be measured by the standard of judicial salaries.</p>

This is an application by Morgan’s Louisiana & Texas Railroad & Steam-Ship Company, complainant in the original suit, and defendant in the cross-suit, for a rehearing in respect to matters embraced in an order or decree, made herein, June 11, 1887, upon certain petitions of the Farmers’ Loan & Trust Company. The Farmers’ Loan & Trust Company also makes application for a resettlement of that order.

<p>1. Conspiracy — To Defraud Government — Public Lands.</p> <p>Section 5440, Rev. St., is not limited in its operation to conspiracies to defraud tlie United States of its “revenue,” tout applies to all conspiracies to deprive the United States of any property or dues toy means of misrepresentation or concealment of material facts.</p> <p>2. Limitation oe Actions — Prosecution eor Conspiracy.</p> <p>Tlie crime defined in section 5440, Rev. St., is composed of ttoe conspiracy, and an act done in pursuance thereof; and as soon as the one is formed, and the other committed, the crime is consummated, and the statute of limitations begins to run against a prosecution therefor; and in three years thereafter the bar is complete.</p> <p> (Syllabus by the Court.) </p>

<p>Elections — Offenses ag-ainst Election Laws — Rev. St. U. S. § 5515.</p> <p>Rev. St. Ind. 1881. §§ 4713, 4713, require that an inspector of elections, who receives the certificate, tally-sheet, and poll-list of an election, shall safely keep them in his custody until they are delivered to the hoard of canvassers. Held that, at an election in which a representative in congress was voted for, the violation of the duty of keeping such papers safely was an offense against the general government, under Rev. St. U. S. § 5515, providing for the punishment of officers of an election at which a representative in congress is voted for, who neglect or refuse to perform any duty in regard to such election required of them by any law of the United States, or of any state; and under Rev. St. U. S. §_§ 5511, 5513, and 5530, any one aiding, abetting, or conspiring to effect such violation is equally guilty with the principal.</p>

<p>Patents for Intentions — License—Annulment in Equity.</p> <p>A court of equity will not annul a license to make a patented article where the only material allegation is that the licensee failed to make a report of his manufactures or sales, and pay the royalty. The licensor has an ample remedy at law, and equity will not interfere.</p>

<p>1. Patents por Inventions — Infringement—Injunction—Mobification.</p> <p>The defendants, who had been enjoined from using and manufacturing a certain invention, applied for a modification of the order, that they might be permitted to give bond, and continue the use of the invention, and fill their contracts. Held, that the giving- of the bond would not be an adequate protection to complainants’ rights, and the motion was denied.</p> <p>2. Same.</p> <p>One who was enjoined from using a patent sought for a modification of the injunction, so that by giving bond he might be permitted to continue the use of the invention, and assigned, as reason therefor, the erection of expensive works for its manufacture. JIM, that a court of equity cannot come to the relief of such person when it appears that the works were erected subsequent to a notice of infringement.</p> <p>3. Same — Infringement—Injunction—Expiration of Patent.</p> <p>Upon motion of defendants in an action for infringement, the court was asked to limit the life of the injunction to a day when it was alleged the patent would expire. Held, that the time of such expiration being a point already in litigation, the question would more properly he brought up on motion to dissolve when such time should arrive.</p> <p>4. Same — Infringement—Expiration op Patent — Injunction—Restraint op Publication.</p> <p>In an action for infringement the defendants asked (hat complainants he restrained from publishing to the world the fact of the granting- and issuance of an injunction restraining them from manufacturing and selling such patent. Udd, that the court, had no such authority.</p>

<p>1. Patents pop Inventions — Bake Pans — ííoveity—Anticipation.</p> <p>In letters patent 5io. 110,619. of July 8. 1878, to John B. Firtli, for an improvement in balce-pans, the improvement is the uniting of a cluster of such pans to a plate, having an aperture for each pan, by a double-seam joint formed from the rim of 1he cup turned outward, and the edge of the plate about the aperture turned upward, on the upper side of the plate lie,Id, the double seam joint, being- peculiarly adapted to usefulness for the purposes intended by the patent, was, although not a now thing, now in this place, and that a wash-boiler having a bottom with two or four pits joined in the same maimer was not so similar as to defeat the patent, under ihe principles laid down in llailroad Co. v. Truck Co., 110 U. ¡8. 490, 4 Blip. Ot. Rep. 220.</p> <p>2. ’Equity — Mastpji in Chancejiy- -Testimony bhkoue.</p> <p>Rules of practice in equity, lío. 80, provides that “all affidavits, depositions, and documents, which have been previously made, read, or used in the court, upon any proceeding in any cause or matt er, may be used before the master. ” Held, that testimony- taken by the examiner for the hearing in chic f. under a decree against an infringer for ail accounting', which was not brought before the master in making up the case on the accounting so that it could be answered or explained on the other side, hut was merely referred to in argument, and requests for findings upon the case made, was not within rule 80, and an ex ception to the master’s report for failing to find upon the point made by this testimony should be overruled.</p> <p>8. Patents voii In vjontions — Ineiwngeaiknt— Accounting — “ Puoeits. ”</p> <p>On an accounting there was testimony tending to show that the patented article could be made much cheaper than those in use before’; but it was not shown that the infringing defendant was under any obligation to make the old articles if the patented ones had not been made, or would have done so, nor was there anything else from which it was made to appear that the saving was a profit because it diminished a loss. If del, that the amount so saved was not “profits” for which the infringer was accountable to the patentee.</p> <p>4. Same.</p> <p>The fact that the defendant sold to persons, not customers of the licensee, infringing articles, does not by itself raise a presumption that such sales were lost to the licensee; and where the license is exclusive, and the licensee has fixed no market price, and he is not a party to the accounting', there can be no recovery- by the patentee for such sales.</p> <p>6. Same.</p> <p>The power vested in the court by Rev. St. U. S. §§ 4919, 4921, with respect to the increase of an award of damages to a patentee for infringement, is not to be understood as authorizing an award of damages without satisfactory proof.</p>

<p>In Equity. On appeal from clerk’s taxation of costs.</p>

<p>1. Admiralty Practice — Rules 15, 59 — Proceedings in Rem — In Personam— When Joined.</p> <p>Under the fifty-ninth admiralty rule, the owner of a vessel which has been libeled in rent, for collision, may, by petition, bring into the suit, by process in personam, any other parties, who aro not owners of the vessel libeled, alleged to be liable for the same collision. Rule 15. by implication, prohibits only the joinder in a collision cause of a vessel and Tier owners as co defendants."</p> <p>2. Case Stated — Vessels Stink — 'Wharfinger—Co-Defendant.</p> <p>Where the libelant’s vessel, in landing at a wharf, ran upon two vessels recently sunk, which he libeled for the collision, and the claimants of the vessel sued brought in the wharfinger as co-defendant, by petition under the fifty-ninth rule, alleging that he caused the vessels to be sunk by negligently mooring, and leaving them unprotected," andgivingno notice of the danger. held, that the ease was within the general scope of the fifty-ninth rule, and was not forbidden by the fifteenth rule, and a motion to "set aside the process and service was denied.</p>

<p>1. Collision — Vessels in Tow — Responsibility of Tow — Joinder—In Rem and in Personam.</p> <p>A largo vessel in tow, and in charge of her own master and crew, who participate in and in part control the navigation, is jointly liable with the tug for a collision caused by navigating in violation of the state statute, when no protest is made by the master, nor any timely effort to correct the fault. In the absence of one of the vessels, the owners may be joined under rule 59 as defendants along with the other vessel in rein.</p> <p>2. Same — East River Navigation.</p> <p>Vessels navigating the East river must go in mid-stream, or as near thereto as may be, as required by tho statute of the state of New York.</p> <p>8. Same — Two Tows — Cross-Tide—Careless Navigation.</p> <p>The schooner Flint was going up the East river with the flood-tide, in tow of the tug Stevens, some 400 or 500 feet from the New York shore, and had reached a point opposite Corlear’s Hook. The bark Doris Eckhoff, coming down the river in tow of tho tug Carter, was in the eddy tide above the Hook, and about 100 or 200 feet from tho shore. At this point in the river the flood-tide takes a strong set towards tho Brooklyn shore. When about 400 yards apart the tugs had signaled once to each other, with intent to pass port to port, but tbe cross-tide carried tho bark to port, and she rail into and sank the schooner. Held, (1) that both tugs were in fault for disregard of the state statute requiring vessels in the East river to go “in mid-stream, or as near thereto as may bo;” that they were also in fault in not exchanging- signals earlier, and in attempting to pass so close to each other in that part of tho river; (2) that the bark in starboarding as she was running into the true tide, was faulty in her navigation, and was not exercising that caro and skill which were known to be necessary at that point, and which if observed, would have avoided this collision; (3) that the schooner, whose master and crew were on board, participating in her navigation, and which received the injury while proceeding in a part of the river forbidden bylaw, should for that reason bear a pari of the loss.</p>

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

<p>Partnership— Contracts with — Dissolution—Liability of Retiring Partner.</p> <p>A commission firm in St. Louis, composed of four members, was accustomed to send “price-currents” to all shippers who had ever had dealings with it. The caption of these gave the firm name as well as the names of the individual partners. The plaintiff, who lived in Kansas, and who had made a shipment of wool in June, 1882, received these lists prior and subsequent to that date, during the season of that year, and the following seasons of 1883-84, and in June, 1885, on the fifth day of which month he made his second and last consignment. One of the partners retired from the firm in February, 1882; anotherthe following .November; and the third about a year later. The business, however, was continued under the old name, with their consent. After November, 1883, the lists sent the plaintiff no longer showed the individual names, but in all other respects were the same. The partnership was formally dissolved July 1, 1884, and on that date notices were published for three successive days in the local papers and circulars mailed to correspondents. The plaintiff did not receive a copy of the circular, norhad he any knowledge of any change in the firm when he made the shipment of June 5, 1885. Held,that the plaintiff was entitled to notice of the several changes in the firm; and having made the shipment in good faith and on the credit of the firm, he was entitled to a recovery against all the members for the conversion of the proceeds of its sale.</p>

<p>1. Railroad Companies — Receiver — Priority or Claims — Contract with Road.</p> <p>A railroad company promised tbe owner of a saw-mill near one of its sand-switches, which was not used for receiving freight, but only to get sand for track repairing, that it would take up lumber for him at that point in certain quantities. A month later the road notified the mill owner that it would refuse to receive any more lumber at the switch. The road subsequently passed into the hands of receivers. Held that, assuming the contract to be one that the company could not terminate at its pleasure, the claim for damages for its breach was not one entitling the mill owner to an allowance against the property in the hands of the receiver, or out of the earnings of the road, in preference to the mortgage bondholders.</p> <p>3. Same — Liability oe — Bridging Streams — Damage to Loos.</p> <p>The grant of power to a railroad company to bridge a navigable stream carries with it, as a necessary incident, the right to repair; and when the piling necessary to such repair is driven in an ordinarily skillful manner, loss resulting therefrom to a person who uses the stream to raft logs is dwnonwm absque injuria.</p> <p>3. Same.</p> <p>The defendant railroad company finished repairs to its bridge across a navigable stream in the winter of 1884 and 1885 after the ice had formed on the river. The piles used in the work were cut off at the surface of the ice, and when the ice sunk later with the falling river, the stumps were cut again, so that when the ice went out the tops of the piles were from 18 to 30 inches below the surface of the water. The plaintiff rafted logs from the opening of the season down to July, when the stream became so low that it would not have been navigable even if the stumps had been removed. Yield, that the piling had been properly removed, and that the company was not liable in damages for any loss which occurred while the river was susceptible of navigation."</p>

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

<p>In Equity. On motion for writ of mandamus, and motion to dismiss appeal.</p>

<p>Elections'— SurnavisoKS — Compensation.</p> <p>Held, that a supervisor of election, duly appointed under sections SOU and 2012, who had attended the registration of voters for 18 days, as required by section 2016, was entitled to the maximum pay of §5 a day for not exceeding 10 daysj fixed by section 2031, notwithstanding a notice afterwards issued by the attorney general that the supervisors would be expected to perform their work within 5 days, and would be paid for only 5 days’ service.</p> <p> (Syllabus by the Court.) </p>

<p>These three eases were suits against a collector of customs for the recovery of duties paid in excess. Defendant appeared by attorney on August 17, 1887. Plaintiffs procured from defendant’s attorney extensions of time to serve their complaints, which were served on September 80, 1887. The bills of particulars were annexed to the copies of the complaints so served. Defendant, moved for judgments of nonpros., under section 3012, Rev. St. ~</p>

<p>1. Set-Ore and Counter-Claim — Partnership Accounting — Bankrupt Part-neh.</p> <p>A solvent firm of wliieli a bankrupt is a member may set olí against a debt due the bankrupt a debt due by the bankrupt to the firm.</p> <p>2. Partnership — Accounting—Bankrupt Partner — Fraud op.</p> <p>Where a member of a firm obtained indorsements from another member of the firm, of certain negotiable paper, upon a representation that he was to use such paper for the benefit of the firm, but in fact used it for his individual purposes, and afterwards became bankrupt, the firm remaining solvent, the amount so obtained by the bankrupt is a proper charge against him, and in favor of the firm.</p> <p>8. Same — Accounting—Bankrupt Partner — Advances to.</p> <p>In an action brought by the assignees of a person who is a bankrupt individually, but a member of a solvent firm, against the other member of the firm, for an accounting, the defendant may properly claim to his credit amounts advanced by him individually to such "bankrupt.</p> <p>4. Costs — Partnership—Accounting.</p> <p>Costs in such action, like other equitable actions, may be awarded to the successful party.</p>

<p>Action to Recover Excess of Duties paid under protest. - On motion to amend bill of particulars.</p>

<p>On Habeas Corpus.</p>

<p>Patents fob Inventions — Letters Patent No. 298,879 — Novelty—Combination of Old Devices.</p> <p>Loiters patent No. 298,879 were granted t,o Gordon Monroe, May 20, 1881, for “Box Covering and Trimming Machine. ” The blaims in the patent were for a new and useful combination of old devices. Held, that the combination possessed patentable novelty, and the patent was valid.</p>

<p>1. Patents for Inventions — Waxing Paper — Hammerschlag and Steniiottsb Inventions.</p> <p>The fifth claim of reissued letters patent No. 8,460, October 22,1878, to Siegfried Hammerschlag is for a “method * * * of waxing paper, consisting in spreading the wax upon the surface, heating the paper from the opposite side to spread and fuse the wax into the fabric of the paper, removing the surplus wax, and remelting and polishing the wax upon the paper. * » The paper is passed over and in contact with a heated revolving cylinder, partly submerged in a vat of melted paraffine, then over a scraper, and lastly over 'a polishing roller. A scraper is also applied to the cylinder, between the wax-trough and the place of contact with the paper. In the Stenhouse English patents granted in 1862, and the American patent No. 97,983, to Cheney and Milliken, assignees of Stenhouse, December 14, 1869, one method of coating or impregnating fabrics with paraffine, to render them less liable to decay, and less pervious to air and liquids, was by passing them over one or more hot metallic rollers, working in a bath of paraffine; the amount of paraffine applied to the rollers being regulated by a gauger or knife or brush, and the incorporation of the paraffine into the fabric being effected by hot rollers, which also removed any excess of paraffine. Another method was to stretch the fabric on a heated metallic surface, and rub over it a flat block of paraffine, then compressing by a hot flat-iron or hot rollers. Held, that the Stenhouse invention was no anticipation of the Hammerschlag invention; following Hammerschlag v. Scamoni, 7 Fed. Rep. 584.</p> <p>2. SAME — INFRINGEMENT.</p> <p>In defendant's machine the paper is passed from the supply reel under a heated pipe submerged in paraffine, then up between two cylinders or squeeze-rollers located over the vatof paraffine; the process of waxing paper being by heat, pressure, and friction, substantially as in plaintiff’s process. Held an infringement of the fifth claim of plaintiff’s patent.</p> <p>3. Same — Process or Art.</p> <p>The plaintiff’s patent being for a process or an art, it is not limited to the particular means described in the patent for carrying out the process.</p>

<p>Patents rob Inventions — Improvement in Cloaks — Invention.</p> <p>In letters patent No. 296,021, of April 1, 1884, to Jacob Lamlesmann, for an improvement in that class of ladies’ cloaks known as “Russian Circulars, ” the improvement consists in extending the inner front parts t.o the back seams, making a close fitting waist, and leaving the outer part loose and flowing. Held, that the improvement was not patentable, neither the tight-fitting garment nor the outside part being new, and the ordinary skill of those practicing the art of cloak-making being adequate to put the two together.</p>

Bill in Equity by the United States, by direction of the solicitor general acting as attorney general against the American Bell Telephone Company and Alexander Graham Bell, to cancel letters patent of the United States No. 174,465, dated March 7, 1876, and No. 186,787, dated January 30, 1877, granted to Alexander Graham Bell, relating to the art of transmitting speech by electricity, on the ground that they were obtained by fraud.

Bill or information to repeal reissued letters patent No. 2,597, dated May 7, 1867, and No. 2,979, dated June 9,1868, granted on surrender of originalletters patent issued April 22, 1856, to Eben N. Horsford, for á new and improved preparation or substance, being a substitute for a pulverulent acid for use in the manufacture of dry powders when a dry acid is required, and afterwards assigned to the Rumford Chemical Works.

This was an action to repeal letters patent. The case first came up on motion for a preliminary injunction, which was refused. 21 Fed. Rep. 318. Hearing on the demurrer to the bill for want of power in the court, and failure of the bill to state a case calling for relief in equity.

<p>In Equity. On counter-motions, the one for preliminary injunction, and the other to dismiss bill for want of jurisdiction.</p>

<p>1. Patents nob. Inventions — Iottiingement—Damages—License Pee.</p> <p>Defendant used, without license, plaintiffs patent. The referee found that while plaintiff had an established license fee, he was accustomed to vary it., and had authorized an agent to settle for infringements at a rate that would net the patentee one-half of the established license fee. This latter rate the referee decided was a fair measure of damages. Held, that the finding of the referee was conclusive.</p> <p>2. Interest — Allowance as Damages.</p> <p>Although damages do not carry interest as such, interest may be allowed gs part of the damages by the trier of fact, it being only a mode of stating the amount found.</p>

Oil Motion for Xew Trial. Tins was an action of trespass on the caso, for the infringement of a patented improvement in the construction of prisons. The patent having expired, the case was begun at law, tried by a jury-, and a verdict ‘rendered for the plaintiff in the sum of §1,500. Defendant thereupon moved for a new trial, upon the grounds stated in the opinion.

<p>1. Maritime Limit — Sale of Vessel dy Master — Transfer of Limn to Proceeds — Discharge op Vessel.</p> <p>It is well settled that, if a sale by the master is warranted by the existing circumstances of the ship, and is made bona fide, any prior lien upon her is transferred to the proceeds only, and the vessel cannot be held liable in the hands of a purchaser.</p> <p>2. Same — Sale of Wrecked Vessel — Allegations of Fraud — Opinion of Jíxperts as to Advisability of Sale.</p> <p>Where the steam-ship li. was driven ashore, and filled wiíh water and running ice, and the testimony indicated that she was regarded as a total wreck, not only by the master, but by agents and surveyors of the underwriters and others, anil in that condition she was sold by the master, held, that the circumstances did not establish fraud in the sale; and that the vessel, as after-wards repaired, was not liable for supplies furnished prior to the accident.</p> <p>3. Same — Agent of Vessel — Advances—Presumption as to Lien.</p> <p>A ship’s husband, or her general agent, presumptively has no lien for advances made to discharge the obligations of the vessel.</p> <p>4. Same — Kvidknch of Agreement for.</p> <p>M. & Co. were general agents of the steam-ship K., though they had not exclusive control of her. An action was brought by them against the vessel to recover advances made to her. There was no proof of any agreement that they should have a lien on the vessel, or any circumstances indicating- an hy-pothecation of the ship in their favor. Held, on. the evidence, that they had no lien, and could not recover.</p>

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

<p>Maritime Limns — OiiRONOMK'rjiJi—Foreign Him’.</p> <p>A ship's chronometer is one of the necessities of the vessel. When, therefore, a foreign ship is supplied with a chronometer upon the credit of the vessel, and by direction of the master, a maritime lieu on the ship is created for the value of the chronometer.</p>

<p>In Admiralty. Sur exceptions to libel.</p>

In Admiralty. Sur exceptions to the report of the commissioner appointed to distribute the fund in the registry of the court from the sale of said vessel.

<p>Damage to Cargo — Burden of Proof — Shipping.</p> <p>In an action for damage t.o cargo, where claimant proved a bard voyage of .the vessel, and that the casks which contained the cargo damaged were weak, and libelant offered evidence that the casks were good, but gave no proof of their bad stowage, helé, that the burden was on the libelant to show that the cargo was badly stowed, and, this burden not being sustained, libelant could not recover.</p>

In Equity. Removal of causo. On motion to remand. August 27,1880, .James A. Findley, as administrator of the estate of Elizabeth Findley, brought an action of ejectment in Ilall superior court against James Weaver, tenant in possession, to recover a certain lot of land in Hall comity. Weaver was in possession as an employe of the Atlanta & Charlotte Air Line Railway Company, a Georgia corporation.

<p>Removal of Causes — Decision of State Court — Review by Circuit Court.</p> <p>Where, on application by a defendant in a suit in a state court to remove the cause to the United States circuit court, the state court, being of competent jurisdiction, has decided that on the face of the record the defendant is not entitled to such removal, he will not be permitted to contend for a contrary decision of the same point in the circuit court, upon a motion by plain-tif£ to remand the cause as not being removable.</p>

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

William L. Ellis, as assignee of certain policies of insurance, brought suit against the Insurance Company of North America to recover for the loss by fire of a stock of goods and building under four policies issued by the said company, to E. R. Ellis & Co., a firm composed of E. R. Ellis alone. The first policy was issued June 10, 1881, insuring a stock of merchandise for $500. The second policy on said stock was for $500, and dated October 10,1881.

<p>Judgment — Res Adjudicata — Validity oe Bonds.</p> <p>Tbe petition in a suit upon a “railroad aid bond” issued by a city set out a copy of tlie bond, from which, tlie purpose of tbe issue, viz., tbe building of macbine-sbops, appeared, and in which there was a reference to tbe statute under which the city took its action. The answer set up a special defense of change in municipal organization. There was a verdict for the plaintiff, and the defendant, a new trial having been refused, moved in arrest of judgment on the ground that “the averments of the petition and the recitals in the bond * * * showed that the bond was issued without authority of law. ” This motion was overruled, and a rehearing applied for, a brief being presented taking the same position, viz., that the use was not a public one. The rehearing was refused, but in his opinion the judge discussed the defense raised by the answer only, and concluded as follows: “This being the only matter set out in the plea," etc. Held, in a subsequent action between the same parties, on other bonds of the same issue, that the question as to the validity of the bonds, because of the purpose for which they were issued, was res adjudícala.</p>

<p>This was an action to recover excess of duties on importations of mom-selines de laine. It was conceded that the amounts paid on all the 83 separate importations were excessive, but defendant claimed that plaintiff had failed to show that he paid the excessive duties, to get possession of his goods, or that he protested at the time, and in the form-required by the act of February 26, 1845, (5 St. 727.)</p>

Action to Recover Excess of Duties Paid under Protest. On cross-motion, the one for bill of particulars, and the other for production of custom-house papers under Rev. St. U. S. § 724.

<p>Pleading — Mtjltieamousness—Fraudulent Conveyances.</p> <p>In a suit brought by an assignee of a bankrupt against several parties, the complaint alleged facts showing that they were all connected with fraudulent undertakings for the purpose of preventing the bankrupt's property from reaching the assignee’s control, but showing also that the defendants were not all connected with each fraudulent act, but that some of them performed one act, and some another, all tending to the same result. Held, upon demurrer on.the ground of multifariousness that the complaint was good as the defendants joined in the common fraudulent purpose.</p>

<p>1. Criminal Practice — Instructions—Province of Court.</p> <p>Defendant was indicted for contempt of court and corruptly obstructing the administration of justice as a juror. On the trial counsel for accused stated that this was “the first case of the kind. ” The court told the jury it was not the first of the kind, and that a similar case had arisen, and gave the general facts of it. Held, that it was not error for the court to thus disabuse the minds of the jury of an impression that they were trying an unprecedented case.</p> <p>2. Same.</p> <p>The court further said: “And he (defendant) went out and took counsel of * ,* * with respect to it (the verdict.) His choice of an adviser was rather unfortunate; that a man should go to a boon companion in a drinking-saloon, a bar-room loafer, to ask what the law is on a subject of that kind. ” Held, that this was not error, as the judge’s reference to the witness as a “bar-room loafer” might have been justified by his appearance, and the other facts referred to appeared in the record.</p> <p>8. WITNESS — CREDIBILITY— INSTRUCTIONS.</p> <p>In a criminal action, where witnesses had testified as to defendant’s good character, the trial judge charged: “And if you believe him guilty, lot not the fact that bankers and business men have testified that ho is a man of integrity, by which they mean, probably, that he pays his debts, influence your verdict, or discourage you in the discharge of your-duty. ” iteld, that this was a correct statement of law, and though it was a “covert fling” at the witnesses’ eriterions of character, it was not error.</p>

<p>Patents eor Inventions — Issue ov Letters — Joint Invention.</p> <p>Whore the evidence showed that patent No. 140,315, Juno 24,1873, of an apple paring and coring machine was issued to two patentees jointly, but that the whole machine was made up of about 12 different claims for a patent, and that one of those was invented by one of the patentees alone, a joint patent, on such claim and part of the machine is invalid.</p>

<p>1. Patents tor Invention's — -Anticipation—Wash-Boards.</p> <p>A patent of a wash-board known as the “George” patent, numbered 187,842, and issued February 27, J877, consisted of a frame of the usual shape for wash-boards and made with a corrugated zinc rubbing surface constructed of a single heavy sheet of zinc with the lower edge wrapped tube-shape, about a supporting-rod. ITeld, to possess no patentable novelty over the “Heath Wash Board” patent No. 168,252, issued September 28, 1875, which was very nearly like the former, only made with two overlapping zinc plates instead of one; and as the evidence did not clearly show an invention by George prior to that by Heath, the former’s patent is invalid.</p> <p>2. Practice in Civil Cases — ■Reiiearingt-Cüm'ülative Evidence.</p> <p>A motion to reopen a hearing for the admission of testimony which is merely cumulative will not be granted.</p>

Action in equity to enjoin the infringement of letters patent No. 141,-580, to the complainant Louis Meyers, issued on the fifth day of August, A. D. 1878, for “a glove-fastener.” The claim is as follows: “I claim as my invention, and desire to secure by letters patent, the glove fastener, consisting of a cord, B, which is fastened with both ends to one flap of the glove, and drawn through holes in the other flap, to operate in combination with the button or holder, E, as…

<p>Pilots — Negligence — Swash Channel — Ship Touching Bottom: — Ice in Main Channel.</p> <p>Libelant, a pilot, took a sbip to sea through the Swash Channel. On the passage she touched bottom, and damaged her keel, and in this action by the pilot for his pilotage fees the vessel set up the said damage, and alleged it to have been caused by the pilot’s negligence. The evidence showed that the vessel was in the channel, the depth of water in which exceeded her draught, when she encountered a heavy and unusual wave, which lifted her, and caused her to strike; that the reason of her not taking the main channel was the presence in the latter of ice; and that libelant, before starting, had been warned by the owner not to take the ship through ice. Held, that no negligence on the part of the pilot was shown, and that he was entitled to his pilot-'age fees.</p>

<p>1. Removal or Causes — Citizenship—Act op March 3, 1887.</p> <p>Act oí congress of March. 3, 1887, § 1, provides that the circuit courts of the United States shall have jurisdiction of civil causes between citizens of different states, and that, when the jurisdiction is founded only on diverse citizenship, the suit may be brought in the district where either the plaintiff ra-the defendant resides. Id. § 2, provides that civil suits of which the circuit court has jurisdiction, and which are brought in the State courts, may be removed to the circuit courts by the defendant if a non-resident' of the state. An action was brought in the district court of Dubuque county, Iowa, the amount involved being over $2,000. The plaintiff was a citizen of Iowa, and the defendant of "Wisconsin. On the application of the defendant the cause was removed to the circuit court of the United States. Held, that the removal was authorized by the statute, the defendant not being a resident of Iowa, and the cause could not now be remanded to the state courts.</p> <p>2. Same — Citizenship— Corporations.</p> <p>Corporations are citizens and residents of the state under the laws of which they were created, and they cannot, by engaging in business in another state, acquire a residence there.</p> <p>8. Same — Place op Bringing Suit — Act op March 3, 1887.</p> <p>The provisions of act of congress of March 3, 1887, § 1, regarding the place of bringing suit by original process in the circuit courts of the United States, do not apply in determining the question of jurisdiction on an application for removal of causes from the state courts.</p>

<p>Public Lauds — Issuance op Pateut — Certificates op Purchase.</p> <p>Plaintiff, in ejectment, relied upon a certificate of purchase for the land in controversy, regularly issued by the state of California. Defendant relied upon a patent from the same source, also in due form. Held, that under Pol. Code Cal. § 3556, before due foreclosure, the land-office could not issue a patent for land for which a certificate had been regularly issued.</p>

<p>1. Withers — Fees—Deputy-Clerk.</p> <p>A deputy-clerk is an officer of court, and is not entitled to per diem and mileage when used as a witness for the government in a case tried in the court in which ho is officiating.</p> <p>2. ¡Saw, — Marshal's Clerks.</p> <p>The clerks employed by the marshal in his office, keeping his accounts, are not officers of court, and are entitled to fees and mileage, if used as witnesses for the government.</p> <p>3. Same — Deputy-Marshal.</p> <p>A deputy-marshal is an officer of the court,, but, unless he be actually engaged in waiting upon the court, he is entitled to per diem and mileage if he be summoned as a witness for the government.</p> <p> (Syllabus by the Court.) </p>

<p>1. Costs — Docket Fee.</p> <p>In a law case, where there is a final trial before a jury, the attorney’s docket fee of $20 allowed by Rev St. U S. §§ 828, 824, is always to be taxed; and it is for the court to determine who is the prevailing party.</p> <p>2. Same.</p> <p>The plaintiff in replevin recovered four-fifths of the property claimed. The verdict was set aside, and a new trial ordered, which resulted in a judgment that the plaintiff retain seven-eighths of the property replevied, and that he "return to the defendant the remaining eighth. Held, that the plaintiff was the prevailing party, and that his counsel was entitled for each trial to the docket fee of $20 allowed by Rev. St. U. S. §§ 828, 824.</p>

On the twenty-seventh of September, 1886, the intervenor filed his petition in the above-entitled cause, claiming damages against the.receivers for the burning of hay, fencing, and injury to meadow land, alleged to have been caused on the thirteenth day of August, 1886, by the negligent operation on the part of the receivers of the locomotive attached to freight train No. 22.

<p>In Equity. On plea of statute of limitations.</p>

Indictment under Rev. St. U. S. § 3893. At the July special term, 1887, the defendant, Elmina D. Slenker, was indicted under Rev. St. U. S. § 3893, (2d Ed. 1878) in the district court of the United States for the Western district of Virginia. The indictment contained two counts, which were in these words (omitting formal parts,) viz.: First Count.

This was an action for infringement of letters patent, No. 298,425, to John E. Stannard, for a machine for creasing paper.

<p>1. Pathnts for Inventions — Ltcensm—Kxtent of.</p> <p>A defendant, in an action for the infringement of a patent pleaded a license to make 100 of the patented machines. The evidence showed that he had made 125. Held, that he was not protected by the license as to the excess over 100, although the patentee had delayed the defendant, and prevented his making the 100 according to his contract, and caused him damage thereby.</p> <p>2. Same — AsSTGNMENT—FUTUIiM IHI’BOvements.</p> <p>Where a patentee assigned his patent for $12,000, “together with all the improvements 1 may hereafter make, without further cost,” the assignee is entitled to make and sell the original inventions as improved after his assignment.</p> <p>3. Same — Assignment—Kights of Assignee.</p> <p>An assignee of a patent, whose assignment is properly recorded, is protected as to all of his rights thereunder, as against a subsequent assignee ol' the pat-entee.</p> <p>4. Same — ínithngement—Action by Part Owner.</p> <p>A part owner of a patent cannot maintain an action for infringement against another part owner.</p> <p>5. Same — Improvement—What Constitutes.</p> <p>The patent No. 276,994, issued to Lewis A. Aspinwall, May 8, 1883, of a potato planter, was merely an improvement of patent No. 235,401, issued to the same inventor, December 14, 1880, and was not for a separate and different machine, as the difference in the two machines consisted simply in making the barbs which speared the potatoes, and carried them to the dropping place, straight, instead of hooked, and thus facilitating the action of the device.</p>

<p>On Bill in Equity. On digger patents.</p>

In Admiralty. The libelants, Hanson & Linchan, of Dubuque, Iowa, claim a maritime lien against the Glenmont for stores, fuel, tiller-line, check-line, copper wire, packing for machinery, pails for roof, beds, and bedding, etc., furnished to enable the vessel to perform her intended voyage. The boat was built at Dubuque, and was finished on April 23,1885, by the outfitting above stated, and -on that day started on her first trip to Stillwater, in the state of Minnesota.

<p>In Equity. On plea to jurisdiction.</p>

<p>Removal op Causes — Practice after Removal.</p> <p>An action was begun in New York by complaint, and removed, 14 days after service of the complaint, into the United States circuit court, by the defendant, where it was filed. Nineteen days after the filing, a demurrer was served, which was refused on the ground that it came too late, ivhere-upon a motion was made to compel plaintiff to accept it. Held, under the removal statutes, providing “that after the removal the cause shall then proceed in the same manner as if originally commenced in the said circuit court," the time for answering or demurring had expired; but the motion would be considered as an application to open a default, and would be granted.</p>

<p>1. Removal of Causes —Act of March 8, 1887 — Repeal of Former Rights.</p> <p>Defendant pleaded to a declaration in February, 1887, and in May filed bis petition for removal into a federal court. Tbe act of congress of March 8, 1887, in reference to tbe jurisdiction of tbe circuit courts of the United States, repealed tbe act of 1875, under which this case was, at that time, removable, and provided that petitions for removal must be filed at tbe time of pleading. Held, that the case must bo remanded.</p> <p>2. Same — Jurisdiction—Power of Congress.</p> <p>Tbe jurisdiction of the federal courts in cases between citizens of different states arises primarily under the constitution of tbe United States, but this jurisdiction is conferred by grant from congress, which may grant or withhold jurisdiction over removal cases.</p> <p>8. Same.</p> <p>The right of a citizen to remove a case into a federal court is not a vested right of property. The rules of statutory construction when vested rights are concerned do not apply when the jurisdiction of a federal court to entertain a removal case has been cut off by act of congress.</p>

<p>Courts — Federal Jurisdiction — Act on March 8,1887.</p> <p>The act of congress of March. 3, 1887, concerning United States circuit courts, provides that no civil suit shall be brought by original process or proceeding in any district except that whereof defendant is an inhabitant, hut that, where jurisdiction is founded only on the fact that the action is between citizens of different states, suit shall be brought only in the district of the residence of either plaintiff or defendant. Held that, under these provisions, the process of such courts will not run throughout the United States, except in the particular cases, and to the extent provided by Rev. St. U. S. § 738.</p>

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

<p>Flea in Equity.</p>

<p>Courts — Conflict of State and Federal — Levy of Tax — County Bonds.</p> <p>Judgment went against a Missouri county on certain railroad aid bonds issued by it, and the holder applied for mandamus to compel a tax levy to pay the judgment. The county judges returned that they had already levied the usual tax; that there was no law, either when the bonds were executed or When the. writ was served, authorizing a special levy; that the judgment could only be paid by warrants drawn on the treasury, payable out of the usual county taxes; that there were no funds, and that if they obeyed the writ they would be guilty of a misdemeanor under the laws of the state. As a matter of fact, when the bonds were issued there was a law (Wag. St. Bd. 1872, p. 306, § 2Í) authorizing counties to “levy a special tax to pay the interest on such bonds, or to provide a sinking fund to pay the principal. ” In addition, the county courts then had a general power “to audit and settle all demands against the county, ” and “to levy such sums as were annually necessary to defray the expenses of the county.” Wag. St. 441, § 9; page 1193, § 165. Held, that the return was insufficient, the judgment having determined the validity of the bonds, and the rights of the holder being fixed by the laws in force at the date of issue, and any order made in the case by the federal court being ample protection to the county judgeg.</p>

<p>Demurrer tq Returns.</p>

<p>Equity — Pleading—Information and Belief.</p> <p>A bill in equity by the grandchildren of the grantor in an absolute deed, praying to have a constructive trust imposed upon the grantee in the conveyance, on the ground that the grantor was wanting in mental capacity when she executed it, and was induced to sign it by the fraudulent representations of the grantee’s husband, is not demurrable because the allegations in the charging part, as to such representations, are made upon information and belief only.</p>

<p>1. Cashiers — Lien eor Freight — Retention oe Goods in Custom-House— Action to Recover.</p> <p>Ia order to recover property held by a collector or other customs’ officer under Rev. St. U. S. § 2981, which provides that whenever the collector shall be notified of a lien for freight on any goods imported he shall hold the same until it is shown that the freight has been paid or secured, the consignee should first tender the amount of freight he admits to be due, and if declined he should tender a sufficient bond conditioned to pay all freight that may be found to be due or that may be adjudged due by any court of competent jurisdiction. Should this be declined, proof of these tenders should be made to the collector; who, if he finds the bond adequate to secure the carrier, should release the goods on the deposit with him, for the use of the carrier, of the bond originally'tendered.</p> <p>2. Same.</p> <p>In an action to recover property held by a collector of customs or other customs officer under Rev. St. U. S. § 2981, providing for the detention of goods upon which the carrier has a lien for freight, and arbitrarily detained by him after tender of a sufficient bond for the security of the carrier, the petition should show all the steps taken to secure a release of the property, including the tender of freight, the tender of the bond, and the proof of these facts before the collector.</p>

<p>1. Constitutional Law — Police Power— Regulation op Railroad Crossings.</p> <p>In 1881 the legislature of the state of Missouri passed an act affecting railroads, which provided that, at railroad crossings, the railroads crossing there should erect and maintain suitable depots and waiting-rooms to accommodate passengers. Held, that it was a legitimate exercise of the police power and not unconstitutional.</p> <p>2. Railroad Companies — Regulation op Crossings — Action for Violation— Parties. ■</p> <p>An act of the legislature of Missouri made it the duty of railroads to erect and maintain at railroad crossings waiting-rooms for "passengers, and fixed the penalty for a violation of the act. The defendant was prosecuted for not complying with the provisions of the act. It insisted that there was a defect of parties, in that both railroad companies were not joined. Held, that neither was released from liability by the failure of the other.</p> <p>3. Statutes — Repeal—Effect on Penalties Incurred.</p> <p>In 1885 the legislature of Missouri amended an act passed in 1881. The defendant company claimed that the amendment worked a repeal of the law of 1881, and released it from penalties incurred before the amendment. Rev. St. Mo. § 3151, provides: “No offense committed, and no fine, penalty, or forfeiture incurred, previous to the time when any statutory provision shall be repealed, shall be affected by such repeal; but the trial and punishment of all ■such offenses, and the recovery of such fines, penalty, and forfeiture shall be had, in all respects, as if the provisions had remained in force.” Held, that though the penalty was incurred prior to the amendment of 1885, still under this section it was recoverable.</p> <p>4. Same — Construction—Mandatory Provisions — Conditions.</p> <p>A statute contained simply mandatory provisions, and it imposed a penalty 'for a failure to comply with the conditions of the section. Held, that whatever criticism might be placed on the use of the word “conditions, ” the intent was plain, and the statute was to be construed so as not to defeat the manifest intent of the law-making power.</p> <p>5. Qui Tam and Penal Actions — Limitation of — Failure to Maintain Railroad Facilities.</p> <p>Rev St. Mo. § 3231, places a limit of three years upon an action upon a statute for a penalty or forfeiture where the action is given to the party aggrieved, or to such party and the state. Held, that this did not apply to a case where a railroad had incurred penalties for not erecting a passenger depot at a crossing, and the penalties went to the school fund.</p> <p>6. Same — Joinder of Offenses — Violation.</p> <p>A statute imposed penalties for a failure to comply with the conditions of the section. Held, that a disobedience of any one of the provisions subjected the delinquent to the penalty.</p> <p>7. Same — Violation—Continued Offense.</p> <p>An act provided that for each day from and after a certain specified day the delinquent should forfeit and pay the sum of §25. Held, that the legislature intended an accumulation of penalties, and the defendant could not atone for its delinquencies by the payment of a single penalty.</p>

<p>1. Courts — Federal Jurisdiction — Federal Question — Retention of Cause.</p> <p>A liorse-car company, claiming to have an exclusive franchise in Omaha. Nebraska, of which stale it was a resident, sought in the federal courts to enjoin. a cable company, also a resident of that state, from laying its tracks in Omaha, on the ground that the act incorporating tho cable company was a state law impairing the obligation of contracts. The court hold that tho exclusiveness of the plaintiff's franchise was limited to a mere horse railway, but tho constitution of the state forbidding the damaging, as well as the taking of private property for public use without compensation therefor, referred the case to commissioners to report what damage, if any, the plaintiff would suffer by the laying of the cable line. Held, that a real, substantial federal question having been involved in the case at the outset, the elimination of that question did not oust the court of jurisdiction of the question of damages.</p> <p>2. Eminent Domain — Damage to Property — Impairment oe Franchise Privilege.</p> <p>Section 21 of the Bill of Rights of the Nebraska constitution of 1875 provides that “Hie property of no person shall be taken or damaged for public use without just compensation therefor. ” Held, that where the tracks of a street railway, owning an exclusive franchise for that mode of carriage, were paralleled by those of a cable tram-way, the latter having obtained from the owner of the soil the right to occupy the streets, the property of the former was "damaged” and not “taken,” and the provisions of Comp. St. Neb. c. 16, § 96, for ascertaining damages, being applicable only whore property is “taken,” damages might be assessed in an injunction suit between the parties, although they had failed to agree upon the amount of compensation.</p> <p>3. Same.</p> <p>The charter of a street railway company gave it the exclusive right for 50 years to operate horse cars in Omaha, Nebraska; at the expiration of that time the franchise and corporate property were to revert to the city. A cabla company, when the charter had still 30 years to run, paralleled on some streets the tracks of the railway company, and crossed them on others. Held, in proceedings by the latter for compensation for its property so “damaged,” under the Nebraska constitution, of 1875, that the cable company was not liable for any injury flowing from the mere matter of competition, or from the fact that the better facilities of the new road attracted passengers from the old; and that the crossings worked no damage; but that the loss of passengers to the railway company caused by the inconvenience of access at those points of the route where the cable cars ran between the street cars and the sidewalk was, though difficult of accurate estimation, a legitimate matter of damage.</p> <p>4. Same.</p> <p>It appeared that on those portions of the route of the street railway paralleled by the cable, the number of passengers carried by the cars would be reduced 75 per cent., and that of the 75 per cent, thus secured by the cable, 70 per cent, would be due to the competition, and but 30 per cent, to inacessi-bility. It was also shown that the operating expenses of the railway company were 50 per cent, of its earnings. Meld, that 30 per cent, of the 75 per cent, of the passenger traffic so diverted should be taken as the basis of calculation ana the result cut down 50 per cent, for the present year, and that the amount so ascertained be computed at 10 per cent, as damages for the unexpired years of the franchise.</p> <p>5. Same.</p> <p>Where a proposed public use causes to property, no part of which is taken, an injury of such a character as, if it accrued when a portion of the property was taken, would form a proper element of the damages to the part not taken, there is a “damage” within the scope and protection of the constitutional provision, and the owner is entitled to compensation.</p> <p>6. Reference — Heabing—Remand for Additional Testimony.</p> <p>Where the opinion advising a reference to commissioners to report the plaintiff’s damages plainly indicates the elements of damage to be considered, the hearing will not be sent back for additional testimony on one point of injury on the ground that the party moving therefor had but brief notice of the meeting of the commissioners; and this is especially so when, after the testimony of the other party upon that point had gone in, the movant asked for no delay, but introduced all the evidence it desired.</p> <p>7. Injunction — Further Relief — Assessment of Damages.</p> <p>In a suit for injunction, where the prayer of the bill is not only for the injunction but for other and further relief, the prayer is broad enough, a case being made out, to include assessment of damages.</p>

<p>1. Fraud— IT arse Representations to Corporate Officer.</p> <p>In an action by a corporation to recover damages for alleged fraudulent misrepresentations as to the merits of a certain heating device, made by officers of the company owning said device, to certain parties who thereupon organized a corporation for the purpose of selling said heater, hold, that, such statements were in effect made to such corporation.</p> <p>2 Same — Pause Representation — Sauf. of Inventor’s Rights.</p> <p>A corporation purchasing the right to sell a device or invention may rightfully rely upon the statements and representations of the vendors, and is not bound by the doctrine of caveat emptor.</p> <p>3. Fraud — Pleading—Joinder -with Contract.</p> <p>A suit being brought for fraudulent representations in the sale of the right to sell a certain invention, the plaintiff also alleged that defendant failed to deliver to plaintiff a certain number of the patented articles as agreed. Held, on demurrer for joinder of tort and contract, that this latter allegation was not a cause of action sounding in contract, hut was an allegation of defendants’ fraudulent scheme, and as such is pertinent to the claim for damages for the tort.</p>

<p>Public Lands — Unlawful Inclosure — Railroad Grant.</p> <p>Act of congress of February 25, 1885, provides that all inclosures of public lands entered by any person or corporation without claim or color of title to said lands acquired in good faith shall be unlawful. Defendant, as licensee of the Southern Pacific Railroad Company, had inclosed certain lands of the land grant of the company. The lands had, on filing of the plat of the proposed road by the company, been withdrawn from settlement by the United States, though they had not been earned yet by the company. Held, that such inclosure of lands did not fall within those prohibited by the act of congress.</p>

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

<p>TbIAL — PRODUCTION 01' PAVERS — DISCOVERY.</p> <p>A motion, made under Rev. St. § 724, relating to the production of hooks and writings, to require plaintiffs, the official liquidators of a firm, to produce for defendants’ inspection, to enable them to prepare for trial, all the business books of the firm between certain dates, cannot he allowed. The proper nractice in the case was by a bill of discovery.</p>

<p>Courts — Federal Circuit Courts — Practice—Calendar.</p> <p>The rule of October 1, 1887, for the government of the calendar of the circuit court for the Southern district of New York, provides that ca„es must be tried when reached in their regular order according to date of issue and place on the calendar. Held, on motion to stay the trial of certain cases for the term, on the ground that a case pending in the supreme court involved the same issues, that the rule would not be departed from where the affidavit for the purposes of the motion filed by the defense denied the identity of the issues.</p>

<p>1. Writ — Fíjiujoatioíí—Affidavit.</p> <p>An affidavit tor an order for service of summons by publication must contain some evidence having a legal tendency to prove that the defendant could not, be found in the state after due diligence, and the mere assertion of the fact is insufficient. ¡</p> <p>2. Same.</p> <p>But a statement of facts as to residence and actual abode of the defendant, which shows, beyond a peradvonturo, that any search for him within the state would bo unavailing, is sufficient.</p> <p>3. Same.</p> <p>And where it is necessary to show that the defendant has property in the state, the statement thereabout should be direct, and specify the property.</p> <p>4. Same — -Publication-.</p> <p>A summons published six times in a weekly newspaper is thereby served on the defendant after 42 days from the date óf the first publication thereof.</p> <p> (.Syllabus by the Court.) </p>

In Equity. Sur exceptions to master’s report. This reference grew out of a decree which had been entered in a suit brought by the complainant against the respondent for infringement of the second claim of letters patent No. 130,853 for improvement in hog-rings, (see 27 Fed.

<p>1. Costs — In Federal Courts — Docket Fee.</p> <p>Rev. St. TI. S. § 824, provides that on a trial before a jury in civil or criminal cases, or on final hearing in equity, a docket fee of §20 shall be allowed. After the usual pleadings were filed, and issue joined, the case noticed for final hearing, and called on the calendar, on complainant’s motion, his bill was dismissed “with the usual costs to defendant.” The clerk allowed §20 docket fee on taxation of costs. Held, that the docket fee must be disallowed.</p> <p>2. Same — Motion to Dismiss by Plaintiff — “Usual Costs.”</p> <p>The clerk in taxing costs where complainant on" his own motion dismissed his bill when called for hearing “with usual costs to defendant, ” allowed for certified copy of file wrapper, contents of patent in suit, and certified copies of six other patents procured by defendant to properly present his defense. Held, that they must be disallowed. Woodruff v. Barney, 2 Fish. Pat. Gas. 250; Worster v. Handy, 28 Blatchf. 129, 23 Fed. Ilep. 49, followed.</p>

<p>1. Costs — Demurrer—Insufficiency of.</p> <p>On the overruling of a demurrer, costs were duly taxed against the defendant. Subsequently, after final hearing', defendant, in taxing the hill of costs, sought to recover certain items contained in the bill taxed against it on the demurrer. Held, that this was an effort to reclaim costs imposed on defendant as a penalty for serving an insufficient demurrer, and the items should be disallowed.</p> <p>2. Same — Docket Pee.</p> <p>llev. St. II. S. § 834, provides that on a trial before a jury in civil or criminal cases, or on a final hearing in equity, a docket fee of $20 shall be allowed. The case was dismissed on demurrer, with usual costs, and the docket fee was included in the bill of costs. Held, that the docket foe must be disallowed. Following Ryan v. Coukl, ante, 754</p>

<p>Customs Duties — Actions to Recover — Bill op Particulars.</p> <p>Where the bill of particulars served by plaintiff in a suit against a collector of customs, to recover duties alleged to have been illegally exacted, does not contain all the items required by section 8012, Rev. St., a motion for judgment of non pros, will be granted.</p> <p> (Syllabus by the Court.) </p>

<p>Customs Duties — Action to Recover— Btll of Particulars.</p> <p>Where the bill of particulars served by plaintiff in a suit against a collector of customs to recover excess of duties alleged to have been illegally exacted does not contain all the items required by section 3013, Rev. St., the court is without power to grant leave to amend nunc pro tuna.</p>

<p>Action to Recover Excess of Duties Paid under Protest. On motion to amend bill of particulars.</p>

<p>1. Insolvency — Rational Banks — State Laws.</p> <p>Among the assets of an insolvent national bank were three mortgages which were sought to be impeached by the assignees of the mortgagor as having been given in violation of the insolvency law of the state. Plaintiff, receiver of the bank, claimed that the state law was inoperative upon the assets of a national bank, and was ineffectual to divest him of the title acquired by the mortgages. Held, that the mortgages.were governed by the state law, and the bank took them with all the limitations imposed by the laws of the state upon the,m.</p> <p>2. Same — Preferences—Limitation of Time.</p> <p>Rev. Laws Yt. § 1860, provides that a conveyance made by an insolvent, or one in contemplation of insolvency, within four months before the filing of a petition of insolvency by or against him, made with a view to giving a preference to certain of his creditors, shall be void. It appeared that the mortgages sought to be declared void were made three months before the filing of petition of insolvency by a creditor of the mortgagor; but the petition was left to be acted upon when requested, and not acted upon until nearly two months later, at the instance of another creditor. Held, that the statute contemplated present judicial procedure on the filing of the petition, and the delay in acting upon the petition at the instance of the petitioning creditor brought the conveyances outside the purview of the statute.</p>

In Equity. This caso is between the samo parties, and based on the same facts, as the case of Witters v. Sowles, ante, 758, which see for full statement of facts.

<p>In Equity.</p> <p>For statement of facts of this case, see Witters v. Soioles, ante, 758.</p>

<p>In Equity.</p> <p>For statement of facts of this case, see Witters v. Sowles, ante, 758.</p>

<p>In Equity.'</p> <p>See case between same parties, ante, 130.</p>

<p>In Equity.</p> <p>For statement of the facts of this case, see Witters v. Sowles, ante, 130.</p>

<p>Conflict of Laws — Assignment foe Benefit of Ceeditoes — Non-Residency —Attachment.</p> <p>A voluntary assignee oí a non-resident, under the laws of another state cannot hold assets found in Illinois against attaching creditors resident in that state.1</p>

<p>ExTRADiTipw — Adjournment of Heartr®.</p> <p>It is within the discretion of the commissioner to adjourn the hearing of extradition proceedings on motion of the sovereignty making the demand for the accused, and the prisoner is not entitled to be discharged from custody on habeas corpus on the ground that the adjournment is unreasonably long, unless it is made to appear that the commissioner has abused his discretion,</p>

On Demurrer lo Testimony. Thomas J. Molloy was indicted and tried in the circuit court of the United States for the Eastern district of Missouri, under section 5512, Rev. St. U. S., for doing an act unauthorized by law, to-wit, writing the names of persons in the registration book in his custody who had not applied for registration, or taken the oath required by law. Vide 31 Fed. Rep. 19.

<p>Indictment for Violation of section 5521 of the Revised Statutes of the United States.</p>

<p>Public Lands — Cutting Timber — Boxing Pines.</p> <p>Boxing of pine trees for turpentine, by which the trees are not felled nor severed from the soil, is not a cutting of timber with intent to dispose of the same in a manner other than for the use of the navy, within the meaning of Rev. St. U. S. § 2461, where the trees so boxed are not upon public lands reserved for supplying timber for the navy, and where there is no intent to export, dispose of, use, or employ the trees or timber in any manner whatsoever.2</p>

<p>1. Patents for Inventions — Agreement to Assign — Record—Notice.</p> <p>There is no authority under the patent laws to record an agreement for a future assignment of a patent not yet issued, and if recorded it does not amount to notice.</p> <p>2. Specific Performance — Laches—Notice.</p> <p>Specific performance of a contract to assign a patent will not be decreed when the complainant has been guilty of laches, unless the defendant, has acquiesced in the delay; and when specific performance of such a contract is sought after a subsequent assignment of the patent to a third party, the complainant must show that he performed, or tendered performance of, his part of the contract, and that the assignee had notice of his contract.</p>

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

<p>1. Patents for Inventions — Novelty—Clasps.</p> <p>The plaintiff claimed under letters patent No. 326,357, issued to Jacob J. Un-behend, for a clasp, “a flexible tongue support consisting of two plates super imposed one upon the other, and connected together by a metallic band embracing the said plates at one end thereof.” Also, “in a clasp, a flexible tongue support consisting of two plates provided with corresponding slots, and a metallic band passing through the said slots and embracing the rear end portions of the plates to tie the same together. ” lie Id, that the band described in these claims is not a patentable novelty.</p> <p>2. Same — Infringement—Buckles.</p> <p>Plaintiff claims under letters patent No. 326,357, granted September 15, 1885, to Jacob J. Unbehend, for a clasp or buckle especially adapted to arctic over-shoes. The plaintiff’s device is a buckle in which the tongue is hung in recesses between two plates, one superimposed on the other, with flanges on each side of the recesses, to prevent lateral motion, and to retain the hinge-pin in the recesses. Defendant manufactures a buckle in which the tongue is hung in notches in the flanges of the lower plate, which are turned up to make the notches. These flanges are not guards, but the parts upon which the tongue is hung. Held, that this was not an infringement of plaintiff’s patent.</p>

<p>1. Patents for Inventions — Anticipation—Statuary.</p> <p>Letters patent No. 190,769 of May 15, 1877, to August Kiesele for a new and improved composition for casting ornamental figures consisting of paraffine, stearine, and pulverized sugar, is not anticipated by tbe patent of March 5, 1872 to Henry Hirsch, the compound covered by which consists of paraffine, bees-wax, and gypsum.</p> <p>2. Same — Anticipation—Offer to Prove.</p> <p>Where a witness called to prove prior use is objected to before the examiner, on the ground that the answer does not conform to the requirements of Rev. St. ü. S. § 4920, relating to proof of prior use, and the answer is not amended in that respect, the testimony of the witness will not be considered on the hearing.</p> <p>3. Same — Infringement—Proof.</p> <p>Complainant proved the purchase from defendants at their business establishment of two statuettes which the clerk who made the sale stated at the time were manufactured by defendants. An examination of a piece of one of the statuettes disclosed the ingredients of the composition covered by the-patent, and nothing else. Defendants admitted the sale, but claimed that although they did not know what the statuettes sold were made of, the statuettes did not contain the patented composition. Helot, that the evidence established infringement.</p>

<p>Patents for Inventions — Infringement—Injunction.</p> <p>The plaintiff applied for a preliminary injunction to restrain the infringement of a patent. The patent had not been adjudicated on, and it was questionable if the invention was patentable. Meld, that a preliminary injunction should not issue.</p>

<p>1. Patents for Inventions — Infringement—Damages and Profits.</p> <p>Under a decree directing the master to take an account of the profits which the defendant had received from the infringement of the patented invention, and to report the damages, if an}', in addition to the profits, the master found that the complainant’s profits were in excess of his damages, and reported the amount of the profits realized by the defendant attributable to the patented invention. Meld, that an allowance to the defendant of 10 per cent, of the entire profits, as manufacturer’s profits, was reasonable, and that the complainant was not entitled to any damages in addition to profits.</p> <p>3. Same.</p> <p>On an accounting for infringement, it appeared that, prior to a certain date; the defendant had had an exclusive license to manufacture and sell the patented article, paying a license fee of about 10 per cent, on the proceeds realized, and that subsequently the complainant had acquired a similar license, which continued in force to the bringing of the suit, paying a royalty of three cents per article on all sales. Held, that the evidence failed to show such an established license fee as would constitute a proper measure of damages.</p> <p>3. Same.</p> <p>Whether or not the statement made on the accounting of the costs in the manufacture and sale of the patented article, and patented improvements thereon, presented a reliable basis for the calculation of profits made, and whether or not the master should not, therefore, have reported the license fee alone, as the proper amount of the complainant’s recovery, are questions of fact for the master.</p> <p>4. Same — Infringement—Damages—Master’s Report.</p> <p>Upon the hearing of exceptions to a master’s report of profits, the defendant requested the court to direct the master to report the evidence necessary to a clear understanding of the exceptions. It appeared that the evidence was taken orally before the master, -who only took notes, and that no request was made at the time that the testimony should be reported to the court. The master stated that it would be impossible to convey to the court a correct idea of all the testimony upon the accounting. Meld, that the motion should be-refused.</p>

<p>Action for Damage caused by the breaking of the canal-boat William Walker from her tow, injuring libelant’s vessel.</p>

<p>Collision — Vessel Towed into Slip — Parted Llne — Drifted Vessel — Tug.</p> <p>The tug Greenpoint moved the schooner Hart along side the schooner Her-riman, which was lying in a slip, and tho Hart put out a lino to the Horriman, which line shortly afterwards parted, allowing tho Hart to drift upon libelant’s vessel, the Flint, causing damage, for which the tug was sued. The evidence indicating that the Hart was still last when the tug oast off, and that the line had parted after such casting oil. and by reason of its insufficiency, he,Id, that the Hart, and not the tug, was in fault for the collision, and that tho libel should be dismissed.</p>

<p>Collision — Following Vessel— Proximity— Sudden Stop.</p> <p>It is a iauit in a vessel following another vessel, and going with the flood tide in the East river, to approach so near the vessel ahead as to be unable to avoid her in ease of a stop on the part of the leading vessel.</p>

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

<p>1. Courts — Jurisdiction—Residence of CORPORATION.</p> <p>Under Rev. St. U. S. § 739, providing, in substance, that no civil suit shall be brought against a citizen of the United States in any other district than that of which he is an inhabitant, “or in which he is found at the time of serving the writ,” it is always for the federal court to determine whether a non-resident corporation sued therein has transacted business to such an extent within the district, and has such a representative or agent therein, that jurisdiction to render a personal judgment against the corporation may be acquired by service on that agent.</p> <p>2. Same.</p> <p>A manufacturing corporation of Kansas, having its chief office in that state, was accustomed to make occasional purchases of raw material, either by correspondence or by sending an agent there for that purpose, at St. Louis; but it never had a business office in Missouri, nor did it maintain an agent in the state. It was sued in the federal courts in Missouri, and service had upon its general manager, while he was in St. Louis on a pleasure trip. JleM, that the corporation was not “doing business” in Missouri, and that the service was insufficient to support a personal judgment against it, notwithstanding Rev. St. Mo. § 3489, providing that, when a non-resident corporation has no office or place of business within the state, summons may be served upon any “officer, agent, or employe in any county where service may be obtained. ”</p>

<p>The following are the principal facts: Prior to 1872 the Lexington, Lake & Gulf Railroad Company, a corporation organized under the laws of the state of Missouri for the purpose of building a railroad from the city of Lexington southward, had expended large sums of money in grading and'tieing a portion of its road, and upon such road was an existing lien of something over 810,000, evidenced by a note and trust deed, and given for liabilities incurred in its construction. In that year it leased its road in an incomplete condition to the Burlington & SouthWestern Railway Company. The latter united this leased road with that portion of its own road running northward from Lexington to Unionville, making it one property and line of road with one common stock and one franchise, and known-as “the Linneus Branch of the Burlington & SouthWestern Railway Company.” Upon this Linneus branch in its entirety was placed a mortgage of $1,600,000. By the term of a contract entered into between the parties about a year after the lease, as well as after the execution of said mortgage, the lessee agreed to pay the liabilities of the lessor to the extent of $20,000, which included, as admitted, the debt above described. That debt became, by transfer', the property of the intervenors. In 1877 certain proceedings were had, by which, as it is claimed, this deed was foreclosed, and the legal title to the road upon which it had been given, to-wit, the road south of Lexington, vested in the intervenors. In the mean time, default having been made in the payment of the coupons on the $1,600,000 of bonds, a suit had been commenced in this court to foreclose the mortgage. The in-tervenors were not made parties to that suit. A receiver was appointed, who took charge of the whole line, and in April, 1876, a decree of foreclosure was entered, but no sale was made until 1880; the road in the mean time being operated by the receiver. In 1879 the intervenors,' who claimed to own that portion of the road south of Lexington, entered into negotiations with one Brown for the sale of it to him for$50,000, whereupon the receiver obtained from this court an injunction restraining the parties from interfering with his possession, which injunction broke up the negotiations. Thereafter the receiver entered into negotiations with the intervenors for the purchase of their claim and interest. Before these negotiations were consummated, the receiver applied to the court for authority to issue receiver’s certificates, to amount not exceeding $500,000, for the purpose of completing the road south of Lexington, and at the same time, and by the same petition, applied for authority as follows:</p> <p>“Your petitioner also asks for authority to settle and adjust, by payment or purchase, any claims against said Lexington, Lake & Gulf Railway Company which may seem to be prior or .adverse to the claims of the Burlington & South-Western Railway Company under the contract by which said Lexington, Lake & Gulf property was acquired.”</p> <p>Upon this petition, the receiver obtained authority to issue such certificates, and also the following authority in reference to the purchase of claims:</p> <p>'* And the said receiver is further authorized and directed to settle and adjust, by payment or otherwise, any outstanding claims against the Lexington, Lake & (iulf Railway Company under the contract before mentioned, and, to purchase in any outstanding o? adverse lien, or title to any portion or all of said property, and any right or title so acquired to be conveyed to him, as receiver, for the benefit of the parties in interest herein.”</p> <p>The authority to issue receiver’s certificates provided that those certificates should bo a first and specific lion only upon that part of the road south of Lexington. In fact, no receiver’s certificates were issued, and nothing done towards the completion of that part of the road; but in March, 1880, a contract was made between the receiver and the inter-veners by which the latter sold their claims and interest for $17,750. That contract provided for payment by the receiver out of the money coming into his hands from that part of the road south of Lexington, or from the sale of receiver’s certificates which had been previously authorized as above stated, or from any earnings of that portion of the road, or arising from the sale thereof under the decree heretofore entered. . On the thirtieth of November, 1880, the road as a whole, and without any sepa,rate appraisement of the two parts south and north of Lexington, was sold for $1,000,000, payment of which sum was made in mortgage bonds, as authorized by the terms of the decree. On July 5, 1881,, this sale was confirmed, with a reservation of power to make any further orders, decrees, and directions in respect to the property, and with regard to any claim, right, interest in, or lien upon it. And now the claim of the intervenors not having been paid as adjusted by the terms of said contract, they insist that, unless it be paid within some reasonable time, the order of confirmation should bo wholly set aside, and possession of the entire road again taken by the court. On the other hand, while it is conceded by the receiver and the purchasers at the sale that the in-tervenors have a prior lien upon that part of the road lying south of Lexington, they insist that the only order should be one fixing the amount of such lien, and decreeing a sale of that portion of the road for its satisfaction.</p>

<p>Ill Equity.</p> <p>Prior to the term, the complainant, without application to the court, entered a rule in the common rule book discontinuing the canse on pay-' ment of costs. The defendant, having printed its proofs, placed the cause upon the calendar, and, when it was reached on the regular call, insisted that it should be argued or dismissed upon the merits; that the complainant could not, without the consent of the defendant or the court, discontinue an action in equity; and that it was discretionary with Hie court to grant or refuse such permission. The court'adopted the view that the cause was not discontinued, and sot it down for a day certain, to be then disposed of. The complainant now moves for leave to discontinue, on payment of costs.</p>

<p>Action to Recover Possession of Real Property.</p>

<p>Action for Libel.</p>

<p>1. Public Lands — Railroad Grants — 'Wuux Title Vests.</p> <p>Lands in controversy between two railroad companies, grantees under acts of congress, — complainant under act, of 18(16, and defendant under acts of 1857 and 1863, — were within the place limits of complainant’s road, and within the indemnity limits of the road of defendant. Complainant’s definite location was made before any selection by defendant. The lands in dispute were conveyed to defendant in 1871 and 1872. Complainant’s road along- these lands was finished in 1879, and application made for entry in 1889, which being- refused, complainant brought suit in 1886. As against the holding- of the United States supremo court that no title passes to indemnity lauds until selection. and that as to place lands the title vests on completion, and relates back to the date of grant, and is specifically fixed by the definite location of the road upon the tracts of the place limits, defendant, urged the administration of these grants by the land department, both in Minnesota and in 'Washington, as a construction and determination of the law. Held, that there is no reason why, both parties being donees, either may not insist as against the other upon the full measure of the rights given it by the grants.</p> <p>2. ¡Bamk — Railroad Grants — When Title Vests — Limitation of Actions.</p> <p>In such a case, neither party can set up the statute of limitations as a defense until it begins to run.</p>

<p>At Law. On motion that bill of exceptions be signed, etc.</p>

In Bankruptcy. Prior to 1872 Alva M. Newcomb was adjudicated a bankrupt and Charles W. Barnes and Ralph Allen were appointed his assignees. In March, 1872, a dividend of 60 per cent, was declared and paid. Though la”ge sums were subsequently collected by the assignees, there has been no dividend since that time. Ralph Allen died in 1881, and Charles W. Barnes died in 1884, both intestate.

<p>1. Patents for Inventions — Anticipation—Combined Chair and Garríase.</p> <p>Letters patent No. 224,923, granted to'Joseph W. Kenna for improvements in child’s combined chair and carriage, are not anticipated by earlier patents, although limited in scope by them.</p> <p>2. Same — Infringement—Combined Chair and Carriage.</p> <p>Chairs made under the two Chichester patents, respectively numbered 259,-368 and 260,S43, are infringements upon the Kenna patent Ño. 224,923. The chairs made under the Parker patent, No. 317,668, do not infringe.</p>

<p>Patents for Inventions — Infrin&ement—Injunction.</p> <p>Letters patent for a shade or globe holder for candles which should descend as the candle burned down, were applied for by Daniel Leary. A part of his claims were rejected as already covered by British patents, whereupon he, on April 25, 1882, obtained a patent on an amended claim in which the modification consisted of two upper rings, which he claimed rendered the hold of the shade upon the candle more secure. Held, that the improvement did not exhibit sufficient mechanical skill or ingenuity to warrant the issuance of a preliminary injunction.</p>

<p>Patents for. Inventions — Infringement—Looks.</p> <p>Letters patent No. 315,186, dated April 7, 1885, issued to George E. Thaxtcr for improvement in knob-loclting and releasing mechanism for locks, held infringed by patent No. 323,918, granted to Crockett & Allen, August 11.1885, for improved looking and unlocking mechanism for electric locks; the difference between the two being that the tumbler in the latter was in the form of a toothed wheel, and for the locking slide engaging with the slot in the tumbler was substituted a pivotal clutch or dog engaging with the toothed wheel, and a swiveled spindle for the solid spindle.</p>

<p>1. Patents for Inventions — Infringement—Parties—Jurisdiction.</p> <p>In nn action for an infringement of n patent, a third party asked to be made a party defendant, alleging- that it was the manufacturer of the machines which were claimed to be an infringement of plaintiffs’ patent; that defendant was its vendee; that it desired to settle 1,ho question as to whether or not the machines were an infringement of plaintiff's’ patent. Both the complainant and tiie third party were non-residents. Held, that such third party might be made a party defendant, and the court would have jurisdiction to enter a decree as to the question of infringement that would be binding on all parties.</p> <p>2. Same — Infringement—Parties—Cross-Bill.</p> <p>In an action for an infringement of a patent, a third parly asked to be made a defendant and he allowed to file a cross-hill, alleging that plaintiffs had sent out circulars to persons who had bought mac,hiñes of such third party, claiming that the machines were an infringement on plaintiffs’ patent, and threatening to sue all who bought or used machines of such third party’s manufacture. The cross-bill asked an injunction against plaintiffs to restrain them from so doing until the final decree in the case. The original defendant, being a vendee of only one machine, could not maintain such a cross-bill. Held, that, a third party cannot he allowed to become a defendant, -jnd then filo a cross-bill that could not have been maintained by the original defendant.</p>

In October, 1886, the plaintiff, Edward Spencer, shipped on board a vessel called the J. H. Prentiss as a seaman, on board of which vessel, as the master of it, was Captain Gaines. The defendants, John Kelley and D. B. Sanborn, (Kelley alone being served; Sanborn not in court,) were at the time the owners of the vessel.

<p>1. OHARTEIl-PARTy— STIPULATION AS TO TlAIE ON SAILING — RESULT OP HON-Cowpliange — Right to Reject.</p> <p>A stipulation in a charter as to the time of sailing of an absent vessel, to be furnished to the charterer, is a condition precedent, which, if not fulfilled, entitles the charterer to reject the vessel. The vessel under such a stipulation takes upon herself the risks of all causes that may prevent a compliance with the condition.</p> <p>2. Same — Sailing—What Constitutes.</p> <p>A clause in tho charter of tho bark A. described her as “now at Bremen, guarantied to sail on or before December 10th. ” On the fourth of December, her general cargo being in, she was moved, by order of the harbor-master, close to the dock-gate, after which she took on balance of crew and provisions. On the 15th she went out to tho roadstead, and sailed on the 20th. Held, that her move on the 4th was not a constructive sailing.</p>

In Admiralty. The brig Georgia was in distress in the harbor of Old Providence, her master and some of her crew having died, and the vessel being in need of supplies and without money. Money was advanced to her by libel-ant’s assignor on request of the consul, and a new master was appointed, ■who executed a bottomry bond for the money so advanced. No notice was given the owner of any intention to raise money on bottomry.

<p>1. Wharves — Unusual Condition — Damage Arising Therefrom — Lack of Care and Examination — Liability of Occupant.</p> <p>The lessee and occupant of a wharf is liable for damage arising from its unusual and dangerous condition, unless he can show reasonable care and examination in regard to the condition of the wharf and-slip.</p> <p>2. Same — Damage to Vessel — Statement of Case.</p> <p>Respondents’ wharf, instead of being perpendicular below the water line, extended considerably into the sliD- From one of the beams a spike projected, which injured the bottom of libelant’s vessel when she went there to discharge. Held, in the absence of evidence of reasonable care and examination of the condition of the wharf by respondents, they were liable for the damage.</p>

<p>Collision — Tugs—Rule of the Stabboabd Hand — Right of Way — Risk of Collision".</p> <p>The tug Talisman, on her way from Weehawken to pier 5, New York, saw on her starboardbow the red light of the tug America, bound from Jersey City to Thirty-fifth street, N ew Y ork. The Talisman attempted to cross the bows of the America, but was struck on her starboard quarter. The America slowed as the vessels approached, giving one whistle twice, and when the tugs were 50 to 100 feet apart gave au alarm signal, and reversed. She did not alter her helm. Held, that the Talisman was in fault for not avoiding the America, having the latter on her starboard hand; that the America was in fault, though she had the right of way, for not taking more effectual measures to avoid a collision as soon as she saw by the movement of the Talisman’s lights that there was risk of collision; and that the damages should be divided.</p>

<p>Collision — Two Tows — Narrow Channel — Unjustifiable Approach.</p> <p>Tlie lugR., towing the schooner 11., met, in the Arthur Kills, a long tow in charge of two other tugs. The wheelsman of the schooner, who was the only man on dock, could not well see forward, liis view being obstructed. The R. passed very near libelant’s boat, though the evidence showed that there was from .150 to 300 feet of available water to leeward, and tlie schooner struck libelant's boat, which was on the port side of the 1 ail of the tow. Held, that the schooner was in fault in going through a narrow passage with no lookout and the wheelman’s view obstructed; that the tug R. was in fault in passing unjustifiably near the other tow, and for not taking measures to counteract a sheer made by the schooner.</p>

<p>1. Removal oe Causes — Penalty eor Obtaining — Constitutional Law.</p> <p>Minnesota act oí March 9. 1885, entitled “An act, relating1 to foreign corporations doing business in this state, ” provides that in suits or proceedings arising- in that state in which a foreign corporation shall be a party, if such corporation shall make application to remove any such suit into a federal court, it shall be liable to certain penalties. Held, that the act is repugnant to the constitution of tho United States, and void, as being designed to deprive a citizen of another state of the right to sue and be sued in a federal court.</p> <p>2. Corporations — Domestic Character — Laws Minn. 1881, Ch. 221.</p> <p>The Chicago, Milwaukee & 81. Paul Railway Company, a AVisconsin corpo - ration, is not constituted a domestic corporation by Laws Minn. 1881, c. 221, which authorizes that company to construct and operate roads in Minnesota, provided that it shall bo deemed a domestic corporation in all procodings upon causes of action arising in that state; following Mahoney v. Railway Oo., 21 Fed. Rep. 817.</p> <p>8. Constitution An Law- — Interstate Commerce — Regulation oe Switching-Charges.</p> <p>Railroad service known as “switching” is local, and the charge made for it is not a part of the through rate fixed beforehand, and has no reference to interstate shipment, but may be regulated by a commission appointed under a state act by virtue of the police power of the state.</p> <p>4. Same.</p> <p>ü railroad service known as “switching” be an act of interstate commerce, the price to be charged for it may nevertheless be regulated by a commission appointed under a state act, as such regulation would not refer to the carrying of freight outside the limits of the state.1</p> <p>5. Same — Regulation oe Switching Charges — Compulsory Proceedings— Due Process oe Law.</p> <p>The compelling of a railroad company to comply with an order regulating rates made by a commission appointed under the Minnesota act of March 71 1887, for regulating common carriers, is a due process of law, and in such a case the company cannot be heard to complain that the act of the commissioners operated to take the property of the company for public uses without process of law.</p>

<p>1. Removal op Causes — Petition por Entry op Copy op Record.</p> <p>Plain till commenced suit in the New York supreme court to establish a will as a will of real estate. One of the defendants removed the cause into the United States circuit court for the Southern district of Now York, but did not enter the record. Held, that plaintiff could, without leave, enter a copy of the petition, order, and bond, and move to remand the cause under a rule of this circuit, adopted October 1, 1883, which provides that, when a cause has been removed from a state court, either party may, forthwith, cause a copy of the record to bo filed in this court, etc.</p> <p>2. Same — Motion to Remand — What Considered.</p> <p>Defendant made the objection to the plaintiff’s motion to remand the cause to the state court that, on this motion, only the petition for the removal of the cause to the United States court could bo considered. Held, that a defendant cannot make his cause removable by merely asserting that it is.' If' the dispute is not within the jurisdiction of the federal court, the federal court will, on motion, remand the case as soon as it sees the complaint.</p> <p>3. Same — Citizenship—Act op March 3,1887.</p> <p>One of the defendants resided in the state of Now York. She removed a cause begun in the N ew York supreme court to the United States circuit court for the Southern district of New York. Held, that under the United States statute of March 3, 1887, relating to the removal of causes, which provides that any suit * * * may he removed by the defendant therein, being a non-resident of that state, she was not authorized to remove the suit.</p> <p>4. Same — Citizenship—Separable Controversy — Act op March 3, 1887.</p> <p>In an action to establish a will as a will of real estate, where there were a large number of defendants in different states, one of the defendants removed the cause from the state court to the United States circuit court. Held, that an action to establish a will is not a separable, but a single, controversy, and its removal is not authorized by the United States act of 1887, relating to the removal of causes, which provides that when, in any suit, * * * there shall he a controversy which is wholly between citizens of different states, and which can be fully determined as between them, then either one or more of the defendants, actually interested in such controversy, may remove such suit.</p>

<p>1. Removal of Causes — Citizenship—Act of March- 8,1887.</p> <p>Under the act of congress March 3, 1887, § 2, providing that a suit brought in any state court, wherein the controversy is between citizens of different states, and the amount in dispute exceeds, exclusive of interest and costs, the-sum of §2,000, “may be removed to the circuit court of the United States for the proper district by the defendant or defendants therein, being non-residents of that state, ” defendants who are residents of the state in which suit is brought cannot remove the cause, though plaintiff is a resident of another state.</p> <p>2. Same — Citizenship—Act of March 3,1887 — Separable Controversy.</p> <p>Action was brought by a non-resident assignee of an insolvent debtor to-compel the assignment, by a corporation, of stock belonging to the debtor. Purchasers at a sale on execution levied on the stock subsequent to the debt- or’s assignment, intervened, were made parties defendant, and asked for a removal of the cause as to them, under act of congress March 3, 1887, § 2, providing that, “when there shall be a controversy which is wholly between citizens of different states, and which can be fully determined as between them, then either one or more of the defendants may remove said suit, ” etc. Held' that, the cause of intervenors being inseparable from that o'f the corporation,, it could not be removed.</p>

<p>Jurisdiction — Amount in Controversy — Act oe March 3, 1887 — Amendment oe the Declaration.</p> <p>In an action for damages to property by a railroad company occupying a street, the ad damnum of the writ and declaration was laid at $1,500 inignorance of the now act of congress of March 3. 1887, increasing the minimum limit of the jurisdiction to $2,000; but, on motion to dismiss, the plaintiff asked leave to amend by increasing the ad damnum. Held, that the amendment should be allowed, since it did not satisfactorily appear from the nature of the case, and the circumstances shown, that the damages were not in fact larger than the original claim. It is only when the court can plainly see that its jurisdiction is being fraudulently invoked that it will deny the amendment or dismiss the cause.</p>

<p>Courts — -Pedekat. Jurisdiction— Citizenship — Read Parties in Interest.</p> <p>P. P-. a citizen of Maine, being involved in litigation with a railroad corporation of that state, got control of a large number of its second mortgage bonds by agreeing with the holders to stand the expense of all litigation necessary for their collection, half of what was realized to go to the holders, and, if nothing came of the matter, thebonds to be returned. N., a Massachusetts lawyer, engaged to carry on the suit in his own name on a contingent fee of 50 per cent, if a certain number of the bonds were secured and assigned to him in form, out and out, but really as collateral. P. P. negotiated the purchase of the small number required to make up the necessary amount in the name of his brother, B. P., also a citizen of Massachusetts. The bonds were then all transferred to P. P. absolutely, and ho and P. P. closed the indicated arrangement with N. The suit, which was a hill to redeem from the foreclosure of the first mortgage, was brought in Maine in N.’s name, and E. P. subsequently intervened. Pending the suit, E. P„ with the consent of his brother, who had in the mean time sold some of the bonds, assumed all liability for future expenses, and settled withN. by a bona fide transfer of part of the bonds. Held, that P. P. was the real party in interest, the transfers from him being colorable merely, within the meaning of the act of March 3, 1875, and that the suit should he dismissed, the actual plaintiff and the de fendant being both residents of Maine.</p>

On Application for Injunction pendente lite. The bill in this cause was filed April 25,1887, by Louis Stein, as executor of Albert Stein, deceased, and sought to enjoin the defendant from laying mains and pipes in the streets of Mobile, and from conducting water to that city and supplying the inhabitants therewith. Beginning with. 1820, several attempts were made by public and private enterprises to supply the city of Mobile with water, but these met with little success.

<p>In Equity. Suit for foreclosure of mortgage.</p>

<p>1. Chattel Mortgages — Validity—Insolvency.</p> <p>A chattel mortgage was made and taken in good faith to secure a debt due to the mortgagee from the mortgagor, but at the date of its execution the mortgagor was hopelessly insolvent, though the fact of insolvency was not known to either of the parties. Gen. St. S. C. § 2015, enacts that preferential assignments of a part of an insolvent’s property shall be void if made within 90 days of a general assignment. Held, that the mortgage could not be set aside, as no general assignment had been made, and the transaction was in good faith.1</p> <p>2. Same.</p> <p>Knowledge of an agent of the insolvency of his principal will not make a transfer of property void for fraud, if it was made by the principal in good faith, without knowledge of his insolvency.</p>

<p>Bonds — Official—Recitals.</p> <p>An obligor in a bond given to tbe United States — reciting that the person for whom the security was given had been “assigned to duty as a property and disbursing officer, signal service, U. S. A.,” and conditioned that the incumbent should faithfully expend and account for all public moneys, etc. — is bound by such obligation, and will be held to answer for a loss occurring by the incumbent’s default, even though there be in fact no such office, and consequently the incumbent be not strictly an officer, but an agent or employe of the government.</p>

<p>Negotiable Instruments — Purchase from Bona Pide Holder — Knowledge of Equities.</p> <p>The purchaser of negotiable paper with knowledge of the equities existing against it, can recover the full amount of the face value thereof, and is not limited to a recovery of the amount paid or advanced by him for the paper, when he purchases of one who acquired it before maturity, for value, and without notice of any infirmity or defense.1</p>

On Exceptions to Master’s Report. Henry Martin was allowed to intervene in this case to claim damages from the receivers for injuries inflicted by a collision upon their railway.

On Exceptions to Master’s Report. W. II. Firebaugh & Co. were allowed to intervene in this case, to claim an amount paid by them for freight in excess of amount contracted for with the agent of the receivers, and the matter was referred to a special master, who reported as follows: I find that on the twenty-eighth of January, 1887, H. D. Patrick, local agent for the defendant receivers in the city of Austin, offered to W. H. Fire-baugh & Co., the petitioners, who then were,…

Action to Recover Possession of Real Property. This .is an action of ejectment to recover possession of certain lots in ihe town of Arlington, Gilliam county, Oregon, being portions of section 21, in township 3 N., of range 21 E. of the Willamette meridian, in that state. The plaintiff claims title to them under the grant made to the Northern Pacific Railroad Company, by the act of congress of July 2, 1864.

Petition for Writ of Habeas Corpus. The following is the petition as filed: ' j the Hon. 2S. B. Turner, Judge of the United States District Court for one Western District of Texas, Sitting in Open Session at San Antonio, Texas: Your petitioner, Juan Coy, would respectfully represent that lie is illegally restrained of liis liberty by Nat Lewis, sheriff of Bexar county, Texas, by virtue of an order of commitment issued out of the district court of Wilson county, Texas, the…

<p>In Admiralty. Qn appeal from district coart, 28 Fed. Rep. 664, modified.</p>

<p>1. Collision — Vessel at Anchor — Duty or Barge and Tow.</p> <p>A steam barge, with a tow of five vessels, coming down a river discovered the light of a vessel at anchor nearly in the middle of the stream, distant about a mile. There was room to pass on either side. The tug passed diagonally across the bows of the vessel at anchor, about 500 feet from her; but the distance between her and the other vessels in the tow gradually diminished by the force of the current, and the last vessel in the ‘tow struck her. Held, that the barge being bound to keep out of the way of the vessel at anchor, must, at her peril, shape her course for a safe margin against the contingencies of navigation, and the effect of the current.</p> <p>2. Same.</p> <p>■ A barge, being the last in a tow of five, crossing diagonally a river, collided with a vessel at anchor, the whole tow yielding to the force of the current, and each of the tow passing the vessel at anchor nearer than the one ahead. It was in testimony that the master of the barge, when the tow changed its course to cross the river diagonally, ported his helm, to head his vessel above the boat ahead of him, but the current drifted him down. Held, that the collision cannot be attributed to fault on the part of the barge.</p> <p>3. Same — Vessel at Anchor in Mid-Stream.</p> <p>A vessel anchored in the middle of a river about 1,000 feet wide, where vessels were frequently passing, leaving room on either side for them to pass. Held, that her place of anchorage was not improper.</p> <p>4. Same.</p> <p>A vessel anchored in the middle of a river 1,900 feet wide, where vessels were frequently passing and repassing. The last boat in a tow of five crossing the river diagonally, through the force of the current struck her bow. She had her anchor light displayed, and her anchor watch on deck.. Her mate seeing the danger called to the steam barge having the tow to keep off, but did not run out more anchor chain nor put the helm to port until the collision was immediately at hand. The captain was not on board. Held, that the circumstances of the anchorage imposed upon the vessel a degree of vigilance and care in which she was wanting, and the vessel must be held to be in part in fault.</p>

<p>Collision — Inevitable Accident.</p> <p>The schooners A. and B. were sailing early in the morning, off Cape Cod. The wind was blowing freshly from the south-west, or nearly so; the sea was chopping, and the weather foggy and “thick.” Each vessel maintained a v’gilant lookout, and signaled frequently by horn. Their general course was the same, and both were close-hauled. The A. was on her starboard tack, heading nearly south-east by south, and the B. was on her port tack, heading about south-west. Neither could see the other or hear the signals, until immediately before the collision. When a collision was imminent each acted promptly, and both went to starboard. The A. contended that the B. should have ported instead of starboarding. The B. claimed that the accident could not be avoided. Held, that the collision was the result of an inevitable accident.</p>