Volume 35 — Federal Reporter

<p>On Motion to Remand to State Court.</p> <p>Yuba Co. v. Mining Co., 32 Fed. Rep. 183; Telegraph Co. v. Brown, Id. 337; Fales v. Railway Co., Id. 673; Gavin v. Vance, 33 Fed. Rep. 84; Rawley v. Railroad Co., Id. 305; Nelson v. Hennessey, Id. 113.</p> <p>Railroad Co. v. Railroad Co., 33 Fed. Rep. 385; Dwyer v. Peshall, 32 Fed. Rep. 497; Fisk v. Henarie, Id. 417; Judah v. Wire Co., Id. 561; Bourke v. Amison, Id. 710; Anderson v. Appleton, Id. 855; Weller v. Tobacco Co., Id. 860; Mining Co. v. Markell, 33 Fed. Rep. 386; Reinstadler v. Reeves, Id. 308; Covert v. Waldron, Id. 311; Loomis v. Coal Co., Id. 353; Newgass v. New Orleans, Id. 196; Short v. Railway, Id. 114; Nelson v. Hennessey, Id. 113; Harold v. Mining Co., Id. 529.</p>

In Equity. On application for preliminary injunction. The bill of complaint alleged that defendant, an employe of complainants, had invented certain improvements in complainant’s machinery, in adopting which complainant had been put to great expense; that defendant now intended to take out patents on such inventions, and enjoin complainant’s use of them, and exact royalties, which, under his contract of employment with complainant, defendant was not entitled to exact; that…

<p>1. Courts — Federal Districts — Southern District of New York —West Point Reservation.</p> <p>The United States reservation at West Point, in the state of New York, is within the “Southern district of New York,” and the circuit court of that district has jurisdiction of a Dill to foreclose a mortgage executed by a railroad company upon its right of way through that reservation granted it by congress, and its improvements thereon.</p> <p>3. Same—Conflict of State and Federal Jurisdiction.</p> <p>The pendency in the state courts of a' suit by the trustees of a railroad mortgage to foreclose is not a bar to a similar suit in the federal court by a bondholder secured thereby.</p> <p>3. Equity—Laches—Demurrer.</p> <p>Where the delay on the part of a bondholder under a railroad mortgage in bringing suit to foreclose is for a period less than that fixed by the statute of limitations, the fact of such delay is a mixed question of law and. fact, and cannot be passed upon on demurrer to the bill.</p> <p>4 Railroad Companies — Bonds and Mortgages — Foreclosure — Suit by Bondholder.</p> <p>A railroad mortgage provided that, in case of default in interest for four months, the principal should become due, and that the trustees should, “upon written request of the holders of a majority in amount of * * * outstanding bonds, * * * proceed to foreclose the mortgage” within a reasonable time. Acting upon such request, the trustees filed a bill to foreclose in the state courts, which was dismissed in special te’-m for want of jurisdiction of the subject-matter. The trustees took an appeal, but, before it was determined, a bondholder urged the trustees to renew the litigation in the federal courts, and, upon their refusal to do so, brought the suit there himself, and in his own name. Held, on demurrer to the bill, that, to the extent of accrued and unpaid interest, the suit was properly brought.</p> <p>5. Same—Parties.</p> <p>A bill to foreclose a railroad mortgage executed by two companies, the H. and the W., set out the respective incorporations; a grant of way to the H.; the practical consolidation of the two companies; and the expenditure of a large sum of money by tbe consolidation upon the construction of a road over such right of way, and the execution of the mortgage thereon. It then traced the franchise through many conveyances, until it ultimately passed into the hands of the S. road, and was leased by it to the C. road. Held, on demurrer to bill, that the S. and the 0. companies were properly made parties, being respectively owner of the equity and lessee in possession of the mortgaged premises.</p> <p>6. Same—Corporate Existence of Mortgagor—Estoppel to Question.</p> <p>Two railroad companies,'the C. and the S., parties to a bill to foreclose a mortgage on the road in their hands, demurred to the bill on the ground that the H. company, which, with the W. company, had executed the mortgage, had never been duly incorporated. The original franchise had been granted the H. company, and the S. company had succeeded to the franchise through various mesne conveyances, and had leased it to the C. compányfor 975 years. It did not appear that the validity of the incorporation of the H. company had ever been questioned in direct proceedings by the state, or by those interested in the incorporation. It was also averred that the H. company had acted continuously as a corporation, had acquired the mortgaged premises as such, and as such had executed the mortgage, received the proceeds of the bonds in suit, and put them into the construction and operation of the road. Held, that the demurrants were estopped to question the incorporation, which was their only source of title.</p> <p>7. Same—Estoppel to Deny Validity of Mortgage.</p> <p>A joint railroad mortgage, executed by the H. company and the W. company, covered “all and singular the railways of each, constructed or hereafter to be constructed, and also all and singular the franchises now owned by each or either for the purpose of building and operating their respective lines of railway, ” etc. The bonds secured by the mortgage were those of the W. company, issued for the purpose of enabling it to acquire a lease of the road and entire property, including a valuable franchise, of the H. company, and to build, furnish, and operate its own road. The H. company then leased its franchise for the full corporate term to the W. company, and transferred to it its entire capital stock. The said railroad property and franchises passed through various mesne assignments into the hands of the 8. company, who leased them to the 0. company Held, on demurrer to hill to foreclose the mortgage, that the S. and 0. companies were estopped to discute its validity.</p>

<p>In Equity. On demurrer to supplemental bill. For hearing on pleas to supplemental bill, see 33 Fed. Rep. 795.</p>

<p>In Equity. On motions.</p>

<p>Equity—Practice—1Taking Testimony.</p> <p>The power of the circuit court to appoint special examiners, under the sixty-seventh rule in equity, to take testimony outside of its territorial jurisdiction, is not free from doubt, and the practice is objectionable.</p>

<p>United States Examiners—Taking Testimony Out oe District.</p> <p>An examiner of the United States circuit court for the Southern district of New York cannot take testimony outside of his district.</p>

<p>At Law. Action of replevin.</p> <p>John G. Furber, plaintiff, sued L. V. Stephens, receiver. The facts appear in the opinion.</p>

At Law. Action by Andrew G. Tripp, as administrator of Charles M. Daugherty, deceased, to recover the amount of calls and assessments paid by the estate upon certain shares of stock alleged to have been assigned by said Daugherty during his life-time to Alphous R. Appleman, the defendant. There ivas a trial to a jury, and verdict for plaintiff. Defendant thereupon moved for a new trial.

<p>1. Principal and Agent—Revocation—Power Coupled with an Interest.</p> <p>An agency or authority, coupled with an interest in the subject-matter thereof, may be revoked by the principal in pursuance of a stipulation or reservation to that effect in the instrument constituting the agency or authority. 8. Same.</p> <p>An agency to loan the principal’s money in his name, and collect the interest thereon, in consideration of an annual commission on the existing amount of such loans, to be retained by the agent out of the annual interest thereon when collected by him, is not an agency coupled with an interest in the subject-matter thereof, and may be revoked by the principal at his pleasure.</p> <p>3. Arbitration and Award—Submission—Revocation.</p> <p>A submission to arbitration, where the same is not made a rule of court, or otherwise regulated by statute, may be revoked by either party thereto, at any time before an award is made, and the remedy of the adverse party, if he is damaged thereby, is by an action on the agreement to submit.</p> <p>(Syllabus by the Court.)</p>

<p>At Law. On motion to direct verdict.</p> <p>This was an action on a policy of accident insurance, brought by Phoebe C. Gronkhite against the Accident Insurance Company of North America.</p>

<p>Insurance—Contribution—Pro Rata Clause—Avoidance of Prior Policy-Increase of Risk.,</p> <p>The goods destroyed were stored in warehouses, the rear of which, at the time the prior insurance was taken out, was connected by an iron door on the fourth floor with two buildings occupied by a candy manufacturer, who also made use of the fourth floor in rear of the warehouses. Appliances were afterwards put into these two buildings for the purposes of a steam bakery, and communications made with adjoining premises. The insurance company having refused to issue a policy allowing this occupation, the assured applied to another company, which took the risk, and issued a policy containing the usual contribution proviso as to additional insurance, prior or subsequent. This policy, in describing the promises, referred to the steam bakery, and the premium charged in it was double that of the prior policy. Pire spread to the warehouses, and the goods were destroyed. Held, that the first policy was avoided by the alteration, and that there was, therefore, no double insurance within the terms of the second.</p>

At Law. Action upon certain railroad aid bonds issued by the town of Kaboka. The town was incorporated under the act of February 8, 1871, (2 Wag.

<p>At Law. On demurrer to the complaint.</p>

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

<p>Master and Servant—Who are Fellow-Servants—Locomotive Engineers.</p> <p>Locomotive engineers are fellow-servants, and in Colorado the company employing them is not liable for personal injuries resulting to one from the negligence of another in a collision.1</p>

<p>Master and Servant—Negligence of Master—Pleading.</p> <p>The complaint in an action for damages for personal injuries set out the employment of plaintiff by defendant, and charged a breach of duty on the employer’s part in failing to keep a certain ladder in proper repair, and that one of the rounds of said ladder broke and dropped plaintiff. The allegation of negligence was to the effect that “it was the duty of defendant to keep said ladder in good, safe, and secure condition, so that those in its employment might securely ascend and descend the shaft UDon the same. ” Held, on de.nrarre'r, that tlie duty of the employer was stated too broadly, and that the complaint should be amended so as to confine that duty to the exercise of “reasonable care and diligence.”1</p>

<p>At Law. Action for damages. On demurrer to complaint.</p>

<p>1. Death by Wrongful Act- -Action by Administrator—Damages.</p> <p>The damages given to an administrator for the death of his intestate by the statute of Oregon (Oomp. 1887, § 371) are, when recovered, assets of the estate. They do not include anything hut what is consequent on the death, and therefore no allowance can be made for the expenses of the illness attendant on the injury which caused the death, or of the burial of the deceased.</p> <p>2. Same.</p> <p>These damages are in the nature of a compensation paid by the wrong-doer to creditors and next of kin of the deceased for the loss of life in which they have a pecuniary interest, and incidentally the liability to pay them is calculated to secure from carriers and corporations more consideration for the lives of passengers and employes committed to their care.</p> <p>8. Same—Liability of Vessels in Fault.</p> <p>Ferry-boat Ño'. 2 and the steam-launch Mikado collided in the Willamette river, in front of the Portland slip of the former, and thereby caused the death of a passenger on the latter, when such collision might have been avoided and the death prevented by the proper handling of either boat. Held, the owners of both boats are liable to the administrator of the deceased, under the statute of Oregon, in solido, for the damages resulting from such death.</p> <p> [Syllabus by the Court.) </p>

<p>At Law. On motion to amend judgment.</p>

Petition for Writ of Habeas Corpus. The relator’s ease is thus stated in his petition: “The petition of Columbus D. ICinnebrew, who alleges that he is a citizen of the United States and of the state of Georgia, respectfully showetli that he is illegally restrained of his liberty in violation of article first, section eight, and paragraph third of the constitution of the United States by being deprived of his liberty by L. P. Thomas, the sheriff of Pulton county, in the…

<p>Indictment and Information—OPilin® Information—Sufficiency.</p> <p>An information set out that it was issued on the oath of the office of the district attorney, hut the information was not sworn to. Accompanying the information were the papers of the commissioner who held the preliminary examination, showing that the accused had been arrested on a warrant issued upon affidavits, and stating the necessary facts upon knowledge, and that at the hearing the evidence against the accused was taken under oath. Held, on motion to quash, that the information was good.</p>

<p>Post-Office—Stealing from the Mails.</p> <p>The only offense punishable under section 5467, Rev. St. TJ. S., is “the stealing or taking” by a postal employe of the articles enumerated in this section from the mail intrusted to him, which mail has been embezzled, secreted, or destroyed by him.</p> <p> {Syllabus by the Court.) </p>

<p>Patents for Inventions—Patentability—Novelty—Boíles Injectors.</p> <p>The court finds that the same question as to the validity of claim N o. 8 of patent No. 185.861 was decided upon substantially the same evidence in the case of Hancock Inspirator Co. v. Lolly, (in the Northern district of Illinois,) 27 Fed. Rep. 88, and that the rule of comity between the circuit courts of the United States in patent cases requires that decision to be adhered to as governing the present case.</p> <p> {Syllabus by the Court.) </p>

<p>1. Patents por Inventions—Switch-Stands—Priority.</p> <p>Janies Bralm, August 5, 1879, and March 6, 1888, obtained patents for improvements in railroad switch-stands. Joseph H. Lukens, May 11, 1875, (application filed March 5, 1875,) obtained a patent for an invention containing some of the same features. Brahn endeavored, in an action for infringement, to show that his invention was prior to the date of the Lukens patent, field that, inasmuch as complainant, when notified, March, 1879, by the patentoiiice that his claim was anticipated by Lukens, more sharply limited his claim to the precise combination intended to be covered, instead of insisting to the contrary, he conceded the priority of the Lukens patent.</p> <p>2. Same—Infringement.</p> <p>Where the shaft, as shown in the fourth claim of patent 218,110, August 7, 1879, for switch-stands, slides vertically, and by such vertical action locks and unlocks the switch, and its primary locking can only be overcome by fracture of some part of the mechanism, it is not infringed by a switch-stand the shaft of which revolves, and where the locking is one which may be overcome by pressure at the rails; and when, if the peculiar features of the shaft and hub and lever are eliminated, and the claim only covers the substitution of a single padlock staple rotating with the shaft, for the three exactly similar but fixed padlock staples of the Lukens patent of May 11, 1875, it would show no subslantial invention above ordinary mechanical skill, and be void'.</p> <p>3. SAME.</p> <p>Patent 273,450, March 6,1883, for switch-stands, granted to James Brahn, on account of the prior state of the art can only be maintained when closely restricted to the specified elements, each of them being material to the claim; and where in the alleged infringing stand the shaft has not the vertical mo-tion of the shaft in the patent, and the additional shaft with its spring and recess is omitted, there is no infringement.</p>

In Equity. On motion for preliminary injunction. The bill was filed to enjoin an alleged infringement of reissued letters patent No. 8,460, of October 22, 1878, (original No. 193,867, of August 7,1877,) to Siegfried Hammerschlag, for a process of making waxed paper by machinery.

<p>1. Patents for Inventions—Reissue—Waxed Paper.</p> <p>Claim 5 of reissued letters patent No. 8,460, of October 22,1878, to Siegfried Hammerschlag, for a process of making waxed paper by machinery, is identical with the second claim of the original, viz., No. 198,867, of August 7, 1877, and the reissue was applied for within 14 months after the date of the original. Meld, the validity of the reissue never having been questioned in any of the numerous prior decisions sustaining the patent, the claim should be sustained.</p> <p>2. Same—Patentability—Anticipation.</p> <p>Claim 5 of reissued letters patent No. 8,460, of October 22,1878, to Siegfried Hammerschlag', for a process of making waxed paper by machinery, held not anticipated by Edison. Following Hammerschlag v. Wood, 18 Fed. Rep. 175.</p>

In Equity. Bill to restrain an alleged infringement of letters patent No. 272,660, of February 20, 1883, to Alfred A. Cowles, for an improvement in insulated electric conductors. The bill having been dismissed, (32 Fed. Rep. 81,) complainant now moves for a rehearing.

<p>Patents bob Inventions—Inbbinoement—Bustles.</p> <p>The first claim of patent No. 164,340, issued June 8, 1875, to Amos W. Thomas, for an improvement in hustles, is as follows: “In a bustle, abase bow formed or combined with upright extensions or ribs, which rest against the person of the wearer, and provided with spiral curves arranged so as to permit said bow to fold upwardly towards the waistband, and cause it to spring downwardly when impact is released. ” Held, that defendant’s hustle, which has an upper rib as one of a series of ribs which compose the bustle, hut which has not the upright extension of the Thomas patent, does not infringe it.</p>

<p>In Equity, Bill for infringement.</p>

<p>In Equity. Bill by the patentee for infringement of letters patent No. ■ 326,401, of September 15, 1885, to Frederick A. Casey, against Finley It. Butterfield, the patentee in letters patent No. 326,066, of September 29, 1885.</p>

<p>Salvage—From Fire — Speediness oe Service—Comparison with Other</p> <p>The schooner W. was lying at a wharf in Williamsburgh when fire out in oil-works in the vicinity. The mate of the schooner applied for assistance to a tug, which went first to the aid of the schooner J., lying near by, and afterwards returned and took the W. into the stream. This court heretofore awarded the tug §200 for her services to the J. 30 Fed. Sep. 204 The value of the W. was less than that of the J. The latter bad a cargo of oil on board, which increased her peril. The time devoted by the tug to the W. was scarcely one-fourth as much as that given to the J., and the service was rendered less speedily in this case, and after the danger had somewhat decreased. Held, that $25 was a proper award for the service rendered the W.</p>

<p>Courts—Federar Circuit Courts—Jurisdictionar Amount.</p> <p>Under the act of March 3, 1875, (Supp. Rev. St. 173,) the circuit courts have no jurisdiction of ail action to recover money or property wherein the United States are plaintiffs, unless the amount or value of the matter in controversy exceeds the sum of $500, exclusive of costs.</p> <p> vSyllabus by the Court.) </p>

<p>Courts—Federal Circuit Courts—Jurisdictional Amount.</p> <p>Under the act c. March 3,1887, (24 8t. at Large, 552,) the United Stat°s circuit courts have no jurisdiction of an action to recover money or property wherein the United States are plaintiffs, unless the amouut or value of the matter in controversy exceeds the sum of $2,000, exclusive of costs.</p> <p> (Syllabus by the Court.) </p>

<p>Eminent Domain—Rights of Abutters—Injunction.</p> <p>Equity 'will not entertain a bill of an abutting proprietor to enjoin a railroad company from operating its trains over a track laid in a public street under legislative authority, on the ground that he has not been compensated for the incidental damages, where complainant’s property has not been actually taken, and he has'made no effort to arrest the work, nor given notice that he claims damages, until after the track has been laid, though the constitution of the state (Const. Mo. art. 2, § 21) requires compensation in advance for the taking or damaging of property for public use. In such case he must he left to his remedy at law.</p>

<p>In Equity. Bill to remove cloud on title. On demurrer to bill</p>

<p>In Equity. Bill for specific performance, brought by the Farmers’ Loan & Trust Company, as administrator with the will annexed, against Amos R. Eno.</p>

<p>Partnership—Power of Partner to Bind the Firm — Chattel Mortgage of Stock—Fraudulent Preference.</p> <p>A large creditor of B. & K., fearing that they were insolvent, dispatched an agent to obtain security. .The partners met on Saturday, and promised to save the agent harmless, B. to give a mortgage on his individual property on Monday. An examination was made of the books, and, they clearly showing insolvency, both partners agreed to make a general assignment. Schedules were accordingly prepared, and instructions given the firm’s attorney to have the papers ready for execution Monday morning. Sunday night K. went with the agent to another attorney, and was there induced to agree to execute a mortgage on the stock in trade in favor of the creditor by a promise of a position in his employ. The following morning K. refused to join in the assignment unless the creditor was first secured, and, B. not assenting to this, K. signed the mortgage in the firm’s name, and delivered it to the agent. This mortgage authorized the mortgagee to take immediate possession and sell. B., who knew nothing of the mortgage until demand was made under it for possession, then executed the assignment in the firm name, and turned the property over to the assignee. Reid,, on bill to foreclose, that under the circumstances, according to the rule in Iowa, the mortgage was fraudulent and void.</p>

<p>Injunction—Modification—Motion before Another Judge—Urgency.</p> <p>Unless the necessity is so urgent as to'require immediate action, an injunction will not be modified, changed, or set aside, except by the same judge who granted it.</p>

At Law. Action by John 33. Phillips, receiver of the National Bank of Sumter, against .Bossard and others, sureties upon the bond of C. E. Bartlett, formerly cashier of said bank.

At Law. On demurrer to petition. Action by Mary Robb against Nicholas Perry, one of the sureties on the bond of E. G. Spencer, deceased, formerly plaintiff’s guardian.

<p>Action to Recover Special Taxes. On demurrer.</p>

<p>Interest—Rate on Promissory Note aetek Maturity.</p> <p>Where a promissory note contains a promise to pay the principal, with interest from date at a conventional rate in excess of that established by law, in the absence of contract sneh conventional rale will not extend beyond the maturity of the note, unless the terms of the note itself expressly so provide.</p>

<p>Railroad Companies—Accidents to Trains—Pleading.</p> <p>A complaint alleged in substance that plaintiff was an express messenger on defendant’s train of cars: that the air-brake apparatus of the several coaches were different and not adjustable, and that by roasoft thereof, when the train was stopped at B. and the engine del ached, the brakes were not set, and the train, by force of gravity, moved down a steep grade, and was thrown from the track, and plaintiff was injured; and also alleged that the accident occurred through defendant’s employes negligently leaving the train without setting the brakes, field, that the complaint stated a good cause of action.</p>

<p>1. Limitation of Actions—Disabilities and Exceptions—Absence from State.</p> <p>Under section 100 of the New York Code of Procedure, as amended July 10, 1851, which provides for an extension of the time limited to six years by section 91 of that Code for the commencement of actions therein specified, by the departure from and residence out of the state of a person after a-cause of action has accrued against him, mere absences of such person from the state for business or pleasure, without any intention of remaining away, and respectively followed by a return thereto as his place of residence, though aggregating twelve months in seven successive years, do not constitute departure from and residence out of the state within the meaning of section 100, and such period of twelve months is not to be added to the six-years limitations prescribed by section 91.</p> <p>2. Courts—Federal—Following State Decisions.</p> <p>Where a question arising under a statute of a state has been passed upon by a federal court in that state in the light of apparently conflicting opinions of the state courts, the federal court will, in a subsequent case involving the same question, where its attention is called for the first time to a decision of the state court of last resort definitely interpreting that statute, reverse its former decision, and follow the ruling of such state court notwithstanding the fact that that ruling was made prior to the earlier decision of the federal court.</p>

At Law. On motion for a new trial. Tlie plaintiff Harris left his home in North Carolina in 1885 to visit the exposition at New Orleans, and with the further object of bettering his financial condition. He carried with him letters of recommendation from a number of people of good position in his native state. After trying the lower Mississippi valley for a twelve-month or more without success, lie took deck passage on the steamer Arkansas City for St. Louis, in July, 1886.

<p>Patents for Inventions—Novet/íy—Elastic Hose.</p> <p>Letters patent No. 174,711, granted to Edward Tivey, March 14,1876, for improvement in elastic hose, (the invention consisting in making an elastic stocking, with a seamless heel, by knitting or weaving a heel-piece which is attached with seams, or by being knitted onto the sides of the stocking, so that the seams do not come against the tendon of the heel,) are void for want of novelty; elastic stockings with seamless heels having been common as early as 1870, and the Tivey invention merely changing the seam from the line of the heel-tendon to the sides.</p>

This was a bill to restrain the infringement of letters patent Ho. 236,-723 for a sleeve-nut, and method of making sleove-uut, issued January 18, 1881, to (leorge H. Sellers, assignor to William Sellers and John Sellers, Jr. The bill was filed by said William Sellers and John Sellers, Jr., as owners of the patent, and the Edge Moor Iron Company, licensees. The prayer was for an injunction and account.

<p>Iii Equity. Motions for preliminary injunctions.</p>

<p>1. Patents for Inventions—Duration of Right—Foreign Patent.</p> <p>Rev. St. U. S. § 4887, provides that “every patent granted for an invention which has been previously patented in a foreign country shall be so limited as to expire at the same time with the foreign patent. ” Meld, where the application for the foreign patent was not made until subsequent to the application in this country, but the foreign patent issued before the domestic patent, that the term of the domestic patent was limited to the term of the foreign patent.</p> <p>2. Same.</p> <p>It is not material whether the foreign patent was granted to the inventor who made the application in this country or to some other person to whom he had caused the invention to be patented; the statute covers both cases.</p> <p>8. Same.</p> <p>Nor is it important that the inventor who made the application in this country is one of our own citizens; no statute passed since the act of congress of July 4, 1830, (5 U. S. St. 117,) which repealed all former patent laws making any distinction between citizens and foreigners in respect to the privilege of obtaining patents, except as to the fees to be paid, and the protection of inventions by caveat.</p> <p>4. Same—Action for Infringement’—Pleading.</p> <p>A bill for infringement of letters patent No. 263,140 of August 22, 1882, to Thomas Edison for an “Improvement in Dynamo Electric Machines” set out the grant of letters upon an "application filed August 9, 1880. Besides the usual averments, it alleged by way of anticipation that defendant would rely upon an Austro-Hungarian patent granted to complainant prior to No. 203,140 and the expiration of such foreign patent prior to suit brought; but that complainant had reduced his invention to practice in the United States prior to his application in Austro-Hungary, and that the foreign patent was issued for 13 years and had many years yet to run. Defendant Died a plea denying that the foreign patent was issued for 15 years and alleged that it was issued prior to the American patent, viz., July 21,1881, and that, it, and a renewal set out, had expired. Held, that the objection raised could be taken by plea; and that the plea was sufficient in form, the only negative matter it contained being necessitated by the anticipation clause of the bill, and the tenor or legal eilect of the foreign patents being averred and profert being' unnecessary,</p>

<p>In Equity. Bill for infringement of patent No. 180,340.</p>

<p>In Equity. Bills for infringement of patent, brought by Bernard Freese against Samuel Swartchild and against Glickauf et al.</p>

In Equity. On bill lor preliminary injunction. This is an application made by Edward N. Dickerson, Jr., trustee, and others, to restrain the De la Vergne Refrigerating Machine Company from manufacturing refrigerating machines alleged to be an infringement of letters patent No. 302,294, granted July 22, 1884, to Julius J. Suckert, under whom the complainants claim.

<p>In EquitjT. On demurrer to bill.</p> <p>Suit brought by George B. Sherman against Joseph Nutt to restrain infringement of a patent.</p>

<p>1. Trade-Marks—Descriptive Words.</p> <p>The words “Taffy Tolu,” as applied to chewing-gurp, being descriptive of the character of the article, rather than indicative of its origin, are not susceptible of appropriation as a trade-mark by one having no patent for the exclusive use of the ingredients which constitute the article, or for the article itself.</p> <p>2. Same—Marker or Packing and Labeling.</p> <p>Complainant, a manufacturer of chewing-gum, put the article up in small bundles, each consisting of six small oblong cakes bound together with a rubber band, and each cake wrapped in a white label bearing two black imprints about the size and shape of the cakes themselves, the imprints being designed and made to rest conspicuously one on each side of the cake, and the most conspicuous imprint being the words “Colgan’s Taffy Tolu Chewing-Gum. ” Held, the words indicated not being susceptible of appropriation as a trade-mark, that complainant was not entitled to an injunction in the absence of proof that he had first established a reputation for his goods by thus packing and labeling them, and that defendant had attempted to supplant him in the market by an unlawful use of such devices.</p>

<p>In Equity. Rescript.</p>

In Admiralty. Libel in personam demanding $2,500 damages for personal injuries to the libelant, caused by a blow on the head with a monkey-wrench in the hand of the mate while both were engaged in loading machinery from a barge along-side of the steam-boat General Rucker, of which the defendant was the owner. The facts are stated in the opinion of the court.

<p>Collision—Vessel at Anchor—Fog.</p> <p>Where a steamer was runaing in a hank of fog as slowly as it was possible for her to do under the circumstances, a collision between such steamer and a schooner at anchor held to he an inevitable accident, imposing no liability for damages upon the steamer.</p>

<p>1. Collision—Steam and Sail—Tows.</p> <p>A collision occurred in the Hudson river, in broad daylight and fair weather, between a tow, bound down stream, and a schooner, bound up. The schooner was approaching the tow under jib alone, at a rate of about four miles an hour, whereas the tow thought she was at anchor, and consequently kept up her own speed and course towards the schooner until collision was imminent. EM, that the cause of the collision was want of proper lookout'on the towboat, for which she was liable.</p> <p>2. Same.</p> <p>When collision was imminent, the schooner was luffed into the wind, in an effort to stop her headway, and lessen the damage likely to ensue. Eeld, no fault on the part of the schooner.</p>

<p>1. Removal of Causes—Citizenship—Corporations—Foreign—Baltimore & Omo Railroad Company in West Virginia.</p> <p>The Baltimore & Oliio Railroad Company is a Maryland corporation, and not, a corporation created by any enabling act of Virginia or West Virginia; the Virginia act of 1827 merely conferring upon such company a license to transact business in the stale, and is entitled to remove a cause begun in the West Virginia courts to the Federal courts on the ground of citizenship.</p> <p>2. Samf.—Separable Controversy.</p> <p>A hill was iiled, the objects of which were—First, to restrain the B. & O. company from using or transferring 1,160 shares of stock of the G. & G. Company; second, if the stock had not been issued, to restrain its issuance; third, to enjoin the collection or negotiation of bonds transferred by the G. & G. Company to the B. & O. Company, it appeared that the G. & G. Company had issued the stock, and transferred the bonds to the B. & O. Company, before the commencement of the action. The G. & G. Company's answer adopted the B. & O.’s answer, and showed that it had no interest in the controversy. Held that, as it was unnecessary to notice the second prayer, the stock having been issued, and as the only relief which could be granted was under the first, and third prayers, relating solely to the B. &. O. Company, the action was separable, and the G. & G. Company not a necessary party.</p> <p>3. Same—Local Prejudice—Plea.</p> <p>Under Acts Cong-. 1887, c. 373, § 2, cl. 4, providing “that a removal shall take place wtien it is made to appear to the circuit court that from prejudice or local influence it [defendant,] will not ho able to obtain justice” in the state courts, a plea by plaintiffs simply denying defendant’s belief in the existence of such prejudice or local influence is insufficient, and raises no issue on that question, as the plea should affirm that it does not exist.1</p> <p>4. Coporations—Board of Directors—Notice of Special Meeting—Ratification.</p> <p>Where action taken by a board of directors of a corporation at a special meeting is ratified at a subsequent special meeting, of which all the members of the board had legal notice, and at the next regular meeting, “The minutes of the last two meetings wore read and approved,” it is immaterial whether all the members of the board were legally notified of such first special meeting, in the absence of fraud or conspiracy on the part of the officers or directors.</p> <p>5. Same—Interest of Director in Corporate Act.</p> <p>The action of a board of directors of a corporation in delivering corporate stock in payment of a portion of its indebtedness, and consolidating the remainder into a mortgage on the corporate property, is not rendered illegal by the fact that members of the board had become guarantors for further advances made to the corporation after it had exhausted its credit, which advances were to be paid by the delivery of the stock.</p> <p>6. Same—Dealings by One Corporation in Stock of Another—Advances on Security of Stock.</p> <p>Where one corporation makes advances to another, taking as collateral security mortgage bonds of the latter, which It is unable to redeem, defaulting in the payment of the interest, and thereafter such corporation makes further advances secured by bonds and stock of the latter corporation, such transaction is not within the prohibition of Code W. Va. forbidding one corporation to subscribe for or purchase stocks, bonds, or securities of another corporation except in payment of a bona fide debt.</p>

<p>In Equity. On application for an injunction restraining the prosecution'of. a suit in the state court.</p>

<p>In Equity. Action for partition.</p>

At Law. Application to submit motion for a new trial to a full bench. This was an action for damages for negligently killing the plaintiff’s intestate." It was tried before the district judge of another district, sitting by designation.

<p>1. Municipal Corporations—Bonds—Power to Issue.</p> <p>The defendant city, being authorized to borrow money for “general purposes, ” bad power to issue commercial bonds for the sums borrowed which will legally bind the corporation.</p> <p>2. Same—Constitutional Law.</p> <p>The city was chartered in 1873. The state constitution of 1876 provides that such cities as Brenham may “collect an annual tax to defray the expenses of their local government, not to exceed for any year one-fourth of one per' cent. ” The bonds were issued in 1879. Held, that the said provision did not forbid tlio defendant city to borrow money for “general purposes, ” or to defray the expenses of its local government.</p> <p>8. Same—Innocent Purchaser—Notice.</p> <p>The money horro wed on the bonds was expended unlawfully by the city council to aid a railway company. The whole series of bonds and coupons were purchased by Mensing before any of the coupons were overdue. While Mensing held them, some 82,000 of the coupons became past due and unpaid, and in that condition Mensing pledged the bonds and coupons to plaintiff to secure the payment of borrowed money. Held, that if the jury find that Mensing had knowledge of the fact that the city council, in borrowing money on the bonds, intended to expend the money obtained from the bonds, or did expend the same, in the aid of a railway company, the plaintiff, as to the dishonored coupons, should not recover.</p> <p>4. Same—Pledge.</p> <p>The pledgee, the plaintiff, in relation to the dishonored coupons, must be charged with such knowledge of the issuable facts as the jury may believe the pledgeor, Mensing, should be charged with.</p> <p> (Syllabus by Boorman, J.) </p>

<p>At Law. Ejectment brought by Edward Rutz against Benjamin Seeger and the city of St. Louis.</p>

At Law. Action by Kalph L. Goodrich, clerk of the United States circuit and district courts, Western division, Eastern district, Arkansas, against the United States, for fees.

At Law. Action to recover payments of customs duties. The firm of E. B. Strange & Bro. imported from London, England, into the port of New York certain “China tram,” “Canton tram,” and “China organzine,” by the Persia, July 22, 1863; certain “Italian thrown silk,” by the Etna, September 23,1863; and certain “Japan organzine,” by the Scotia, August 2, 1863.

<p>1. Patents fob Inventions— Infringeiusnt—-Machines por Forming Staple-Seams.</p> <p>Claim 8 of letters patent No. 186,840, of February 25,1873, to Samuel W. Shorey, for “machines for forming staple-seams in leather,” is: “in combination with the bender-foot and driver, the inclined and retreating anvil, operating substantially as described. ” Itehi. that a machine which did not use the inclined and retreating anvil of the combination to support the crown of the staple, but did use that part of the device necessary to prevent the prongs from crippling inward as the staple is driven home, was an infringement; the inward support of the prongs being the principal part of Shorey’s invention.</p> <p>2. Same—Preliminary Injunction.</p> <p>Where the machine used by defendant is clearly an infringement, it is no defense to a preliminary injunction that the manufacturer from whom defendant bought it has been enjoined in another suit; and this is especially so where it does not appear that the decree against the manufacturer was for the profits of a sale for use.</p>

Iii Equity. Bill for infringement of patent. On motion to open default.

<p>In Equity. Bill for infringement of patent, brought by Douglass E. Maltby against John H. Graham and others. ' On motion for injunction.</p>

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

<p>Copyright—Pictures—Designs for Trade-Labels.</p> <p>Plaintiffs designed a picture, representing a youngwoman holding a bouquet of flowers, to be printed on labels for cigar boxes, and delivered to the librarian' of congress a description of the picture by the title “Nosegay, ” and the librarian duly recorded the name of the picture. Held, that this was an attempted evasion of act Cong. June 18, 1874, § 3, providing that no prints or labels designed to be used for any article of manufacture can be copyrighted, but authorizing them to be registered as trade-marks; and that plaintiffs' design could not be protected as a copyright.</p>

<p>Patents for Inventions—Prior Use—Rehearing — Suppression of Testimony-Credit of Witnesses.</p> <p>N., the owner of letters patent No. 65,664, of June 11,1867, to Joshua J. Gilbert, for “manufacture of starch, ” sued G. for infringement. Pending suit G. procured strong affidavits from Gilbert’s employes that the process covered by the patent had been used in his factory for more than two years before his application on March 11,1867. These affidavits being submitted to N., he became alarmed, and agreed, in consideration of their surrender to him, to secretly abandon the suit, which was done. He also retained the attorney who procured the affidavits. A., whom he had previously sued for infringement of the same patent, and had obtained a decree against, upon discovery of these transactions, moved for a rehearing on the ground of newly-discovered evidence as to public use for more than two years, and suppression of testimony upon that point by N. The testimony offered in support of the motion was all that of Gilbert’s employes. Some of it was unimportant, and not new; and the most material part was that of Gilbert’s foreman, who, at various times during the several suits, had made five affidavits as to such public use, two being entirely antagonistic to the other three, and the contradiction being unexplained. In addition, other affidivits excited serious distrust of their accuracy. Held, that although the conduct of N. was reprehensible, the rehearing should be denied; the testimony offered being untrustworthy</p>

<p>Patents for Inventions—Infringement—Action at Law after Decree for Injunction and Accounting.</p> <p>After complainant in a suit for infringement has obtained a decree for perpetual injunction and account of damages and profits, and the accounting has commenced and is pending, he cannot, without leave of court, proceed at law for infringements committed since the decree.</p>

<p>In Admiralty. On appeal from district court. 31 Fed. Rep. 687.</p>

In Admiralty. Libels by the insurance company, which had paid the loss on the canal-boat sunk through the collision in this case, and by the owners of the cargo on board of her, against the steam-boat Bridgeport, for negligence causing the said collision. The tng was made a party defendant by the steam-boat, under the fifty-ninth admiralty rule.

<p>In Admiralty. On appeal from district court, ante, 222.</p>

At Law. On motion to remand. The plaintiff sued upon an account before a justice of the peace for $288, suffered judgment there in favor of the defendant, and took an appeal to the circuit court of Shelby county, where the defendant pleaded a set-off, claiming damages in the sum of $3,000 for a breach of the contract for roofing certain buildings, out of which the balance sued on by the plaintiff arose, the account having been assigned to the usee of the action.

<p>On Motion for New Trial.</p> <p>Action by J. H. Fisk against D. V. B. llenarle, Peter Donohue, Eleanor Martin, Thomas Martin, Edward Martin, and John D. WLcox, to recover damages.</p>

In Equity. Bills to restrain alleged infringement of letters patent by the Edison Electric Light Company against the New Haven Electric Company, in two cases, numbered 570 and 571.

<p>In Bankruptcy.</p>

<p>In Equity. Bill to set aside a conveyance.</p>

At Law. Ejectment to recover designated lots of land situated in Los Angeles county, Cal. Plaintiff relied upon the land being found to be within the boundaries of the Tujunga‘rancho; and defendant resisted plaintiff’s claim on the theory that the land was public land of the United States, .lying north of the northerly line of the rancho, according to the courses and distances given in the patent thereto.

At Law On motion for new trial. Action by Emma P. Hoffman, widow of John E. Hoffman, deceased, against the Supreme Council of the American Legion of Honor, upon a life insurance policy of which plaintiff was the beneficiary. Verdict for plaintiff for $4,000. Motion to set aside the verdict as contrary to law and evidence and for misdirection.

At Law. On motion for new trial. This was an action of replevin, brought by H. B. Claflin & Co., who were wholesale merchants at New York, against A. M. Beaver, and another who was his partner during part of the time in which the replevied goods wore being purchased, and a third defendant, to whom the goods had been assigned by the first-mentioned defendants for the benefit of creditors.

<p> Habeas Corpus. </p>

<p>Elections and Totems — Sumervisok—Attendance oh Registration — Compensation.</p> <p>Under Rov. St. U. S. §§ 2016, 2017, 2026, 2031, requiring the attendance oí supervisors of election at the registration oí voters, and at elections, and providing that the chief supervisor shall furnish instructions to the supervisors, and that, each supervisor shall be allowed five dollars for each day he is on duty, not exceeding ten days, a supervisor who, under instructions from the chief supervisor, attends for six days the registration, one day for final revision of registration, and one day at the election, is entitled to the prescribed compensation for each of the eight days.</p>

<p>1. Clerk of Court—U. S. Circuit Court—Pees—Rev. St. U: S. §§ 2011-2014.</p> <p>Under Rev. St. U. S. §§ 2011-2014, providing for the opening of the circuit Court not less than 10 days prior to a registration for election or prior to the election for member of congress, and continuing court until the day following the election, and section 828, allowing the clerk five dollars for 'attendance upon the court while actually in session,—the clerk is entitled to such fee for every day the court is in session, under those sections, and for his record of its proceedings.</p> <p>2. Same—Jurisdiction—District Court.</p> <p>The district court has jurisdiction of a petition "by the clerk of the circuit court for compensation for attendance thereon.</p>

<p>On Motion to Continue Case.</p> <p>Indictment for conspiracy to land Chinese on forged certificates.</p>

. Indictment under 1 Code N. C. § 1082, for a wanton and willful injury to personal property. That section, as amended by Laws 1885, c. 53, p. 94, is as follows: “If any person shall wantonly and willfully injure the personal property of another, he shall be guilty of a misdemeanor, whether the property be destroyed or not, and shall be punished by fine or imprisonment, or both, in the discretion of the court.” The jury returned a special verdict. *

<p>Jails and Jailers—Support of United States Prisoners.</p> <p>By Penal Code Cal. §§ 1601,1602, the sheriff is required to receive and keep in the county jail any prisoner committed by authority of the United States, “provision being made by the United States for the support of such prisoner. ” Held, that the amount per diem fixed by the board of supervisors of the county for the support of state prisoners must be presumed to be a reasonable compensation ; and for a refusal of the sheriff to receive a United States prisoner,” upon being tendered such amount, he is liable for contempt.</p>

In Equity.. Bill for infringement of patents. On final hearing. Joseph M. Locke, complainant, filed a bill against the Lane & Bodley Company, defendants, for infringing patents, alleging that he had entered into the employ of the firm of Lane & Bodley, manufacturers of miscellaneous machinery, in 1871, as draughtsman.

<p>In Equity. Bill to restrain infringement of letters patent. '</p>

<p>Patents for Inventions—Infringement—Improvement ns Cultivators.</p> <p>Letters patent No. 242,497, for an improvement in cultivators, consisting of a combination of a lifting spring with, the beams and frame in such a way that the elevating effect upon the beam is increased as the bar is raised, although the tension of the spring decreases, are infringed by letters patent Nos. 259,-626 and 266,123, which produce the same effect by a spring acting between the beam and the arched axle, the variations of form being but modifications of the means employed under the first-named letters.</p>

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

In Equity. On motion for a rehearing. This was a suit by William M. Welling against John H. La Bau for infringement of a patent. The report of the master in favor of the complainant was, on the 25th of February, 1888, confirmed, and the defendant’s exceptions thereto were overruled. 34 Fed.. Rep. 40. See, also, 12 Fed. Rep. 875, 32 Fed. Rep. 293, and infra.

In Equity. On motion to increase the damages for infringement of complainant’s letters patent under Revised Statutes of the United States, sections 4919 and 4921, referred to in the opinion, section 4919 provides: “ Damages for the infringement of any patent may be recovered by action on the case in the name of the party interested, either as patentee, assignee, or grantee, and whenever in any such action a verdict is rendered for the plaintiff, the court may enter judgment…

<p>Shipping—Charter-Party—Defects in Vessel.</p> <p>Libelants chartered respondent’s steamer to carry passengers between New York city and Bedloe’s island. On delivery of the vessel, defects were found in her engines, which prevented the safe running of the boat. Libelants attempted to repair the defects, but, being unable to do so, returned the vessel, and brought this suit for damages. The defense was that the boat was in good order when delivered, and that the defects were subsequently occasioned by libelants’ engineer. Held, on the evidence, that the boat, when delivered, was not fit to enter safely upon the service for which she was engaged, through defects in the engines; that, after unsuccessfully attempting to remedy the defects, libelants were justified in returning the boat, and entitled to recover such actual legal damage as could be shown</p>

<p>Shipping—Cariuage of Goods—Demurrage—Coal.</p> <p>Claimant chartered libelant's schooner to take “a cargo of coal” from Sydney, Cape Breton, to New York, the vessel “to load in turn, subject to the regulations of the mines, * * * and every unavoidable hinderance that may prevent the loading * * ";i excepted.” The charterer intended to take a cargo of “culm” coal, but this intention was not communicated to libelant. The vessel began loading on the 13th of August, was interrupted for throe days by preference given a steamer, under the regulations of the mines, and completed her loading on the 35th. Five days were sufficient to load the vessel. The reason of the delay was the absence of other vessels to take “round” coal, both round and. culm coal being sent together from the mines, and mining- being suspended when vessels were not present to take round coal, Held, that under the general charter for “a cargo of coal, ” charterers were not entitled to subject the ship to the delays incident to loading a special kind of selected coal; that under the special exception in the charter, demurrage could not be allowed for the three days, waiting the steamer; hut for the remainder of the delay, viz., five days, tile vessel was entitled to demurrage.</p>

<p>Iii Admiralty.</p>

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

<p>Shipping—Liability for Damage—Expected Detention—Offer to Pay Freight and Charges and Sign Average Bond.</p> <p>The steam-ship M. put into Halifax in distress, where she was detained for repairs from October until February. The consignee of glycerine on board of her, hearing of her probable detention, demanded delivery of the glycerine at Halifax, offering to pay the full freight under the bill of lading, together with all incidental expenses, and to sign a general average bond. This was refused, and on delivery of the cargo finally in New York, the glycerine was found damaged. Held, that the vessel was liable for the damage,</p>

<p>Ill Admiralty. Libel for supplies furnished a vessel.</p>

<p>1. Collision—Between Steam and Sail—General Responsibility.</p> <p>YVhere upon llie whole case there is no decisive evidence of fault on the part of the sailing vessel, the steamer must answer for the collision, if it was not inevitable.</p> <p>2. Same—Failure of Steamer to Avoid Sailing Vessel.</p> <p>The schoonei" tV. ML. was sailing eastward by night through Long Island sound, when she perceived, some miles distant, and nearly ahead, the lights, of the steamer City of T. The steam-ship, sailing nearly due west, struck the schooner, and sank her. The testimony from the schooner was positive that she made no change of course. The steamer alleged that the schooner altered her course, and showed four changes in her colored lights, and that this brought about the collision. Held, that the schooner’s lights were either not seen in time by the steamer, or were neglected after being seen, and that the cause of the collision was the failure of the steamer to shape her course seasonably, so as to go on either side of the schooner with safety.</p>

<p>Codlision—Between Steam: and Sail—Lumtng.</p> <p>The sloop T., sailing across New York bay from Bay Ridge, and the steam-yacht M., proceeding down the bay, came in collision. The only question involved in the case was whether the sloop held her course. On the evidence, held, that the sloop lulled without perceiving the proximity of the yacht, and that this was the cause of the collision.</p>

<p>In Admiralty Libel for damages.</p> <p>Wilcox, Adama & MucJdin, for the Susquehanna.</p>

<p>Collision—Between Steam-Boat and Tug—Mutual Fault.</p> <p>Tho ferry-boat S., crossing the North river from Jersey City to New York, had on her starboard hand the tug M. C., with libelant’s canal-boat in tow along-side. which was going up river near the New York slips. The ferryboat made no change of course or speed on account of the approach of the tug. The latter also maintained her spe&d until close to the ferry-boat, though perceiving (hat the latter was approaching without, slackening speed, and making for her slip. The ferry-boat and libelant’s canal-boat came together, causing the damage for which these suits were brought. Held, that the ferry-boat, having the tug on her starboard hand, was bound to keep out of the way of the latter. Held,, also, that, the course of the ferry-boat being known to the tug, and her speed being observed to bo unchecked, it was the tug’s duty to have stopped at once, or to have sheered out into the river and passed under the ferry-boat’s stern; that the damages, therefore, should be divided between the tug and the ferry-boat.2</p>

<p>Collision—Steam-Tugs—Crossing—Bad Lookout—Delay in Backing.</p> <p>The steam-tug 8., 'with a railroad float along-side, liad rounded the BatterJ into the East river some 300 yards from the shore. The tug B., with liheiant’s bark upon her starboard'side, was at the time proceeding from Buttermilk channel towards the New York shore, and was on the starboard hand of the 8. The latter, when off Hamilton ferry, N. Y., and some 400 yards from the B., gave two whistles, indicating an intention to pass ahead of the B. (letting no answer she repeated her signal, which theB, answered with two; and afterwards, and when, as alleged, the collision was unavoidable, the S. stopped and reversed. The B. contended that she stopped and backed as soon as the two whistles of the 8. were heard. Held, that both tugs were answerable for libelant’s damage,—the S. because she was bound to keep out of the way of the B.. and took the risk of an attempt to pass ahead of her; the B. for her neglect in not observing the signal of the S. in time either to have refused assent to the latter’s maneuver, or, on assenting to it, to have taken measures in time to allow the S. to pass in safety ahead of her.</p>

<p>1. Collision—Tug—Vessel at Anchor.</p> <p>. The steam-tug M.-bad the government vessel J. in tow, bound up the North river for Thirty-Fourth street. OS Twenty-Sixth or Twenty-Seventh street lay the schoonér G. and the ship H., the latter being some 500 feet nearer the Jersey shore than the G., and about 800 feet further up river. At about 1 o’clock p. m. the weather was reasonably clear, and the tide strong flood. The tug, which had come up river on a line to the eastward of the G., when near the latter attempted to go to the westward, and between her and the H. The government vessel struck, first, the G., and then the H., doing damage to both, for which these suits were brought. The tug claimed that the collision was due to the failure of the J. to follow the tug- properly, or heed the latter’s orders as to her wheel. Held, that though the government vessel (which could not be libeled) appeared to have been in fault for negligent lookout, her fault did not excuse the tug (which had probablv miscalculated the strength of the tide) for not having seasonably shaped her course, when further down the river, so as to pass straight between the H. and the G.; that the second collision was the result of the first, and that the tug was liable for both.</p> <p>2. Same—Anchor Watch and Light.</p> <p>A vessel in the North river, two-thirds of the way across from the New York shore, is-not required to maintain an anchor watch in addition to an anchor light. :</p>

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

<p>In Bankruptcy.</p>

<p>1. Banks and Banking—National Banks—Insolvency—Priority of Claims.</p> <p>A creditor of an insolvent national bank, whose demand grows out of a fraudulent transaction perpetrated by the officers of the bank in contemplation of the immediate wrecking of their corporation, does not thereby become entitled to a preference over the general creditors of the bank.</p> <p>2. Same.</p> <p>On the 22d and 23d of March plaintiff, a bank in Raleigh, N. C., received in the ordinary course of business checks drawn on the State National Bank of that city, which, after deduction had been made of its checks received by the latter bank, amounted to §17,000. It paid the same by its checks on a bank in. New York. The president of the State National Bank knew when he signed such checks that they would not he honored, and was making preparations to abscond with the assets of his hank. Held, that plaintiff is not entitled to any preference over other unsecured creditors.</p> <p> {Syllabus by the, Court.) </p>

<p>Action by Charles E. Lewis against the commissioners of the county of Comanche upon coupons of bonds issued by the county.</p>

<p>1 PCilt-c Lands—Mexican Grants—Patents—Boundary—On Sea-Shore.</p> <p>Where a patent confirming a Mexican grant describes the land as follows: “Beginning on the sea-shore at station number 13 of the Ballonarancho,” the plat of the survey annexed to the patent representing this common corner of the two ranchos as commencing on the sea-shore, it is to be construed that the land is at that point bounded by the sea, i. «., ordinary high-water mark.</p> <p>8. Same—Calls—Location of Line.</p> <p>Under a description of a rancho in part as follows: “Thence south 41 degrees and 15 minutes east, i:‘ * * at 40 chains and 89 links, Santa Monica bath-house on the left, ” etc., the left being within the rancho, a line cutting through the Santa Monica bath-house, leaving more than 20 feet of it outside of the rancho, is not a true location of the boundary of the rancho.</p>

<p>At Law. On motion for new trial.</p> <p>Action by John S. Kidd against the Greenwich Insurance Company, on an open policy of insurance.</p>

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

<p>Chinese—Citizenship—Persons Born in United States—Habeas Corpus.</p> <p>A child born in the United States of Chinese parents is, by the rule of the common law and the fourteenth amendment, a citizen of the United States, and, when restrained of its liberty of locomotion therein, may be delivered therefrom, on habeas corpus, by the proper national court.</p> <p> (Syllabus by the Court.) </p>

<p>Bribery— Constitutional Law.</p> <p>On habeas corpus by a, petitioner who had been indicted, convicted, and imprisoned for bribery as alderman, under Pen. Code jST. Y. § 72, for discharge on the ground that said section is unconstitutiojial as an ex post facto law, because. from the effect given it by section 2148 ot’ the consolidation act, it repeals by implication section 58 oi' the latter act, prescribing a less punishment for such offense, held, that section 72 must be construed as prospective in its operation, and constitutional. Following People v. O’Neill, 16 N. E. Rep 68.</p>

<p>Indictment for Using the Mail to Defraud. On motion to quash.</p>

<p>Patents for Inventions — Patentability — Apparatus for Cleaning CessPools.</p> <p>Claims 1, 4, and 10 of letters patent No. 188,034, issued to William C. McCarthy, April 23, 1873, for an improvement for apparatus for cleaning cesspools, held, in view of the state of the art at the date of their issuance, not to describe a patentable invention.</p>

In Equity. Bill for infringement of trade-mark. On bill, answer, and proofs.

<p>Judgment—Res Adjüdicata—Admiralty—In Rem and in Personam.</p> <p>Where the insurers of a cargo of grain which was destroyed have paid the loss and become subrogated to the rights of the insured, and obtained a decree in rem in the United States circuit court charging the boat with liability for the loss, such decision is conclusive of a libel m personam in the district court whereby the insurers seek to charge the owners of the boat with liability as common carriers.</p>

<p>In Admiralty. Libel in personam.</p>

<p>1. Oomjston—-Tugs and Tows—Negligence—Anchors.</p> <p>It is not reasonable prudence to undertake navigation, especially at a season of the year when violent squalls are not infrequent, without anchors adapted to the boats in use. If such anchors are not provided, it must be at the owner’s risk of the natural consequences.</p> <p>2. Same.</p> <p>The sleam-tug R., while towing two heavy ear-floats, encountered a violent squall, which she was unable'to breast, and the tow di-ifted towards a dock where several boats lay moored, and collided with the latter, and libelant’s boats were injured. The R. had only one small anchor, wholly insufficient to hold the tow against the squall. The vessels at the dock exhibited no lights. Held, that the tug was solely liable for the collision.</p> <p>8. Same—Lights—Boats Moored (¡y a Whare.</p> <p>Boats moored in the usual way alongside a wharf, and not in the way of other boats, are not required to exhibit lights.,</p>

In Admiralty. Libel for damages. On the night of October 16, 1886, the schooner Juliette Terry was lying at anchor in the North river, nearly opposite the foot of Thirty-Fourth street. The tow-boat Syracuse, with a tow of canal-boats and barges astern of her on a hawser, passed up outside of the schooner without touching her, but the tow came in collision with the schooner, carrying away her head-gear, and causing her to lose an anchor and chain.

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

<p>Courts — Federal Jurisdiction—Questions Arising under Patent Laws— Assignment of Patent—Breach oe Contract.</p> <p>Keller, the grantee of letters patent, assigned one-half of the patent to Williams by an instrument in writing recorded in the patent-office, which, after the assigning clause reads as follows: “This assignment is made and accepted upon the distinct understanding and agreement between the parties thereto that neither the said Keller nor the said Williams is to make any transfer of his respective interest in said patent, nor to grant any license to use the same, without the written consent of the other; and further, that neither of said parties shall build more than one boat each with the said patented improvement upon it, without the written consent of the other; and the boat each is permitted so to build is to be used only by said party as an individual, and not as a member of any firm or copartnership, without the written consent of the other party. ” Williams filed a bill against Keller and his associates in business acting under him, charging them with using the patented invention in violation of the above-quoted clause of the instrument of assignment, and praying for an injunction, etc. Held, that the case was not one arising under the patent laws, and the court had no jurisdiction thereof, all the parties to the suit being citizens of the same state.1</p>

<p>On Motion to Remand.</p> <p>This was an action of tort begun in the circuit court for the county of Wayne by a citizen of Michigan against non-resident alien defendants, and removed to this court upon petition of defendants. Plaintiff moved to remand upon the ground that defendants, not being inhabitants of of this district, within the meaning of section 1 of the act of March, 1887, the case is not one of which this court would have had original jurisdiction, and therefore, under section 2, it can have no jurisdiction by removal.</p>

At Law.- On demurrer. Action brought by Gertie Johnson in a state court against the Accident Insurance Company of North America. The cause was then removed to the circuit court of the United States for the Western district of Michigan on a petition of the defendant alleging that plaintiff was a citizen of the state of Michigan, and defendant a corporation organized and existing under the laws of the dominion of Canada.

<p>1. Injunction—To Protect Private Right—'Violation and Punishment-ATn-TEREST OF PROSECUTOR.</p> <p>Stockholders of a corporation obtained an injunction to restrain the levy of taxes on certain property of the corporation, and subsequently filed an information to have certain parties punished for contempt for violating the ■same. It appearing that the property to which the exemption attached had been sold to another corporation under a decree of foreclosure since the injunction, and that the complainants had no further interest in the question of its taxation, held, that they could not maintain the prosecution for contempt.</p> <p>2. Same.</p> <p>Held, further, that if the complainants were also stockholders of the corporation which had purchased the exempt property under the decree of foreclosure, and the exemption followed the property into the hands of the vendee, they might maintain the prosecution notwithstanding the sale.</p> <p>8. Same.</p> <p>Tbe courts wili not entertain a proceeding to punish a person for violating an injunction granted to protect a merely private right, unless tbe proceeding is instituted by some one who has a pecuniary interest in the right to be protected.</p> <p>4. States ano State Officers—Suit auainst State—Taxation—Exemption.</p> <p>Where a statute of a state exempts certain property from taxation, a suit brought against certain state and county officers, to restrain them from assessing such property, is not in name or in effect a suit against asíate; and a decree against such officers in a federal court, enjoining them from assessing exempt property, is not void under the decision in Me parte. Ayers, 128 U. 8. 448, 8 Hup. Ot. Éep. 164.</p>

<p>In Equity. Bill for injunction and receiver.</p>

<p>In Equity. On demurrer to bill.</p>

In Equity. Sur motion to rescind an order on an absent defendant to appear, plead, answer, or demur, and to strike off tbe service thereof.

Assessment of Damages on Attachment Bond. In pursuance of written stipulation this case was tried by the court without the intervention of a jury.

<p>At Law. Action on an administrator’s bond against the surety as surviving obligor.</p>

At Law. On stipulation as to costs. Plaintiff having recovered three judgments against defendant, a question arose concerning the clerk’s fees, when the following stipulation was entered into, referring the matter to the court: ' “Question being made whether the fees charged for entering the judgments in these eases, respectively, as above stated, were lawfully to be taxed against the defendants and to-be paid, in default of their payment by the plaintiff said question is…

At Law. Seizure for violation oí Rev. St. U. S. § 2133, providing that “any person other than an Indian who shall attempt to reside in the Indian country as a trader, or to introduce goods or to trade therein without such license, shall forfeit all merchandise offered for sale to the Indians or found in his possession, and shall moreover be liable to a penalty of five hundred dollars.”

<p>United States against Rudolph Denicke. Indictment for embezzling a letter intended to be conveyed by mail.</p>

<p>Criminal Informations against Otto Johannesen for violation of Rev. St. U. S. §§ 2865, 3242, 3244. Demurrer to informations.</p>

In Equity. On bill for an injunction to restrain the infringement of a patent. The first suit is by Frederick A. Hubei against James Waldie, committee of Dundas Dick, who was the owner of letters patent No. 305,-867, issued to W. A. Tucker, September 30, 1884.

<p>In Equity.</p> <p>Bill by the Celluloid Manufacturing Company and the Celluloid Novelty Company against the American Zylonite Company, the Standard Collar Company, and the Taylor & Tapley Manufacturing Company, to restrain the infringement of a patent. The last-named defendant was not served.</p>

<p>1. Patents fob Inventions—Furnace—Patentability—Invention.</p> <p>Letters patent granted February 19,1878, to J. H. Helm, assignor o£ Howard Morton, tor an improvement in a furnace for heating links, consisting of a detachable crown to the fire-chamber, provided with a series of cells, which are plain openings passing through the detachable crown, the ripper surface of which is furnished with grooves in which rest rods which support the links while being heated, are not void for want of invention.</p> <p>S. Same—Extent of Claim.</p> <p>■ The grooves in the upper surface of the detachable crown are a material part of the device; a claim for the cells or holes without the grooves having been rejected as non-patentable, and withdrawn before the patent issued in its present form.</p> <p>3. Same—Novelty.</p> <p>Evidence that a person made a perforated and grooved tile for the cover of alike furnace in 1875, the year before Helm's alleged invention; that he only used it a part of the time from 1875 to 1878; opposed by evidence that he did not use it prior to the fall of 1870,-—does not show that the above patent is void by reason of prior invention.</p>

<p>Patents for Invkntions—Patjíntahimtv—Invention— Packtno Ice-Cream eor Transportation.</p> <p>Letters patent-Ko. 113,239, dated April 4, 1871 issued to Ignazio Allegret,ti, for a new article of manufacture and commerce, consisting of blocks of ice-cream or water-ice put up, for purposes of convenient transportation, in metallic moulds, which were first to be subjected to the snperfreezing process, to make the cream or water-ice harder, and then placed in looselyditting refrigerator paper boxes, the superfreezing process, both in moulds and in mass, not being new, is merely for putting a known article into convenient receptacles. and void for want of invention.</p>

<p>Patents for Inventions — Patentability—Invention—Design Patent for Textile Fabrics.</p> <p>Letters patent No. 16,375, issued November 10, 1885, to George Streat, for a design for printing textile fabrics, consisting of stripes of solid block of color parallel to and alternating with stripes crossed at right angles by alternate dark and light lines blended into each other by shading, “so as to imitate the wovep fabric commonly known as ‘ seersucker/ ” are void; it appearing that though the patentee conceived the idea of the imitation, which was not new, the actual invention of the method of producihg the imitation by blending together the cross-lines by shading, which was alone novel, was entirely the work of the designer and engraver in the factory of one Gilmore.</p>

<p>In Admiralty. Motion to set aside marshal’s return, attachment of vessel, and stipulation given on such attachment.</p>

<p>Maritime Liens—Priorities—Bottomry—Master’s Wages—Italian Vessel.</p> <p>In distributing the proceeds of sale of an Italian vessel sold by an order of the court in proceedings to enforce a bottomry bond given in Algiers on vessel and cargo, on which bond the master was not personally liable, the lien of the master for his wages, secured to him by Italian law, sustained as against owners of the cargo, who are American citizens, assignees of the bill of lading made in Italy to Italian residents or order.</p> <p> {Syllabus by the Court.) </p>

In Equity. Rev. St. Mo. § 744 provides that “upon the dissolution of a corporation * * * the president and directors or managers of the affairs of said corporation at the time of its dissolution * •* * shall be trustees of such corporation, with full power to settle the affairs, collect the outstanding debts, and divide the moneys and other property among the stockholders after paying the debts due and owing by such corporation at the time of its dissolution, as far as such…

In Equity. On exceptions to master’s report. Complainants, the Seventh National Bank of Philadelphia, a creditor of defendant in the sum of $25,000; the Union Trust, Safe-Deposit & Insurance Company, holder of defendant’s promissory noto for $10,000, and of first-mortgage bonds of defendant to the amount of $15,000; the Eighth National Bank of Philadelphia, holder of two promissory notes of defendant lor $7,000 each, and of $19,000 of its first-mortgage bonds; and John…

In Equity. . In the matter of the claim of Philip Henry Brown and John Patton for rental for the use of the Toledo, Peoria & Western Railroad Company by the receivers of the Wabash Company.

<p>Í. Mortgage—Deed Absolute ox Face—Evidence.</p> <p>To convert a deed absolute on its face into a mortgage, by parol testimony, such testimony must be clear and specific; of a character such as will leave in the mind of .the chancellor no hesitation or doubt.1</p> <p>2. Notice—-Husband and Wife.</p> <p>The knowledge of a husband of facts affecting the title to real estate purchased by his wife, is not imputable to her, where the purchase is not effected through his agency, and he takes no part in the negotiations.</p> <p>3. Same—Principal and Agent.</p> <p>The established doctrine in Pennsylvania is that the principal is not affected by his agent’s knowledge', unless it is shown that such knowledge was acquired by the agent in the course of the business in which he was employed for his principal.2</p> <p>4. Same.</p> <p>While the rule as declared by the supreme court of the United States is that the principal is affected by his agent’s knowledge, no matter when acquired, it is subject to the important qualification that the principal is not bound by his agent’s prior knowledge, unless it he present to the agent’s mind at the time of acting for his principal, of which there should be clear and satisfactory proof.</p> <p>•5. Same—Rumor.</p> <p>Mere rumors of a defect of title are not notice to a purchaser of real estate, nor do they impose upon him the duty of inquiry. To aifoct him the information should come from some one interested in the estate, or from some authoritative source.</p> <p>6. Same—Record as Notice.</p> <p>A purchaser is not affected with constructive notice of anything which does not lie in the line of the title.1</p> <p>7. Same.</p> <p>A purchaser finding on record a deed conveying an absolute title to land, and referring to nothing beyond, was not bound to prosecute a later search; and therefore is not chargeable with constructive notice of a foreign attachment against the land in a suit commenced after the date of the record of the deed.1</p> <p>8. Fraud—Evidence.</p> <p>Circumstances calculated to excite suspicion are not enough to establish fraud.2</p> <p>■9. Same.</p> <p>The evidence examined, and conclusion reached that the charge of actual fraud made iu the bill is uot sustained.2</p>

<p>1. Yendok and Vendee—Purchase Pending Appeal—Mercantile Securities—Bonds.</p> <p>Where bonds held by a receiver, in a suit to adjudicate the ownership oí the fund evidenced by them, are, on dismissal of the complaint, turned over by him, under order of court, to the defendant, who sells the same to a purchaser having knowledge of the fact that an appeal has been taken, but without a supersedeas, such purchaser takes subject to the determination of the cause on the appeal, though the bonds are of the nature of mercantile securities.</p> <p>2. Fraud—Pleading.</p> <p>Plaintiff, as assignee in bankruptcy of one M.; brought suit against M. and W. to recover as assets money collected by them on a claim against the United States, alleged to have been fraudulently concealed "and transferred to W. for M.’s use. The fund was placed with a receiver, and invested in bonds. The complaint was afterwards dismissed on demurrer, and an appeal taken without a supersedeas. By order of the court, the bonds were turned over to M., who sold them to the present defendants, who had knowledge of all the circumstances. On the appeal, the order dismissing the complaint was reversed, without passing on the merits. The complaint in the present action alleges that the title to the fund was adjudged by the appellate court to be in plaintiff, and omitted to charge the grounds of"fraud on the part of M. as set up in the original action. Held, that the adjudication did not have the effect alleged, and that the complaint is defective for want of sufficient allegations Df fraud.</p> <p>8. Limitation' of Actions—Bunking of Statute.</p> <p>Where, in a suit to adjudicate a claim to a certain fund, the bill was dismissed on demurrer, and an appeal was taken, hut there being no supersedeas the bonds evidencing the fund were turned over by the receiver under order of court to the defendant therein, who fraudulently, as alleged, sold the same to the present defendants, a hill to recover the bonds not brought within six years (the limitation prescribed in such cases by local statute) from the time plaintiff first had knowledge of the sale will be dismissed, though six years had not yet elapsed since the reversal on the appeal of the order in the original cause.</p> <p>4. Same—Pleading—Plea of Longer Includes Shorter Statutory Bar.</p> <p>A suit in equity by an assignee in bankruptcy to recover certain bonds against parties to whom, as alleged, they had been fraudulently transferred by the bankrupt, must, under Bev. St. U. S. § 5057, he brought within two years from the time of the discovery of the alleged fraudulent transfer, and if it is necessary to raise such a defense by plea it is sufficiently raised by a plea of the ordinary bar of six years; that period necessarily including the shorter.</p>

<p>Bvidexce—CoHCiATsmaNESs—Trusts.</p> <p>In an action, against the receiver of a hank, for dividends upon a debt for a deposit in the name of “S., trustee, ” the mere general statement of S. that the money deposited was his daughter’s, in connection with evidence that she owned property of which he had the management, and from which the fund deposited might have been derived, it not being shown that it was derived therefrom, is not sufficient to enable the daughter to recover.</p>

<p>Witness—Privilege—1Trade Seckets.</p> <p>Where, a witness for plaintiff testifies, on direct examination, only as to the uses and effects of “Moxie, ” or “Moxie Nerve Food, ” he cannot on cross-ex-animation he required to disclose the particular ingredients of that preparation, that being a trade secret, the disclosure of which would injure plaintiff’s business.</p>

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

<p>Banks and Banking—Pkmsident—Release—Katification by Aoqitif.soence.</p> <p>In consideration of the relinquishment of bonds held as collateral, a transfer of stock, and a cash payment, a bank president executed a release to a debtor of the bank, informing him that the directors had not then assented thereto. The directors afterwards authorized the president and discount committee to compromise the debt, and later rejected the compromise; but no notice of either action was given to the debtor. The bank afterwards sold the bonds without notice to the debtor, and collected dividends on the stock, for which and for the cash payment it made certificates of deposit in favor of the debtor and his wife, but retained them, and the debtor had no knowledge of them. These transactions extended over a period of seven years. Held, that the release was ratified.1</p>

In the Matter of the Petition of Isabella Duncan, widow of Capt. Peter Duncan, to have her dower in the Island of Nevassa assigned to her, or to be allowed a gross sum as a reasonable commutation of the same.

<p>Principal and Agent—Liability of Agent to Principal.</p> <p>Defendant, the agent of plaintiff, an insurance company, effected an insurance, and informed plainliff thereof, upon which plaintiff, being dissatisfied, directed defendant to return the policy at once, saying that, the risk was a prohibited one. Defendant, believing plaintiff misinformed as to the risk, so wrote, and held the policy. Plaintiff again directed the policy returned, which defendant did, but, before notifying the insured thereof a loss by fire occurred which plaintiff was compelled to pay. Held, that defendant’s disobedience of peremptory orders rendered him liable for the amount plaintiff had been compelled to pay.</p>

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

At Law. xiction by John E. Huey against Macon comity, and by Joseph E. Jones against same, upon railroad bonds and coupons issued by defendant.

<p>Railroad Companies — Municipal Aid-—Limitation on Annual Tax—Mandamus to Lew Special Tax.</p> <p>Though a judgment, has been obtained on coupons of county bonds Issued under section 18 of the Missouri act of February 20, 18G5, incorporating the Missouri & Mississippi Railroad, which provided that the amount of the special tax to be levied in any o ne year for their payment should not exceed one-twentieth of one per cent,, mandamus will not lie to compel the levy of a higher special tax to pay such judgment, as the holders of such bonds are chargeable with notice oí the provisions of the statute under which they are issued.</p>

<p>1. Public Lands—Trespass — Right of Government to Sue—Possession— Homestead.</p> <p>Possession by a homestead claimant, and a receiver’s receipt issued since bringing the action, do not divest the government of possession or title, so that it cannot maintain an action of trespass for cutting timber on the land.</p> <p>2. Same—Burden of Proof.</p> <p>In an action brought by the United States for trespass committed on government lands, the burden of proof is on the government to show that the acts of trespass complained of were committed by defendant or by his command, or that they were done for his benefit, or with his knowledge and consent, and were subsequently ratified by him.</p> <p>3. Same—Measure of Proof.</p> <p>In such a case the acts need not be proved beyond a reasonable doubt, as in criminal cases. The proof need only be such as will reasonably convince the jury after applying the ordinary tests for the ascertainment of the truth. .</p> <p>4. Same—Evidence.</p> <p>In such a case, evidence that the employes of defendant, under his direction or superintendence, or that of his partner for their joint benefit, entered on the lands described in the complaint, and cut turpentine boxes in the trees thereon, or chipped such trees for turpentine purposes, or removed therefrom crude turpentine, is sufficient to warrant a verdict against defendant. But if defendant merely bought turpentine from homestead claimants, having nothing to do with hiring Sands, or chipping trees, or dipping or hauling turpentine, further than to pay for this work at the request of said claimants, and deducting the amount so paid from the agreed price of the turpentine, defendant is not liable.</p> <p>5. Same—Nominal Damages.</p> <p>In such a case, merely entering the land, and cutting boxes or chipping trees, and removing therefrom crude turpentine, entitles plaintiff to nominal damages, though no actual damages were done.</p> <p>6. Same—Compensatory Damages.</p> <p>In an action for cutting growing trees, if their value can be ascertained without reference to the value of the soil on which they stand, the measure of damages is the injury done them, and not the difference in value of the land before and after such injury. •</p> <p>1. Same—Exemplary Damages.</p> <p>In such a case the government is entitled to exemplary damages, ii the going on the land and cutting and chipping the trees, or dipping and removing the turpentine, was done by defendant willfully, or if such acts were the result of a negligence so gross as to show willfulness or a reckless indifference to the rights of the government.1</p> <p>8. Evidence—Admissions.</p> <p>Statements in writing of absent witnesses, introduced in evidence in a civil action under an admission that the witnesses, if present, would testify to the facts therein stated, are subject to contradiction, the same as though the witnesses had testified in open court.</p> <p>9. Jury—Conflicting Evidence—Province of Jury.</p> <p>Where there is a conflict of evidence it is the duty of the jury to reconcile it, if possible, so as to make all the witnesses speak the truth; but if this cannot be done, then the jury are to say which they will believe and which disbelieve, and in doing this they must consider how the evidence of the'witnesses is corroborated by the facts and circumstances of the case; the interest and motives of the witnesses, and their means and opportunities of knowing what they have testified to.</p>

<p>Bonds — Official Bonds — Disbursing Officers — Mingling Funds — Unauthorized Transfer—Liability of Surety.</p> <p>A federal officer, the chief of the bureau of accounts in the department of state, gave bond for the faithful discharge of his duties, which included the disbursing of certain appropriations. He also received certain moneys from passport fees and the sale of United States Statutes, which were independent transactions, for which no bond was required. At the end of a month he drew his draft on the appropriations fund, to cover a deficiency in the passport fund. Held, in an action, after his death, against his sureties on the bond, that such draft was unauthorized, illegal, and void; and, no actual transfer of money appearing, defendants had a right to have the draft canceled, and the accounts readjusted, which would show no deficit in the appropriations account.</p>

Action on the oflicial bond of A. R. Smith as special Indian agent. • Sections 886 and 2077, Rev. St. TJ.

At Law. Indictment for abduction. Zes Cloya, ono of the Apache Indians captured with Gerónimo, was, with many others, put upon the United States military reservation near Mount Vernon arsenal in Mobile county, Ala., under guard of the garrison. He escaped, carrying with him an Indian girl of about 11 years of age. He was recaptured on state territory, and the military turned him over to the civil authorities for trial.

Petition for a Writ of Habeas Corpus. Upon bill of Catherine Murray against her husband, John Murray, a custom officer of the United States, alleging abandonment, and praying alimony and support, a decree was rendered by the state chancery court at Mobile, June 18,1887, allowing her a certain sum of money monthly until further order.

<p>Patents for Inventions—Patentability—Novelty.</p> <p>In view of the English patent to Poole, in 1852, and the American patent to Dunham, in 1866, for covering metal harness trimmings with vulcanized rubber; of the English patent of 1841, to Harris, for dies for compressing and finishing plastic material; of that of 1857, to Green, for stamping the article pressed in imitation of leather stitching; of that of 1852, to Poole, for pressing harness trimmings of vulcanized rubber under heat; of that of 1842, to Dealsin, for pressing other plastic material for the same purpose; and of the United States patent of 1803, to Welling, for compressing plastic material on a met al core for harness trimmings,—there is no novelty in the device covered by reissued letters patent Nos. 5,155 and 5,156, of November 26,1872, (original No. 123,603, of February 13, 1872,) to Andrew Albright, for an improvement in rubber-coated harness trimmings, by the use of a pair of dies for pressing, polishing, and trimming the edges of the rubber coating, so as to imitate stitching.</p>

<p>1. Patents for Intentions—Patentability—Invention—Plows.</p> <p>The improvement in plows for which a patent was allowed to James L. Judd, by letters patent No. 231,810, on August 31,1880, and the object of which was to strengthen the union of parts of the plow, and save labor in grinding their edges at the joints,'is not a patentable novelty, having been anticipated by the patent granted June 29, 1875, to Lewis B. White,, whose speciiication recites: “On the wing of the frame is formed a rib, which comes directly at the junction of the share and mould-board, and fits in recesses made in their edges for that purpose, ”—the two combinations performing the same functions, and the only differences being in size and shape, which, if an improvement, is one which a skilled mechanic would readily make.</p> <p>2. Same—Infringement—Plow Points.</p> <p>The Judd patent, (No. 231,810,) for improvements in plows, one specification of which is for a “combination of ribs and chamfered edges in plow castings, ” and plow points made under which show a clearly defined groove to fit the rib, is not infringed by a sale of plow points, in which, though having a thin edge at the joint, the slope towards the joint is hardly more perceptible than in many other plow points, especially where it appears that they will fit other plows as well as the Judd plow, and it is shown that plow points require frequent replacement.</p>

<p>1. Patents for Inventions—Prior Use—Acts of 1836 and 1889.</p> <p>Act of 1886 cuts off all right to a patent if the invention has been in public use or on sale with the applicant’s consent or allowance prior to the application. Act of 1839 gives to purchasers and makers of new inventions, before the application for a patent, the right to use and sell them without liability, provided that such purchase, sale, or use should not invalidate the patent unless it had been for more than two years prior to the application. Held, that letters patent No. 43,920, granted under these statutes to James Knibbs, for an improvement in fire-engines, were void, it appearing that such improvement had been used in an engine sold more than two years prior to the application, although without the consent or knowledge of the applicant; it also appearing that the maker of such engine had obtained his knowledge of the improvement by using it in experiments at the request of the applicant, the latter not enjoining secrecy, nor intimating that he intended to apply for a patent.</p> <p>2. Same—Use as an Experiment.</p> <p>Under acts of 1836 and 1839, invalidating patents because of a public use or sale of the invention prior to the application for the patent, a patent is not invalidated by the fact that the invention was used and sold as an experiment and at the request of the applicant, prior to the application.</p> <p>3. Same—Extent of Act—Use of Improvements.</p> <p>Act of 1839, giving to makers and purchasers of newly-invented machines, manufactures, and compositions of matter before the application for a patent, the right to use, and to sell for use the specific things without liability, includes improvements upon machines, as well as those wholly new.</p> <p>4. Same—Date of Application.</p> <p>An application for a patent dates from the time it is filed or otherwise made in the patent office, and not from the time of its execution.</p> <p>5. Same—Pleading Prior Use—Surplusage.</p> <p>On a bill for infringement of a patent granted under these statutes, held that, in an answer alleging that the patent is void because the invention, “with the knowledge, acquiescence, and consent of the inventor, ” had been in public use and on sale for more than two years before the application, the clause “with the knowledge, acquiescence, and consent of the inventor” is mere surplusage, and may be disregarded.</p> <p>6. Same—Accounting—Reversal of Decree—Use of Testimony Taken.</p> <p>Where a decree directs an accounting, which is proceeded in at great expense, but before it is finished the decree is reversed on rehearing, the decree of reversal will be without prejudice to the use of the testimony taken in the accounting, in case another accounting shall be finally decreed.</p>

<p>1. Patents for Inventions—Anticipation—Lubricators.</p> <p>The patent granted September 20, 1870, to John Gates, for a lubricator, in which the amount of oil supplied to the machinery can be estimated by observation of drops of water falling through the lubricating oil in a glass cylinder, and thus filling the bottom of that cylinder, or one underneath it, and causing the oil to be displaced and to pass out of an escape-pipe above by which it is carried to the engine, does not anticipate the patent granted April 29, 1873, to the same person, for an improved lubricator, by which the drops of oil, in passing to the escape-pipe, are made to pass upward through a glass cylinder filled with water, whereby the amount supplied to the engine can be observed by the engineer.</p> <p>2. Same—Prior Use.</p> <p>Where the defense of two years’ prior use is not set up by answer in a suit for infringement of patent, and the evidence shows that the patent was issued April 29, 1873, upon an application filed August 23, 1872; that the patentee commenced making drawings during the fall of 1870, and worked at it, as he had time, until they were in the shape of the one patented in 1873: and that the drawings were finished and the pattern made during the fall of 1870, and the lubricator completed during the winter and spring of 1871, so that it was put on the steamer which commenced to run in the fall of 1871,—such defense does not arise upon the evidence, and an application to amend the answer for the purpose of taking the point will be refused.</p> <p>3. Same—Infringement.</p> <p>The patent granted April 29, 1873, to John Gates, for an improved lubricator, by which the drops of oil, in passing to the escape-pipe, are made to pass upward through a glass cylinder filled with water, whereby the amount supplied to the engine can be observed by the engineer, is infringed by the patent granted May 19,1885, to Charles Couse, which includes an apparatus for forcing the oil upward through a small aperture or passage, and a nipple-shaped valve provided with a needle to concentrate the drops of oil, which thence pass into a glass cylinder filled with water, through which the oil rises in drops exposed to view, up to the place of escape, whence it passes to the machinery to be lubricated.</p>

<p>In Equity. On bill for infringement of patents.</p>

<p>In Equity. On bill for infringement of patent, brought* by Henry Gardner against John W. Prescott et al.</p>

<p>Patents for Inventions—Infringement—Moulding Shoe Stiffeners.</p> <p>Patent No. 292.511, granted J anuary 29, 1881, to N. J. Simonds, for improvements in moulding stiffeners for boots or shoes, the specification of which shows that the important improvement covered by the patent is the production of a counter with converging front ends, or with a widened center and contracted front, by means of two pairs of moulds, is not infringed by defendants’ machine, (under patent No. 850,907, granted to William J. Young,) in which two sets of dies are used,—one to partially shape the blank at its forward ends, and the other to finish it by moulding the rear portions,—hut in which there is no converging of the front ends of the counter.</p>

<p>Patents for Inventions — Patentability—Infringement—■ Police Nippers.</p> <p>Letters patent No. 152,182, issued January 7,1874, to Alexander P. Baldwin, for “improvements in police nippers, ” substituting smooth., straight bars for the links of the chain in the nippers ordinarily used prior thereto, which pass through the fingers of the officer's hand, so that in twisting the chain to adapt the nippers to prisoners having small hands or wrists, it will not pinch or injure the officer’s fingers, are not invalid for want of novelty, and are infringed by letters patent issued May (i, 1881, to Edward D. Bean, for nippers having the same device of smooth, straight bars for passing between the fingers, but differing therefrom in providing in the handle or cross-bar at one end of the chain a recess to receive the handle on the other end, thus interlocking them.</p>

<p>In Equity. On motion for additional relief.</p> <p>It is familiar that a court of equity, besides declaring a deed void, may (and usually does) order the physical thing to be delivered up and physically canceled, as a more sure and certain way of making sure that its decree'is obeyed, although in a sense this deprives the defendant of his property in the paper. But de minimis non curat lex. In this case it appears from the confessed allegations, and is indeed obvious from the character of the instruments— (1) That if they exist, there is great danger that they may go into other hands, where they will get into secret use, and cannot be traced. This difficulty does in fact continually arise. (2) That the physical thing is of no value except as a means of infringing the patent. It is not worth the labor of taking it apart to sell for junk. (3) That it is of no value because, being made as an infringement, it cannot be used after the patents have expired. Moreover, the rule that the infringing thing under such circumstances is to be destroyed, is well settled by the supreme court, and in the English courts of equity.</p> <p>Publication cases: In Prince Albert v. Strange, 2 De Gex & S. 652, (1849,) the plaintiff had etched certain plates for his amusement. The defendant obtained- the plates surreptitiously, printed certain impressions from them, and issued a catalogue of them. The court restrained him, and ordered both the impressions and the catalogue to be delivered to the clerk to be destroyed. In Drury v. Ewing, 1 Bond, 554, Judge Leavitt ordered the plates and the prints to be delivered to the clerk. This was not under the penalty clauses of the statute, (the suit was in equity,) but was within the equity power of the court.</p> <p>Patent Cases: Birdsell v. Shaliol, 112 U. S. 487, 5 Sup. Ct. Rep. 244: “But an infringer does not, by paying damages for making and using a machine in infringement of a patent, acquire any right himself to the future use of the machine. On the contrary, he may, in addition to the payment of damages for past infringement, be restrained by injunction from future use, and, when the whole machine is an infringement of the patent, be ordered to deliver it up to be destroyed;” citing Needham v. Oxley, 8 Law T. (N. S.) 604, (1863;) Frearson v. Loe, L. R. 9 Ch. 67, (1878.) In Frearson v. Loe that very eminent patent law judge, Sir George Jessell, then M. R., decided that the plaintiff’s patent had been infringed, and said: “I also order the defendant either to deliver up to the plaintiff, or to destroy in his presence, any machine in his possession or power.” In Needham v. Oxley, 8 Law T. (N. S.) 604, (1863,) it appeared that the defendant’s large machine infringed only by the presence of a particular combination in one part, and that the machine could be altered and used so as not to infringe. On tins ground alone, the con rt (V. C. Sir W. Page Wood) declined to order the destruction of the whole machine, saying that “the defendant might still use for other purposes the several parts of his machine. ” But the court ordered that “ they should be marked in some way, so as to enable the plaintiff at'any time to follow them.” In Betts v. De Vitre, 34 Law J. Ch. 289, the same judge, in a ease where those peculiar circumstances did not exist, ordered that the machines be destroyed in-the presence of the plaintiff. Infringing instruments, made during the life of a-patent, carinot be used after its expiration. The complainant has the exólúsive right to make, use, and sell, and this right cannot be adequately proééeted' if infringing devices made during the running of the patent can be afterwards used or sold. That would allow' an illegally made device to.be beneficially enjoyed by the infringer. A patentee’s complete protection demands that no one should be able to get any benefit from an article made in violation of his rights, although it is not sold or used in violation of them. This point has been frequently adjudged both in England and this country. Crossley v. Gas-Light Co., 1 Webst. Pat. Cas. 119; Boring Co. v. Sheldon, 18 Blatchf. 52-146, 2 Fed. Rep. 353; Mower Co. v. Harvester Co., 24 Fed. Rep. 739; Belting Co. v. Magowan, 27 Fed. Rep. 111.</p> <p>Such provision is contrary to an elementary principle of equity procedure. The complainants ask that the defendant’s telephone apparatus be ordered to he delivered to them “to be destroyed.” In other words, they ask that the •defendant’s propérty be forfeited. It is familiar law that such an order will not be granted by a court of equity. Stevens v. Gladding, 17 How. 447; Stevens v. Cady, 2 Curt. 200; Chapman v. Ferry, 12 Fed. Rep. 693.</p> <p>Such a provision is not included in the statute that provides for recoveries in infringement suits. In an action at law plaintiff can recover damages, and the court may enter judgment on the verdict “for any sum above the amount found by the verdict as the actual damages sustained, * * * not exceeding three times the amount of such verdict. ” Rev. St. U. S. § 4919. In suits in equity, Rev. St. § 4921 provides that the court shall have power (1) to “grant injunctions according to the course and principles of courts of equity, to prevent the violation of any right secured by patent on such terms as the court may deem reasonable;” (2) to decree an account of defendant’s profits and assessment of complainant’s damages, and to increase such damages as in an action at law. This is all that the complainants are entitled to ask. Indeed, this is all the court can decree, for such is all that the law has empowered its chosen tribunal to grant. Expressio unius exclusio alterius. Bloomer v. McQuewan, 14 How. 539; Chapman v. Perry, supra.</p> <p>Such provision wtould in effect re-enact a statute which was abolished in 1793. The legislation on the subject of patents shows that ever since 1793 congress has limited recoveries to damages, profits, and injunction, (a) The first act, that of 1790, by section 4 provided that the defendant should pay such damages as should be assessed by a jury, and also forfeit the infringing articles. (6) The second act, that of 1793, repealed the act of 1790, and by section 5 provided that the defendant should pay a sum “equal to three times the price for which the plaintiff” had licensed others, (c) The third act, that of 1800, repealed section 5 of the act of 1793, and provided that the defendant should pay to the patentee “á sum equal to three times the damages sustained by him. ” [d) The fourth act, that of 1836, repealed former acts, and, by section 14, empowered the court to render judgment for any sum above the amount found by the verdict as the actual damages sustained by the plaintiff, not exceeding three times such amount, (e) The fifth act, that of 1870; repealed'the former acts; and by section 59 re-enacted section 14 of the act of 1836. if) The sixth and present act is that of the Revised Statutes, which repealed all former acts, and by section 4919 re-enacted section 59 of the act of 1870. It is undeniable that the court in an action at law would have no power to order the surrender of the articles. And so it is also in a suit in equity. The jurisdiction of the circuit courts in equity over the subject of patents did not exist until the act of 1819. Root v. Railway Co., 105 U. S. 191-193. The provisions of the act of 1819 have been continued in the acts of 1836, 1870, and the Revised Statutes, § 629, with no addition other than the provision for damages and profits, enacted in the act of 1870, and in the Revised Statutes, and that no forfeiture can be decreed thereunder. Stevens v. Cladding, 17 How. 447.</p> <p>Such a provision would contravene the fifth amendment to the constitution, which ordains that no person “shall be deprived of life, liberty, or property without due process of law.” Bloomer v McQuewan, supra; Patterson v. Kentucky, 97 U. S. 505; Webber v. Virginia, 103 U. S. 347; In re Brosnahan, 18 Fed. Rep. 63.</p> <p>Such a provision would in effect make new claims for the patents in suit. The claims of the patents are for combinations, which claims, the law says, are for the combinations, and nothing less. Obviously, a destruction of the instruments would destroy both the combinations and the elements which compose them. Surely, for this reason alone the decree should be refused. Even in England, where the court sometimes asserts its power to order the destruction of infringing articles, it is held that such an order will not be granted where tho patent is for a combination, for the reason that the defendant might still use for other purposes the several parts of his machine. Needham v. Oxley, 8 Law T. (N. S.) 604.</p>

<p>1. Trade-Marks—What will be Protected—“Acid Phosphate.”</p> <p>Upou a bill for injunction to restrain the use of a trade-mark claimed by complainant in the name, “Acid Phosphate, ” applied to a medicinal preparation, held, that the proofs showed that the name was not meaningless and arbitrary, but with reasonable exactness described the characteristics and qualities of the preparation for the purpose for which it was intended to be used, and that, being thus descriptive, it could not be exclusively appropriated by complainant as its tradq-mark.1</p> <p>2. Same—Injunction.</p> <p>It appearing that the defendants did not make use of any deceptive imitation of complainant's labels and packages, but properly distinguished their preparation from complainant's, and sold it as their own, the injunction was refused.</p> <p> (Syllabus by the Court.) </p>

<p>Admiralty—Practice—Trial—jSTon-Production or Evidence.</p> <p>Claimant laying stress upon the presumption arising from the fact that the hatch-cover, which libelant asserted had broken under his weight, and which the proofs showed was in his possession, had not been produced on the trial, it was held, that the case should be kept open, with liberty to libelant to produce in court the hatch-cover in question, and with liberty to both sides to take further evidence regarding the same.</p>

<p>In Admiralty. On motion to suppress depositions as irregularly taken.</p>

<p>In Admiralty. Action for delivery of cargo in damaged condition.</p>

<p>Shipping—Liberty to Call at Any Port—Quarantine Port—Detention— Damage to Fruit Cargo—Bill of Lading—Evidence.</p> <p>The shipper of a cargo of fruit took from the ship a bill of lading containing permission to the vessel to call at any port or ports. One port, at which the ship was accustomed to call, was known to all parties to be quarantined. Evidence was given tending to show that the agent of the ship gave the shipper to understand that the vessel would not call at the quarantined port. Nevertheless the shipper thereafter accepted the bill of lading containing the permission, without objection. Thereafter the ship did so call, and was detained in quarantine, and by such delay the shipper’s fruit was damaged. Held, that the bill of lading governed, and that he could not recover in an action brought upon it.</p>

<p>Shipping—Liability of Vessel for Tort—Injury to Stevedore by Parting of Rope of Libelant’s Procurement.</p> <p>A vessel provided a rope sufficient for hoisting cargo, and libelant, a stevedore, in order to render his work easier, substituted therefor another rope, which afterwards parted, precipitating him into the hold. Held, on suit brought against the vessel for his damage, that he could not charge the ship with liability for injuries sustained by reason of the breaking of the rope of his own procurement.</p>

<p>In Admiralty. Libel for carrying away guano.</p>

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

In Admiralty. On appeal from district court. This was an affirmance of the decree of the district court. The latter court rendered no opinion on the case. .

<p>in Admiralty. Libels and intervening petitions for labor, materials, and supplies furnished.</p>

<p>Towage—Negligence or Tug—Degree on’ Care Required.</p> <p>The Tillyer, a three-masted schooner, 140 feet long and 85 feet wide, was being towed up the Schuylkill river to Pine street wharf, by the respondent. In order to got there it was necessary to pass through the draw of the B. & O. R. R. bridge. The channel required a change of course two or three hundred yards below the bridge. The water was low at the time, and between the piers was an obstruction. The tug passed so close to the eastward pier that the schooner, following upon, or nearly upon, her course, ran upon the obstruction, and was damaged. The tug' claimed that the accident would not have occurred had Ihe schooner been properly handled. The schooner’s master asserted that the low state of the water prevented her obeying her wheel. Held, that the course of the channel, the state of the water and the obstruction called for more than ordinary care in passing through the draw; and that the tug, having failed to exercise that degree of care, was responsible in damages.</p>

<p>Towage—Stranding Tow—Obstructions Weld Known to Navigators.</p> <p>On additional evidence adduced in this court, showing that the rock upon ’ which libelant’s boat struck when in tow of the Mary N. Hogan was an ob-1 st'ruction well known to navigators, held, that the tug was liable for such stranding. Reversing 30 Fed. Rep. 937.</p>

<p>1. Collision—Sudden Sheer.</p> <p>The steam-boat 3VL, in an attempt to pass the S., which was hound in the same direction, suddenly sheered to the starboard, and thereby collided with the steam-boat A.., hound in an opposite direction, on a course at a safe distance outside the S. The A. starboarded to let the M. break her sheer and recover her course, which the latter attempted, but failed. Held, that though the A.’s pilot, by porting his helm an instant before the collision, might have swung her stern enough to have enabled the M. to pass without touching, the failure to do so was no fault, but the sole cause of the collision was the previous fault of the M.</p> <p>2. Admiralty—Jurisdiction—Case Heard Out of District under Stipulation-Presumption.</p> <p>Cross-libels for damages sustained in the same collision, one filed in the S. district and the other in the E. district, were tried together in the E. district, before the judge thereof, under stipulation, “to save two trials. ” The decree in the case in the S. district appeared on its face to have been made at a stated term held in that district by the judge of the E. district, and no application to sot it aside was disclosed in the record. Under Rev. St. U. S. ijg 591-596, 600, under which such judge might have been designated to hold court, for the S. district, held, that it would be conclusively presumed that he was actually holding such court when the decree was rendered, and that the decree was valid.</p>

<p>In Admiralty. On appeal from district court. 38 Fed. Rep. 527.</p>

<p>In Admiralty. On appeal from district court. 30 Fed. Rep. 883.</p>

<p>In Admiralty. On appeal from district court. 27 Fed. Rep. 516.</p>

<p>Action to Compel Issue of Patent.</p>

<p>At Law. Application for reargument of motion for new trial.</p>

<p>Landlord and Tenant—Leases—National Banks—Insolvency.</p> <p>Where a national bank takes a lease for a long term, its insolvency and dissolution soon afterwards, and tho appointment of a receiver, who refuses to take possession of the leased premises, do not entitle the lessor to damages out of the assets, the rent having been paid for the time during which the bank was in possession.</p>

At Law. Action by the Eureka Vinegar Company against the Gazette Printing ' Company for publishing the statement that the plaintiff, as the vendor of Old Orchard cider, was amenable to the prohibition laws of the state.

<p>1. Indians—Umatilla Indians—Govebnment—Power op Pbesident.</p> <p>The president is authorized by the, treaty of June i), 1855, (12 St. 948,) and the Revised Statutes, (sections 441, 468, 465,; to make rules for the government of the Indians on the Umatilla reservation, including the establishment of an Indian court and police, and the definition of “Indian offenses” and the measure of punishment therefor.</p> <p>2. Same—-Misdemioanobs—Adolteby.</p> <p>The term “misdemeanor,” as used in STo. 9 of the rules promulged by the secretary of the interior on December 2, 1882, for the government of the Indians on the Umatilla and other reservations, includes “adultery.”</p> <p>3. Rescue—Rev. St. U. S. § 5401.</p> <p>An Indian woman, arrested by the Indian police on the Umatilla reservation, on a charge of adultery committed thereon, was committed to the Indian jail for trial before the “court of Indian offenses,” and, while so committed, was rescued and set at liberty by the defendants. Held, that they thereby committed the crime of rescue, as defined by section 5401 of the Revised Statutes, by forcibly setting a person at liberty who was committed for “a crime against the United States ”</p> <p> (Syllabus by the Court.) </p>

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

<p>In Equity. Bill for injunction against infringement of patents.</p>

<p>1. Patents for Inventions—Anticipation—Apparatus for Freeing Water ' Mains of Obstructions.</p> <p>Patent No. 313,158, granted February 10, 1885, to Samuel B. Peeney, which is for an arrangement of pipes and valves to free suction mains and strainers of sand, leaves, etc., and other obstructions, consisting of a plan for reversing the current of water in the suction mains without stopping the pumping machinery, by means of a series of by-pass pipes and valves, is not anticipated by a method of flushing the mains and reversing- the current by gravitation, simply allowing the water to flow hack to the source of supply.</p> <p>3.'Samé—Prior Use.</p> <p>To-defeat a patent by two years’ prior use of the invention it is not sufficient that the plan had been formed by the inventor, and a model made for that period, where no working apparatus was actually made and used two years .before the application for the patent was made.</p>

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

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

<p>1. Patents for Inventions—Injunction—Granting on Final Hearing—Requiring Bond.</p> <p>la a suit to restrain defendants from infringing plaintiff’s patent, an injunction was issued on notice to defendants, after a full bearing on tbe question of infringement, on condition that plaintiff file a bond to indemnify defendants for any damages tbey might sustain. On final bearing tbe bill was dismissed for want of equity. Held, tbat plaintiff was liable on tbe bond.</p> <p>2. Same—Measure of Damages— Depreciation in Value of Article.</p> <p>Plaintiff obtained an injunction against defendants, restraining them from . making or selling a folding-bed, on tbe ground tbat it infringed plaintiff’s patent. On final bearing the bill was dismissed for want of equity, and defendants filed a suggestion of damages. It appeared that within a year after the . injunction issued tbe demand for that class of beds fell off so much tbat it was unprofitable to manufacture them; tbat when suit was begun one of tbe ■ defendants bad on band for sale 10 beds, and bad spent some money in advertising. Held, that he should be allowed as damages a depreciation of one-half the cost price of the beds, interest on what he had paid for them, and his advertising expenses.</p> <p>8. Same.</p> <p>The other defendant, who was the manufacturer, had a lot of beds on hand when the suit was instituted, and had made preparations to manufacture them on an extensive scale. Held, that, he should be allowed as damages the difference between the present value and cost of making them, and the damage sustained from stoppage of business: but that he should not be allowed the profits he might have made if he had sold the beds, nor for storage, nor for interest on loss in value on the cost of the beds.</p>

In Equity. On bill for injunction. For report of the decision in this case holding that defendant infringed complainant’s patent, see 33 Fed. Rep. 917.

<p>1. Admiralty—Parties—Non- Joinder.</p> <p>Where, on libel in admiralty against respondent as sole owner of the steamship, it appears that he is only owner of 18-64ths, and that other persons own 46-64ths thereof, the libel will be dismissed.</p> <p>2. Same—Judgment on Demurrer no Bar to Plea.</p> <p>Where a libel in admiralty for breach of charter-party alleges that respondent is the sole owner of the steam-ship, and the charter-party filed therewith is made by certain agents of the owners, a judgment on demurrer that the libel is not defective for the apparent variance, does not preclude respondent from showing by plea the fact that there are other owners, and, as such, necessary parties.</p> <p>3. Same—Certificate of Begistry—Estoppel.</p> <p>Nor is the respondent precluded from showing in defense that there are other owners of certain shares therein, by the fact that the certificate of registry, dated April 20,1879, delivered by the master for entry into the customhouse, showed that respondent was sole owner; such certificate not being a document of title, and respondent not intending thereby to mislead libelant.</p>

<p>Admiralty—Costs—Marshal’s Fees—Compromise oe Claim—Basis of Computation.</p> <p>The sum paid a libelant in settlement of bis claim, and not the amount claimed in the libel, is 1he basis upon which the marshal’s commissions are to be determined, under section 829, Rev. St.</p>

In Admiralty. Libel for damages. On appeal from district court. 15 Fed. Rep. 624, 23 Fed. Rep. 616. FINDINGS OF FACT. (1) The British bark Helen, an iron vessel of 282 tons register, while on a voyage from Havana to New York city, loaded with sugar, was sunk by collision with the steam-ship City of New York, June 28,1879, about 10:50 p. m. The captain and three of the seamen of the bark were drowned when the vessel sunk.

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

<p>Collision — Between Steamers — Disobedience of Rule 19, Navigation Laws.</p> <p>The ferry-boat Baltimore started from her New York slip, bound for Jersey City, and took a course of S. W by S. She sheered one point further south, to pass under the siern of the ferry-boat Delaware, and this sheer brought her on a course crossing that of the ferry boat Lackawanna, which was coming up the river, and with the latter on her port hand. The Lackawanna ported, to pass under the stern of the Baltimore, but the latter again starboarded her wheel, and the two ferry-boats came in collision. Held, that the situation of the boats was such as to make rule L9 operative, which required the Baltimore to hold her course. Her second change of course, therefore, was in disobedience to this rule, and was the fault that caused the collision.</p>

<p>In Admiralty. On appeal from district court, ante, 618.</p>

<p>Collision—Between Tow and Vessel at Dock — Towing with Long Hawser.</p> <p>The tugs On- and Nettie were proceeding up the Hudson river, about 35 feet from the oast hank, at a point where the channel was 400 feet in width, with the canal-boats Duryea. and Hopson in tow behind, all in line, making the tow nearly 500 feet in length from the bow of the Orr to the stern of the Hopson, when the Hopson sheered to starboard, and struck the canal-boat Lyons, lying unloaded at her dock, and caused the injuries complained of. It appears that the current was rapid, the water exceptionally high, and the channel part of the way narrow and dangerous. Held that, in the circumstances, the tugs were in fault in making up such a tow, and in passing so close to the dock, and that the llopson was also in fault, for permitting herself to be towed in that manner, and thereby contributing to the injury, whether also in fault from bad steering, improper construction, or improper loading, or not.</p>

<p>Collision—Between Steamers—Attempting to Cross Bow—Delay in Signaling.</p> <p>The steam-boat M. was coming with the ebb-tide down the Brooklyn side of the East river, preparatory to rounding to her slip on the New York shore. The Fulton ferry-boat F., on her way from New York to Brooklyn, about two-thirds of the way across from the New York shore, and 200 or 300 feet further from the Brooklyn shore than the M., was headed nearly up river, the F. nearly straight down! The F., by a signal of two whistles', directed the M. to go to the left between her and the Brooklyn shore; but the latter, when about 250 yards distant from the F., ported her wheel to round ahead of the ferry-boat. As soon as this was observed by the ferry-boat, she backed, but her bow struck the port side of the M.. causing the injury for which this suit was brought. Held, that the whole fault was the M.’s; that each having the other on her own starboard side, when only some 250 yards apart, the M. should have kept her course, and was to blame for unnecessarily and unjustifiably attempting to cross the bows of the ferry-boat, and for not signaling much earlier, if that had been her intention; arid that the latter was without fault, since there was no apparent risk of collision until the M.’s sudden change of course, and the F., as soon as this was perceptible, stopped, and backed strong.</p>

<p>. 1. Shipping—Charter-Party—Bill of Lading.</p> <p>As between ship-owner and charterer shipping his own goods, the charter controls the bill of lading where there is diifer'ence between them.</p> <p>2. Same—Liberty to Assist Other Vessels.</p> <p>A clause in a bill of lading giving the vessel “liberty to call at any port or ports for whatever purpose, *■ * * and to tow and assist vessels in all situations, ” when the charter gives no such liberty, will not warrant, as against the charterer, a material deviation to assist a disabled vessel.</p> <p>8. Same.</p> <p>Liberty given a vessel to call “at any port or ports,” or to tow and assist vessels “'in all situations, ” refers to ports along the course of the voyage specified, or vessels met with in the ordinary course of such voyage. Hence, where a vessel after loading proceeded 40 miles directly out of her course to take in tow a disabled vessel, and was detained by such towage about seven, days, held an unjustifiable deviation, rendering the vessel liable to the charterer for the increased premiums of insurance, and interest on his goods during the delay.</p>

<p>1. Shipping—Affreightment—Seaworthiness—Preliminary Survey—Presumption.</p> <p>In the absence of any evidence of concealment, latent defect, bias, or fraud, a strong presumption of the seaworthiness of a vessel arises when a preliminary survey has been held by the charterer, and upon, such inspection the vessel has been found seaworthy.</p> <p>2. Same—Severe Storm—Liability.</p> <p>Libelant sought to hold the bark P. liable for delivering his cargo of hides damaged, claiming that the vessel, when she sailed from Montevideo for New York, was in an unseaworthy condition. On the evidence, 7w7d, that the damage arose from the severe storm to which the vessel was exposed during the voyage, and not to unseawortliiness, and that the libel should therefore be dismissed.</p>

<p>1. Removal oe Causes—Local Prejudice- -Amount in Controversy.</p> <p>To entitle the defendant to remove a cause, under the “local prejudice” clause of the act of March 3, 1887, the matter in dispute must exceed the sum oí §2,000, the limit prescribed by the act for the original jurisdiction of the circuit court.</p> <p>2. Same—Procedure—Existence op Prejudice—Trial.</p> <p>Such clause provides that it shall be “made to appear” to the circuit court that from “prejudice or local influence ” the defendant will not be able to obtain justice in the state courts. Held, that.it is the duty of the circuit court to examine into the truth.of the facts alleged to support the grounds for removal, and to ascertain their existence. The simple affidavit by the defendant, stating, in general terms, the existence of such prejudice, and its effect, in the language of the statute,—no opportunity having been given the plaintiff, by notice, to controvert such statement,—ought not to be accepted as sufficient evidence of the fact.1</p>

<p>Motion to Remand.</p>

<p>In Equity. Bill for specific performance.</p>

<p>Attorney and Client — Compensation — Compromise without Payment — Eight to Prosecute Suit.</p> <p>Where plaintiff in an action for personal injuries voluntarily proposes a compromise, which is accepted, and there is nothing to show that it was collusive as to plaintiff’s attorneys, who had no knowledge of it, amotion by the attorne/s for leave to prosecute notwithstanding the settlement will be denied.</p>

<p>At Law. On demurrer to complaint.</p> <p>Action by Douglas Lewis against Chicago, St. Paul & Kansas City Railway Company.</p>

At Law. Action by Chester W. Witters, receiver, etc., against Edward A. Sowles and Margaret B. Sowles, his wife, to rec'over an assessment on bank stock held by the latter.

At Law. On motion for new trial. Action by D-. P. Breed, administrator, against the Northern Pacific-Railroad Company, for personal injuries resulting in the death of plaintiff’s intestate.

At Law. Motion for new trial. The Tuthill Spring Company sued the Shaver Wagon Company on five promissory notes. Verdict for plaintiff. Defendant moves for a new trial.

At Law. On demurrer to the answer. Suit by II. E. Francisco, administrator of William E. Brannegan, deceased, against the Chicago, Milwaukee & St. Paul Railway Company, to recover for an accident causing the death of the said deceased.

At Law. On motion to set aside verdict of jury. Action by R. P. Parshall against the Minneapolis & St. Louis Railway Company for injuries received by a collision of trains. Verdict for plaintiff, and damages assessed at $8,000, which verdict defendant moved to set aside.

<p>Sales—Warranty—False Representations.</p> <p>Defendants controlled the entire stock of a cigar manufacturing corporation. Their salesman negotiated a sale of the stock to plaintiffs, with a view of procuring a larger salary for himself. Plaintiffs had been called in prior thereto to advise defendants as to the proper management of the factory, and knew that they were not satisfied with their business. The salesman represented that certain dividends had been declared. When the parties met to complete a sale, in accordance with a previous appointment, defendants stated that the dividends had been earned, and that the stock account was “all right.”’ The defendants acted in good faith. Held, that the statements were not representations made by a seller, for the purpose of influencing a buyer, but were statements of opinion of the condition of the property, and were not such representations or warranties as to entitle the plaintiffs to recover for a breach or failure thereof.1</p>

<p>Patents for Inventions—Patentability—Invention—Metal Shingles.</p> <p>Letters patent No. 189,115, issued April 3, 1877, for improvement in sheet-metal shingles, consists of a metallic sheet shingle, being a plate bent upward at one edge and downward at the other, to form plain, hollow ribs to interlock and form a joint, and having a.central hollow hood or rib, the plan of laying them being so as to begin the second course with a half shingle, and following with full ones, the central rib of the second course receiving the seam of the course below, thus breaking joints as ordinary shingles. There were man3r prior patents for earthenware and metal tiles or shingles, all having the interlocking side edge, the central rib, and plan of breaking joints appearing in all the tiles, but no metallic shingle combined entirely both features, although one patent of a metallic shingle had the feature of breaking joints, the upper course protecting the heads of the seams of the lower by a central cap at the lower end of the shingle. Eeld, that plaintiff’s shingle was not an invention, but the combinaron of knowi contrivances for the same purposes with the substitution of different materials.</p>

In Equity. On biff to enjoin the production of an operetta. Complainants, Leo Goldmark and another, filed a bill against Joseph Kreling and others, to enjoin them from producing the operetta “Nanon,” basing their right of action on their common-law right of ownership, and not on a copyright. For proceedings dissolving the injunction for failure to give proper bond, and the subsequent reinstatement of the case, see 25 Fed. Rep. 349, and 11 Sawy. 215.

<p>Seamen—Wages—Foreign Regulations.</p> <p>Libelant, a seaman on a British vessel, under articles for the entire voyage, absented himself from the vessel on its arrival in a United States port," and, after his absence had been noted on the log-book for several days, he was marked as a deserter. On that day he returned, but was told to go" about his own business. Eeld that, as tbe court would administer relief by comity in accordance with British law which forbids the master to discharge libelant in such port without the consent of the consul, which was refused, and as the master was willing to receive libelant on board the vessel, claiming that he had never discharged him, and the latter was anxious to secure passage home, an order would be entered securing that result, and the libel for wages be dismissed.</p>

<p>1. Maritime Likins—Priority—Seaman’s Wages—Supplies—Collision.</p> <p>A lion on a vessel for seaman’s wages, and a lien for necessary repairs and supplies, outrank a subsequent lien arising from negligent collision; but will be postponed for laches in enforcing them.</p> <p>2. Same—Statutory ani> Maritime Liens.</p> <p>In considering questions of priority of liens, a statutory lien for domestic supplies stands bn the same footing ás lions that are strictly maritime; and liens for ordinary repairs or supplies in harbor navigation, if furnished within the same season and within a period of reasonable diligence, are treated as contemporaneous, and, in ease of deficiency, share pro raía.</p> <p>3. Samis—En forcemknt—Remedies.</p> <p>Under the circumstances, a delay oi'less than nine months after midsummer repairs before instituting proceedings to enforce a lien therefor, held not to be laches; a year’s delay, held laches, and the lien postponed.</p> <p>Í. Same—Marshaling Remedies—Limitation on Liability — Act June 26, 1884, § 18.</p> <p>Though contract lienors, in case of insufficiency, may sometimes he turned over to their personal remedy against the owners, in favor of a damage lienor, this is not to be applied when the owner is insolvent, or not by law liable. The act of June 26, 1884. § 18, in limiting the owner’s liability “on account, of the ship” to the value of ship and freight, does not affect contracts made by the owner personally, but applies only to the liability for the master’s acts and contracts imposed'by law on the owner, as principal, and on account of his ownership.</p>

<p>Shipping—Carriage op Goods—Bill of Lading—Exceptions—Sweating— Heat—Burden of Proof—Evidence.</p> <p>Libelants shipped a quantity of Brazil nuts from P'ara to New York under a bill of lading which excepted liability from “damages arising from sweating, heat, steam, ” etc. On discharge at New York the nuts were found damaged by the heat and sweat engendered on the voyage. The evidence indicating that the nuts were stowed in the customary manner, that they belonged to that portion of the crop especially liable to become heated, that*they were carefully watched and ventilated when possible on the voyage, and that tempestuous weather necessitated keeping on the hatches during the last three days of the voyage, held, that libelants had not sustained the burden which was on them to show negligence in the vessel, and without such proof of negligence the ship was protected from liability by the exceptions of her hill of lading'.2</p>

<p>Towage—Stranding—N egligence.</p> <p>On the evidence, held, that the grounding of lihelant’s boat was not caused by negligence of the tug, and the libel should therefore be dismissed.</p>

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

In Equity. On demurrer to bill. Action for relief for alleged fraud practiced, in partition proceedings, against Elgin U. Western and others, the complainants, by the respondent, Henry H., Skiles.

<p>In Equity. Bill by a married woman to protect her separate properly against execution for her husband’s debts.</p>

In Equity. Bill to redeem, and for an account of, certain stocks pledged, and the dividends received. ,On September 20,1886, James N. Gilmer filed his bill against Josiah Morris and others, doing business as Josiah Morris & Co., charging that in 1871 he pledged 120 shares of stock in the Elyton Land Company to said Morris to secure to him $6,000 which the latter had advanced on the purchase money; that soon thereafter one-half of the stock was sold for$6,0P0, which only left…

Jn Equity. Bill to declare á trust in certain realty. . Bill in. equity, filed by Leonora S. Pugsley against Henry C. Brown .and wife, to have: defendant Brown declared a trustee of certain lands held' by him under a patent.

<p>1. Abatement and Revival — Death oe Party—Federal Courts—Follow-</p> <p>ing State Law.</p> <p>The survivability of actions in matters not within the. exclusive control of eongross being beyond the power of federal legislation, section 955 of the Revised Statutes adopts the local law in that regard for the government of the courts in reviving suits abated by the death of parties.</p> <p>2. Same—Actions eor Tort.</p> <p>The legislation of Tennessee has left the survivability of causes of action for tort, in all cases except those of injury to the person resulting in death, just where the common law and the ancient statutes of England placed it, unless suit, he commenced before the death occurs, in which event the cause of action always survives, no matter what its nature may be, if it do not affect the character of the plaintiff', in which case alone, does a suit once brought over abate by the death of a party to it, if it be a personal action as distinguished from a real action, as to which no opinion is expressed.</p> <p>3. Same—Deceit—False Representations as to Credit.</p> <p>Whether an action of deceit for false representations as to the credit of another would survive in Tennessee if no suit be brought before the death occurs, quaere; but whether it would so survive or not, it does survive by the. peculiar law of that state saving the right of survival of the cause of action as well as the right of revival of the suit, in all cases pending at the death, and this with the same effect in a federal court.</p>

<p>At Law. On motion for new trial.</p> <p>Action by Anderson, as receiver of the First National Bank of Albion, against Kissam and others, to recover moneys alleged to have been misappropriated by defendants. There was a judgment for plaintiff, and defendants move for a new trial.</p>

<p>1. Counties—Actions against—Liquidated Damages—Patents for Inven- . - tions:</p> <p>An averment in the petition as to the amount of royalty uniformly demanded and collected from users of the patented device does not make a claim for infringement liquidated, and dispense with the demand required by Code. Iowa, § 2610, requiring unliquidated demands to be presented to the board-of supervisors before suit can be brought thereon against a county.</p> <p>2. Constitutional Law — State Law—Impairing. Jurisdiction op Federal Court.</p> <p>The act does not affect or impair the jurisdiction of the federal courts, nor the right of citizens of other states to sue therein.</p>

At Law. On motion for new trial. This is an action upon a policy of insurance for $5,000, dated September 5, 1885, issued to Henrietta P. Sargent, the plaintiff, upon the life of Edward F. Hall, Jr., who was her brother. The policy was security for $5,000 loaned by the plaintiff to Hall.

<p>1. Insurance—Mutual Benefit Societies—By-Laws—Public Policy.</p> <p>Tlie by-law of.a railroad relief association requiring its members to release the railroad company from any claim for damages before applying to the association for relief, is not against public policy, as it simply puts a claimant to his election whether he will look to the railroad company or the relief association for compensation.</p> <p>2. Same—Estoppel—In Pais—Privity.</p> <p>A person is not estopped from claiming compensation from the railroad company for an injury resulting from a collision by having been previously compensated by the relief association for the injury which he then untruthfully alleged was caused by malaria, jaundice, constipation, etc., as the railroad company and the association are separate corporations, and, while the former guaranty all contracts of the latter, yet the association funds were sufficient to meet all liabilities likely to arise.</p> <p>3. Negligence—Aggravation of Injury.</p> <p>When plaintiffs injuries are wholly caused by the defendant’s negligence, but are aggravated by his own subsequent and independent acts, and the jury apportion the damages, he is entitled to recover to the extent of the, damage without his fault, but not for that portion caused by his subsequent acts.</p>

Petitions by J. C. Gibson, United States attorney for the Eastern district of Virginia, against William H. Peters, receiver of the Exchange Na-tional Bank of Norfolk, Va., to recover for counsel fees alleged to have :been rendered such defendant as receiver.,

Two indictments for mailing obscene matter consolidated and tried together. Defendant admitted the commission of the acts charged in both indictments, and tlxe obscene nature of the letters mailed, but claimed that by reason of masturbation, to which he was addicted, he had become mentally irresponsible. Verdict of guilty, and motion for new trial •overruled, and defendant sentenced to pay $2,000.

<p>Patents for Inventions—Who Entitled to—Telephones—Cushman Device.</p> <p>It appearing that Dr. Cushman did, with the aid of others, in 1851, construct a device containing magnetic coils, substantially identical in principle, construction, and working with the Bell telephone, through which he transmitted articulate sounds short distances, but that the transmission was faint, the words difficult to hear, and the attempts to talk through it often failures; that the proof of its operation at a distance greater than the ordinary acoustic telephone would carry depended on the uncorroborated testimony of Dr. C.; that the device was set up in Racine, Wis., in a public place, where any one could use it, but that it attracted no attention, nor did it suggest to any one its practical value; that in 1854 and 1855 attempts were made to improve it, without substantial success; that it was exhibited in 1867 to several wealthy and intelligent men with a view to patent and render it available, but the experiments were unsatisfactory; that the device was given to an electrician to experiment with and patent, but he died, and the device cannot now be found; that no contemporaneous newspaper accounts appear of these experiments; and that it was not until after Dr, C. had seen the Bell telephone operate and become familiar with it, that he claimed that he was the first inventor; 7ield, that what was, done by Dr. C. must he treated as an abandoned experiment.</p>

<p>In Equity.</p> <p>This is an action brought by Harlan S. Howard and Ellen F. Perkinson, as administratrix of the estate of John E. Perkinson, deceased, against the St. Paul Plow-Works, Osmon Lunn, Henry H. Miller, William Dawson, Frederick C. Miller, Amherst H. Wilder, Charles H. Bigelow, and John Kerwin, to restrain infringement of letters patent No. 178,461, and for an accounting.</p>

<p>In Equity. On bill for an injunction for the infringement of a patent.</p>

In Equity. Motion for preliminary injunction. Bill by the Eastern Paper-Bag Company against Thomas Nixon and others, to restrain the alleged infringement of letters patent.

In Equity. Injunction against infringement of patent. This was a bill filed by the ligowsky Clay Pigeon Company against the Peoria Target Company and others, to restrain the infringement of a patent, and to have an account of past infringements.

<p>1. Patents for Inventions—Infringement—Target Traps.</p> <p>The first claim of letters patent No. 252,230, granted January 10, 1883, to George Ligowsky, for a target trap, being “the combination in a target trap of a spring lever, a rack, and an adjustable tension arm, carrying the trigger, with which latter is engaged said lever, ” is not infringed by a target trap not having such notched rack, and in which the adjustable tension is not produced by means of the tension arm, but by means of a screw which operates a rod attached to the lower end of a coiled spring.</p> <p>2. Same.</p> <p>The seventh claim of letters patent No. 313,804, granted March 10, 1885, to Jacob Bloom, for “the combination with the pivoted throwing lever, and with the coiled actuating spring, by which it is given its sweep, of the support or core around which said spring is coiled, flanged circumferentially at its upper edge to confine the adjacent coil of the spring when the lever is set, ” being merely for a flange on the top of the pillar around which the spring is coiled to keep it in place, and prevent it from slipping over the top of the pillar, must be supported, if at all, for the idea of making the flange integral with the pillar, and is not infringed by defendant’s device of aflat cap screwed on the top of the pillar for the same purpose.</p> <p>S. Same—Extent of Claim.</p> <p>Letters patent No. 302,691, granted July 29,.1884, to Benjamin Teipel, for a target trap, though not void for want of novelty, must be necessarily confined to its specific devices, the proof showing very slight differences in construction between the Teipel trap and the ball traps patented by Warne, in Juno, 1880, and Stock, in February, 1884.</p> <p>4. Same.</p> <p>The distinguishing feature of the Teipel patent being that it is adapted to the use of the longitudinally strained spring, and not the coiled spring, and the first and second claims being for the combination of the spring strained between the end of the lever and the point at which it is fastened to the bod-piece, they are not infringed by the defendant’s device, in which such strained spring does not appear.</p> <p>5. Same.</p> <p>Nor is fourth claim of the Teipel patent, which is: “In combination, the laterally-moving lever and the bed-piece or support and pivot, and the projection on the rear end of the lever, and behind the pivot, and stationary projection rightly located on a part of the trap other than the throwing lever, and catch located at the rear of said standard,”—infringed by defendant; for if this claim is not substantially anticipated by the Warne patent of June, 1880, defendant’s device docs not contain the “catch located at the rear of the standard” called for in this claim,</p> <p>0. Same.</p> <p>Nor is the fifth claim of said patent, “the combination of the bed-piece having a uniform, smooth upper surface, containing a rear projection and lever,” etc., infringed,as defendant’s device is wanting the “bed-piece having a uniform, smooth upper surface, ” which is necessary in the Teipel patent to guide the throwing lever.</p> <p>7. Same.</p> <p>Nor does defendant infringe the sixth claim of said patent: “In combination, the laterally-moving lever, bed-piece, the vertical piece, connected to and supporting the bed-piece and standard, the piece being pivoted near one end to said standard by a pivot, lying in a substantially horizontal plane, and means for adjusting the inclination of the piece, and consequently the inclination of lever, substantially as and for the purposes specified, ”—as the vertical piece is wanting in defendant’s device.</p> <p>8. Same.</p> <p>Nor the tenth claim, which calls for the uniform, smooth upper surface of the bed-piece, and also the spring strained between the arm of the throwing lever and the projection upon the bed-piece, neither of which is found in defendant’s device.</p> <p>9. Same.</p> <p>Nor the twelfth claim: “In combination, the laterally-movinglever, its bed-piece, standard, having foot provided with set pivot and bottom plate or foundation piece, on which said foot rests and turns, substantially as and for the purposes specified;” nor by the thirteenth claim: “In combination, the laterally-moving lever, its bed-piece, standard, having foot provided with set pivot and bottom plate or foundation piece, on which said foot rests and turns, and means for adjusting the vertical inclination, of the longitudinal axis of said lever, etc., ”—as the foundation piece therein called for is not used in defendant’s device in any form, nor is anything used as an equivalent for it.</p>

<p>Patents for Inventions—Infringement—Base-Burning Steam Generator.</p> <p>Letters patent Ño. 132,360 for an improvement in base-burning steam generators, of which the distinguishing feature is a centrally located coal reservoir extending downwards into the fire-box, and protected from the destructive action of the heat by a surrounding water-space connected by tubes with the water-space surrounding the fire-box, are not infringed by defendant’s device, wherein the reservoir extends to, hut not into, the furnace or firebox, there being no water-jacket surrounding the reservoir.</p>

<p>In Admiralty. Insurance on bottomry draft.</p>

In Admiralty. On exceptions to libel. This was a libel against the respondent in personam, to recover money which the libelants paid in Germany to redeem their cargo from a bottomry bond executed by the master of the American ship Andrew Johnson, at Callao, Peru, on September 15, 1884.

<p>In Admiralty. Libel for supplies.</p> <p>Meinhard Kretzmer filed a libel against the tug William A. Levering for supplies furnished.</p>

<p>1. Shipping—Ownership in Vessel—Partnership.</p> <p>The running of a steam-boat on shares does not make the owners partners in respect to the vessel itself.</p> <p>2. Maritime Liens—Advances—By Part Owner.</p> <p>Where a steam-boat is not partnership property, but her part owners are tenants in common simply, one of them has no lien upon the share of another for advances.</p> <p>8. Same.</p> <p>Nor does it make any difference that the partner making such|advances was also the master of the vessel.</p> <p>4. Same—Execution—Prom State Court—Levy and Lien.</p> <p>After seizure of a steam-boat by the marshal upon process in admiralty and a decree of condemnation, but before sale, a writ of fi. fa. issued out of the state court upon a judgment against one of the part owners of the vessel, and was put in the hands of the sheriff. In the distribution of the proceeds of the marshal's sale, held that, as against the defendant in the execution, the plaintiff therein acquired a lien as soon as his writ reached the.sheriff’s hands, and that, after satisfaction of all admiralty liens and liens of domestic creditors for supplies, etc., under the local statute, the execution creditor was entitled to the defendant’s remaining' share of the surplus.</p>

<p>In Admiralty. Libel for"damages by collision.</p>

<p>1. Salvage—Vessel at Dock—Firb.</p> <p>The steam-ship Lone Star lay on the lower side of pier 37, North river, New York, when lire broke out on the wharf, which spread with great rapidity, until the steam-ship herself caught lire. Various tugs came to her assistance, and. when the hawsers which fastened her to the pier were burned away, some of them drew her out into .the stream, where other tugs came alongside, and she was towed, water being pumped on her meantime, to the flats at Weehawken, where she sank, and the Are was extinguished, field, that the tugs were entitled to salvage.</p> <p>2. Same—Compensation—Different Grades of Service—Towage and Pump-</p> <p>ing.</p> <p>The services rendered hv the tugs to the steam-ship differed in degree. Held, that the most important service was rendered by the tug Pioneer, which put the line on the Lone Star by which she was towed out from the burning pier into the river To her was awarded $1,800 as salvage. Held, further, that other grades of salvage services were rendered by the tugs which assisted in towing the steam-ship to the flats, and by the tugs which pumped water on the lire. To these tugs various sums, from $1,000 to $250, were awarded.</p> <p>3. Same—Basis of Computation.</p> <p>The Lone Star was an iron steam-ship. She was so much damaged by the lire that she was sold as a wreck. If she had received no assistance, she would have been sunk in her slip, and would have been raised and sold as old iron. Held that, in ascertaining the value to the ship-owner of the services rendered by the salvors, the amount that the owners would have realized from her sale as old iron, if she had so sunk, should be deducted from the proceeds of her sale as a wreck. For the purposes of this computation ot salvage, such amount saved to her owners was found to he from $22,000 to $29,000. The total award to the tugs was $8,350.</p>

<p>Salvage—Abandonment oe Service.</p> <p>The Anderson, a lighter loaded with cotton, was, with other vessels, lying at a pier, when fire broke out on one of the vessels, and communicated to the others. The fastenings of the vessels burned off, and two steam-tugs came into the slip, played streams of water on the vessels, and commenced to tow them. After the tugs commenced to tow, no more water was thrown upon the Anderson, and after she was outside the slip the hawser parted, and she was left adrift, more exposed to the wind than in her former position, with the fire on her unextinguished, and was carried by the tide into an adjoining slip, where the fire was got under control by the city fire department. Two other tugs then took her in tow, throwing water on her and extinguishing the fire. The two former tugs were not prevented from again assisting the Anderson, after she was left adrift, by greater perils or unforeseen circumstances, but voluntarily abandoned her to assist the other vessels. Held, that the services of the two former tugs were not part of a continuous salvage service culminating in the extinguishment of the fire.</p>

<p>Shipping—Damage to Cargo—Perils of the Sea.</p> <p>On the evidence, held, that the damage to a cargo of sugar on the schooner Bertram L. Townsend, to recover for which this suit was brought, was caused by a peril of the sea, and not by neglect on the part of the ship, and that the libel should accordingly be dismissed.</p>

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

On Motion to Remove. The superior court of Vigo county having overruled the application of the defendant the Cincinnati, Hamilton & Dayton Railway Company to remove the cause to this court, the petitioner procured and filed here a transcript of the record, and the motion of the plaintiff is to strike the same from the files.

<p>1. Error, Writ of—Supersedeas Bond—Condition.</p> <p>A super sedeas, t> ond, conditioned that the plaintiff in error “shall prosecute its writ of error to effect, and answer all damages and costs, if it shall fail to make the plea good, ” is sufficient.</p> <p>3. Same—Execution before Entry of Judgment.</p> <p>A supersedeas bond executed before the judgment was in fact entered, but not delivered until after its entry, is valid;-but in order that it may not be open to question, leave will be given plaintiffs in error to execute a new bond nunc pro tunc.</p>

<p>In Equity. Bill to restrain prosecution of common-law action.</p>

<p>In Equity. On exceptions to master’s report.</p> <p>' Action by Charlotte, Duchesse d’Auxy, against Agnes Gordon Soutter and William K. Soutter, executors of James T. Soutter, deceased, to recover an interest in the estate of the latter, which she claims as devisee of Robert Soutter, a legatee under the will, and also as next of kin of a daughter of Robert Soutter.</p>

In Equity. On plea to the bill. The complaint is in the nature of a creditors’ bill, whereby the Complainants, ,T. V. Farwell & (Jo., of Chicago, and Woods, Perry & Co., of Boston, as creditors of Francis M. Brown, seek to have the defendant Cornelia Brown declared trustee for their use of moneys derived from the sale on foreclosure of goods mortgaged by said Francis M. Brown to the said Cornelia, his wife, on the alleged ground that the mortgage was-made in fraud of the…

<p>1. Mines and Mining—Location and Acquisition—Trusts—Confidential Relations.</p> <p>The owners in common of mining claims, owing to difficulty in raising money to pay the taxes and do the labor required by statute to prevent a forfeiture of the claims, after extensive correspondence between complainant, who.was the principal owner, and defendant, who was acting as manager of the mines, determined to allow a forfeiture, and let defendant immediately relocate the claims in new names, which he did in his own name alone, after writing for advice to complainant, who prepared and sent him a form of notice in his name as locator. Held, that a trust attached to defendant’s title in favor of his associates.1</p> <p>2. Same—Limitation of Actions—Running of Statute.</p> <p>An action begun Mayl8, 1885, to enforce such trust, the relocation having been made January 1,1883, is not barred by the statute of Nevada limiting to two years the time for commencing an action to recover a mining claim, where there was no intimation that defendant denied the trust until May 29, 1883, when, in answer to one who delivered a message from complainant in relation to a sale of the mines, he said that he had relocated the whole mine in his own name, but if a sale was made he would do the square thing by his associates.</p> <p>3. Same—Failure to Set up Adverse Claim. , •</p> <p>"Where defendant, after relocating a mining claim in his own name for the benefit of himself and associates, and after action brought to enforce the trust, applies to enter the land as mining ground, advertises in pursuance of statute, and,' no protest having been made, pays the purchase money, and has a certificate of entry issued to him, the complainant’s right is not concluded by the certificate, though he does not set up an adverse claim and bring suit to establish his right within the time allowed by statute, as his title is not adverse to, but a part of, that upon which the certificate was obtained.</p>

<p>At Law. Action on guardian’s bond. On rehearing on demurrer to petition. For former opinion, see 82 Fed. Rep. 519.</p>

<p>1. Depositions—Narrative Norm on Type-Writer—Waiver of Objection.</p> <p>Under Rev. St. U. S. § 864, requiring a deposition to be reduced to writing by the officer taking it, or by the witness in the presence of sucb officer, and by no other-person, the irregularity of taking the testimony in a continuous narrative form, on a type-writer, will be waived by appearance and cross-examination by the adverse party, who is also an attorney of record in the case, without objecting to the form of the deposition or the use of the typewriter;</p> <p>3. Same—Certificate.</p> <p>Part of such testimony being in writing, and the certificate of the officer not showing whose writing it was, the deposition should be suppressed as the exceptor could not be deemed, by appearing, to have waived an irregularity which was not committed until after the testimony was taken.</p> <p>3. Same—Suppression—Re-Examinatton.</p> <p>Such omission not being the fault of the party in whose interest the depositions were taken, he should be allowed an opportunity to re-examine the witnesses whose depositions were suppressed.</p>

<p>1. Indictment—Caption—Misrecital of Date of Finding.</p> <p>A misrecital in the caption of an indictment of the date of its finding, it reading “1885, ” for “1888, ” where from the whole record the error appears to he merely clerical, is not fatal, as the caption is no part of the indictment.</p> <p>2. Same—Rev. St. U. S. § 1025.</p> <p>Such error also comes within the purview of Rev. St. U. S. § 1025, which provides that no indictment shall he deemed insufficient by reason of any defect in matter of form only, which does not tend to prejudice the defendant.</p>

<p>Indictment found under Rev. St. U. S. § 5467.</p>

<p>In Equity. Bill to restrain infringement of patent.</p>

<p>Patents for Inventions—Infringement— Woven-Wire Bed-Bottoms.</p> <p>Betters patent Ao. 241,321, granted to C. II. Dunks and J. B. Ryan, May 10, 1881, for an improvement in swing woven-wire bed-bottoms, which consists in attaching the woven-wire fabric to a swinging cross-bar suspended by helical springs from the end rails of the bedstead, are void'for want of novelty, the invention being but the substitution of one well-known material for another.</p>

In Equity. Action for infringement of patent. This is an equity action for infringement, brought by David H. Burrell and others against Arthur 0. Hackley. The hill is founded upon three letters patent, one of which, No. 166,353, is for an improvement in veneer-cutting machines.

In Admiralty. The above libel was filed by the owners of the French steam-ship L’Amerique to recover $1,911.90, claimed as a general average charge assessed upon 16 hales of raw silk, part of her cargo consigned to the respondents.

<p>At Law. On application to remand and motion to strike application from the files.</p>

In Equity. On motion for preliminary injunction. Under the provisions of chapter 28, Laws 22d Gen. Assem. Iowa, the defendants, as railroad commissioners of said state, on the 14th day of June last, made a schedule of reasonable maximum rates of charges for the transportation of freight and cars on the railroads in the state of Iowa, and also made a classification of freight to accompany and be a part of the schedule of rates so made.

In Equity*. Pinal hearing on pleadings and proofs. Bill for an injunction by the Chicago, St. Paul, Minneapolis & Omaha Railway Company against George L. Becker, Horace Austin, and John L. Gibbs, as the railroad and warehouse commission for the state of Minnesota. Por proceedings on preliminary motion, see 32 Fed. Rep. 849.

<p>1. United States ’Commissioners—Uses — Drawing Complaints — Approval by District Attorney.</p> <p>Where the United States district attorney examines and approves complaints drawn by a circuit court commissioner, the court will not reduce the commissioner’ s fees for the same on the groun d that they were unnecessarily verbose, unless it appears that surplusage was inserted merely to increase fees.</p> <p>2. Same — Several Complaints against Same Party under Same Statute.</p> <p>Where the commissioner, acting under instructions of the district attorney, draws complaints and issues warrants in more than one suit against the same party for violation of the same section of the statutes, he is entitled to fees in all the suits.</p> <p>3. Same—Acknowledgment of Recognizances.</p> <p>The commissioner is entitled to fees for acknowledgment of bonds in criminal cases, as the statute requires such acknowledgment, and fixes the fee at 25 cents; and where the acknowledgments of the parties are taken separately he is entitled to a fee for each acknowledgment.</p>

<p>United States Commissioneks—-Docket Fees.</p> <p>Commissioners of the United States circuit courts are entitled to the same docket fees as are allowed clerks of such courts; and the proviso in the appropriation bill of August 4, 1886, excepting docket fees from the sum appropriated for the payment, of commissioners, does not affect their right to such fees accruing in a subsequent year.</p>

<p>Appeal from district court.</p>

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

<p>Patents por Inventions—Infringement — Distributors of Electric Energy.</p> <p>Letters patent No 351,589, granted October 26, 1886, to George Wostinghouse, Jr., assignee of Lucien Gaulard and John I). Gibbs, for improvements in methods and apparatus for the distribution and conversion of electric energy by an arrangement of converters in series, the specification disclaiming any other arrangement, are limited to the series system, and the use oí the multiple arc system is not an infringement.</p>

<p>Patents for Inventiqns—Anticipation—Regulatops for Dynamo Machines.</p> <p>Letters patent No. 238,815, granted March 1, 1881, to Elihu Thomson and Edwin J. Houston, for a regulator for dynamo machines, controlling automatically the strength of the electric current by adjusting the commutator so as to keep the current constant, are not anticipated by letters patent No. 223,659, granted to the same persons for an automatic adjuster for commutator brushes on magneto-electric machines, whereby an adaptation to variations of circuit resistance is secured by adjusting "the commutator so as to keep the current at its maximum value.</p>

In Admiralty. Libel for supplies. In the first above libel the sum of $581.63 was claimed for necessary supplies furnished in December, 1886, at the port of New York, to the steam-ship Scotia, of Glasgow, Scotland. In the second case the claim is for similar advances made on account of the vessel at Hayti.

<p>Maritime Lien—Stevedores—British Vessel—Conflict of Laws.</p> <p>The services of stevedores in unloading a foreign vessel are maritime, ana a part of the performance of the vessel’s contract of carriage. Held, that the master of a British ship has authority in the port of New York to employ a stevedore to unload, and that the stevedore, under the lex loci, has a lien on the vessel for his services.</p>

At Law. Action by Paul Ravesies against the United States to recover fees for services rendered as shipping commissioner for the port of Mobile.

In Admiralty. On appeal from district court. 34 Fed. Rep. 919.

<p>Shipping—Limiting Liability.</p> <p>A lighter, valued at $300, drifted from her moorings December 3,1885, while on fire, and, coming into collision with a schooner owned by B., damaged her $1,500. The lighter proving a total loss, B. sued O., who owned the lighter, in the state court, and got judgment against him for $1,500. C. then filed a libel in the federal courts to restrain B. from enforcing his judgment beyond the value of the lighter. Held, that the libel should be dismissed; the act of congress of June 19, 1886, (24 U. S. St. p. 80,) extending the limited liability of owners to all vessels, not being retroactive, and the provisions of the act of March 3, 1851, (9 U. S. St. p. 635,) excepting lighters from the limitation of liability therein granted to ship-owners, not being repealed by the act of congress of June 20, 1884, (23 U. S. St. p. 57.)</p>

This case was a libel of information, filed by the United States against the steamer Governor Robert M. McLane, to subject said steamer to the fine prescribed by section 4499, Revised Statutes, for refusing to permit her hull and boilers to be inspected by the United States local steam-boat inspectors for the port of Baltimore, Md.; sections 4417 and 4418 being the section! of Revised Statutes requiring this inspection annually.

<p>Shipping—Damage to Cargo—Negligent Stowage—Bape-Seed above Chalk.</p> <p>It is negligence in a vessel to stow hags of rape-seed over chalk in the hold • of a vessel, in view of the certainty of damage to the chalk in case the bags of seed should be broken.</p>