Volume 36 — Federal Reporter

At Law. On motion to quash service of summons, and on demurrer to defendant’s preliminary answer in the nature of a plea in abatement. cited Harold v. Mining Go., 38 Fed. Rep. 529. Defendant is an inhabitant of the state of Connecticut, and not of the state of California. Railroad Co. v. Koontz, 104 U. S. 5; St. Clair v. Cox, 106 U. S. 350, 1 Sup. Ct. Hep. 354; Railroad Co. v. Alabama, 107 II. S. 581, 2 Sup. Ct. Rep. 432; Insurance Co v. Woodworth, 111 TJ. S. 138, 4 Sup. Ct.

<p>Suit to Compel the Issue of a Patent.</p>

On Motion to Remand. Seven suits, in which Thomas Seddon, Thomas Seddon, trustee, James B. Pace, James H. Dooley, W. 0.

At Law. Condemnation proceedings by the Kansas City & Topeka Railway Company against the Interstate Lumber Company. Motion of petitioner to remand cause to state court, or to appoint commissioners to assess damages.

<p>1. Equity — Practice—Master’s Report — Statement of Facts.</p> <p>Under U. S. equity rule No. 76, providing that masters’ reports shall recite no part of any state of facts, etc., used before them, but shall refer to and specify such state of facts, so as to inform the court what state of facts was used, a commissioner’s report need not state what facts he considers proved by the evidence.</p> <p>2. Same — Scope of Reference.</p> <p>A commissioner may allow charges for improvements on real estate, although that matter was not embraced in the decree of reference, where the question is raised by the pleadings, and the parties examined witnesses as to the value of such improvements, and agreed to submit the same to arbitration, and the master adopted the award.</p> <p>3. Mortgages — Deeds of Trust — Recording—Bona Fide Purchaser.</p> <p>Under Code Ya. 1860, c. 118, § 5, providing that every deed of trust of real estate shall be void as to creditors and subsequent purchasers for a valuable consideration without notice, until it is admitted to record, a recorded deed of trust of real estate is notice to a subsequent purchaser.</p> <p>4. Same — Acknowledgment—Certificate.</p> <p>A certificate of acknowledgment to a deed of trust certifying that H. J., “whose name appears signed to the within deed, came this day before me, R. C W., acting justice for said county, and acknowledged the same to be his act and deed, and desired me to certify the same to the clerk of the county court of said county, that it maybe duly recorded, ” is a substantial compliance with Code Va. 1860, c. 121, § 3, requiring such certificate to be to the following effect: “I,-, a justice of the peace in the county aforesaid, in the state of-, do certify that-, whose name is signed to the writing above, (or hereto annexed,) bearing date on the-day of-, has acknowledged the same before me, in my county aforesaid,” — and is sufficient.</p> <p>5. Same — Rights of Beneficiary — Estoppel—In Pais.</p> <p>A beneficiary under a recorded deed of trust is not estopped from asserting his lien as against a subsequent purchaser of the land by having merely been cognizant of and participated in the negotiations culminating in a sale to such purchaser.1</p> <p>Nora. In conformity with this opinion, a decree was rendered May 27,1886, in favor of David E. James for $4,981.70, t.he amount ascertained to be due him by Commissioner Honaker’s report, with interest on 82,325, part thereof, from October 26, 1885; and awarding costs to defendant; and further directing a sale of the lands in the bill and proceedings mentioned, unless McCormack should, within 60 days thereafter, satisfy the decree. From this decree McCormack appealed to tho circuit court, Bonn, J. This appeal being heard, the decree of the district court was affirmed, and a decree accordingly was rendered July 15, 1887; from which last decree there has boon no appeal.</p>

<p>In Equity.</p> <p>Creditors’ bill by James M. Buford, assignee, against John B. Cook, Viola E. Cook, Susan Smith, and W. L. Culbertson, to set aside fraudulent conveyances.</p>

In Equity. Suit to cancel a conveyance. Suit by James A. Wood and others, heirs at law of William J. Wood, against the Aspen Mining & Smelting Company, Jerome B. Wheeler, and others, defendants, to set aside a conveyance made by complainants of their interest in a mine located by said William J. Wood.

In Equity. Bill to foreclose mortgage on.realty. On final hearing. This is a bill to foreclose a mortgage on real estate, brought by William Boardman against Harrison Blizzard, owner of the real estate, and Warren Gifford, a junior incumbrancer.

<p>1. Judgment — Her Adjudicata.</p> <p>The determination of a point or question in any legal proceeding binds the panics thereto and their privies in any subsequent litigation that may arise between them, although the cause ofaction in the two proceedings’is not otherwise identical.</p> <p>2. Evidence — Declarations—Vendor and Vendee.</p> <p>The acts and declarations of a vendor in possession after the sale are competent evidence against the vendee on the question of the character and purpose of such sale.</p> <p>S. Taxation — Taxable Prod erty — Tax art,e Credits.</p> <p>A person cannot lawfully nor truthfully omit a note from his statement of his taxable credits on the ground that there is an understanding between him and the maker thereof that he will not deduct the amount of the same from the value of his property listed for taxation.</p> <p>4. Courts — Federal Courts — Jurisdiction—Motive of Suitor.</p> <p>The motive with which a person purchases property or a claim has nothing to do with his right to maintain an action thereon or thereabout in the national courts; and so it does not ailed the jurisdiction of said courts if the pill-chase is made with the expressed intention of suing therein.</p> <p>5. Judgment — Lien—Fraudulent Conveyance — Bights of Creditors.</p> <p>. A conveyance of real property, though void as to creditors asserting their right against it, passes all the estate of the grantor in the premises to the grantee; and therefore the lien of a subsequent judgment against the grantor, which only attaches to property then belonging to him, does not aSect the property so conveyed: and the creditor first seeking to set aside such conveyance obtains a prior right to satisfaction thereout, from the commencement of his suit for that purpose.</p> <p>6. Fraudulent Conveyances — What Constitutes — Consideration.</p> <p>The grantee in a conveyance of real property by an insolvent debtor having paid at least three-fourths of its cash value therefor, by the redemption of certain wheat-warehouse receipts of the grantor, concerning which he _was then liable to a criminal prosecution, and the discharge of certain obligations on which he was surety, held, that the circumstances do not warrant the conclusion that the conveyance was made or taken with intent to hinder, delay, or defraud creditors.1</p> <p>7. Same. ■ •</p> <p>A conveyance by an insolvent debtor of a block of brick buildings for the alleged consideration of the surrender of six notes of the grantor for the principal sum of $16,000, payable to the grantee, which notes are in fact without consideration. Held, that the conveyance was voluntary, and therefore fraudulent as against the creditors of the grantor.1</p> <p> {Syllabus by the Court.) </p>

In Equity. Action for partition and accounting. The action is for partition of real estate, and for an accounting in respect to rents and profits. The defendant claims a sefioff for repairs and improvements and for taxes paid. The title of the complainant has been established in an action at law in this court, and for the history of that title, and the disputes and litigation of the parties over it, reference is made to the decision in 24 Fed. Rep. 674.

<p>In Equity. Petition of receiver to borrow money and issue his certificates therefor.</p>

In Equity. Creditors’ bill against stockholders. Bill in equity by Josiah W. Preston and others against the Cincinnati, Columbus & Hocking Valley Railway Company, and E. L. Harper and others, stockholders of said company, to compel the payment by the stockholders of their subscriptions, and to apply the same to the satisfaction of a judgment in favor of the complainants against said company.

<p>BANKS and Banking — InsolvencyDraft for OoimiocTioN — Tracing Pro-, deeds.</p> <p>A draft sent to a "bank specially indorsed for collection was paid "by the drawee, by check, which the bank collected through the clearing-house. A memorandum was placed with th‘e bank's cash, to indicate that the proceeds of the draft was the property of the sender. The bank was closed the next • morning, and the receiver credited such proceeds to the sender of the draft-on the books of the hank. Held, that the fund was not so mingled that it could not he traced and identified, and that the sender could recover the' same. 1</p>

<p>1. Banks and Banking — National Banks — Insolvency — Actions — Set-Off AND COUNTER-CLAIM.</p> <p>Rev. St. U. S. § 5243, makes payments of money by an insolvent national bank to shareholders or creditors, with a view to preference, or to evading the disposition of assets as required by statute, null and void. Sections 5234 and 5236 require the receiver, after collecting debts, etc., to turn over all money to the United States treasurer for a ratable distribution among creditors. Held, that funds received on the discounting of a note, and deposited with the discounting bank, subject to the check of the depositor, and which had been drawn upon by him, but were intended by him to meet the note when due, cannot be pleaded as a set-oif in an action on the note brought bv the receiver of the discounting bank, who received the note before maturity; and this conclusion is not affected by the provision of Code Civil Proc. Ohio, which provides that a cross-demand which might be pleaded as a counterclaim or set-oif shall not be extinguished as such by the assignment or death of either party, as this provision does not apply to the assignment of a demand before maturity.</p> <p>2. Negotiable Instruments — Accommodation Paper — Rights of Maker.</p> <p>The fact that one who signed as maker of a note was in fact only an accommodation maker, and signed, without consideration, in order that the indorser, who was really the principal debtor, might get the note discounted, and that these facts were known to the bank which discounted the note at the time of discounting, is no defense for such accommodation maker in an action on the note. .</p> <p>8. Same — Agreements Prior to Execution.</p> <p>An agreement, made prior to the signing of a note, that the bank discounting the note would regard it as the obligation of the indorser, and would look only to the indorser for payment, is no defense for the principal on the note in an action thereon, both because the agreement was prior to the signing, and also was in conflict with the note.</p>

At Law. This is an action for damages for injuries alleged to have been received by Mrs. Anna M. Green, wife of Hiram Green, of Camden, N. J., on October 12,1882, at East Moorestown station, upon the Pennsylvania Railroad in New Jersey.

<p>1. Carriers — Op Passengers — Station Accommodations.</p> <p>It is the duty of a railroad company to properly light the platform connected with its depot within a reasonable time before the arrival and departure of its trains, so as to insure the safety of persons coming to the depot as passengers.1</p> <p>2 Same — T\ no are Passengers.</p> <p>A person in good faith coming to the depot for the purpose of taking passage on the cars is to be regarded as a passenger, although a ticket may not have been purchased.</p> <p>3. Same — Province oe Jury.</p> <p>Schedules of times of arrival and departure of the different trains at the depots at which they stop, published by a railroad company, are an invitation to persons desiring to use the road to be at the depots at the time of, and a reasonable time before, the arrival and departure of trains; and what is a reasonable time depends upon the circumstances of the case, and is for the jury.</p>

<p>1. Insurance — Action on Policies — Pleading.</p> <p>A petition on a certificate of insurance against a mutual benefit association, alleging that defendant was the legal successor of another such association which had issued the certificate, having received all its assets and effects, and assumed to pay all its liabilities, and to fulfill all its obligations and engagements, including the demand sued on, sufficiently states that the first association no longer exists, and that defendant is its legal successor, to maintain the action.</p> <p>2. Same — Mutual Benefit Insurance — Assessment.</p> <p>In the application assured agreed to pay “one assessment” within 30 days from its date, when made as provided in the by-laws. The by laws provided that a member failing to pay his assessment within 30 days from its date should stand suspended, etc. Held that, by failure to pay any one assessment within the time prescribed, the certificate would lapse, but the payment of at least one assessment was not a condition precedent to recovery.</p> <p>8. Same — Notice of Assessment.</p> <p>The by-laws also require the secretary to send a notice of each assessment to the member at his last known post-office. Held, that the act of sending the notice is an essential part of the “notice” or “assessment,” and, unless done within a reasonable time after its date, the 80 days should not be estimated from such date.</p>

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

<p>Clerk of Court — 'United States Courts — Supervisor of Elections — Pees.</p> <p>The clerk of the United States district and circuit courts, and chief supervisor of elections, should file and indorse each paper that comes into his possession officially, although pertaining to the same case or matter, and not simply the outside paper or wrapper, and he is entitled to fees for each paper filed. He is also entitled as supervisor to fees for indexing and entering records of elections as required by law.</p> <p>Note. In tliis case the appeal taken by the United States was argued and dismissed in the United States circuit court for the Middle district of Alabama, at Montgomery,'July 16, 1888.</p>

<p>Internal Revenue — Violation on Laws — Forfeiture.</p> <p>. Rev. St. U. S. § 3450, providing that animals and conveyances used in removing spirituous liquors to evade payment of the tax shall he forfeited to the United States, subjects them to forfeiture when used in such removal; though they were so employed by a person who had hired them from the owner representing that they were to be used for another purpose.</p>

<p>1. Shipping — Carriage op Goods — Bills of Lading — Explanation.</p> <p>The term “rusty ” in a bill of lading is a statement of fact, and not an article-of the agreement, and is therefore open to-explanation or contradiction.</p> <p>2. Same — Stowage—Salt over Iron.</p> <p>Salt should never be stowed over iron, where there is any chance that water may come through from above onto the salt.</p> <p>3. Same — Cargo around Mainmast.</p> <p>Cargo, and particularly salt, stowed around the mainmast, ought to be dun-naged away from the mast, so that if any water comes through the mast-coat it will not come in contact therewith.</p> <p>4. Same — Non-Delivery—Measure of Damages.</p> <p>The measure of damages for the non-delivery of goods is their value at the port of destination, With interest on that amount from the time the delivery ought to have been made.</p> <p>5. Same — Bill of Lading — Burden of Proof.</p> <p>The bark Ñith received a lot of Swedish iron in bars and bundles at Liverpool for carriage to Portland, and upon its discharge here the iron was found to be badly damaged, and corroded with rust from salt water. The master signed a bill of lading for the iron in “good order and condition,” with the qualification, “Bars and bundles rusty;” and it appearing that Swedish iron, at Liverpool, was generally more or less covered with a light atmospheric rust, which did not affect its commercial value, and that the usage was to insert “rusty” in bills of lading therefor from Liverpool to this port, he'd, the burden of proof is on the carrier to show that the iron was otherwise affected than by atmospheric rust at the time of its receipt by the vessel.</p> <p>6. Same — Perils of the Sea — Diligence to Repair Injury.</p> <p>Admitting that the breaking of the mast-coat during a storm, in which the decks are flooded, whereby a stream of water goes down the mast into the hold, is a peril of the sea, the exercise of proper skill and diligence would lead to the discovery of the rust, and secure the repair of the same in a less period than 12 or 18 hours.</p> <p> (Syllabus by the Court.) </p>

<p>In Equity. On motion to set aside decree.</p>

At Law. On motion for now trial. Suit upon coupons of bonds in aid of a railroad corporation, issued by the defendant in pursuance of an act of the… Held: and before the bonds were issued; and by that instrument it was declared that “the credit of no county, city, or town shall be given or loaned to' or in aid of any person, company, association, or corporation, except upon an election to be first held by the qualified voters of such county, city, or town, and the assent of…

<p>1. Action for Wrongful Death — Jurisdiction—Federal Courts.</p> <p>• Code Ya. 1873, c. 145, requires an administrator, wben suing for damages for causing the death of his intestate, to bring the action in his own name, the amount recovered to go to the widow and children, if any; otherwise to be assets of the estate. Held that, where the administrator and defendant are citizens of different states, the action may be brought in the federal courts, though the deceased was a citizen of the same state with defendant, where , his widow and children still reside.-</p> <p>3. Same — Parties.</p> <p>In such action the real beneficiaries need not be named in the declaration.</p> <p>3. Same — Negligence—Pleading.</p> <p>A declaration alleging that the defendant did not use its trains, provide servants, etc., so as to avoid extraordinary risk to its employes, is not too general, where it is also alleged that by reason of the careless and negligent use of its cars, engines, etc., and by failure to employ a sufficient number of servants, the extraordinary risk was not avoided.1</p>

In Equity. Suit for infringement of patent. The sale of an ingredient to persons who intend to use it in the combination claimed in the patent, and advertised and sold for that purpose, is an infringement on the patent. Ilowker v. Dows, 14 O. G.-; Wallace v. Holmes, 9 Blatehf. 65; Coolidge v. McCone, 2 Sawy. 571; Saxe v. Hammond, 1 Holmes, 456; Terrell v.Sparth, 8 O. G. 986; Renwick v. Pond, 5 Fish. Pat. Cas. 569; Richardson v. Noyes, 10 O. G. 507.

In Equity. On demurrer to plaintiffs’ bill. Bill filed by the Celluloid Manufacturing Company and the Celluloid Varnish Company against the Frederick Crane Chemical Company to restrain the infringement of a patent, and to recover damages and profits. Defendant demurred to plaintiffs’ bill.

In Admiralty. On appeal from taxation of costs. The Vernon was arrested upon two libels for negligence in towing the schooners Senator and Watson upon the rocks at the mouth of Detour river. Damages were claimed in the aggregate sum of $35,000. The Vernon was released upon the usual stipulation to answer judgment, and subsequently her owners, the petitioners in this case, instituted proceedings for a limitation of their liability.

<p>1. Marine Insurance — When Contract Effected — Mailing Policy.</p> <p>Where the correspondence between an applicant for insurance and the insurance company shows that the minds of the parties never met with respect to the terms of the proposed contract, the insurance company does not become bound by mailing to the applicant a policy of insurance which the applicant is not bound to accept.</p> <p>2. Same — Application—Concealment of Pacts.</p> <p>At the time of application to an insurance company at Pittsburgh, Pa., for insurance on a steam-boat, the boat was tied up in White river, Ark., for repairs, and was without master, officers, or crew, having been so seriously injured by a collision with a bridge pier as to be unable to run at all. Nearly the whole of one side of the boat, including the wheel, was torn away, and her upper works were badly damaged. While in this condition, and within a few hours after the alleged insurance was effected, she was destroyed by fire. Held;, that the above facts materially affected the risk, and, having been concealed from the insurance company, there could be no recovery against the company.</p> <p>3. Same — Concealment by Insurance Broker.</p> <p>A broker, employed to procure insurance, must be regarded in that matter as the agent of the person who so employed him; and his concealment from the underwriter of any material fact, whether the suppression be willful or unintentional, is the concealment of his principal.</p>

<p>In Equity. On motion to dissolve injunction.</p>

<p>ISTatioNat, Courts — Oases Arising under Revenue Raws —Jurtsdtotionat, Amount.</p> <p>Clause 4, § 629, Rev. St., was not repealed by tbe act of March 3, 1875, (18 St,. 470,) or by the act of March 3, 1887, (24 St. 553,) defining the jurisdiction , of the circuit courts, and these courts have jurisdiction in suits arising under revenue laws, although the amount in dispute is less than §3,000.</p> <p> (Syllabus by the Court.) </p>

Motion to Remand to State Court. Bill by W. H. Yearian against A. T. Horner and others to compel an account of partnership transactions, and for an injunction. On the petition of the Montrose Placer Mining Company, the cause was removed from the state court into this court.

In Equity. This was a bill in equity by James Hampton Robb and Charles E. Strong against August Vos, William Stix, and Moritz Loth to enjoin the defendants from asserting a fraudulent title to real estate.

<p>Fraudulent Conveyances — Mortgage Deed Absolute — Withholding Agreement to Reconvey from Record.</p> <p>A deed to land, absolute on its face, duly acknowledged and recorded, 'for the consideration of $3,000 in cash paid, expressed in the deed, when it was really a security for a past indebtedness of $400, and future advances, in all to the amount of $2,000, and the grantee at the same time gave to the grantor his obligation to reconvey the land upon the payment of the amount, with the understanding that the obligation to reconvey was not to be recorded or made known for the purpose of preventing injury to the credit of the grantor, and to prevent his property from being attached, held fraudulent and void as to the then existing creditors of the grantor.</p> <p> (Syllabus by the Court.) </p>

<p>In Equity.</p> <p>Bill by Frank J. Bowman against William F. Patrick and James M. Patrick, to set aside a conveyance alleged to be obtained by fraud.</p>

<p>Assignment — Of UneaRned Fees — By Mastek ijt Chanceby.</p> <p>An assignment of bis fees, made by a master before they are earned, is void as against the successful party to the suit, who had advanced the amount to the master.</p>

The intestate recovered judgment in this court against the defendant corporation by default. This is an application for a mandamus against the officials charged with the duty of 'levying taxes to enforce a sufficient levy to pay those judgments.

<p>■CORPORATIONS — Stockholders — Personal Liability — Notice — Personal Service without State.</p> <p>A notice of an application under Rev. St. Mo. § 736, for an execution against a stockholder on a judgment against a corporation confers no jurisdiction of the person, if served personally without the state.</p>

At Law. This is a suit upon notes aggregating $36,160, by the agent of the insolvent Metropolitan National Bank of Cincinnati against H. C. Gil-mour & Co., composed of H. C. Gilmour and Louisa Gilmour. The-petition is as follows: UNITED States Circuit Court, Southern District of Ohio, Western Division.

AC Law. Action for damages. Action by the United States against Henry Peachy and Charles Robson, administrators of George A. Smith, deceased, for an injury to the sidewalk of the federal building at Cincinnati, caused by the casing in of an alley which defendants’ intestate had neglected to support by a sufficient retaining wall.

At Law. Action for damages for personal injuries. The plaintiff sues the defendant for an injury occasioned by the defendant placing in a public road its poles to operate its telephone, thereby wrongfully and negligently obstructing the highway.

At Law. Motion for new trial. Action by Hanna Sorenson, administratrix of the estate of Christopher Sorenson, deceased, against the Northern Pacific Railroad Company, for negligently causing the death of the intestate. Verdict for plaintiff, and motion for a new trial, which was overruled.

On Motion for New Trial. This is an action for false imprisonment and malicious prosecution. On the 4th of August, 1887, the plaintiff, a resident of Philadelphia, came to the store of the defendant, on Sixth avenue, New .York, in company with a female friend. She had never been there before, and was a total stranger to the defendant and his employes.

At Law. This was a demurrer to a declaration against a sheriff and his bondsmen for failure to pay over certain moneys alleged to have been received by him in his official capacity.

<p>1. Indians — Indian Agent — Accounting—Evidence—Transcript of Treasury Department.</p> <p>An Indian agent of the United States, a part of whose duties is to receive and disburse public moneys, is a “person accountable for'public money,” within the meaning of Rev, St. U S. § 886, providing that when suit is brought in case of delinquency of a revenue officer, or other “person accountable for public money,” a transcript from the books and proceedings of the treasury department shall be admitted as evidence, and the court trying the cause shall be authorized to grant judgment accordingly; and under this section the treasury transcript is sufficient to establish an indebtedness of such agent to the government.</p> <p>2. Statutes — Enactment—Yeto—Evidence of Date of Receipt by House.</p> <p>An act of congress discharging certain sureties became a law, unless the president’s veto was sent to the house by the 24th-of February, 1887. Held, that a memorandum in the minute-book of the journal clerk of the house, to the effect that a message in writing was received from the president on the 24th, and laid on the speaker’s table, together with testimony by such clerk that such memorandum could refer to no other message than the one in question, and that it undoubtedly did refer to such one, and that, under house rule 24, a message received in the afternoon of the 24th would, according to the usual practice, be laid before the house by the speaker on the succeeding morning, is sufficient proof that the message was received on the 24th, although the journal of the house shows that it was not laid before the house till the following day.</p>

<p>Indictment for Attempting to Vote a Second Time.</p>

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

<p>1. Patejíts foe Inventions — Patentability — Novelty — Bung Fasteners and Covers.</p> <p>Letters patent, No. 215,178, granted May 6, 1879, to Steyner, for a device for protecting beer stamps and fastening bungs and covers by placing nails into tbe boles at the ends of the metallic sheet formerly used, and turning a strip of themiddle of each end of such sheet over the heads of the nails, so as to keep them in place, and enable them all to he applied at once, instead of separately, as formerly, describe a patentable invention, and are not void for want of novelty.</p> <p>2. Same — Infringement.</p> <p>Making and selling cover fasteners, under letters patent No. 244,282, granted July 12, 1881, to Moore, like those made under patent No. 215,178 in all respects, except that the whole of each end of the metallic sheet, instead of the narrower central strip, is turned over the heads of the nails, is an infringement, though used only in fastening the covers of butter and sugar tubs, as the former patent covers every use to which the fastener can be put.</p> <p>3. Depositions — “Waiver op Objection.</p> <p>An objection to a deposition that the certificate does not state the cause of the taking, is waived when not made before trial or final hearing, there being no suggestion that cause did not in fact exist.</p> <p>4. Same — Dk Bene Esse — Equity.</p> <p>Kev. St. II. S. 8 863, providing that “the testimony of any witness may be taken in any civil cause depending in a district or circuit court by deposition de bene, ease,” applies to equity as well as common-law causes.</p> <p>5. Same — Taking in Rebuttal.</p> <p>Testimony which was regularly in order in rebuttal may be'taken by deposition in that stage of the case.</p> <p>6. Equity — Evidence—Opinion—Qualification of Expert.</p> <p>In equity the fact that a witness testifying as an expert is not properly qualified goes to the weight, and not to the admissibility, of his testimony.</p>

<p>At Law. Action for damages for infringement of letters patent.</p>

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

<p>1. Mabitime Limns — State Statutes — Construction.</p> <p>Gen St. Minn. 1878, e. 83, § 1, providing that every boat or vessel navigating the waters of the state is liable for all debts contracted by the master, owner, etc., on account of supplies furnished, work done, or services rendered for the benefit of such boat or vessel, or on account of labor done or materials furnished by mechanics, tradesmen, or others in building or equipping the same, creates a lien on the boat or vessel in favor of the claims named, though it does not in terms declare that they shall he liens.</p> <p>2. Same — Proceedings in Rem — Constitutional Law.</p> <p>While section 3 of such chapter authorizing the enforcement of the lien by a proceeding in rem in the state courts is unconstitutional, section 1, creating the lien, is not thereby rendered inoperative and void, as the lien may be enforced in the courts of admiralty</p> <p>8. Same — Statute—Re oral.</p> <p>Such section 1 is not repealed by Gen. St. 1878, c. 90, providing that whoever performs labor or furnishes materials or machinery for constructing, altering-, or repairing any boat or vessel, by virtue of a contract with the owner or agent thereof, shall have a lien on the boat or vessel, etc., as the latter statute does not expressly repeal the former, and is not inconsistent with it.</p> <p>4. Same — Limitation or Actions — Aitltoatton to Federal Courts.</p> <p>The provision of chapter 83 which requires a proceeding for enforcement of the lien to be brought within one year after the cause of action accrued, applies to proceedings in the United States as well as the state courts.</p> <p>5. Same — Priority—Admiralty Rule.</p> <p>A state cannot by legislation control the rule to he followed by the courts of admiralty in distributing the proceeds of boats and vessels sold under admiralty process; but, when liens are created by a state statute, the court of admiralty will recognize such liens, and assign‘them to the class to which thev belong under the maritime law of priority, where they will share equally with other liens of the same class, whether arising by statute or by the law maritime.</p> <p>6. Same — Advances—To Procure Boat„’s Release.</p> <p>Where a libel for supplies furnished has been filed, and the boat seized in a foreign port, a person furnishing to the master money necessary to release the boat is, in the absence of fraud, entitled to a lien on the boat for the money advanced</p>

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

<p>At Law. On demurrer and motion to dismiss.</p> <p>Action by David Armstrong, receiver of the Fidelity National Bank, against Beuj'amin Ettelsohn.</p>

In Equity. On demurrer to bill to quiet title. In this case a bill in equity was filed in the proper state court to quiet the title to certain lands, and it appears upon the face of the bill of complaint that neither party is in possession of the premises in controversy. The defendants, having removed the cause to the United States circuit court, filed therein a general.demurrer for want of equity.

<p>1. Corporations — Insolvency—Preferences—Liability of Directors.</p> <p>Tbe directors of a corporation known to be insolvent granted a preference to tbe estate of a deceased director and president of tbe corporation. Tbe board, at the time of tbe preference, consisted of but three persons, two of whom were brothers’ of the deceased director, and one of whom was agent of tbe deceased’s estate, and voted bis stock at corporation meetings. One of tbe brothers was also a creditor of the estate. Held, that tbe preference was illegal, and that an unsecured judgment creditor of tbe corporation was entitled to recover of tbe two directors, brothers of deceased, who bad voted for the preference, such percentage of bis debt as be would have received if the sum wrongfully paid by way of preference bad been divided pro rata among all tbe unsecured creditors, but was not entitled to such recovery against tbe other director, who was not present at any of tbe directors’ meetings, and did not Vote for any of tbe resolutions whereby tbe preference was secured.1</p> <p>2. Equitt — Pleading—Mistake- in Relief Asked.</p> <p>That complainants erroneously supposed themselves entitled to relief under a statute, when they were in reality entitled to relief on general equitable grounds, does not justify a dismissal of tbe bill.</p>

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

<p>1. PhiNCtjpat, and Agent — Right or Agent to Compensation.</p> <p>The non-resident mortgagees of an island, valuable principally for its phosphate rock, employed defendant to look after the investment as their agent. He was at the time agent and manager for a firm which was the largest purchaser of phosphate in the market, and the assent of his employers was necessary to his acceptance of the agency, of which facts the mortgagees were informed. Held, that under the law of South Carolina the agent was entitled to compensation for his services, although there was no agreement to that effect.</p> <p>2. Same- — Amount op Compensation.</p> <p>The agent caused the mortgage to he foreclosed, employed a watchman to look after the property, occasionally visited it during a period of eight years, and frequently gave advice and information in regard to this and other investments of the mortgagees. He expected to be remunerated in part for his services from the management of the property or from its sale, hut the mortgagees terminated the agency without fault on his part, thus destroying these expectations. Held that, under all the circumstances, the agent was entitled to §2,000 compensation.</p> <p>3. Same — Construction op Contract — Confijct op Laws.</p> <p>A contract of agency, to he performed in South Carolina, in which state the agency was accepted, is governed by the law of that state.</p> <p>Rote. Since this opinion was prepared, Mr. H. A. M. Smith has kindly furnished the full text of the opinion in Ravenel v. Piñokney'’s Assignee. The only point decided in that case is that, under the act of assembly of 1745, commissions as compensations are allowed only to the classes of agents mentioned specifically in that act, and that no private agent can reserve commissions eo nomine, unless they be specially contracted for. “But,” adds the judge, deciding for the court, “I have no doubt that such an agent is entitled to reasonable compensation for his trouble. ” It thus appears that the leading case in no way conflicts with the conclusion reached in this ease. See MS. decrees, (’olumbia, 28th March, 1828.</p>

In Equity. Bill for foreclosure and appointment of a receiver. Bill by the Mercantile Trust Company of New York, trustee for certain bondholders secured by a mortgage on the property of the Missouri, Kansas & Texas Railway Company, against said company and the Missouri Pacific Railway Company, to foreclose the mortgage, and appoint a receiver.

<p>In Equity. Application for injunction.</p>

In Equity. Bill to establish a trust. On final hearing. This was a bill for an injunction, and to establish a trust ex maleficio, brought by Frederick Frelinghuysen, as receiver of the Mechanics’ National Bank of Newark, against Christopher Nugent and James Nugent, partners under the firm name of C. Nugent & Co., George B. Jenkinson, receiver and assignee, Eugene Kelly and others.

<p>Motion to Disbar.</p>

Information in,the Nature of a Quo Warranto. This was an information in the nature of a quo warranto to oust the respondents from the directorship of the Farmers’ National Bank of Constantine. The facts, most of which were admitted, were substantially as follow's: Atan election of directors, held January 10,1888, the relators received 249J, and the respondents 250$ votes.

At Law. Suit for laud. Action to recover lands. A jury was waived, and the questions of law and fact submitted to the court.

<p>At Law. On motion for new trial. 84 Fed. Rep. 646.</p> <p>Action by D. S. Fotheringham against the Adams Express Company. Verdict for plaintiff..</p>

<p>JddgmeNT — BHNimroir and Entry — Stay Pending New Tkiau.</p> <p>On a motion to stay the entry of a judgment pending an application for a new trial, a decision was rendered that on plaintiff’s filing security for costs he should have six weeks to make and serve his bill of exceptions or case, all proceedings for the entry of judgment except the taxation of costs to be stayed; but, the order entered provided “that the defendants be stayed from entering-judgment for the space of six weeks,’’and a resettlement of the order to make the stay coterminous with the making and service of the bill of exceptions or case was refused. Held, that the stay which was operative on the defendant was not that mentioned in the decision, but that prescribed by the order, and that a subsequent order extending plaintiff’s time to make and file his case, “in accordance with the decision herein, and without prejudice to the stay of proceedings therein ordered,” did not operate as an extension of the stay.</p>

<p>Demurrer to Indictment for Embezzlement.</p>

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

<p>Patents for Inventions — Actions for Infringement — Behearing—Newly-Discovered Evidence.</p> <p>Act 1839, § 7, declares that no patent shall be invalid by reason of prior sale or use, except on proof that the sale or use had been for more than two years prior to the application. In a suit for the infringement of letters patent No. 42,920, dated May 24,1864, to James Knibbs, for an improvement in steam fire-engine pumps, on application filed May IS, 1864, plaintiff, instead of disproving prior sale and use, directed his efforts towards disproving consent and allowance to the same, on the supposition then generally shared by the bench and bar, and recognized in the answer, that consent and allowance were necessary to defeat the patent, and the case was determined accordingly. A sale of an engine containing the invention, which was forwarded April 28, 1862, was found, and on rehearing, after the decisions of Andrews v. Honey, 123 IT. S. 267,124 IT. S. 694, 8 Sup. Ot. Rep. 10Í, 676. was held to invalidate the patent. On motion before final decree for leave to take proofs that the engine was built on an order, and was not accepted until after May 13,1862, held, that, as it is not settled that prior construction without sale will avoid the patent, and as the case had been made to turn on an issue to which plaintiff had addressed no evidence, and as the decision of the motion was not reviewable, the evidence should be admitted.</p>

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

<p>Admiralty — Practice—Bond for Costs — Juratory Caution.</p> <p>.In admiralty, under a strict rule that a stipulation for costs must he filed with the libel, upon a proper showing one may be allowed to sue upon “a juratory caution," and, when a libel has been filed, with security, which is shown to be bad, upon a motion to file additional security the court will not order an absolute dismissal upon failure to file such security.</p>

<p>1. Courts — Federar Courts — Jurisdiction—-Non-Resident Corporation.</p> <p>Under the provision oí act oí March 8, 1887, that no civil suit shall be brought in the federal courts in any district other than that whereof defendant is an “inhabitant, ” but that, where jurisdiction is founded only on diverse citizenship, suit shall be brought only in the district of the residence of one of the parties, a circuit court in Missouri has no jurisdiction of an action against a corporation created by the state of Mississippi, and having its principal office there, for damages ior acts amounting to a violation of the interstate commerce law, though defendant has an office and agent in Missouri, and plaintiff resides there, and though the petition shows a cause of action at common law.</p> <p>2. Same — Objections to Jurisdiction — Motion to Dismiss.</p> <p>Where the petition shows on its face that the court has not jurisdiction of the cause, the action may be dismissed on motion. The objection need not be first raised by demurrer.</p>

<p>Courts — Federal Jurisdiction — Actions .by Receivers oe National Banks —Act March 3, 1887.</p> <p>Act Cong. March 8, 1887, § 4, declares that national banking associations, are, ior the purpose of all actions by or against them, at law or in equity, to be deemed citizens of the states in which they are respectively located] but “the provisions of this section shall not be held to affect the jurisdiction of the courts of the United States in cases commenced by the United States or by direction of any officer thereof, or cases for winding up the affairs of any such bank.” Held, that a receiver of a national bank may still maintain a suit in the United States circuit court, without reference to the citizenship of the parties or to the amount involved, to recover a claim due the bank.</p>

At Law. Motion by James McConville, who commenced this suit as the “receiver” of the Metropolitan National Bank of Cincinnati, to substitute himself as the “agent” of the said bank, appointed under the provisions of the third section of the act of June 30, 1876, c. 156, as the party plaintiff entitled to continue the suit in the latter capacity against the defendants.

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

<p>Public Lands — Northern Pacific Grant — Second Indemnity Belt.</p> <p>Act. Cong' July 2,1864, organizing the Northern Pacific Railroad Company, and granting to it a certain number of alternate sections of land on each sidé of its line of road, provided that, whenever, prior to the definite location of its line, any of such sections should have been sold or pre-empted, other lands might be selected in lieu thereof, not more than 10 miles beyond the limits of said alternate sections. Resolution of May 81, 1870, provided that in case there should not be, in any state or territory, at the time of the final location of the road, “the amount of lands per mile granted by congress to-said company, within the limits prescribed by its charter, ” the company should be entitled to receive so many alternate sections of land “íd such state or territory, within 10 miles on each side of the said road beyond the limits prescribed in said charter, as will make up such deficiency * * * to the amount of the lands that have been granted, ” etc., “subsequent to the passage of the act of July 2, 1864. ” Held, that the resolution gave the company an additional 10-mile indemnity limit, and was not intended merely to restrict indemnity to losses occurring subsequent to the original act, and to lands situated in the state or territory in which such losses occurred.</p>

<p>1. Corporations — Consolidation—Mortgages—Lien—Priority.</p> <p>In order to effect an amalgamation of the two telegraph corporations; two agreements were entered into, by one of which the B. & M. Co. covenanted to construct and deliver to the R. Co. certain systems of telegraph lines, (among them one connecting Buffalo by a northerly route with Chicago,) and the R. Co. agreed to create its bonds for $3,000,000, to be secured by a mortgage of all its franchises and property, including the property to be thereafter acquired from the B. & M. Co. The other agreement was between the B. & M. Co. and one B., by which B. was to act as trustee for the B. & M. Co. to exchange the $3,000,000 of bonds, dollar for dollar, for the stock of the R. Co.; and deliver to the B. & M. Co. the stock received by him in exchange for the bonds as soon as 51 per cent, of the whole stock of the R. Co. was received by him. The two agreements contemplated that the B. & M. Co. should obtain the property and control of the R. Co. by obtaining all or the majority of its stock, giving the stockholders of the R. Co. the option to transfer their shares for bonds secured by a mortgage upon all the existing and to be acquired property of the R. Co. The scheme was carried out, and the B. & M. Co. acquired a majority of the stock of the R. Co., and while in control of the latter corporation reconstructed and rebuilt some of its telegraph lines, and acquired new rights of way in the name of the R. Co. to straighten the lines, and strung new and additional wires upon the poles. It also constructed one of the new lines which it had agreed to build, and connected the wires with the existing system of the R. Co., and operated them as part of the general system; and partially constructed some of the other new lines which it. had agreed to build. It also strung additional wires upon other lines of the R. Co. pursuant to an agreement between the two companies by which each was to have the right to string wires on the poles of the other at a specified rental. Soon after the B. & M. Co. acquired control of the R. Co. it created a mortgage of $10,000,000 upon all its existing property, which also conveyed all the property of the B. & M. Co. to be thereafter acquired. The new line built by it was paid for out of the proceeds of this mortgage; and it became insolvent before it had completed the building of any of the other new lines. The $10,000,000 mortgage was foreclosed, and all the property of the B. & M. Co. was purchased by the U. L. Co. at the sale under the foreclosure decree. At the time of the purchase the U. L. Co. had notice of the terms of the $3,000,000 mortgage. In a suit brought in aid of a suit to foreclose the $3,000,000 mortgage, to subject to the operation of the decree property claimed by the W. U; Co. as a purchaser at the foreclosure sale of the $10,000;000 mortgage, held, (a) There being no questions arising under the registry acts, and the U. L. Co. being a purchaser with notice of the terms of the $3,000,000 mortgage, the rights of the bondholders of the $3,000,000 mortgage were paramount to those of the U. L. Co.</p> <p>2. Same — Property Subject to.</p> <p>(b) That the reconstructed lines were subject to the lien of the $3,000,000 mortgage, because the improvements upon the mortgaged property became part of the realty.</p> <p>S. Same — Telegraph Companies — Strung Wires.</p> <p>(e) That the strung wires did not become part of the realty by annexation, because the two companies had agreed in effect that they should remain personalty; and that it was competent for the two companies by such an agreement to determine the character of the property annexed, as against an existing mortgage.</p> <p>4. Same — New Lines.</p> <p>(d) That the new line built by the B. & M. Co. for the R. Co. under the agreement between the two companies became in equity the property of the R. Co. as soon as completed, without any transfer from the B. & M. Co., and being described in the mortgage of the R. Co. as part of the after-acquired property ■included in it, inured to the security of the bondholders; and that the complainant as trustee for the bondholders succeeded to the right of the E. Co. to compel a conveyance of the new line by the B. & M. Co. and those claiming under that company</p> <p>5. Same — Aeter-Acqcired Pboperty.</p> <p>(e) That a mortgage of property to be thereafter acquired takes effect as a valid lien immediately when the property is acquired by the mortgagor; and that, as between successive mortgages of after-acquired property, priority of lien is determined by priority of time; the mortgage first in point of time being the senior lien</p>

<p>1. EXECUTORS AND ADMINISTRATORS — APPOINTMENT AND REMOVAL.</p> <p>Alter an administrator appointed by a Virginia county court had qualified by giving bond without security, the court, in term, made an order permitting him to resign, and on the following day appointed a new administrator, who qualified by giving bond with security. Held, that the second appointment was regular.</p> <p>2. Same — Action—Courts—Federal Courts — Jurisdiction—Citizenship.</p> <p>The fact that a citizen of another state is selected as administrator for the purpose of conferring on the United States circuit court jurisdiction of an action to be brought by him, does not defeat that jurisdiction.</p> <p>3. Master and Servant — Risks of Employment — Infancy.</p> <p>It is an act of negligence on the part of a railroad company to take into its employment as a brakeman a minor of such tender ymars as not to know the risks of tie service, if the agent of the company making the contract knows that he is a minor, and that the contract is made without the consent of the parents, hut not if the agent believes from his statements and his general appearance that he is not a minor.</p> <p>4. Same.</p> <p>Where plaintiff's intestate enters the employment of defendant as brakeman, with knowledge of the fact that there are overhead bridges on the road, which are dangerous, and of the bridge which caused his death, and, being possessed of sufficient intelligence as to the danger, and how to avoid it, is struck by the bridge while standing upright on the top of a car, plaintiff cannot recover, although his intestate was a minor.1</p>

<p>1. Immigration — Persons under Contract to Labor — Clergymen.</p> <p>The statute entitled “An act to prohibit the importation and migration of foreigners and aliens under contract or agreement to perform labor in the United States ” prohibits the encouragement of migration of aliens under contract or agreement previously made “to perform labor or service of any kind in the United States, ” imposes a penalty on any person or corporation encouraging migration of an alien under a contract or agreement previously made “to perform labor or service of any kind, ” and contains a proviso exempting from its provisions “professional actors, artists, lecturers, or singers. ” , The defendant, a religious corporation, engaged an alien residing in England to come here and take charge of its church as pastor. Held, that the corporation was liable to the penalty prescribed.</p> <p>2. Same.</p> <p>The words “labor or service” of any kind cannot be given a restricted meaning, so as to exclude the vocation of a minister of the gospel, in view of the proviso, which plainly signifies that they are intended to apply to all who labor in any professional callings not specially exempted.</p>

<p>On Motion to Set Aside an Older directing the attendance of a witness.</p>

<p>Costs — Security eor Costs — Time or Motion.</p> <p>Tlie federal courts may require security for costs from solvent non-resident plaintiffs at any time when no prejudice to plaintiffs’ rights is shown to have resulted from defendant’s delay in moving.</p>

<p>Motion for New Trial and for modification of findings of fact. For findings, see 84 Fed. Rep. 628.</p>

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

<p>Patents for Inventions — Infringements—Damper Regulators.</p> <p>Letters patent No. 335,080, granted January 26,1886, to Nathaniel 0. Locke,, for an improvement in damper regulators, consists of a combination of a diaphragm motor, a damper motor, and a valve so combined as to produce a damper regulator of great sensitiveness. SelcL, in view of the prior state of the art, that the only novelty is the mechanism of the valve which controls the. supply of actuating fluid to the damper motor, the valve being separate and distinct from the piston of the damper motor, and that the patent is not. infringed by a device constructed under the Spencer patents of September 29, 1885, and March 23,1886,'in which the valve-casing is part of the piston; such piston being double acting, receiving the fluid at its center, and delivering it at either end, with a fluid-controlling valve arranged in its axis.</p>

<p>Patents for Inventions — Novelty—Draft Equalizer.</p> <p>, Patent No. 172,756, January 25,1876, to Richard M. Marvin for a draft equalizer, used in the attachment of three horses to harvesters and other machinery, consists of an evener and two levers pivoted, the former at its center, and the latter at their ends to the tongue. The first lever is attached to the end of the evener and the single horse is attached to the end of the lever. The second lever is on the opposite side of the tongue, and its free end is fastened to that of the evener, and the two horses are attached to its end. The first-named lever is pivoted to the tongue in front of the second. A patent issued to Edwin F. Toof, December 19, 1865, was for an invention for the same purpose, consisting of a short evener pivoted at one-third its length, the one horse drawing on its long end. A lever is attached to the same side in front of the evéner, and is attached to it. On the free end of the lever the single horse is attached. On the other side another lever is attached twice as long as the former, also attached to the evener, and to the end of this lever the two horses are attached. The length and place of pivoting these levers may be varied to give the one horse greater or less advantage over the others, or the first lever may be pivoted in the second for the same purpose. No use was made of Marvin’s combination until he obtained his patent, and since then manufacturers have used his combination instead of that of Toof, upon which the patent expired in 1882. The patent to Marvin was issued after a careful comparison with the Toof patent. Held, that the Marvin patent was not void for want of novelty, and that it was not anticipated by the Toof patent.</p>

<p>1. Patents eor Inventions — Anticipation—Hat-Pouncing Machines.</p> <p>Claim 2 of letters patent Ho. 97,178, granted to Rudolph JSickemeyer, for an improvement in hat,-pouncing machines, claiming the arrangement and combination of a rotating pouncing cylinder, with a vertical supporting :¡orn of such small size that the hat may be freely turned thereon, and the tip, side crown, and rim pounced in a single operation, is not anticipated by nradical use by the act of pouncing in one operation on the Nougaret machine, vliich employs a long horn, on which the hat cannot he freely turned and pounced in a single operation, unless by twisting.and stretching it out of shape, in a manner for which the machine was not intended.</p> <p>2. Same.</p> <p>Claim 2 of the Eickemeyer patent anticipated claim 5 of patent No. 220,889, granted to E. B. Taylor, describing the combination of the supporting horn and the self-feeding pouncing cylinder, whereby the hat is drawn over the support in the direction of the motion of the cylinder, restrained by the hand, assisted by a guard or pressing pin, as the former patent is for the combination by which the whole hát can be pounced in a single operation; and, though feed-rollers are used, drawing the hat in the opposite direction from the motion of the cylinder, yet the Taylor patent simply restores the direction in which the hat would be carried by the cylinder without the feed-rollers, which is immaterial to the principle of the invention.</p>

<p>Patents foe Inventions — Composition Patents — Infringement.</p> <p>A patent for a composition of matter is not infringed by another composition into which one of the ingredients, named without restriction in complainant’s claim, does not enter, though in the specifications the use of such ingredient is stated to he for a particular case only.</p>

<p>In Equity. On final hearing.</p>

<p>Copyright — Exclusive Right to Sell Book — Coxstructiow.</p> <p>The grant of an “exclusive right to take orders for and sell” a book within a certain territory will not be construed as a covenant that no other person shall sell the book in competition with the grantee, but only as a covenant that this shall not bo done with the consent or connivance of the grantor.</p> <p>Note. Upon a rehearing before the circuit and district judge this case was affirmed.</p>

<p>In Admiralty. Libel for damages.</p> <p>This was a libel for collision between the barge Saginaw, then in tow of the propeller Missouri, and the schooner Marion W. Page, which occurred in Lake Huron, off Lexington, at about 7 o’clock in the morning of October 20, 1886. The libel averred, in substance, that the barge was the fourth of a tow of five vessels in tow of the propeller Missouri, and bound down the lake on a course nearly south; that the schooner Page, bound up the lake, on a parallel opposite course, with a free wind, approached as if to pass on the port side, but, after she had passed the Missouri, and when a short distance ajiead of the Saginaw, she suddenly swung, as if under a starboard wheel, directly across the tow, and struck the Saginaw upon her port bow, not far from the stem. The answer of the Missouri did not differ essentially from the libel in its statement of facts, but denied all the allegations of fault made against the propeller. The answer of the schooner Marion W. Page averred that she, together with the schooners John Kelderhouse, Newsboy, and Arthur, had just been cast off by the tug William A. Moore, and had shaped her course north by west up the lake, with a free wind; that about half past 6 in the morning the Missouri was seen coming down the lake, at a distance of three-quarters of a mile, and bearing a point upon the schooner’s starboard bow; that the vessels continued on their respective courses until the Missouri suddenly, and when about two lengths off, hauled up and attempted to cross the Page’s bow. “The Page, however, was kept steadily on her course until she approached the third barge of the Missouri’s tow, when her wheel was ported sufficiently to clear the stern of this barge. After this had been done, her wheel was put to starboard, and the man on the third barge was called to let go the line to the fourth barge. This, however, was not done, and before the Page could swing sufficiently to clear the tow line she struck, and the fourth barge, which proved to be the Saginaw, came on without apparent change of course, struck the Page a heavy blow on her starboard side between the fore ánd main rigging, opening up her own bows, and leaving her port anchor hanging on the Page’s rail. From the time the Missouri and her tow were first sighted, and until after she crossed the Page’s bow, the latter was kept steadily on her course without variance, and after the Missouri had crossed the Page’s course, the time and distance were too short for the latter to avoid a collision with one or more barges in the Missouri’s tow.” The court was assisted upon the argument by Commander Elmer, IT. S. N., and Capt. Thomas Hackett, nautical assessors.</p>

<p>In Admiralty. Libel for half-pilotage.</p>

<p>Admiralty — Proceedings in Personam: — Attachment—When Lies.</p> <p>Rule 2 of tbe admiralty rules of practice, providing that tbe mesne process in a suit in personam may be a warrant of arrest of tbe person of tbe defendant, and, if be cannot be found, for an attachment of bis goods and chattels, does not authorize an attachment in Alabama, where imprisonment for debt has been abolished.</p>

In Admiralty. On appeal from district court. 34 Fed. Rep. 57. This case was heard on an appeal from the district court. The suit was brought to recover damages for the broach of a warranty of seaworthiness of the bark Director, and to recover the possession of 18,868 bags of wheat theretofore delivered to the same for transportation to Liverpool under said warranty.

In Admiralty. Libel for damages. On appeal from district court. 26 Fed. Rep. 281. The libel in this cause was filed by the' owner of the bark Margaret' Mitchell for damages alleged to have been sustained by her and her cargo, while in tow of the tug C. P. Raymond, through a collision with a float in tow of the steam-tug George L. Garlick.

In Equity. On demurrer. Bill of revivor by Frederick W. Sharon, executor, against David S. Terry and Sarah Althea Terry, his wife, and bill in the nature of revi-vor and supplement, and to carry decree into execution, by Francis G. Newlands, trustee, against the same. These cases are brought to revive and carry into execution a final decree of this court in the suit of William Sharon v. Sarah Althea Hill, entered as of the 29th day of September, 1885.

<p>1. Eminent Domain — Exercise by United States —Act Cong. Aijg. 1, 1888 —Constitutionau Law.</p> <p>Act Cong. Aug. 1, 1888, authorizing designated government officers to acquire for the United States, by condemnation, real estate for the erection of public buildings, and conferring upon the United States circuit and district courts jurisdiction of the condemnation proceedings, is not void as in conflict with Const. U. S. amend. 5, declaring that private property shall not be taken for public use without just compensation, by its omission to provide for compensation to the owner, as Ihe act must be read with the constitution, and the courts will not award process of condemnation unless compensation be provided for.</p> <p>2. Same — Appropriation—Conditions.</p> <p>Act Cong. Eeb. 9, 1887,- making an appropriation for the erection of a public building at Charleston, S. C., provides that no part oí the appropriation shall be expended until title to the site for the building shall be vested in the United States, nor until South Carolina shall cede to the United States jurisdiction over the site. South Carolina ceded jurisdiction, but providedin the act of cession, that the jurisdiction shall not vest until the United States shall have acquired title to the lands by grant or deed, and have had the evidence of title properly recorded. Held, that the conditions prescribed by the latter act need not be fulfilled before the appropriation could be used to pay for the land, but that the former act contemplated that delivery of the deed and payment of the consideration should be contemporaneous acts.</p> <p>3. Same — Cession by State — Construction.</p> <p>The words “grant or deed, "used in the.South Carolina act, do not exclude the idea of title by condemnation, as the title acquired by condemnation proceedings is by deed executed by order of the court, and, whether executed by the owner or by a court officer, it is in law the deed of the owner.</p> <p>4. Same — Procedure.</p> <p>There.boing no fixed forms of pleading in South Carolina in condemnation proceedings, but the procedure being by petition by persons duly authorized, notice to the owner, a hearing by a court of record as to the necessity of taking the land, followed by an assessment of compensation finally made by a jury impaneled for that purpose, the institution of such proceedings by petition of a duly authorized agent of the United States, service of the petition on the land-owner, and disposition of the matter by the United States district court, is in accordance with the provision of the act of 1888, requiring the practice, pleadings, forms, and modes of procedure in condemnation proceedings to conform, as near as may he, to the practice, pleadings, forms, and proceedings existing at the time in like cases in the courts of record of the state.</p> <p>5. Same — Parties.</p> <p>The petition for condemnation, under the act of 1888, need not be in the name of the United States, but may be in the name of its designated agent, as, under the act, in order to put the machinery of the United States circuit or district courts in motion, it must appear that application is made by an authorized officer, and that in his opinion the condemnation of the property is necessary; but the final questions for the jury should be submitted in the name of the Ünited'States.</p>

<p>At Law. Proceedings for condemnation of land for purposes of the United States.</p> <p>For opinion on application for decretal order, see ante, 369.</p>

In Equity. On exception to master’s report. Bill by'Vulcanite Paving Company, Peter Stuart, and Matthew Taylor, for infringement of letters patent, against the American Artificial Stone Pavement Company, for infringing letters patent No. 269,480, granted December 19, 1882, to Peter. Stuart, of Edinburgh, Scotland, for an improvement in composite pavements.

<p>1. Towage — Negligence.</p> <p>Defendant was employed to tow a raft of logs from a creek through Mobile bay up to the city; a trip which usually takes IS hours, but which in this case took more than 50, in consequence of the slow progress made by the small tug which towed it out of the creek into the bay, the delay in sending a larger tug to meet it, and the loss of time occasioned by a collision with the shore of the creek, and by the breaking of the tow-line." The raft was tied up during the intervening nights, one night in the creek and the other anchored, but unattended, in the bay. Held, that these accidents and delays must be deemed to have caused the loss of the logs from the raft, if that was seaworthy when taken in tow.-</p> <p>2. Same.</p> <p>Defendant had agreed, as is the custom, to send a small tug to take the raft from the creek into the bay, where the larger t,ug was to meet the tow and take it up to the city. Much time was lost in sending the larger tug, the only reason given for the delay being that defendant did not know where the tow was. Meld, that the delay was a want of due care.</p> <p>8. Same.</p> <p>Though, the evidence to show that the collision of the raft with the shore was caused by having too much tow-line, rendering the tow unmanageable by the tug, is not very clear, in the absence of satisfactory explanation of the cause, negligence will be presumed.</p> <p>4. Same. .</p> <p>Turning on too much steam, so as to cause a tug to start with such speed, and so sudden a jerk, as to wrench the tow-line, is a want of reasonable care and skill.</p> <p>5. Same — Seaworthiness of Raft.</p> <p>The evidence that the raft was put together in manner customary for such voyages was uncontradicted, but defendant, to show that it was unseaworthy, relied on the opinion of experts, on the facts that logs were lost from it, and that a raft fastened in the manner indicated by the cutting and boring on a piece of log shown in court would be unseaworthy. There was no evidence that any of the other logs were cut and bored like this one, and the evidence of libelant was that they were not. Held, that the raft was in a seaworthy condition when taken in tow.</p> <p>6. Same.</p> <p>Even if the raft was unseaworthy by reason of its defective construction, that was an obvious defect, and it was negligence to undertake the trip; and, as the loss occurred from extraordinary hazards arising from defendant’s failure to use due care and skill, libelant is entitled to a decree for the value of the logs lost.</p>

In Admiralty. On appeal from district court, ante, 86. This case was heard on an appeal from the district court. The suit was brought to recover damages for the non-performance of a contract of affreightment concerning a lot of Swedish iron and anvils brought on the bark Nith from Liverpool to Portland.

In Equity. Application by Maurice A. Scott and another for an injunction to restrain the city of Toledo from enforcing an ordinance authorizing the appropriation of land of complainants for the purpose of a public street, and the assessment of the costs and expenses upon the remaining lands of complainants.

<p>Executors and Administrators — Foreign Administrators — Actions.</p> <p>Personal representatives, appointed in Missouri, cannot sue for assets of their testator’s estate, situate in Vermont, such assets being recoverable only by personal representatives deriving authority within that jurisdiction.1</p>

<p>Moetoages — Deeds op Trust — Bn,t.s to Redeem — Laches.</p> <p>While complainant was confined in the penitentiary, for violation of the national bank act, the trustee, under a deed of trust to secure complainant's indebtedness to the bank, of which he had been president, sold the property to purchasers, who in good faith paid full value, the proceeds being applied to the debt, of which they paid only a small part. Complainant was pardoned within a few months after these sales, and, although he knew of them, and that the purchasers, supposing they had good title, were making improvements on the premises, he did not until more than seven years afterwards give any notice that he had any claim to them; paying no taxes, nor offering to pay any, nor taking any other step to assert his rights. Complainant contends that, because of his imprisonment at the time of the conveyances, they were, under the Kansas statutes, absolutely void, and that, as the trusf deed gave no power of sale without a decree establishing the debt, he is in the position of a mortgagor out of possession, and entitled to redeem. Held, that the claim must be adjudged stale.</p>

In Equity. Bill by Charles A. Gregory and Charles F. Jones against the Boston Safe-Deposit & Trust Company, and the Merchants National Bank, and Mary H. Pike, administratrix of Frederic A. Pike, deceased, to obtain the amount of a judgment on deposit with said bank and trust company, said judgment being founded on a note claimed to be the property of complainants.

‘At Law. On exceptions to referee’s report. Plaintiff agreed to sell to the defendants certain printing-presses, rollers, and other property connected with a printing establishment, and guarantied that the presses should be “free from defective material or workmanship, and should do their work satisfactorily. ” The referee, to whom the case was referred,'found that neither of the three presses was satisfactory to defendants; nor did they do their work reasonably well; yet he…

Commitment for Contempt. On September S, 1888, while the judges of the United States circuit court, holden at San Francisco, were delivering their opinion in the cases of Frederick W. Sharon against David S. Terry and wife, and Francis G-.

<p>1. Chinese — 'Exclusion Act op 1888 — Construction. •</p> <p>The Chinese exclusion act, approved October 1, 1888, took effect from its passage, and it applies to all Chinese laborers who had departed from the United States, and had not in fact returned and arrived in the United States before the passage of the act.</p> <p>2. Same — Constitutionae Law — Ex Post Facto Law.</p> <p>The Chinese exclusion act of October 1, 1888, is a valid act. It is not unconstitutional as being a law divesting rights fully vested under the several treaties between the United States and China, and the prior restriction acts of 1882 and 1884, to which it is supplemental, or as being an ex post facto law</p> <p>3. Same— Obi,i'gation of Contracts — Certificates under Act of 1882.</p> <p>Certificates issued under the restriction acts of 1882 and 1884 are not contracts between the United States and the Chinese laborers, to whom they are respectively issued. They are issued as evidence to identify parlies entitled to privileges provided for in our treaties with China, and acts passed to give them effect.</p> <p>4. Same — Treaties—Acts of Congress — Reread.</p> <p>With respect to matters proper for congressional legislation, treaties and acts of congress stand upon an equal footing as parts of the supreme law of ' the land, and a later inconsistent provision in either repeals the earlier in the other.</p> <p> {Syllabus by the Court) </p>

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

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

<p>'Chinese — Exclusion Act oe 1888 — Chinese Seamen.</p> <p>A Chinese laborer, who ships on an American vessel, at an American port, for a round voyage, and who does not land at any foreign port, but remains on board until the voyage is completed, does not depart from the United States within the moaning of the exclusion act of October 1, 1888.</p>

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

<p>Information for assault with a dangerous weapon on the high seas.</p>

<p>At Law. On motion to remand to state court.</p> <p>Action by Orville T. South worth against Simon Reid, Thomas Mur-dock, August Fisher, Griffith J. Owen, Guy C. Prentiss, and Charles B. Miller, to recover damages for a wrongful levy on plaintiff’s goods. On motion of defendants Reid, Murdock, and Fisher, the cause was removed, to the "United States circuit court, by order of the circuit court of La Crosse county. Plaintiff moves to remand the case to the state court.</p>

In Equity. Bill by George P. Olmstead against Jacob Michels to enjoin the prosecution of an action for breach of a written contract, and for cancellation of the contract.

In Equity. Bill by Pierre Felix and others, heirs of Sophia Felix, against Matthew-son T. Patrick and others, to declare defendants trustees of certain land.

<p>In Equity. On bill for injunction.</p> <p>The New York & Boston Rapid Transit Company and William M. Thayer against Henry R. Parrott and F. W. Parrott, 2d.</p>

In Equity. On exceptions to master’s report. Action by William A. Fuller and others against the Detroit Fire & Marine Insurance Company and others, on fire and marine insurance policies on the steamer Buckeye, to ascertain and apportion the loss among the respective classes of defendants. After issue joined, the case was referred to a master, who filed his report in accordance with the reference, to which the different classes of defendants excepted.

<p>In Equity.</p> <p>Complaint by Henry H. Porter and Ransom R. Cable against Dwight M. Sabin, Joseph C. O’Gorman, the North western Manufacturing & Car Company, and the Minnesota Thresher Manufacturing Company.</p>

<p>"Vendor and Vendee — Bona Fide Purchasers — Quitclaim'Deeds.</p> <p>A grantee in a warranty deed, whose grantor has a warranty deed, and who acts in good faith, and without actual notice, is entitled to protection as a bona fide purchaser, notwithstanding the existence of a'quitclaim deed in the chain of title.1</p>

<p>3. Damages — For Breach of Contract.</p> <p>Tire party injured by the breach of a contract is entitled to recover all his damages, including gains prevented, as well as losses sustained, provided such damages may fairly be supposed to have been within the contemplation of the parties when they made the contract, and are certain, both in their nature and in respect to the cause from which they proceed.</p> <p>2, Same.</p> <p>The plaintiff sues the defendant for damages on an alleged breach of a contract whereby the former agreed, in consideration of certain payments, to be made as the work progressed, to construct 52 miles of railway for the latter. The defendant sets up a counter-claim for the failure to construct the road, and claims damages therefor: (1) For the loss of the nso of the road; (3) for the loss of certain freight which it had made “arrangements” to carry over the road; and (8) for the sum it will cost to complete the road in excess of the, contract price. On motion of plaintiff, the last two clauses were stricken out of the counter-claim; the one, as arising on a collateral contract not within the contemplation of the parties, and the other as being uncertain, and also contingent on the future construction of the road by the defendant.</p> <p> (Syllabus by the Court.) </p>

<p>t. Negotiable Instruments — Actions—Evidence—Parol—Relationship of Pasties.</p> <p>The true relation of parties to a negotiable instrument may, as between themselves, be proven by parol, whenever it is necessary to a correct determination of the right or liability of either of them thereon; and this may be done to enable a party to such an instrument to maintain an action thereon in the United States circuit court.1</p> <p>2. Same — Courts—Federal Jurisdiction.</p> <p>W. P. Owens, wishing to borrow $10,000 of the' plaintiffs, offered to give a note therefor, with the defendants as security; and, the plaintiffs consenting, he delivered them a note for the amount, signed by the defendants and payable to his order, which he at the same time indorsed, and also subscribed a waiver of notice and protest written thereon, and received the amount to his own use. The note not being paid when due. the plaintiffs brought this action against the defendants to recover the amount thereof. The defendants demur to the complaint for want of jurisdiction in the court. Meld, that the plaintiffs are the payees, and not the assignees, of the note; and that there never was any assignment thereof, within the restriction on the jurisdiction of this court over an action to recover the contents of a promissory note contained in the last clause of section 1 of the judiciary act of 1887, (24 St. 553.)</p> <p> (Syllabus by the Court.) </p>

<p>These cases were reported in 35 Fed. Rep. 721. The opinion and supplemental opinion (page 729) there given by Hughes, J., were followed by the entry of judgments for the plaintiff on the 18th day of July, 1888. As stated in the supplemental opinion filed by the district judge on that day, Judge Bond, the circuit judge who had presided at the trial, was still absent in Europe. On his return, and upon opening the court, the circuit judge, not concurring in the opinion of the district judge, nor in the judgments entered thereon, directed that the same be set aside and annulled. By sections 614, 650, U. S. Rev. St. the opinion of the circuit judge prevails, and the following order of Bond, J., is for the time being the law of the cases.</p>

<p>Patents for Inventions — Infringement—Injunction.</p> <p>A telephone patentee, who has put his device into extensive use, and is receiving an income therefrom, is entitled to an injunction against its infringement, though he has withdrawn it from a particular state because of legislative interference limiting the rate of charges.</p>

<p>At Law, Indictment for unlawfully inclosing the public lands.</p>

<p>Post-Office — Use of Mails to Defraud.</p> <p>Por the purpose of deceiving an accident insurance company as to the date of the remittance of a sum of money necessary to save from forfeiture the certificate of one of the defendants, and to promote the allowance of his claim to indemnity, lost by. the failure to remit in time, the defendants changed the date of the mailing stamp in the post-office where the letter was mailed, and stamped the letter with a false post-mark date, so as to give it the appearance of having been mailed several days sooner than it really was. Reld, that the case was not within the intendment of section 5480, Rev. St., relating to schemes to defraud, to be effected by opening correspondence by mail, etc.1</p>

In 'Admiralty. Decision on claims. • Libels and intervening petitions for labor, materials, and supplies furnished. Dor opinion, on exceptions, see 85 Fed. Rep. 548.

<p>In Admiralty.</p> <p>The Aeronaut was owned by Mrs. White, who resided in Jersey City. Her business was transacted by her husband in New York, which was the headquarters of the vessel. The steamer was chartered to the Newcomb Rapid Transit Company, a New Jersey corporation, for $20 a day, payable in'advance, to run between New York and South Norwalk, Conn. The office of the transportation company was in New York. The charterers were owners pro hac vice, and were to pay all the vessel’s running expenses.' Supplies to the amount of $180.94, principally for the engineer’s department, were furnished the vessel by the libelants, in New York, between October 15 and November 4, 1887. All the negotiations and orders for the supplies were made at the office of the charterers by and with the general manager of the company. . The libelants had no dealings with the master, nor was he known to them. In the negotiations no reference was made to the ship as a source of credit.</p>

<p>In Admiralty. Lien for repairs.</p> <p>' The canal-boat James Farrell was owned in New York by the wife of E. M. Parker. Her husband attended to the business of the boat, and had an office in this city. In March, 1887, the libelant, a shipwright in Jersey City, called at Mr. Parker’s office, and inquired if he had any work to be done in his line. Mr. Parker afterwards sent for him to look at the Farrell, and give an estimate for repairs, which was done, and Mr. Parker said that the boat would be sent over soon. Not long after she was sent ovér in charge of the captain of the boat, and repairs were put upon her to the amount of $289.66; the captain remaining in charge of the boat, and keeping the time of the workmen. The work was completed on the 10th of May, 1887; for which, at Parker’s request, his note was taken for the bill, which was once renewed, but not paid; and the boat was libeled on the 29th of December. The return of the note was tendered by the libelant on the trial. On September 29,1887, the claimant took a chattel mortgage from Mrs. Parker covering a coal-yard and a half interest in the Farrell, with some other property, as security for coal previously furnished, and for coal afterwards supplied on the faith of the security. The evidence indicates that the description of a “half interest” in the vessel was a mistake, and that the whole was intended to be mortgaged, and by a subsequent oral agreement was understood to be covered 'by the mortgage. For default of payment the mortgage was subsequently foreclosed, and all the mortgaged property, including the vessel, bought in by the claimant for much less than the debt secured. The answer set up a sale on personal credit, and a superior equity under the subsequent mortgage and foreclosure.</p>

<p>1 Mabitime Liens — Under State Statutes — General Nature.</p> <p>The claim of a material-man for supplies and repairs furnished to a vessel in a home port is, if a lien be given therefor by a state statute, a maritime lien, and is entitled to the same precedence that á like claim for supplies and repairs furnished in a foreign port has by the law of nations.</p> <p>2. Same — Priority—Mortgage.</p> <p>The lien of a material-man for supplies and repairs furnished in a home port, given by a state statute, is entitled to priority over a mortgage on the vessel repaired, although such mortgage had been duly recorded before such supplies and repairs were furnished.</p> <p> (Syllabus by the Court.) </p>

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

<p>In Admiralty. Libel by Dary against the Caroline Miller for balance of wages due. On exceptions to libel.</p>

<p>In Admiralty.</p> <p>Libel by John Fee, the master, and others constituting the crew, of the fishing vessel D. K. Phillips, to recover damages for wrongful discharge.</p>

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

<p>In Equity. On motion to show cause.</p> <p>Bill by Robert Garrett and others against the New York Transit & Terminal Company, Limited, and others.</p>

<p>I. Mortgages — Deeds of Trust — Executed Out of State.</p> <p>A deed oí trust, executed in another state, on property in Louisiana, to secure the payment of promissory notes, will he enforced as a conventional mortgage.</p> <p>g. Same — Lien—Tacit Mortgage — Guardian and Ward.</p> <p>Several years after the minors R. & B. were emancipated hy marriage, and while they were in the enjoyment and control of their estates, their former tutor filed and caused to he homologated his final account against them. In the judgment the clerk recognized a tacit mortgage in favor of the tutor on his wards’ property, dating from the, beginning of the tutorship, which was . hever registered. Held that, whatever may be the legal effect of such a mortgage as between the tutor and his former wards, his tacit mortgage is inferior to the mortgage which they had contracted after their marriage, and while in full control of their property, with complainants.</p> <p>3. Same — Lien—Recording.</p> <p>■ The deed of trust in this case was originally registered in 1866. Not being reinscribed within 10 years thereafter, it was, as to third persons, extinguished, when, in 1886, it was again registered. This case discloses no facts which should forbid the application of the registry laws of Louisiana.</p> <p>4. Executors and Administrators — Public Administrator — Actions — Dis-</p> <p>missal by Successor.</p> <p>The public administrator, to whom no letters of administration are shown to have been granted by the court, instituted a suit in the interest of a succession. Afterwards he resigned, and one of the defendants in the suit, having been appointed his successor, caused the suit to be called out and dismissed for want of prosecution. Held, that the suit was instituted without authority by the public administrator, and his successor in office was not charged with any official duties in relation to it; that his having the suit called out and dismissed, or his failure to prosecute it, does not make him in any capacity liable to the heirs of the succession.</p> <p> {Syllabus by the Court.) </p>

In Equity. On exception to report of the special master upon the intervening petitions of George J. McGourkey, trustee of car trusts;

<p>1. Bonds — Coupon Bonds — Maturity—Default in Interest — Presentment.</p> <p>Where coupon bonds contain a condition that if default in the payment of interest when payable and demanded continues for 90 days, the whole principal is to become due at the option of the holder, presentment and demand on January 2d, though premature as to the interest due January 1st, is due presentment as to that maturing July 1st previous.</p> <p>2' Same — Default in Interest — Defenses.</p> <p>'. It is no defense to such default and its continuance that forgeries of the bonds were in circulation so executed as not to be distinguished from the genuine, and ail the bondholders except plaintiff had accepted new bpnds so prepared as to prevent the poss:bility of fraud or loss, and that plainti ff, after presenting his coupons, and demanding payment, entered into negotiations for the protection of the obligor in case his coupons should, after payment, prove to be forgeries, and that the 90 days elapsed while these negotiations were pending.</p>

<p>1. Dower — Assignment—Limitation of Actions.</p> <p>An action for the assignment of dower is an action to recover real estate, within the meaning of the Missouri statute of 1847, (Rev. St. Mo. 1879, § 8219,) and is barred by the 10-years limitation of that act.</p> <p>2. Same — Statutes—Retrospective Operation.</p> <p>The limitation law of 1847 was in force at the time of the adoption of the Missouri Code of 1849, and the provision of said Code (Laws Mo. 1849, art 2, p. 74, § 1,) that “this article shall not extend to actions already commenced, or to cases where the right of action has already accrued; but the statute now in force shall be applicable to such cases,” etc., had reference to the limitation law of 1847, so as to bring within its purview an action for the assignment of dower accruing prior to its adoption.</p>

<p>At Law. Application for extradition of Ludwig Risch, alias Ludwig Rischkee, or Ludwig Rischky.</p>

<p> Habeas Corpus. </p> <p>Wy Shing was born in San Francisco, Cal., of Chinese parents, who had intermarried at Marysville, in the state of California. After his birth petitioner’s parents returned to Marysville, where his mother died when he was three years old. When petitioner was six years old his father sent him to China in charge of an elder brother of the father, where he remained till thirteen years old, when he returned to California. In 1885 he went to China again, and remained there till September, 1888, when he took passage a second time for California, before the passage of the late exclusion act'. He arrived at San Francisco October 7, 1888, after the approval of said exclusion act, on October 1, 1888. -The collector refused him permission to land, on the ground that he was a Chinese laborer, who had departed from the country, and that he was prohibited from returning by the provisions of said act. His father was, and he still is, a laborer, and he was in no way in the service of the emperor or government of China at the time of the birth of petitioner or at any other time. He still resides in California, and he has never been back to China or left the state of California since the birth of petitioner.</p> <p>Wong Gan was born in San Francisco in 1868. He is now 20 years old. His father was a merchant while here, but he labors in the field in China, although he has an interest in a small trading establishment. The petitioner returned to China with his parents when he was 14 years old, where he remained till September, 18'88, when he embarked on his return voyage to San Francisco, and arrived at his destination since the passage of the exclusion act. Neither his father nor his mother has ever returned to San Francisco, since their departure in 1881. They still remain in China. While here they had no connection with the diplomatic service of the Chinese empire.</p>

In Equity. Bill to enjoin the infringement of letters patent. On demurrer. Bill by the Eclipse Manufacturing Company against Erastus V. Adkins and others to enjoin the infringement of a patent.

In Equity. Bill for an injunction and damages for an alleged infringement of patent. The bill was filed by Everett B. Preston against Alpheus B. and James W. Manard.

In Admiralty. On appeal from district court. Libel by Thomas J. Southard and others against William Brady on .the charter of the bark T. Jeffrey Southard. Decree for respondent, and libelants appeal. ■ Findings of Fact. (1) On or about the 15th day of November, 1875, a charter was ma.de of the bark T. Jeffrey Southard by the owners, the libelants and appellants herein, to the respondent and appellee.

<p>Salvage—Disabled Steam-Ship—Towage—Award.</p> <p>The German steam-ship California, from Hamburg for New York, when about 300 miles east of Sandy Hook, broke her high-pressure piston. She drifted for two days, the weather being very stormy, until she was within 56 miles of Nantucket shoals, and 67 miles from St. George’s banks, and 54 miles from the Bavis bank. Here the steam-ship Chateau Margaux, from New York to Bordeaux, hove in sight, and, at the request of the master of the California, turned back in her course, and brought the latter vessel into the harbor of New York. In doing so she lost a week’s time, and incurred an expense of about §2,000. The California was worth, with her cargo, freight, and passage money, §260,650. The value of the Chateau Margaux, her cargo, freight, and passage money, was §568,000. Held, that the Chateau Margaux was entitled to §15,000 as salvage, and §2,000 for her expenditures.</p>

<p>In Admiralty. Libels for wages.</p> <p>Libels by Sacqueland and others against the yacht Meteor for wages. as mate and seamen.</p>

<p>1. Collision — Keeping Out of the Way — Safe Margin — Tide Currents.</p> <p>A steamer bound to keep out oí tbe way must, at ber own peril, shape ber course for a safe margin against tbe contingencies'of navigation, and tbe effects of tide currents. Held, in tbis case, tbat tbe conflict in tbe evidence was probably in part to be explained by tbe westward set of tbe flood-tide off Twenty-Third street, which changed to tbe westward tbe course of the S., a steamer 300 feet long, as she struck tbe current, and tbat tbe collision was by ber fault only.</p> <p>2. Same — Tug and Tow — Sudden Backing — Parting Lines — Error of Judgment in. Extremis.</p> <p>Tbe collision being with a heavy car-float in tow along-side a tug, and tbe S. conten ding tbat tbe float bad broken loose from the tug just before tbe collision, through tbe tug’s too sudden backing, which tbe tug denied, 7ieMtbat, even if the lines were parted, as alleged, before tbe collision, the tug’s backingwas made necessary by the fault of tbe S. when tbe danger was imminent, and tbat the error, if there was any error, was one of judgment, under tbe excitement of tbe moment, and not a legal fault.</p>

<p>In Admiralty. On exceptions to commissioner’s report.</p> <p>Libel filed by Richard J. Morrison, as administrator, against the I. & V. Florio Steam-Ship Company. There was a decree for libelant, and a reference to ascertain the damages; reported sub worn. Mina v. SteamShip Co., 23 Fed. Rep. 915.</p>

<p>In Admiralty. On motion to dismiss libel for want of proper service and jurisdiction.</p>

In Equity. On demurrer to bill. Bill against the heirs of Mrs. Octavia Boyce to establish a lien on certain lands heli} by her in Her life-time as a separate estate. The lands in question had been partitioned among the defendants (the heirs of Mrs. Boyce) subsequent to her death. Administration upon her estate had been closed before the covenant of warranty referred to in the opinion was broken, and before the bill was filed.

In Equity. On motion for an injunction pendente lite, restraining the alleged infringement of reissued patent No. 10,087, for an improvement in shade-holders, granted April 11, 1882, to Bennett B. Schneider, as assignee of Carl Votti, the original inventor.

<p>In Equity. Bill for infringement of patent.</p> <p>This bill was brought by the Schlicht & Field Company against the Chicago Sewing-Machine Company, Luke L. Miller, and Daniel H. Is-eminger.</p>

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

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

<p>In Equity. Bill for infringement of letters patent No. 319,095, filed by Samuel Joel against Frederick W. Gesswein.</p>

<p>In Equity. Bill for infringement of patent, brought by Charles G. Am Ende against Seabury & Johnson.</p>

In Equity. Bill for infringement of a patent. Action by the Durham House Drainage Company, of New York, against James Armstrong for the infringement of letters patent No. 235,754, granted to Caleb'W. Durham for an improvement in drainage apparatus.

<p>1. Collision — Between Steamer and Vessel at Pier — Inevitable Accident.</p> <p>' On the south sicje of a pier, projecting from the shore-line 512 feet into North river, lay the barge S.,. her bow towards the shore, and her stem projecting from 10 to 20 feet beyond the end of the pier, when she was struck by an up-steamer, which had swung out from a 400-foot pier, 600 feet below. Held, that though wind and tide were setting in towards the upper pier, and the pilot, on discovering that his swing-off was not sufficient to avoid collision, used due diligence to stop the steamer, it was not an inevitable accident; the pilot being familiar with the set of the tides there, and there being abundant space for passage behind the stern of the barge.</p> <p>2. Same — Contributory Negligence.</p> <p>The mere fact that a barge lies with her stern projecting from 10 to 20 feet beyond the end of a 512-foot pier, at which she is berthed in North river, does not constitute contributory negligence, in case of a collision by a steamer in attempting to pass up the river, after swinging off from a 400-foot pier 600 feet below; there being no other obstruction to free passage.</p>

<p>In Admiralty. Libel for damages.</p> <p>Libel by the. Ocean Steam-Ship Company against the steam-tug Talisman, for injuries to the steamer City of Savannah by collision.</p>

<p>Collision—Between Steamers—Meeting Steamers—Mutual Fault.</p> <p>The steam-boat M. was coming down tbe North river, near the piers on the New York shore, and .intending to round the Battery into the East river. The steam-boat R. had come from the East river into the North river, and was about to round'to her berth near Castle Garden. She was outside the M., and displayed to the latter her green light. The R. whistled once to the M., and, without waiting for ai-eply, ported her helm to round in to her berth. The M., seeing the green light of the R. shutting in, and not knowing the latter’s intention oí going in-shore, blew two whistles, and starboarded her wheel, supposing that the R. would straighten up river again. The vessels came together at nearly right angles. Held, that both were in fault for the collision, — the R. for not awaiting a reply from the M. before she ported her wheel; the M. for star-boarding her wheel as soon as she saw that the R. was sheering to port, — and that the damages should be divided.</p>

<p>Salvage — Tug and Tow — Interference by Another,Tug — Collusion.</p> <p>The lighter S.', loaded with oil barrels, and in charge of the tug C., in the North river, got into difficulty by shipping considerable water in heavy swells from a passing steamer. The C. was competent to take care of her, and was bound tó do so. The tug H. came up, and against the protest of the master of the lighter, but through the evident collusion of the C., succeeded in getting the lighter in her own charge, and towed her to the dock, and pumped her out, and thereupon refused for three daj^s to deliver her to the owners, claiming salvage compensation on the false ground that the lighter had been abandoned and rescued by the H. In towing her she was negligently run against the wharf, causing some damage. Held, that the case was one of officious intermeddling with the duties of the O.; that the case was not one of salvage, and that no compensation for pumping should be allowed, as it was more than offset by the injury for a groundless claim of abandonment and salvage, and detention of the lighter from her owners; and that the H. should pay for the damage her negligence had caused the lighter.</p>

<p>DEMURRAGE — DELAY IN LOADING — '“WlTHIN REACH OP THE Ship’s TACKLES”— Waiver.</p> <p>A charter-party allowed 18 days ior loading. The cargo was tendered five days after notice of the ship’s readiness. Thirty days were occupied by the master in loading. The charter required delivery of the cargo “within reach of the ship’s tackles. ” It was delivered a few yards beyond, without objection, from the master, and tne cargo was delivered to the ship as fast as the ship could load. One day after the tender of the cargo was occupied by the ship in unloading her ballast. Held, that only five days’ demurrage should be allowed to the ship, no evidence appearing that the cargo could not have been loaded by the ship within 18 days, and delivery “within reach of the ship’s tackles” having been waived.</p>

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

On Motion to Remand. ■ Action by Charles B. Shedd against J. Ensign Fuller and others, commenced in the state court, and removed by defendants to the circuit court of the United States, by filing a petition and bond with the clerk of the state court. Motion by plaintiff to remand.

In Equity. On demurrer to bill. Bill by the Sioux City & St. Paul Railroad Company against the United States to have complainant declared the owner of certain lands, and to have the. officers of the United States enjoined from disposing of the same, or allowing entries to be made of the same under the homestead, timber culture, or pre-emption laws.

<p>Equity — Practice—Dismissal for Want oe Prosecution.</p> <p>Under circuit court rule 69, giving a complainant three months after issue joined in which to take depositions, a cause will not he dismissed for want of prosecution for nine months’ delay, where it appears from the affidavits of complainant’s, counsel that from a conversation with defendant’s counsel they were led to believe that, a compromise was mutually desired and would be effected, and that they in good faith submitted the matter to their clients, who lived in Ireland, and, not having been yet advised of their intentions as to the proposition, took no proof, understanding defendant to agree that none need be taken pending negotiations, though from the statement of the conversation in the affidavits of defendant and his counsel such impression and delay were not warranted thereby.</p>

<p>In Equity. On final hearing.</p>

On Exceptions to Master’s Report on Claim of United States Trust Company and Edward W. and Theodore Sheldon.

In Equity. On demurrer to bill. Bill by Charles Foster against the Mansfield, Coldwater & Lake Michigan Bailroad Company and others to set aside a foreclosure decree and sale of the property of said company as fraudulent. Demurrer sustained.

In Equity. On demurrer to amended bill, by the defendant Rose. The bill of complaint in this cause seeks to establish a trust-estate in and quiet the title to certain lands in the county of Emmet and state of Michigan. The essential facts are indicated sufficiently by the opinion.

<p>In Equity. On final bearing. Bill for partition, brought by Ann Beattie against Samuel Wilkinson and others.</p>

<p>At Law. Action for trespass.</p>

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

<p>At Law. On motion for new trial.</p> <p>Action by Emeline A. Hardy, as administratrix of the estate of Frank S. Hardy, deceased, against the Minneapolis & St. Louis Railway Company and the Burlington, Cedar Rapids & Northern Railway Company, to recover damages for the alleged negligent killing of her intestate. There was a verdict for,plaintiff, and defendants moved for a new trial.</p>

At Law.0 On motion for new trial. Action by Janies W. McIntosh, administrator of William Fry, deceased, against the Chicago, Milwaukee & St. Paul Railway Campany, for negligent^ causing intestate’s death. Verdict for plaintiff, and defendant moves for a new trial.

At Law. The action was ejectment for the S. E. 1 of tbe 3ST. W. I of section 28, township 56 N., range 33 W., in Houghton county, Midi. This land lies close to the outcrop of the Calumet lode, tbe lode underlying the whole of it. Plaintiff daimed tbe land under a patent issued by Michigan to him, November 3, 1887, describing the land as “swamp” land.

<p>At Law. On final hearing.</p> <p>Action by the Amador Medean Gold Mining Company against the South Spring Hill Mining Company and others to recover possession of property.</p>

<p>1. Claims against United States — Jurisdiction oír Federal Courts — Prior Rejection.</p> <p>Act March 3,1887, giving to United States courts jurisdiction of claims against the United States, contains a proviso “that nothing in this, section shall he construed as giving either of the courts herein mentioned jurisdiction to hear and determine claims which have been heretofore rejected or reported on adverse^ by any court, department, or commission authorized to ■ hear and determine the .same. ” Held that, the comptroller of the treasury having charge-of the adjustment of accounts against the government, a rejection of an account by him is a rejection by a department authorized. to hear and determine the same, within the meaning of the proviso. Following Bliss y. U. 8., 34 Fed. Rep. 781.</p> <p>2. United States Commissioners — Fees—Drawing Complaints.</p> <p>It being'important to the liberty of the citizen and the duo administration of justice that complaints and recognizances in criminal cases should be technically full and complete, a United States commissioner is entitled to compensation for such papers as drawn and entered by him in good faith, and in accordance with the practice of the state within which he acts, although the comptroller of the treasury may he of opinion that such papers may be comprised within a given space, and that all beyond is “ unnecessary verbiage. ”</p> <p>3. Same — Criminal Recognizance — Oaths to Sureties.</p> <p>Compensation at the statutory rate cannot be denied to commissioners for oaths administered to sureties in criminal cases, on the ground that such oaths were unnecessary, as they cannot he held to know the sufficiency of a surety offered until he has been examined under oath.</p> <p>4. Same — Acknowledgments to Recognizance.</p> <p>Commissioners, being allowed the same fees as clerks for taking acknowledgments, are entitled to a fee for each person acknowledging^ recognizance, and not simply to one fee for all the acknowledgments of a recognizance.</p> <p>5. Same — Docket Fees.</p> <p>Act Aug. 4, 1886, entitled “An act making appropriation to supply deficiencies in the appropriations for the fiscal .year ending June 30, 1886, and for prior years, and for other purposes,” and enacting that certain sums he “appropriated to supply deficiencies in the appropriation for the fiscal year 1886, and for other objects hereinafter stated, * * * fot fees of commissioners, * * * $50,000: provided, that for issuing any warrant or writ, or for other , necessary service, commissioners may be paid the same compensation as is allowed to clerks for like services, hut they shall not be entitled to any docket fees, ” — does not take away the right of commissioners to receive docket fees, hut only excepts their payment out of the sums so appropriated.</p> <p>6. Same — Per Diem.</p> <p>Under Rev. St. U. S. § 847, allowing commissioners, “for hearing and deciding in criminal charges, five dollars a day for tho time necessarily employed, ” the commissioner is entitled toa per diem for “hearing and deciding” a charge, though no evidence he produced or witnesses examined.</p>

<p>1. Disteict and Prosecuting Attorneys—United States Attorney—Authority to Employ Stenographer.</p> <p>The general authority to prosecute delinquents, given to a United States district attorney by Rev. St. § 771, authorizes him to employ a stenographer in criminal cases, and to render the United States liable to pay areasonable compensation for services rendered, without first obtaining the authorization of the attorney general of the United States.</p> <p>2. Same—Authority oe Attorney General.</p> <p>Section 862, Rev. St., conferring upon the attorney general power to superintend any criminal prosecution instituted by the district attorney, does not authorize the attorney general to control the action of the district attorney in criminal cases by general regulations.</p>

On Petition for Habeas Corpus. Petition for habeas corpus by Siegmund Keller, who was under the custody of the sheriff of Ramsey county, Minn., by virtue of a warrant issued by the governor. Keller was arrested on a requisition by the governor of Wisconsin, to answer a charge of embezzlement.

<p>Indictment and Infoematton — Finding and Fimng — Ckiminau Law — Arkkst of Judgment.</p> <p>Where the foreman of the grand jury wrote his name in blank across the back of a bill of indictment, under the proper date, without more, and no finding by the grand jury was either reduced to writing or publicly announced in court, after plea of riot guilty, trial, and conviction, held, that judgment must be arrested for want of a finding.</p>

In Equity. On final hearing of bill. Bill by William H. Huntington to restrain the Hartford Heel-Plate Company from the infringement of two patents, granted to Frederick Richardson, for a machine and die for attaching heel-plates to rubber shoes. A preliminary injunction was granted as to the patent for the die, but refused as to the machine. 83 Fed. Rep. 281.

In Equity. On motion for an injunction. This is an action by Charles Upton and Edward Miller & Go. against Chandler N. Wayland and Thomas B. Kent for alleged infringement of letters patent No. 348,969, for a lamp-wick raiser, issued September 14, 1886, to Leonard Ilenkle, and reissue No. 17,090, dated February 8, 1887.

In Equity. On motion to use depositions. Bill by H. A. Clow against George C. Baker, tbe Baker Wire Company, and others, to declare invalid a patent issued to defendant Baker.

In Admiralty. libels to recover damages to fruit through the alleged improper discharge from the steam-ship Boskenna Bay, on the 21st of March, 1883, in frosty weather.

<p>In Admiralty.</p> <p>The above libel was filed by five consignees of cargo on board the steamer Bergenseren on a voyage from New York to Port de Paix, claiming about $6,000 damages to their goods. The goods consisted of beef, pork, lard, butter, etc., known as “wet cargo,” and were stowed in the water-ballast tank, a compartment nearly amid-ships, and separated from the fire-room by an iron bulk-head. The floor of the tank rested upon the ship’s ribs, and was 17 inches lower than the floor of the fire-room on the opposite side of the bulk-head. The vessel left New York October 28, 1887, and arrived at Port de Paix, November 3d. She-encountered, according to the log, a heavy south-west gale on October 30th, and a heavy north-east sea, causing the vessel to roll heavily. This continued during the 31st of October and 1st of November, moderating on the 2d. On discharging the cargo, about three feet of water was found in the ballast tank, and much of the cargo stowed there was damaged and broken. How the water got into the ballast tank was not ascertained there; and, upon the vessel’s return to New York, there was discovered, about eight inches below the floor of the tank, an empty rivet-hole, five-eighths of an inch in diameter, running through the lower part of the iron bulk-head that divided the tank from the fire-room. The hole was down between the ribs, and about eight inches below the floor of the tank. During the voyage the water had risen two inches above the floor of the fire-room, and thirty-four inches above the bottom of the ship. The claimants contend that the water in the tank came from the fire-room, through the rivet-hole; that the rivet in the hole was loosened and fell out during the heavy weather; and that the water in the fire-room came from the seas shipped in the gale; both being perils of the seas, as they claim, for which the ship was not answerable.</p>

In Admiralty. Libel by John Hills and others against Robert Mackill and others for damages arising from injury to cargo of the steam-ship Ettrickdale.

<p>Sheeting — General Average — Baggage.</p> <p>A passenger’s baggage, stowed in tbe baggage compartment of a steamship, and damaged by water in an attempt to extinguish a fire which threatened the safety of the vessel, is a subject of average contribution. ■</p>

<p>1. Shipping — Charter-Party—Agent’s Commission.</p> <p>Where a ship’s charter provided that the steamer was to be consigned to charterer’s agents at ports of loading, paying one commission of two and a half per cent, to charterer’s order at the first loading port, and to he reported at the custom-house by the said agents on customary terms, held, the agents were not entitled to a commission at a port of discharge.</p> <p>2. Admiralty — Practice—Motion to Dismiss Libel — Hearing—Evidence.</p> <p>Where a motion to dismiss a libel is heard without, objection, and the charter-party is presented to the court and commented on by counsel, no question being raised as to its terms, and is also referred to in the answers t.o the interrogatories, libelants are not entitled to have the question determined according to the allegations of the libel, irrespective of the provisions of the charter-party.</p>

<p>1. Shipping — Carriage of Goods — Injuries to Cargo — Pleading and Proof •</p> <p>Upon a libel for damage alleging “that by reason of the neglect and failure of the said master * * * to properly stow the said merchandise, and of the improper, unsafe, and unseaworthy condition of the said steamer, and by want of proper care of the said master, * * * and by reason of the improper and insufficient dunnage of the merchandise, and the unsafe and leaky condition of the deck of said steamer, on said voyage, the said merchandise was damaged, ” no recovery can be had for damage by coal-dust not resulting from improper stowage.</p> <p>2. Admiralty — Appeal—Review.</p> <p>Where the evidence is conflicting, and no new evidence is introduced, the circuit cdurt will not, on appeal of a libel for damage, review the finding of the district court. .</p>

<p>Shipping — Carriage of Passengers — Number—-Penalty—Perry-Boat.</p> <p>Rev. St. TJ. S, §§ 4464-4466, respecting the number of passengers that may lawfully'be carried by a passenger steamer, have no application to a ferry-boat, though temporarily employed as an excursion boat.</p>

<p>Salvage — Disabled Steamer — Dangerous Current — Towage — Values — Award.</p> <p>The steam-sbip E., when about 50 miles north of the east end of the island of Cuba, lost her propeller key, and was thus deprived of motive power. The weather was fine, and the vessel was in the track of ships, but there was not wind enough to enable her, by her sails, to stem a current which there sets -towards the rocky coast at the rate of one to two and a half Knots an hour. A signal of distress, set by the E., was observed by the steam-ship S., which altered her course, and bore down to the E., and the masters of the two vessels entered into an agreement in writing that the E. should be towed into port, and the compensation left to the agents of the vessels, either at New York or Boston. The S. thereupon put out a hawser to the E., and with some difficulty towed her safely to her destination, a distance of 240 miles. The S. was not damaged in any wayr by the towage, but was delayed one day in her arrival at her destination. Her value was $50,000. The E., with her stores was worth $26,000. The claimants of the E. offered $1,000 as compensation ‘for the service, claiming that it was simple towage. Held, that the service was a salvage service, and $4,000 a proper salvage award.</p>

<p>Salvage—Steam-Ship at Wharf—Burning Lighter—Towage into Stream— Tender.</p> <p>A steamer was lying at a wbarf, with steam up. when a lighter near by caught fire. A tug, at the request of the master of the steamer, took her into the stream, and held her there until the burning lighter had been removed, when she took her back to the wharf; the whole service occupying an hour and a half. Fifty dollars was tendered by tbe steamer as compensation for the service. Held that, while the service was a salvage service, the peril of the steamer had been so small that §50 ^vas a sufficient compensation; that libelant should therefore have a decree for the §50 paid into court, and costs up to that time, less the costs incurred since the tender.</p>

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

<p>Coujsioh — Evidence—Sijottoiency.</p> <p>A bole was stove in tbe side of libelants’ canal-boat, wben sbe was laid along-side of the bulkhead, East river. The libelants, without offering direct evidence, contended that the hole was caused by a blow from the Oswego while backing in, by a stroke from her fenders while both boats were lying along-side. Several other theories were within the possibilities. Three witnesses testified with great positiveness that the Oswego did not touch the canal-boat, nor even come near enough to her to admit of using the rope fender which one witness had in his hand. R'eld, that the finding of the district court would not be disturbed, and the libel should be dismissed.</p>

In Equity. On plea to the jurisdiction of the court. Bill by E. B. Preston against the Fire-Extinguisher Manufacturing Company and others to enjoin the infringement of complainant’s patent.

<p>In Equity. On demurrer.</p> <p>Bill by the Metropolitan National Bank of New York, against the St. Louis Dispatch Company, the Dispatch Publishing Company, and Henry L. Sutton, trustee, to foreclose a mortgage.</p>

<p>In Equity. On demurrer to bill.</p> <p>Suit to enforce the debt of a corporation against a stockholder.</p>

<p>1. Dower — Release—Acknowledgment.</p> <p>A sealed agreement entered into between a husband and wife in 1868, whereby the latter, for a valuable consideration, agreed to release all claim which she then had or might thereafter have in her husband’s property, but which was not acknowledged before a proper officer, as required by statute in Illinois, is not effectual as a release of dower in lands in that state, as the law then stood.</p> <p>a. Same — Equitable Jointure.</p> <p>Neither will such agreement bar dower by “equitable jointure,” as such jointure must be made before marriage. ></p> <p>3. Same — Yoüd Relea'se — Return of Consideration,</p> <p>The husband having deserted his wife and children, without showing sufficient cause therefor, 35 years before his death, the wife will not be compelled to return the consideration (less than §500) received by her for her agreement, before dower is assigned.</p>

<p>1. Eaii/road Companies — Leases—Action to Enforce — Parties.</p> <p>A bill to enforce an alleged lease averred that the C. Co. leased its road to the D. Co. for 40 years; that the latter then leased its road for 20 years to defendant, which agreed to assume the lease of the 0. Co.; that the 20-year lease has expired, and defendant refuses to pay the relit reserved on the lease of the C. Co. Held that, the object of the bill being to compel defendant to occupy the C. road for the balance of the 40 years, the I). Co. was a necessary party.</p> <p>2. Same — Consolidation of Company.</p> <p>An averment in the bill that defendant has obtained control of the slock of the D. Go. does not show that the two companies have become merged into one, but simply that defendant has obtained a majority of the slock of the D. Co.</p> <p>3. Courts — Federal Courts — Jurisdiction—Sf.rviok of Process.</p> <p>Under act Cong. March 3, 1887, as amended and modified by act August 13, 1888, requiring an action in the federal courts to be brought in the district of which defendant is a resident, the federal courts of Illinois cannot obtain jurisdiction of an Iowa corporation by service of process.</p> <p>4. Practice in Civil Casks — Motion to Dismiss — Parties—Failure to Serve.</p> <p>A co-defendant may move to dismiss, where complainants have not brought before the court a necessary party, named as a defendant in the bill.</p>

In Equity. On final hearing. Bill of George F. Harding, a minor, by Adelaide M. Harding, his next friend, against Wesley Vaughn and J. D. Williams, to redeem land from tax sale.

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

<p>Counties — Warrants—Negotiability — Treasurer — Official Bond — Mal ■ FEASANCE.</p> <p>Where a county treasurer, who by law was forbidden to buy or sell, or in any manner deal in county warrants, upon payment of a county warrant neglects to cancel it, but marks it, “Not paid, for want of funds,” and puts it into circulation, a subsequent holder, though he purchased itfor value and in good faith, cannot maintain an action against the sureties on the official bond of the treasurer for alleged malfeasance in office.</p>

At Law. On motion to dismiss for misjoinder of plaintiffs. Action pn contract by Laura P. Robinson, administratrix of the goods and chattels of F. M. Robinson, and J. B. Powers, survivor of himself and said Robinson, lawyers, partners as Robinson & Powers, against ;William Hintrager, for legal services ■ rendered by said firm to the defendant. ■

<p>At Law. Action on official bond.</p>

<p>Post-Ovfice — Postmaster — Larceny from Mails — Liability on Omtcial Bond.</p> <p>A postmaster placed in the mail-bag, at his office, a sum of money belonging to the government, to be carried through the mail to the postal depository. While the carrier was- on his way to deliver the mail-hag to a steamboat, the postmaster intercepted and robbed him of the bag and contents. His sureties were held liable on the postmaster’s bond for the sum claimed by the government.</p> <p> (Syllabus by the Court.) </p>

<p>In Bankruptcy.</p> <p>Motion to stay proceedings on a judgment against the bankrupt pending his application for discharge. Rev. St. U. S. 5106, provides that “no creditor whose debt is provable shall be allowed to prosecute to final judgment any suit therefor against the bankrupt, until the question of the debtor’s discharge shall have been determined, and any such suit shall, upon the application of the bankrupt, he stayed to await the determination of the court in bankruptcy on the question of the discharge, provided there is no unreasonable delay on the part of the bankrupt in endeavoring to obtain his discharge.”</p>

<p>Patents for Inventions — Novelty—Springs for Oar-Seats.</p> <p>The first claim of letters patent No. 179,400, issued July 4, 1876, to Zenas Cobb, for an improvement in spring-seats, which describes an upholstered spring-seat, having spring sections adapted to be separately inserted or removed from below the frame, without disturbing the upholstering, is void for want of novelty, in view of the familiar method of constructing spring-seats for beds, and the method of removal shown in the Knepplor patent of July 27, 1809. It describes simply the use in a car-seat of the separate spring sections of the bed-seat.</p>

<p>Bill for Injunction by the Yale & Towne Manufacturing Company against P. & Ñ. Corbin.</p>

<p>1. Admiralty— Courts—Jurisdiction—Recovery op Possession.</p> <p>1 Where a sheriff has attached a vessel, which is afterwards taken out of his custody and removed into another state, he can sue in admiralty to recover possession in the district court of the district into which the vessel has been removed.</p> <p>3. Same—Attachment—Right to Possession.</p> <p>A vessel was attached on alibel against the master individually. The master, without the knowledge or authority of the owner, removed the vessel to another state. Held that, the attachment having been illegal, and the vessel never in custodia legis, the sheriff was not entitled to the possession as against the owner. The owner was not chargeable with the quasi criminal act of the master in removing the vessel.</p>

<p>In Admiralty.</p> <p>Libel by John Roberts against the British steam-ship Egyptian Monarch, Royal Exchange Shipping Company, claimant, for damages for personal injury.</p>

In Admiralty. Libel for material furnished. On libel for lumber furnished the steam-barge Jamos H. Prentice, a domestic vessel, while being repaired at Detroit, in March and April, 1886.

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

In Admiralty. Action by the owners of the steam-ship Hudson, of the Cromwell line, against the English steam-ship Benison and her cargo, for salvage services rendered in towing the latter steam-ship, when disabled, from a point about 60 miles E. S. E. from Cape Henry into Hampton Roads.

In Equity. Bill to quiet title. Actions by J. J. Bradford against Israel Hall and wife, and one against Margaret P. Turner, to quiet title to certain swamp lands in the state of Mississippi.

In Equity. On the claim of the Western Car Company, an intervening creditor in tbe foreclosure of a railroad mortgage. The original cause, in which the Western Car Company became an in-tervenor, was a proceeding to foreclose a mortgage executed by the Peoria & Rock Island Railway Company to secure its first mortgage bonds to the amount of §1,500,000.

At Law. This is an action for the recovery of the amount of certain assessments on 195 shares of stock of the National Express &… Held: with interest from August 21,1883, and also with such costs as had been incurred by the plaintiff in the prosecution of such suits as he had brought against such stockholders, or any of them; and that by virtue and in pursuance of said decree of July 21,1883, the plaintiff herein received from the persons named in the said fourth…

<p>1. Copyright — Action for Infringement — Pleading.</p> <p>A bill for infringing a copyright, which fails to aver that plaintiff delivered or mailed to the librarian of congress a printed copy of the title of the copyright book, that within 10 days after its publication he delivered or mailed to such librarian two copies of the book, and that he inserted in each copy of the book published, on the title-page or page following, the words, “Entered according to act of congress, in the year-, by A. B., in the office of the librarian of congress, at Washington,” is fatally defective.</p> <p>2. Same.</p> <p>An averment that “the copyright was taken out by [plaintiff] previous to the publication'tliereof. in full accordance with the requirements of the laws of the United States, ” does not tender an issue of fact, but states a legal conclusion, and is insufficient.</p> <p>3. Same — Special Demurrer — Equity — Penalties and Forfeitures — Enforcement.</p> <p>A special demurrer to the parts of the bill which ask a court of equity to enforce penalties and a forfeiture, and for a discovery and delivery up to be destroyed of defendant’s books, will be sustained.</p>

<p>In Admiralty. Libel for damages. On appeal from district court.</p> <p>Proceedings in rem by libelant, Goldsmith, against the steam-boat Syracuse for damage done to libelant’s canal-boat by certain other tugs while in charge of a tow consisting of libelant’s boat and others, preparatory to -and before making fast to the Syracuse, which was to convey the tow to New York. The contract for towage was with the Schuyler Towing Company, by whom the tugs and the Syracuse were owned, but it did not specify the particular boat that should do the towing. The libel was dismissed by the district court, and libelant appeals.</p>

In Admiralty. On appeal from district court. Libel for demurrage by Benjamin W. Morse and others against the Lehigh &'Wilkesbarre Coal Company. Decree for respondent, and libel-ants appeal.

<p>In Equity. Final Roaring on injunction.</p>

<p>Courts — Federal Jurisdiction — United States Marshal — Action on Bond.</p> <p>The circuit court of the United States bas not original jurisdiction in suits on United States marshal’s bonds, where the amount in controversy does not exceed 8500.</p>

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

<p>Costs — Attorneys’ Fees — Party Acting as Attorney.</p> <p>The docket fee and fees for depositions “allowed to attorneys, solicitors, and proctors” by Rev. St. U. S. §§ 823, .824, cannot be taxed in favor of a party not an attorney, who conducts his own cause.</p>

In Equity. On demurrer to bill. This action is brought by Helen S. Newberry, as administratrix of John S. Newberry, deceased, and James McMillan, citizens of Michigan, against Nelson Robinson, Frank 0. Hollins, Walston H. Brown, and Arthur J. Moulton, citizens of New York, and others, alleged to be stock-' holders of the Lake Erie & Western Railway Company, to enforce a statutory liability created by the laws of Ohio, where the company was incorporated.

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

■ In Equity. On motion for an injunction. • The Texas & Pacific Railway Company entered into a contract with the city of Baton Rouge and Gebelin & Philips, by the terms of which the said railroad company, in consideration of certain privileges granted by the. city, agreed to transfer its freight and passengers from West Baton Rouge to the city of Baton Rouge, by means of the public ferry which had been leased by the city to said Gebelin & Philips.

<p>In Equity. On demurrer to bill.</p> <p>Bill by William Hintrager to quiet title, against Martha A. Nightingale and James H. Stout. Code Iowa, § 902, provides that actions for the recovery of land sold for taxes shall not lie unless brought within five years from the recording of the treasurer’s deed.</p>

In-Equity. On motion for preliminary injunction. r Bill by Rowland Hazzard against Thomas O’Bannon, collector of Mad--ison county, Mo., to restrain a levy under a tax-bill on certain personal ■property Of complainant.

<p>1. Vendor and Vendee—Vendor's Lien.</p> <p>' The English doctrine of the vendor’s equitable lien for unpaid purchase money, upon an absolute conveyance of land, has not been generally adopted in the United States, and this court will not enforce the lien in a state where it has not been established by statute, or is not recognized as in force by the ' state tribunals. A secret lien is a dangerous one and not entitled to favor, especially íd a state where every facility is afforded for the recording and preservation of liens, or of giving notice to the world of their existence.</p> <p>2. Same—Waiver op Lien.</p> <p>A vendor of land took from his vendee a note indorsed by a third party for . an unpaid portion of the purchase money. The vendee mortgaged the land, which was afterwards sold at sheriff’s sale under one of the mortgages to the mortgagee. At the time of the mortgage and sale the land was treated by all the parties, who were living in intimate relations, as unincumbered, and it was testified that the joint note was taken to secure the sum still owing, and that the vendor had given no notice to the mortgagee, until after the mortgage, of any claim against the land. Held, that the vendor had taken the security of a third person, and waived his lien on the land for the amount unpaid.</p>

<p>1. Wills — Revocation—Birth of Ohild.</p> <p>Under Pub. St. R. I. c. 182, § 12, which provides that a child born after the execution of his parent’s will, “without having any provision made for him in such will, ” shall inherit as if the parent had died intestate, a will made by a married man, having no children, in which he gives his sister a certain legacy in case of his death leaving no children born of his wife, and a smaller legacyin case of his death leaving children born of said wife or their descendants, and in either eveiit bequeaths all the residue of his estate to his wife, does not make such provision for after-born children as will bar them from inheriting.</p> <p>2. Equity — Pleading—Demurrer.</p> <p>A demurrer to a bill for want of equity will not lie when the complainant is entitled to part of the relief prayed for.</p>

At Law. On demurrer to the answer. Action by E. P. Welles, receiver of the Commercial National Bank of Dubuque, against Frank Larrabee and the First National Bank of Mc-Gregor, to recover an assessment on shares of stock of the insolvent bank. Plaintiff demurs to the answer. .

<p>At -Law.</p> <p>Ejectment by William Flynn against J. P. Edwards to recover possession of certain land formerly owned by plaintiff, which had been sold for taxes.</p>

<p>On Exceptions to Master’s Report.</p> <p>The intervenor, William Laboy, sought to .recover of the Texas & Pacific Railroad Company damages for injuries received while attempting to board the defendant’s train, operated by the receivers of said road. The master reported adversely to the claim, and the intervenor excepted.</p>

<p>CONTRACTS — CONSTRUCTION.</p> <p>A written contract, by which plaintiff agrees to sink an artesian well for defendant, supplying a given quantity of water, does not require that the water should be potable and fit for washing and for making steam, though plaintiff knew defendant was a hotel keeper, and desired water of that character for hotel purposes.</p>

At Law. On motion to suppress depositions. Action by William A. Giles against Charles Paxson and others. Defendants filed exceptions to certain depositions taken by plaintiff.

<p>Limitation of Actions — Running of the Statute — County Bonds — Interest Coupons.</p> <p>When an installment of interest due on a municipal bond cannot be recovered by a suit on the coupon by reason of lapse of time since the coupon matured, the same installment of interest cannot be recovered along with the principal debt in a suit on the bond.</p>

<p>Customs Duties — Duties oe Appraisees — Estimate op Value.</p> <p>Eev. St. U. S. § 2902, directing appraisers of imports to ascertain the actual market value and wholesale price of the goods in the principal markets of the country whence they are imported, regardless of the invoice, is unaffected by act U. S. March 3,1883, § 7, which repeals Rev. St. _§§ 2907,2908, and act June 22, 1874, providing that certain costs of transportation, etc., shall he added to the price of goods, or by section 7, of the act of March 3d, which modifies the oath to be taken upon the entry of goods, with respect to said costs of transportation, but leaves the oath otherwise unchanged, and the dutiable value of goods is to be estimated from their market value in the principal markets of the country whence they are imported.</p>

On Demurrer to Indictment. Rev. St. U. S. § 5440, under which defendants Willis J. Milner and others were indicted, is as follows: “If two or more persons conspire to commit any offense against the United States, or to defraud the United States in any manner or for any purpose, and one or more of such parties do any act to effect the object of the, conspiracy, all the parties to such conspiracy shall be liable to a penalty of not less than $1,000, and not.more than $10,000,…

<p>1. Post-Office — Offenses against Postal Laws — Obscene Matter — Private Communications.</p> <p>Sending a written communication of a personal and private nature from one person to another, under cover of a sealed envelope, is not sending obscene matter through the mails, within the meaning of Iiev. St. 1J. S. § 8893, though the letter contains indecent or obscene matter.1</p> <p>2. Same — Evidence—Proof of Handwriting — Comparison.</p> <p>On the trial in the federal court in South Carolina of an indictment for sending an obscene letter through the mails, an expert in handwriting may be asked to compare the letter charged in the indictment with one already in ev idence for another purpose, acknowledged by defendant to have been written by him, and to say if in his opinion they both came from the samo hand.1</p> <p>3. Same — Bxfbbts—Qualification—Bias.</p> <p>But it is not proper to call as such expert an officer detailed by the post-office department to collect the facts in the case, and who had hunted up the testimony, and busied himself in the inception and prosecution of the case.</p>

<p>Public Lands — Offenses—Fencing—Indictment.</p> <p>An indictment for fencing public lands in violation of 23 St. U. S. p. 322; § 3, need not allege that defendant had not gone upon, improved, or occupied said lands under the land laws of the United States, claiming title thereto, in good faith, that being a matter of defense.</p>

<p>In Equity. Bill for infringement of patent.</p> <p>Bill brought by Jesse W. Hatch and others against William J. Young.</p>

<p>Patents for Inventions — Invention—Threshing-Machines.</p> <p>Patent No. 259,264, issued June 6, 1882, to Louis C. Royer, as assignee of Christopher Blinn, covering the combination, in a threshing-machine, oí a cylinder, a concave and grate below, a revolving beater arranged sufficiently near the cylinder to deflect the straw downward, a revolving rake and beater in the rear oí the first beater, a vibrating shaker and carrier below, involves no invention; the J. A. Throp patent oí April IS, 1876, those to complainant of September 7, 1875, and June 20, 1876, and the model made by Westinghouse & Co. during 1877-80, all contain substantially the same elements in the same combination as in the Blinn machine; the improvements made by Blinn in the incline of the grate, and the location of the beater, being only such as a skilled mechanic could have made with the others before him.</p>

<p>Patents for Inventions — Infringement—Measure ov Damages.</p> <p>The measure of damages for infringement of a patent is to be ascertained by considering the amount of profits or savings made by defendant by the use of the infringing device, beyond what he could have made by the use of tools free to the public.</p>

<p>1. Patents for Inventions — Patentability—Ornamental Tiles.</p> <p>The claim in letters patent Ho. 336,243, issued February 16,1886, to John G. Low, for “an improvement in the art of decorating surfaces, consisting in applying thereto, by pins or screws passing through holes in the tile, ornamental tiles of appropriate patterns, ” is void for want of invention, though limited by the specifications to rosett e tiles, perforated through their geometrical center, attached with round-headed screws, which harmonize with the rosette.</p> <p>2. Same.</p> <p>Letters patent No. 336,243, issued the same day to the same patentee, for “a medallion tile, formed with a rabbet upon its edge, and glazed into the rabbet, In combination with a perforated plate suited to the contour of tbe projecting medallion, and with, suitable backing to the tile attached to said perforated plate, ” are also void for want of invention.</p>

In Equity. On motion for preliminary injunction. Bill by the Eagle Manufacturing Company against the Chamberlain Plow Company to restrain the infringement of letters patent No. 242,497, issued to E. A. Wright, June 7, 1881.

<p>At Law. ' On motion for new trial.</p> <p>For former hearing and statement of case, see 36 Fed. Rep. 314.</p>

In Admiralty. On appeal from district court, 28 Fed. Rep. 658. Libel by Alfrederick S. Hatch'and others against the steam-ship Newport, the property of the New York & Cuba Steam-Ship Company, claimant. From a decree for claimant, libelants appeal. Findings of Fact. (1) The libelants’ schooner John K. Shaw left Newport News about noon on the 21st of February, 1884, bound for New Haven, with a cargo of 824 tons of coal and 110 tons of pig-iron, the iron being on deck.

In Admiralty. Libels for damages. Libels by the F. 0. Matthiessen and Wiechers Sugar Refinery Company and by owners of the bark against the steam-ship Ludvig Holberg, impleaded with the steam-tug Leonard Richards, for damages resulting from collision.

In Admiralty. Action on master’s obligation, given in settlement of freight.

<p>. 1. Admiralty — ObjectioN to Jurisdiction — Waiver.</p> <p>On a libel ior wages, after the claimant has pleaded to the merits, and testimony has heen taken on the issues made by the pleadings, it is too late to object to the jurisdiction of the court, on the ground that the wages were earned by a foreign seaman on board a foreign vessel.</p> <p>2. Seamen — The Contract — Evidence.</p> <p>Where the allegations of the libel and the testimony of libelant as to the length of the voyage are contradictory, and libelant’s explanations of his reasons for not leaving the vessel at the end of his alleged voyage also contradictory, the court is not justified in disregarding the written articles.</p>

<p>1. Limitation on Actions—Common-Law Period—Admiralty—Discretion on Court.</p> <p>The period of limitation fixed by statute in common-law actions should not be extended by discretion in admiralty cases, except for some cause of practical inability to sue, or for some peculiarity of a maritime nature that demands recognition in a court of admiralty, and makes it plainly a matter of justice that this discretion should be applied.</p> <p>2. Same-—Voluntary Delay—Six and a Half Tears.</p> <p>Libelant, owner of cargo on a vessel lost by collision, did not bring suit for six and a half years after his loss, waiting, by advice of counsel, until the litigation as to the fault of the vessels had been decided in a suit by the owner of the lost vessel; but nothing prevented him or his assigns from suing at any time during that period. Ife.d, that the claim was barred.</p>

In Admiralty. On appeal from district court. 32 Fed. Rep. 844. Libel by Smith against Havemeycr and others for damages occasioned by an unsafe pier. Decree for libelant, and respondents appeal.