Volume 37 — Federal Reporter

<p>Oil motion to remand to stale court.</p>

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

<p>At Law. On motion to set aside order granting leave to filo a hill in equity, and also motion for judgment on demurrer.</p>

<p>1. Equity—Jurisdiction—Adequate Remedy at Law.</p> <p>A fund was given to a trustee for tbe separate use of a married woman for her life, with power of appointment in her by will, in default thereof to her child in fee. It was used by her husband, who was substituted as trustee, in purchasing real estate, he adding his own money, taking title to himself as trustee to these uses. The wife died. Her child died in her life-time, leaving Isabella, an infant, her heir at law. The trustee afterwards died, leaving the property to A., in trust to convey it to the state of South Carolina. To á bill filed in behalf of Isabella, alleging default in the exercise of the power, and claiming the property from A., with an account of the rents and profits, A. demurred on the ground that she had a plain, adequate, and complete remedy at law. Demurrer overruled.</p> <p>3. Trusts—Executed Use.</p> <p>In this case the use was not executed upon the death of the married woman if she failed to exercise the power of appointment, but the legal estate remained in the trustee, and his devisee, a volunteer, took it and the property' bound by the trust.</p> <p>3. Injunction—Rights Protected.</p> <p>The devise to A. was upon trust to convey the property to the state of South Carolina upon certain conditions, ignoring the claim of complainant. The devisee, after this bill was filed and subpoena served, addressed a letter to the general assembly of South Carolina asking its acceptance of the property, and of the conditions annexed to it. The general assembly at once put an act on its passage for this purpose. Held, that the right of complainant to assert her claims in this court was imperiled, and an interlocutory injunction was issued.</p> <p>í. Same—Against Conveyance to State.</p> <p>When a defendant pendente lite in a circuit court of the United States seeks to convey the land, the subject of controversy, to a state, he will he restrained by injunction.</p> <p> {Syllabus by the Court.) </p>

<p>In Equity. ' On motion to dismiss and on exceptions to master’s report.</p> <p>Action by William Coupe and others against George Weatherhead and ¡other's for an infringement of letters patent No. 213,323, issued March 18, 1879,. to plaintiff Coupe.</p>

<p>Banks and Banking—National Banks—Insolvency—Actions—Set-Oee.</p> <p>On the failure of anational bank a depositor wasindebted to it on 11 notes to the amount of §5,000, and had on deposit some $2,900. The receiver of the bank agreed that this sum should go as a set-off on the indebtedness, the depositor to pay the notes first coming due, and the deposit to be applied on the last-maturing notes. .After paying the first two notes it was found that the others were in the hands of third parties, and the depositor was compelled to pay them, and filed a bill to authorize the receiver to refund the money paid under amutual mistake. This bill was heard by the district judge of theW estern district of Tennessee sitting in the circuit court of the Southern district of Ohio. jHeld, that the deposit should properly be set-off against the claim of the bank, and the depositor should recover the sum paid by him; but as the district judge, of the Southern district of Ohio had held in an action between the same bank and a creditor, the circuit judge concurring therein, that the plea of set-off was not available, in order that there might not be different rules of set-off in the same court, in the case of the same insolvent, and as the case cannot be appealed, it will be remanded for reargument before the regular judges, who may in their discretion provide for a dissent of record, or do what may to them seem right in the premises.</p>

In Equity. Bill for injunction. Bill for injunction by the Yazoo & Mississippi Valley Railroad Company against the board of levee commissioners, to restrain the collection of certain taxes on plaintiff’s property.

In Equity. On final hearing on pleadings and proofs. Bill by John T. Ames and others against Adelbert Ames and Benjamin F. Butler, to dissolve a partnership, and for an accounting, and for an injunction against attachment proceedings by Butler against the interest of Adelbert Ames in the partnership property.

In Equity. On bill for injunction. Application for injunction by Walter S. Cheesman and others against James A. Shreve and others to prevent trespass upon mining lands.

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

<p>1. Execution—Sale—Eights of Purchaser.</p> <p>In Nebraska, the title of a purchaser at execution sale is not complete until' confirmation of the sale by the court, and where the confirmation, after being entered, is at the same term set aside, before a transfer of the property by the purchaser, his vendees acquire no title.</p> <p>2. Principal and Agent—Power of Attorney—Execution—Trial—Judgment on Findings.</p> <p>In entering judgment upon special findings of a jury, where it appears that an attorney in fact four years after his appointment had fraudulently conveyed his principals land, worth $70,000, for $1,000, it will be assumed, under a finding that the power of attorney was executed to enable the appointee “to make conveyances to purchasers when sales were made by” persons named, who had contracted to plat and sell the land, “and to facilitate their operations under their contract, ” that the facts stated in the finding appeared upon the face of the power of attorney, and, the sale not having been made by the persons named, no title passed to the fraudulent grantee which could be recognized even at law.</p> <p>8. Taxation—Tax Title—Deed—Seal.</p> <p>In Nebraska, tax deeds not sealed by the county .treasurer with his official seal are void, and no title is acquired thereunder where the jury have found that the possession during the statutory period was not “open, notorious, exclusive, and adverse, ” but “mixed. ”</p>

In Admiralty. On appeal from district court. Libel by one Fradley against Hyland for supplies furnished one Gibson, respondent’s agent in charge of a ca,nal-boat. Decree for libelant as to the first cause of action, and respondent appeals.

<p>At Law. On defendant’s motion for new trial.</p> <p>This suit was brought to recover damages for a personal injury to plaintiff, John McGuire, a boy nearly 10 years old, resulting from the negligence of the defendant; and the jury rendered a verdict for the plaintiff. Plaintiff was about to cross the defendant’s railway tracks near the corner of Eleventh avenue and Fourth street in the city of Minneapolis, in this district, and on reaching the tracks on Eleventh avenue he stopped for a-passenger train to go by, and as the train passed he stepped before the last car on and over that track onto another, upon which a freight train was coming in an opposite direction, and was immediately confronted and struck by the engine. Subsequently, in his endeavors to escape, he was thrown from a pile of boards under the wheels of the passenger train. The evidence tended to show that the freight train was moving at a rate of speed prohibited by law, and that no warning by ringing a bell or otherwise was given. The defense of contributory negligence was interposed by defendant. The court decided that the plaintiff, as the evidence showed, was active, bright, and intelligent, and had the faculties requisite for the perception of danger.</p>

On the Court’s Motion in Arrest of Judgment. W. L. Barber was tried and convicted under the act of congress of June 18, 1888, for depositing in the post-office non-mailable matter.

<p>Patents for Inventions—Iniouniuiment—Wash-Boards.</p> <p>A patent, for a metallic rubbing-plate for wasb-boards, having transverse rows of convex, spiral corrugations, alternately right and left banded, is not infringed by a plate having equidistant spear-bead shaped corrugations, of which the lower ridges are higher than the upper ridges, and the upper arms are deeper than the lower arms, the form only, and not the idea, of a metal surface broken into protuberances, being new.</p>

<p>• In Admiralty. Appeal from district court.</p>

<p>Shipping—Charter-Party—Consignment of Yessel—Liability of Master.</p> <p>A memorandum indorsed on a charter-party, and signed by the master at a port in the course of the voyage, whereby he agrees to consign the vessel, on arrival at the destination, to a certain firm, if a contract at all, is one between the'master and the charterers, and the firm, not being privy to it, can main- • tain no action against the master for loss of commissions occasioned by his refusal to make the consignment.</p>

<p>Pilots—Violation of Navigation Rules—Statutes—Repeal.</p> <p>Rev. St. U. S. § 4412, empowering the board of supervising inspectors to establish such regulations to be observed by steam-vesseis, to which chapter 1, tit. 52 relates, in passing each other in the waters of the United States, as it shall from time to time deem necessary, is not repealed by act Oong. March3, 1885, adopting the revised international regulations to prevent collision at sea, and a pilot violating a rule established by such board is liable to the penalty therefor imposed by section 4413.</p>

<p>Courts—Federal Jurisdiction—Corporations—Citizenship.</p> <p>Act U. S. March S, 1887, providing that an action shall be brought in no other district than that of which defendant is an inhabitant, authorizes an action against a railroad corporation only in the state by whose laws it was created, though tlie greater part of its railway and its principal office are in another state, where its annual elections are held, and most of its officers and stockholders reside, and of which most of its directors are citizens.</p>

In Equity. On motion for injunction pendente lite. Bill by the Burdon Central Sugar Refining Company against Anne F. Leverich to restrain the violation of a contract by which defendant agreed to have all the sugar produced on her plantation in the years 1887 and 1888 refined by plaintiffs.

<p>In Equity. Bill to set aside land patents. On demurrer to bill.</p>

<p>Cokfoiiations—Members and Stockholdebs—Evidence—-Sufficiency—Fictitious Corfobation.</p> <p>On a libel for the amount due under a charter-party from an alleged corporation, it appeared that the respondents served, who were engaged in the lighterage business, had taken a lease in their own names, from the proprietor of a disinfecting apparatus, of an office for the representative of the alleged corporation, and charged the money expended therefor, and also expenses for stationery to be used in connection with the office, partly to the corporation and partly to its representative. One of the libelants testified that respondents admitted that they were connected with the corporation, but this respondents denied, and testified that they took the lease relying on the agents’ representations that they would increase their lighterage business by procuring transportation of the disinfecting apparatus. Jield, that the finding of the district court that they were not members of the corporation would not be disturbed.</p>

<p>At Law. On motion for new trial.</p> <p>Action by the Ninth National Bank of New York on certain bonds and coupons issued by Knox county, Mo. The recital referred to in the opinion was as follows:</p> <p>“This bond being issued under and pursuant to orders of the county court * * * for subscription to the stock of the Mo. & Miss. R. R. Co., as aúthorized by an act * * * entitled ‘ An act to incorporate the Mo. & Miss'. R. R. Company, approved Eeb. 20, 1865.’”</p> <p>The rate of taxation to pay the bonds, if issued under the special act, was one-twentieth of 1 per cent, annually, not sufficient to pay the annual interest; but, if issued under the general law, pursuant to a popular vote, the rate of taxation to pay the bonds was unlimited. On'the trial the jury were instructed by Tuayer, J., as follows: ,</p> <p>“The controversy, so far as you are concerned, arises over the question whether the bonds in suit were issued in pursuance of a power conferred on the county by the thirteenth section of charter of the Missouri & Mississippi R. IÍ. Co., or by virtue of the seventeenth section of the general railroad law of tlie state, which was in force on May 13,1867, the day the county court ordered the issuance of the bonds. I will read you the two sections last referred to. Section 13 of the railroad charter is as follows: ‘ It shall be lawful for the corporate authorities of any city or town, the county court of any county desiring so to do, to subscribe to the capital stock of said company, and may issue bonds therefor, and levy a tax to pay the same, not to exceed 1-20 of 1 per cent, upon the assessed value of the taxable property for each year.’ Section 17 of the general railroad law is in the following language: ‘It shall be lawful for the county court of any county, the city council of any city, or the trustees of any incorporated town to take stock for such county, city, or town in, or loan' the credit thereof to, any railroad company duly organized under this or any other law of the state, provided that two-thirds of the qualified voters of such county, city, or town, at a regular or special election to be held therein, shall assent to such subscription.’ You will observe, gentlemen, that here are two different statutes, under either one of which, or under both, the county court of Knox county might lawfully issue bonds in aid of the building of a railroad through the county. Acting under one statute, the county court could issue bonds of its own motion, without a popular vote; acting under the other, a vote of the people was necessary to validate the issue.</p> <p>“Now, the main question which you must determine in this easels whether the county court of Knox county issued the bonds in suit pursuant to the power conferred on it by section 13 of the railroad charter, and without any reference to a popular vote, or whether the court issued the bunds in obedience to a popular vote, and because more than two-thirds of those voting on the proposition favored an issuance of bonds. If the evidence in this case satisfies you that in issuing the bonds now sued on the county court of Knox county intended to and did act solely in pursuance of the power conferred on it by the thirteenth section of the railroad charter, which I have read to you, and without reference to any authority conferred by a vote of the people, then you will answer the first question submitted to you,in the affirmative, and you will answer the second question in the negative, and you may, in that event, answer the third and fourth interrogatories according as you find the fact to be. The questions submitted to yon are as follows: ‘ First. Were the bonds sued upon in this ease issued by the county court of Knox county solely in pursuance of power conferred by the thirteenth section of the Missouri & Mississippi Railroad charter? Second. In issuing the bonds sued upon, did the county court of Knox county intend to issue the same pursuant to power conferred by section 17 of the general railroad law in force on May 13, 1867, and in accordance with a vote of the people of Knox county, authorizing such issue? Third. Was an'election held in Knox county, Mo., previous to the issue of the bonds in suit, to authorize a subscription of one hundred thousand dollars to the stock of a railroad corporation running on the line of the Missouri & Mississippi Railroad, as projected ? Fourth. Did two-thirds of the persons voting at such election vote in favor of such subscription, and the issuance of bonds to pay for the same? ’ On the other hand, if you find that the proposition embraced in the two orders of the county court of Knox county of date February 6, 1867, and March 4, 1867, was submitted to the voters of the county at an election held for that purpose; that more than two-thirds of all those voting at such election voted in favor of the proposition; and if you find that the county court subscribed to stock in the Missouri & Mississippi Railroad Company, and issued the bonds in suit in pursuance of power conferred by such vote; and that the projected route of said railroad was on either line or route mentioned in said orders,—then you will answer question No. 1 in the negative, and questions Nos. 2, 3, and 4 in the affirmative. In this connection I will further add, gentlemen, that if you find from the evidence that in issuing the bonds in suit the county court acted both in pursuance of power conferred by the railroad charter in question, and also in reliance upon a popular vote previously taken, whereat more than two-thirds of those voting favored a subscription, and the issuance of bonds to pay for the same, then in that event you will answer the first question in the negative, and the second, third, and fourth questions in the affirmative. It was competent for the county court to rely and act on both tiie power conferred by the railroad charter, and upon power derived from the general railroad law, and a popular vote taken in pursuance of the same. Such action on the part of the county judges would not be inconsistent. They might well invoke the aid of any and all laws that were supposed to confer power on the county court to make the subscription in question, or that might confer such power; and if they did po act with reference to and relying upon both said laws, then, although the judges may have had doubts of the validity of the election, the issue of bonds was not made solely under the railroad charter, and you should answer the first question in the negative, and the second, third, and fourth questions in the affirmative, provided it also appears that an election was held as before stated, and that more than two-thirds of those voting thereat favored the subscription.</p> <p>“In the course of the trial something lias been said respecting the form and validity of tiie two orders of the county court of Knox county of date February 6 and March I, 1867, which have been read in evidence, and which provided for the submission of a certain proposition to the voters of Knox county. With reference to the orders in question I will say that they are good and sufficient in law, although no particular railroad corporation is mentioned in such orders. If a proposition such as is contained in those orders was submitted to a voto of the people at an election called for that purpose, and more than two-thirds of all the persons voting at the election voted in favor of tiie proposition, then such vote was sufficient in law to authorize the county court to subscribe for stock in the Missouri & Mississippi Railroad, and to issue the bonds of the county in payment therefor, provided the route of the Missouri & Mississippi Railroad passed through Knox county on either line indicated in said order; that is to say, gentlemen, it was competent for the people of the county to give the county court a general power to subscribe to the stock of any railroad that might construct a railroad through the county on either one of several prescribed routes. It was not necessary that the name of the corporation in which it was proposed to subscribe stock should be specified in tiie proposition submitted to the voters, and tiie fact that it was not specified does not impair the validity of the orders, and it does not impair the validity of any action which the county court may have taken on the faith of an election held under the same. ”</p> <p>The jury answered the first question in the negative, and the second, third, and fourth questions in the affirmative, and returned a general verdict for the plaintiff.</p> <p>Motion for a new trial tiled.</p>

<p>At Law.</p> <p>Action by George A. Morrison and others against Charles E. Miller and others, as executors of Chester A. Arthur, collector of customs, to recover customs paid. The plaintiffs, Morrison, Herrmann'& Co., imported into the port of New' York in August, September, and October, 1873, certain nets made of silk and of silk and cotton; the silk in the latter being the component material of chief value. They were classified for duty at 60 per cent, ad valorem, under the enumerating clause of section 8 of the act of June 30,1864. Tlie plaintiffs, on the other hand, claimed that the rate they should properly bear was but 50 per centum ad valorem,.under the last clause of the same section, imposing that rate upon “all manufactures of silk, or of which silk is the component material of chief value, not otherwise provided for;” and brought the action to recover the difference between 50 mid 60 per cent. All further facts appear' in the charge.</p>

<p>1. Customs .Duties—Classification—Glucose and Grape Sugar.</p> <p>Glucose and grape sugar are not dutiable as “burnt starch or gum substistitute. ” as provided for in Rev. St,. U. S. § 2504, Schedule M, hut are properly-assessed as non-emimeraled manufactures, under section 2516.</p> <p>2. Same—Action to Recover Excess—Province of Jury.</p> <p>The question -whether a particular importation, on which a duty has been imposed, is properly included in a particular name of a substance as employed in the tariff laws, is for the jury, and not the court.</p> <p>8. Same—M eaning of Terms.</p> <p>The definition of the terms “gum substitute, or burnt starch, ” as used in the tariff law, (Rev. St. Ü. S. £ 2501,) is for the jury, where there is evidence of a trade usage of one of the terms; the word “or” in the statute possibly having been used to refer one phrase to the other for explanation.</p> <p>4. Same.</p> <p>The terms “gum substitute” and “burnt starch” are to receive the meaning given them in ordinary commercial operations, unless a trade meaning- different from that in ordinary use is established by a preponderance of evidence.</p> <p>6. Same—Similitude Clause.</p> <p>Rev. St. IT. S. § 2499, imposing a tariff on articles not theretofore enumerated, “which boar a similitude, either in material, quality, texture, or the use to which they may be applied, ”• to any enumerated article, does not require that the resemblance should bo in all of the four jiarticulars mentioned; but the similitude must be a substantial one, importing not merely adaptability to sale as a substitute, but referring rather to the employment of the article, or its effect in producing results.</p> <p>6. Same-Presumption—Acts of Collector.</p> <p>The presumption is that the collector of customs acted rightly in imposing a duty on imports, and the burden is on one contesting the validity of the duty, to show 1hat it was not properly imposed under the tariff laws.</p>

In Equity. On motion for preliminary injunction. Bill by Peter Stuart against John H. Thorman and one Brumshagen, partners in trade under the firm name of John H. Thorman & Co., to enjoin the infringement of patent No. 269,480, granted to said Peter Stuart, of Glasgow, Scotland, 19th December, 1882, for composite pavements.

<p>1. Patents for Inventions—Anticipation—Bectal Specula.</p> <p>The first claim of the patent granted' to A. W. Brinkerhoff, March 2,1880, on rectal specula, is for a slide extending the entire length of the tube. Held anticipated by the older art.</p> <p>2. Same—Novelty—Material.</p> <p>Where an element of a claim does not depend for its novelty in the material of which it is made, it will be anticipated by a like element, in a like instrument, of different material.</p> <p>8. Same.</p> <p>The slide employed in the Brinkerhoff instrument, and covered broadly by the first claim of the patent, is made of metal. The patent makes no mention of any novelty existing in the material of which the slide is composed. Held, that the claim is anticipated by a glass slide in a similar instrument.</p> <p>4. Same—Invention.</p> <p>A speculum consisting of a tube with a slide and a closed end was old. Held, that adding an incline to the closed end to prevent the impaction of pile tumors did not involve invention.</p> <p>5. Same.</p> <p>The third claim of the Brinkerhoff patent covers a speculum composed of a tube with a closed end and a slide, and having an incline at the closed end. Held void for "want of invention.</p> <p>6. Same—Aggregation.</p> <p>A claim consisting of a number of elements, which do not co-act to produce a new and useful result, is amere aggregation, and nota patentable combination.</p> <p>7. Same.</p> <p>Where several old elements are so combined as to produce a better instrument than was formerly in use, but each of the old elements does only what it formerly did in the instrument from which it was borrowed, and in the old way, held, that the combination is not a patentable one.</p> <p>8. Same.</p> <p>, , , . The second claim of the Brinkerhoff patent covers a slotted tube having an incline and a slide. Held, that the incline acted precisely as it did when placed in the forward end of a slotted tube not provided with a slide, and that therefore the claim covered an aggregation only, and was void.</p>

<p>1. Equity—Jurisdiction—Loss uy Subsequent Events.</p> <p>’The jurisdiction of an equity court is not entirely ousted by the happening of an event, subsequent to the commencement of an action, which precludes the exercise of the power 1o grant an injunction. Kirk v. Du Bou, 28 Fed. Hep. 460. followed.</p> <p>2. Patents eor Inventions—Abatement and Revival—Death oe Party.</p> <p>A suit for alleged infringement of a patent, praying that defendant be required to make, discovery of profits, and for an accounting and injunction, may be revived, after the decease of defendant, against his executor.</p>

<p>In Equity. Application for extension of time to take testimony.</p>

<p>Partnership—Accounting—Parties.</p> <p>In an action' between former partners for an accounting, defendant moved that a corporation be made a party to the suit on the ground that it had property belonging to the old partnership, and that complainant was irresponsible. Defendant had an action pending in the state court for similar relief, in which real estate had been impounded by the filing of a. Us pendens. Held, that defendant must show a reasonable probability of his obtaining a judgment against complainant for a greater sum than that already secured in the state court. As all the evidence on that point had been regularly taken before the master, but defendant had not since then pressed the case to a decision, held, that the motion should be denied.</p>

<p>1. Customs Doties—Classification— Glazed Tiles—Rev. St. U. S. § 3499.</p> <p>Plain glazed tilos of different colors, used for hearths, bath-rooms, walls, dadoes, wainscoting, and ornamental purposes, are not “paving tiles, ” within the meaning of Schedule B of the tariff act of 1883, (Heyl, par. 130,) hut are properly enumerated as “earthenware, * * * glazed,'* * * composed of earthy or mineral substances, not especially enumerated or provided for in this act,” (Schedule B, Heyl, par. 137,) and dutiable at 55 per centum ad valorem.</p> <p>■ 2. Same—Earthenware Glazed.</p> <p>The words “earthenware * * * glazed.” are a sufficient enumeration of the merchandise (plain glazed tile) to take it out of the operation of the similitude clause, (section 2499, Rev. St.,) as assimilating to either paving or encaustic tile.</p> <p>3. Same—Voluntary Payments—Recovery.</p> <p>Duties paid after delivery of goods to importer cannot be recovered back in an action against the collector.</p> <p> (Syllabus by the Gourt.) </p>

In Equity. Bill for infringement of copyright. The plaintiff was the author of a series of blank forms intended to be filled in by the applicant for a license to soli liquor at retail under the act of 1887. Littleton, the clerk of the court which had jurisdiction to grant the licenses, caused a number of similar forms to be drawn up and printed by Geddes, and given or sold to the applicants.

<p>Indictment for Mailing Obscene Matter.</p>

<p>Indictments for Forgery, and for abstracting and embezzling a letter from the mails. On motion to quash.</p>

<p>1. Counterfeiting—Indictment—Likeness and Similitude of Treasury Notes.</p> <p>It is not essential, in an indictment for counterfeiting United States compound-interest treasury notes, to aver that the alleged counterfeits are in the likeness and similitude of genuine notes authorized by the act of congress under which they purport to have been issued. This may sometimes be neces-, sary under special statutes creating specific offenses as to particular issues of' government securities, but not under section 5431 of Revised Statutes, as interpreted by section 5413, providing a general law for punishing the forgery of any and all of the obligations or securities of the United States.</p> <p>2. Same—Description of Offense.</p> <p>The use of the words “false, forged, and counterfeited obligation of the United States” in the statute and in an indictment following its language, to describe the offense, is sufficient to imply, without more, that the alleged counterfeit set out in lime verba in the indictment purports to be a genuine obligation of the United States, and that it is likewise intended to aver that there is or was outstanding or authorized by law a genuine obligation of which the alleged imitation was intended to be a forgery or counterfeit.</p>

<p>In Admiralty. On appeal from district court.</p> <p>Libel by Thomas Brooman against the steam-tug William H. Vanderbilt, John H. Starin, claimant, and the steam-tug John Lee, Thomas Curran and others, claimants, for damages for the collision of the William H. Vanderbilt with libelant’s boat in tow by the John Lee. In the district court Judge Brown delivered the following opinion:</p> <p>“The steam-tug Lee, coming down the North river with the libelant’s boat in tow, .while rounding in order to go to the Erie elevator, Jersey City, was delayed by another tow running inside of her. While waiting a few minutes to let that tow pass to the north, the libelant’s boat was run into by the Vanderbilt coming up river from below.</p> <p>“I am satisfied that tlie Lee, in running in towards the New Jersey shore, went as near to tlie inside tow as was safe. No fault can be predicated of her in this respect.</p> <p>■‘The Lee had a right to turn around in order to make her slip, and to stop for any obstacle in the way, until it had passed; but she had no right to turn so suddenly as to make the necessary swing of her tow, which was in all nearly 400 feet long, dangerous to vessels coming up the river. 1 am satislied that the unexpected long swing of the tow in proximity to the Vanderbilt was one cause of the collision, though the main cause, notwithstanding tlie Vanderbilt's testimony, was tlie failure to stop and back at once after her assenting whistle. 1 am satisfied that there was ample time and space to avoid the tow, bad she reversed immediately after her assenting whistle. There is a difference of over 600 feet in the estimates given as to the distance of the Lee from tlie Vanderbilt when the whistles were exchanged between them. The Vanderbilt’s witnesses are more likely correct as to her own position at that time, i. a., opposite the stock-dock. A person looking from aboard the Lee would naturally suppose the Vanderbilt further south than she really was. 'The Lee had previously given a signal of one whistle, when the Vanderbilt was one pier further down the river, which was not answered, beca,use not heard. The Lee then stopped her engines, and gave a second whistle, but went on again as soon as the answer of one whistle from the Vanderbilt was received. ' Before this exchange of whistles the pilot of the Vanderbilt supposed the Lee intended to wait and let the Vanderbilt go inside of her. When tlie whistles were exchanged, the courses of the two tugs were crossing. Tlie Vanderbilt, having tlie Lee and her tow on lier own starboard hand, was bound to keep out of the way of tlie Lee and her tow. The answer of one whistle was an assent by the Vanderbilt and an agreement to go to the eastward. The low was in sight. The Vanderbilt could see its length; and if her pilot thought there was not room to maneuver in accordance with the signals, and keep out of the way of the tow, she was bound to give danger signals, and not to have misled tlie Lee by answering with a signal of one whistle, that the Lee should go ahead and cross the Vanderbilt’s bow. It must be assumed from the assenting signal and the Lee’s testimony that there was room for the Lee to go ahead safely towards the dock, under all the circumstances of tlie situation. One of these circumstances was the inside tow, which was a partial obstruction, and required the Lee to wait, when she had got near her. till the tow had got out of tlie way, and during this time the tow was necessarily gradually swinging down river.</p> <p>"It; is immaterial just what was the precise position or heading of the Lee if she went as far in towards the tow as was safe, which I consider proved. It was not the duty of the Lee to go on up river, and away from her destination, in order to keep out of tlie way of the Vanderbilt, unless a special emergency arose requiring it, of which the Leo liad knowledge in time to avert collision by that means. In general, the Lee had the right to wait, holding her place in the river, as she did, till she could go into her slip, and, having given the Vanderbilt timely notice to keep away to the eastward, or avoid her by stopping, and having received an assent; thereto, she had a right to expect the Vanderbilt to do one or the other, and thus avoid her tow. The Vanderbilt’s signal 1 must consider confirmatory proof of the Lee’s testimony that she had Lime and space for keeping away; and that the only reason she did not do so was because she either neglected to observe tlie inside tow and did not allow for the Lee's necessary stop, or else miscalculated the length of the tow and its swing, and did not stop and back as soon as she might and ought to have done. I see no legal fault in the Lee, and think that the Vanderbilt must bé held alone.to blame.</p> <p>“Had the Lee, in the situation as it actually existed during a minute before the collision, under the prior assenting signals, had clear reason to suppose that the Vanderbilt was not either stopping or backing in time, or not going to the eastward in time to avoid colliding with the end of her tow, it would, doubtless have been a fault in the Lee that she did not hook up and go ahead so as to aid in taking her out of the impending danger of collision. But the Lee was 400 feet away from the end of her tow, and it had already swung nearly straight down river. It was not possible, I think, for the pilot of the Lee, in that situation, to have perceived that there was any necessity for him to hook up strong, in time to have started such a tow so as to be of any service. Had there appeared to be danger, or need of the Lee’s aid, it seems fair to assume, after the Vanderbilt’s assenting signals had been given, that some further notice of danger or signal to the Lee should have been given by the Vanderbilt. Ho such notice or further signals were given by the Vanderbilt, and I cannot find, therefore, that the pilot of the Lee was chargeable with any timely notice that the end of his tow was in danger through any inability or neglect of the Vanderbilt so as to require him to deviate from the ordinary course in waiting until the inside tow had moved out of the way. The real cause of the collision, I am satisfied, was partly miscalculation by the Vanderbilt, but chiefly her tardiness in reversing after her assenting signal.</p> <p>“The libelant is entitled to judgment against the Vanderbilt, with costs. As against the Lee, the libel should be dismissed, with costs.”</p> <p>Whereupon respondents appeal.</p>

<p>In Admiralty.</p> <p>Libel by the owner of the schooner L.'Holbrook for damages caused by collision with the steam-ship Saratoga.</p>

<p>1. Colusión—Extent of Liability.</p> <p>The liability of the owners of a vessel for damages resulting from a collision, in which she was at fault, is limited to the amount of their risk in the voyage, which is (1) the value of the ship; (2) the expenses of the voyage, including ship-stores, loading charges, and pay of crew; and (3) the actual gain of the voyage, estimated by deducting from the freight earned the amount of the voyage expenses and such additional expense as is incurred in earning the freight after the collision.</p> <p>2. Same—Interest on Award.</p> <p>Interest on- the amount awarded against the owner of „a vessel causing a maritime collision is chargeable only from the date of the decree. Following The Manitoba, 7 Sup. Ct. Rep. 1158.</p>

<p>In Admiralty.</p> <p>Action against the cargo of the steam-ship Hartington ior demurrage.</p>

<p>Maritime Liens—Discharge ry Sale or Vessel.</p> <p>A wrecked vessel was sold by tlie master, for a small sum, to one of the surveyors who recommended the sale, and the master appears to have contracted for employment upon the vessel. The sale was made, however, with the approval of the underwriters who had insured the vessel, and who, after a thorough examination of the wreck, regarded if as impracticable to raise the vessel, and advised a sale; and before the sale tbe owners had made an abandonment to the underwriters, and the underwriters paid insurance as for a total loss. The sale was had at public auction, after due notice, and the vessel was bought by the highest bidder at the sale. At the time of the sale it was doubtful whether the vessel was worth the cost of salvage. After a large sum was expended upon the vessel for repairs, she was libeled for supplies furnished previous to the time she was wrecked. Held, that the pre-existing liens were discharged by the sale of the vessel, and that the purchaser had established a valid title, notwithstanding he was one of the surveyors who recommended the sale, and the relations between the master and himself were such as to excite suspicion.</p>

<p>1. Statutes-—Pleadinc—.1 udtciat, Notice.</p> <p>On a complaint for obstructing navigation by a bridge over navigable waters, the court will take judicial notice of an act of congress authorizing its construction by defendant.</p> <p>3. Constitutional Law — Interstate Commerce — Navigable Waters — Bridges.</p> <p>Congress can lawfully confer upon a private corporation the capacity to occupy navigable water's within a state, and appropriate the soil under them, upon acquiring the rights of the owners, in order to construct a bridge over such waters for the purposes of interstate commerce, without the consent, and notwithstanding- the protest, of the state. Following Decker v. liaüroad Co., 80 Fed. Rep. 728.</p> <p>3. Navigable Waters—Obstruction—Bridges—Burden of Proof.</p> <p>Where the act authorizing the construction of the bridge prescribes certain details of construction, and requires the plans to bo approved by the secretary of war, the burden, in an action for obstructing navigation, is upon defendants to show compliance with such provisions. In a complaint alleging special damages in consequence of the obstruction, it is not necessary to allege that the bridge was not built in conformity with the terms of the act authorizing the structure,</p>

<p>Mortgages—Payment—Principal and Agent.</p> <p>Plaintiff, a resident of Connecticut, placed in the bands of her agent in that state a sum for investment in western loans, which the agent procured to be negotiated by C., in Iowa. Part of the amount was loaned through C. to de fendant, the principal and interest being made payable at the agent’s office in Connecticut. C. collected the principal and interest of the various loans, including nine installments of interest, from defendant, and returned to defendant his coupons. Weld, that the payment of the principal to C. in response to the usual notice from him of its maturity was justified, and discharged the debt, notwithstanding C.’s embezzlement of it.</p>

In Equity. Bill by Lewis M. Briggs and others against Wash-puk-qua and Wah-ká, to quiet title to certain lands conveyed to complainants by defendants.

<p>1. Costs—In Federal Court—Attorney's Fee eor Depositions.</p> <p>Under section 824, Rev. St. U. S., the prevailing party is entitled to collect for his attorney a fee of S2.50 for the deposition of each witness “taken and admitted in evidence, ” to be taxed as costs, especially where the witnesses are examined and answer separately.</p> <p>2. Same.</p> <p>Such fees are allowed to the partyas compensation for his attorney's services in and about the depositions, and are to be taxed in addition to the fees of commissioners to take the testimony.</p> <p>3. Same— Collection.</p> <p>The attorney’s costs, like those of the clerk and marshal, are to be collected in the name of the prevailing party.</p>

On Indictment for Violation of Election Laws. At the congressional elections held at the Fourth ward in the city of Memphis on the 6th day of Xovcniber, 1888, the defendants were the election officers charged with the duty of holding the election at that place.

<p>Indictment of Bill Whaley, Pancho Francisco, Salt Lake Pete, and Juan Chino, (Indians,) for murder.</p>

<p>Patents for Inventions—Infringement—Expiration of Patent.</p> <p>An injunction against the infringement of a patent for an invention consisting of a combination of known appliances, is not violated by using the combination after the expiration of the patent.</p>

<p>In Admiralty. Libel for damages. On appeal from district court. 30 bed. Rep. 714.</p>

<p>Snn'riNG—Liability of Vessel—Negligence of Stevedore.</p> <p>A stevedore, who had finished loading coal on a steam-ship from a canal-boat along-side, took the canal-boat’s line to a steam-winch on the steamer to draw the canal-boat astern of the steamer. The latter’s propeller was in motion, and the stevedore gave no orders to have it stopped, nor did he direct the men on the canal-boat to keep her away by poles. The propeller drew in the canal-boat, cut a hole in her, and sank her. The stevedore was an employe of the steamer. Held, that when the stevedore undertook to move the canal-boat up the slip, he assumed the responsibility of her navigation, at least until she was fully clear of the steamer’s side, and for his negligence the steamer was liable.</p>

<p>1. Demurrage—Lumber Trade—Custom—Idle Days.</p> <p>There is no well-established rule in the port of New York as to the discharge of eastern lumber. By the custom of the port three “idle days” are allowed the consignee after the vessel reports arrival within which to send her to a berth. Hence, where a lumber schooner from Nova Scotia arrived on Wednesday, was sent to a wharf on Saturday, and began her discharge on the following Wednesday, Sunday and Labor Day (first Monday in September) inter- ■ • vening, held, that she was entitled to one day’s demurrage.</p> <p>2. Same—Liability of Consignee.</p> <p>The consignee of cargo and holder of the bill of lading, though but an agent to sell, is liable for both freight and demurrage.</p>

<p>1. Shipping—Carriage of Passengers on Freigiit-Boat.</p> <p>A libel against a vessel for a violation of law alleged to have been committed in using or navigating- a freight-boat for the carrying of passengers without having been inspected as a passenger steamer, and obtaining a certificate specifying the number of passengers she can carry with prudence and safety, is not properly brought under Kev. St. U. S. § 4.465, which forbids the taking on board of any steamer a greater number of passengers than is “stated in the certificate of inspection. ”</p> <p>3. Same.</p> <p>Nor under section 4166, which provides for special permits to be issued to “passenger steamers” engaged in excursions, allowing them to take on board an additional number of passengers over and above the number specified in the certificate.</p> <p>3. Same.</p> <p>But is properly brought under section 4499, which subjects to a penalty all steamers “navigated without complying with the terms of this title."</p>

<p>In Admiralty. Libel for damages for deviation of vessel.</p>

<p>Admiralty —Jurisdiction — Suits between Non-Residents — Service on Agent op Corporation.</p> <p>Admiralty courts have a discretion as to entertaining suits between foreigners; and a transaction taking place in Florida, where all the officers of defendant corporation resided, and the libelant, being an English corporation, held, that no comity or reasons of justice or of superior convenience, so far as appeared, demanded relief in this district, and service on a limited agent here was set aside.</p>

<p>Wharves—Concealed Obstruction.</p> <p>A wharf-owner is liable for damage caused to a vessel by concealed obstructions which might have been ascertained by the owner with reasonable diligence.</p>

In Equity. Oil motion to remand. Bid by Andrew Miller against John 0. Sharp and others to sot aside a conveyance of realty, and to quiet title.

<p>In Equity.</p> <p>Bill for a discovery and an accounting, brought by Harriet A. Fuller and Austin B. Fuller against the Metropolitan Life Insurance Company of the city of New York, and Joseph F. Knapp. Many of the leading facts appear in Fuller v. Knapp, 24 Fed. Rep. 100. See, also, 31 Fed. Rep. 696. The oomplainan ts seek to ascertain the amount due under certain stipulations of a policy of life insurance, which provide that the policy is issued upon the “reserve dividend plan.” The defendants insist that the complainants confided to the board of directors of the insurance company an absolute discretion to apportion the reserve dividend, and that their determination as to the amount is conclusive. The complainants not only deny that this proposition contains a correct exposition of the law, but they contend, further, that it has no application to a cause like this where, by reason of the ambiguity of the contract, it is necessary to ascertain what is the meaning of its terms; that the court must at the outset determine the principles by which the defendants shall be governed and guided in making up the account. The bill has been attacked at various times, and its sufficiency upheld by this court. The cause now comes on for final hearing.</p>

<p>1. Courts—Federal Jurisdiction—Following State Practice—Equity.</p> <p>The courts of the United States sitting in equity may administer, in suits of which they have jurisdiction, equitable rights peculiar to the laws of a state where the courts are held.</p> <p>2. Same—Insolvency—Receivers—Rights op Creditors.</p> <p>Tho i'act that the local statute provides that a creditor of an insolvent trader, or firm of traders, whose debt is mature, unpaid, demanded, and payment refused. may ask Cor a receiver, is an exception to the rule making the’existence of a lien a prerequisite to such an application.</p> <p>3. Sales—Fraud—Rescission.</p> <p>A person not intending to pay, by inducing one to sell him goods on credit through the fraudulent concealment of his insolvency, is guilty of a fraud which entitles the vendor to disaffirm the contract, if no innocent third party has acquired an interest in the property.1</p> <p>4. Same—Fraudulent Representations.</p> <p>Where a firm of traders in May make a statement to a commercial news agency, (Bradstroet’s,) showing entire solvency, which statement is intended to be circulated among merchants selling goods upon credit, and which states that there are no liens or mortgages upon their ass,ets, and that they give no security for borrowed money, except farmers’ notes as collateral, and in December it appears that they are in debt more than $150,000, and utterly insolvent, and that at the time of their statement they had made a written promise to execute mortgages to a favored-creditor upon their entire assets, which promise was withheld from'the news agency, and that their entire stock was subsequently conveyed by mortgage to such favored creditor, the entire transaction is fraudulent as to creditors who gave them credit on the faith of said statement.</p> <p>5. Same.</p> <p>If the traders were insolvent at the time of their statement to Bradstreet, their statement of complete solvency, made “willfully with the intent to deceive, or recklessly without knowledge, ” is fraudulent, under the law of Georgia, as to parties who were misled thereby.</p> <p>6. Receivers—Appointment.</p> <p>The facts stated by the bill and affidavits make this a proper case for the chancellor to grant the injunction sought, and to appoint a receiver.</p> <p> (Syllabus by the Court.) </p>

<p>Courts—Fiche rat, Courts—Injunction—Against State Court.</p> <p>A circuit court will not restrain the exercise of a right, acquired by regular condemnation proceedings in a state court, to extend one railroad across another. where the complaining company, citizen of another state, has the possession and management of the road over which the right of way was condemned, hy virtue of its ownership of a majority of the stock, since, if not hound, as a stockholder, hy the decree of the state court, it could have made itself a party to those proceedings for the protection of its rights.</p>

<p>Public Lands—Bight to Puhciiase—Prior Conveyance.</p> <p>A purchase of coal lands from the United States, made by one authorized by law to buy such lands, for the benefit and at the expense of a corporation, under a previous agreement that the land should be conveyed to the corporation when the patent should issue, is legal, though the corporation could not by law have purchased the land, some of its members having already exercised their full rights to buy such public lands, as such previous contract is not prohibited under the statute relative to coal lands.</p>

<p>In Equity.</p> <p>In the matter of the petition of A. L. Couper, alleging that G. Clinton Gardner, receiver of the Buffalo, New York & Philadelphia Railroad Company, (appointed by the court,) had made undue and unreasonable discrimination between himself and other persons in freight charges for the transportation of oil, etc.</p>

At Law. On demurrer to answer. Action by Homy Goouridge and another against the Union Pacific Itailway Company and others for discrimination in freight rates. The first count in the complaint was for a penalty; the second, for unlawful discrimination and to recover overcharges; the third, for money had and received to plaintiff’s use.

<p>Sci. Fa. sur Mortgage. On rule for judgment for want of a sufficient affidavit of defense.</p>

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

<p>At Law.</p> <p>Action by William H. Bliss against the United Stales for compensation for services in prosecuting certain “land fraud cases.” 24 St. at Large, p. 505, § 1, provides “that the court of claims shall have jurisdiction to bear and determine the following matters: * * * All set-oil's, counter-claims, claims for damages, * * * or other demands whatsoever on the part- of the government of the United States against any claimant against the government in said court. * * *” Section 2 confers jurisdiction on the district and circuit courts, and by section 6 “it shall be the duty of the district attorney * * * to lile a plea, answer, or demurrer on the part of the government, and to file a notice of any counter-claim, set-off,” etc.</p>

At Law. Action to recover back customs duties. The plaintiff in 1885 imported into the port of New York certain goods composed of India rubber with an admixture of sulphur and coloring matter, and known as “Dental Rubber,” and used for the manufacture of the plates in which false teeth are set.

<p>Customs Duties—Excess or Appraisement over Entry Value—Penalty.</p> <p>Although the articles composing an invoice may be dissimilar and known by different trade names, still, if they belong to the same class, and are grouped together in tho tariff acts as dutiable under their class name at the same rate, and are valued in the entry only at a lump sum for the entire importation, the penalty imposed by section 2900 of the Revised Statutes is not incurred unless the appraisement of the importation as a whole exceeds by 10 per cent, or more the value declared on the entry. Schmeider v. Barney, 6 Fed. Rep. 150, distinguished.</p> <p> (Syllabus by the Court.) </p>

<p>On Motion for New Trial. Indictment for embezzlement of a letter.</p> <p>Defendant, who was postmaster at Reese, a small office in Tuscola county, was convicted of the embezzlement of a letter, and the stealing of its contents, under the following circumstances; The sender of the letter brought the defendant $15 in paper money and $3 in silver, and handed it to him in his office, with the request that he send it in a registered letter to one Williams in Rochester, K". Y. He took the $18, put it in an envelope, which ho addressed, wrote a letter to accompany the remittance, and delivered the sender the usual receipt for a registered letter, received the fee for registration, and told her it would be all right. The money disappeared. The testimony indicated that the letter was never sent, and the jury found that the defendant had embezzled it, and convicted him. ITis counsel moved for a new trial, upon the ground that he was guilty only of a breach of trust, and not of a violation of the federal statute.</p>

<p>In Equity.</p> <p>Bill by Benjamin J. Falk against T. P. Howell & Co., a corporation, to restrain the infringement of a copyrighted photograph. The plaintiff is a photographer, and has copyrighted a picture of Geraldine Ulmer as “Yum Yum,” in which she is represented as sitting upon the horn of the moon, while uttering the words, “We’re very wide awake, the moon and I;” it being intended thereby to illustrate a song sung by Miss Ulmer in the “ Mikado. ’.’ Defendant is engaged in the manufacture of chairs, and stamped a raised figure, like the picture, on the leather of which the bottoms and baeks of chairs are made. The picture was illustrative of the song, not only by the combination of the figure of the girl with that of the moon, but also by the representation of the moon as a face, the features of both hearing an expression appropriate to the words of the song.</p>

<p>In Equity.</p> <p>Bill for infringement of patent, brought by Hugh Young and the Young & Farrel Diamond Stone-Sawing Company against Emanuel Foerster.’ On final hearing.</p>

<p>1. Patents eor Inventions—Validity—Carriage Springs.</p> <p>Letters patent No. 197,689, issued November 27, 1877, to Henry Timken, for an improvement in carriage springs, which consist in the attachment of springs to the bottom of the body of a buggy or wagon, at. the sides and crossing the bottom of the body, and connecting with the side-bars on the opposite sides of the body, are not void for want of novelty.</p> <p>2. Same.</p> <p>Letters patent No. 239,850, issued April 1,1881, to Cyrus W. Saladee, for improvements in road-wagons, which consist of a spring platform of flexion springs arranged in pairs,—the inner, heavier ends of each pair being connected side by side to the central portion of the body or object, supported, and the flexion portion of each spring curving downward from the center, and then upward to its connection with the spring,—are valid.</p> <p>3. Same— Reissue.</p> <p>Letters patent No. 157,430, issued December 1, 1874, described an improvement in vehicles, consisting in the employment of two independent crossed leaf metal springs, the ends of which were rigidly secured to the opposite ends of a cross-piece attached to the body, each spring being formed or provided with a socket, and the two sockets meeting each other at the center of tlie cross-piece, so as to enable the axis or pivot-bolt to be passed through hoth sockets, etc. Reissued letters patent, January 25, 1881, described each spring as “preferably” formed with a socket, and' added a claim for two springs, in combination with the body and side-bars, crossing each other side by side, and attached to the cross-piece. Held, that the reissue was not an enlargement.</p> <p>4. Same—Anticipation—President Washington’s Coach.</p> <p>The foregoing patents are not anticipated by the compound couplings supporting the driver’s seat, shown in President Washington’s coach, as that was nothing more than an old-fashioned thorough-brace, intended “to prevent as much as possible the side, end, and upward pitching of the seat, ” which it failed to accomplish, and which complainant’s inventions do accomplish more effectually than anything that preceded them.</p>

<p>In Admiralty. Libel by Beauregard Mygatt and Ellis Leas against the schooner Gilbert Knapp, for damages for breach of contract to unload cargo.</p>

<p>Marítimo Liens—Seaman’s Wages.</p> <p>Libelant bad been employed by S., the master, for sometime as a seaman. §., desiring to stop ashore for a few trips, accompanied libelant to the customhouse, where he caused him to be enrolled as master of the vessel, without the knowledge or consent of the owner. He made one trip as master, when S. again took command in fact of the vessel, though libelant’s name continued on the enrollment as master, and he reported and cleared at the customhouse. Held, that libelant was entitled to a seaman’s lien for services rendered, except during the trip ho actually served as master.</p>

<p>Maritime Liens—Shipwrights—Common-Law Lien—Assignment.</p> <p>A shipwright holding possession of a tug under his lion for repairs assigned his claim to IS., still holding possession as the latter’s agent. The owner filed a libel in personam, to recover possession of the tug, without tender of the amount owing for repairs; and E. filed a libel in, rem to enforce the claim for repairs. Held that, the contract being maritime, the claim and lion were transferable, and could be enforced in this court by the assignee; that the latter was entitled to a decree for the amount owing, and the owner to a decree for possession only on payment of that amount.</p>

Ill Admiralty. This was a libel by the Northwestern Transportation Company, owner of the Ontario, against the Boston Marine Insurance Company, to recover a general average loss. The facts connected with this loss were substantially as follows: The propeller Ontario, valued at $55,000, was insured against total loss and general average onty in five companies, of which the respondent was one.

<p>1. Shipping—Biles op Lading—Misconduct op Master.</p> <p>A master who is in doubt as to the weight of cargo received, and who consequently inserts in the bill of lading, “Vessel not responsible for difference in weight,” is not chargeable with misconduct in signing such bill of lading, though it eventually appear that it calls for more cargo than was actually received on board.</p> <p>2. Same—Charter-Party—Weight op Cargo—Liaiiietty op Versee—Set-Opf.</p> <p>A chartered vessel received on board less cargo than was called for by the hill of lading, through fraud or error of the consignor, but the master, before signing, inserted in the bill of lading, “Vessel not responsible for difference in weight, ” and she thereafter duly delivered her cargo, but, owing- to the error in the bill of lading, the draft drawn against it being protested, and the transmission of the bill of lading being delayed, no consignee appeared to receive the cargo on arrival, and it was consequently taken by the collector and afterwards sold for customs duties. Held, that the ship had made a “right delivery” of her cargo, and that the charterers, who were also the consignees of the cargo, were liable for the agreed hire of the ship, notwithstanding- that they had suffered an indirect loss through the error of the hill of lading, by not having funds sufficient to meet the draft drawn against the quantity specified in it; such damage being too remote to be off-set.</p>

<p>In Admiralty.</p> <p>Libel in rem by George B. Pearce, master of the schooner Carrie Hall Lister, against the schooner Ann L. Lockwood, for injury done the Lister by a gale, while in the possession of the Lockwood.</p>

<p>In Admiralty. label for damages caused by a collision between the steamer C. II. Northam and the tug Levering while rounding Negro Point, near Hell Gate.</p>

<p>Execution—Supi>lementasy Pboceeuings—Contempt—Security.</p> <p>Upon proceedings supplementary to execution, although a third party, having property of the judgment debtor which the third party claims as his own, may be punished for contempt in disposing of it, where his claim appears from the evidence to be so transparent a sham as not to constitute a “substantial dispute” as to title, under section 2447 of the Kcw York Code of Procedure, yet the court will hesitate to adjudge summarily a considerable demand upon a motion for contempt; and in this case, a denial of the motion was directed, provided the claimant deposited the proceeds or gave security for the payment of whatever might be recovered in an action to be brought by the receiver of the judgment debtor against him.</p> <p> (Syllabus by the Court.) </p>

<p>In Equity. On demurrer and pleas.</p>

<p>At Law. Action on county bonds.</p>

<p>At Law. Action oil marshal’s bond.</p>

<p>1. District Attorneys—Claims—Jurisdiction of Court.</p> <p>Under act Cong. March 3, 1887, authorizing suits to be brought against the United States to recover items in the account of a district attorney suspended or disallowed by the accounting officer, and providing that the courts “herein mentioned” shall not have jurisdiction “to hear and determine other claims which have heretofore been rejected or reported on adversely by any court, department, or commission authorized to hear and determine the same, ” a district attorney is not concluded by the rejection of items in his hill by the department having charge of the auditing of the accounts of district attorneys.</p> <p>2. Same—Compensation—Attendance on Commissioner before Arrest.</p> <p>Under Rev. St. U. S. § 824, providing for the compensation of district attorneys for the examination before a judge or commissioner of persons charged with crimp, the district attorney is entitled to his “per diem” for time necessarily spent in the investigation of an offense in co-operation with the commissioner before the arrest is actually made, and witnesses are sworn.</p> <p>3. Same—Attendance on Arraignment.</p> <p>The district attorney is entitled to compensation for time actually and necessarily spent upon the arraignment before the commissioner, though no witnesses are examined, the magistrate having adjourned the hearing on motion of the accused.</p> <p>4. Same—Application of Accused to Take Insolvent's Oath.</p> <p>Compensation is recoverable for the actual examination of the accused upon an application to take the poor convict’s oath.</p> <p>5. Same—Extra Work.</p> <p>Under section 834, a district attorney who does two days’ work in one is not entitled to a double fee.</p> <p>6. Same—Discontinuances.</p> <p>An order remitting a criminal case from the circuit court to the district court, on motion of the district attorney, is not a judgment within the meaning of section 824, prescribing the fee of the district attorney in such cases.</p> <p>7. Same.</p> <p>For services resulting in a discontinuance before a commissioner the district attorney is to be paid under the “per diem” clause of section 834, and not under the'clauso prescribing the fee for discontinuances.</p> <p>8. Same.</p> <p>Where the accused is bound over by the commissioner to the district court, and the commissioner’s record is sent to that court and docketed, a fee is recoverable for a discontinuance, although no information has been tiled.'</p> <p>9. StMK.</p> <p>Where the commissioner’s record and hail-bond are returned to court, and an indictment is drawn, but the grand jury find not a true bill, a fee is recoverable for a discontinuance.</p> <p>10. Same—Compromise of Civil Action.</p> <p>For services rendered by a district attorney in securing a compromise of a civil suit brought in favor of the United States, whereby the suit is dismissed without trial, lie is only entitled to the fee of five dollars, allowed for a discontinuance.</p> <p>11. Same—Extraordinary Expenses.</p> <p>Under section 846, providing that where the ministerial officers of the United States shall incur extraordinary expense in executing the laws thereof, the payment of which is not specifically provided for, the president is authorized to allow the payment thereof, etc., an action will not lie for money paid out by a district attorney to prevent the escapo of an alleged criminal, the allowance not having been made by the president.</p> <p>12. Same—Internal Revenue Causes.</p> <p>Under section 838, providing that it shall he the duty of-every district attorney to institute the proper proceedings for any fines, penalties, and forfeitures which may' have been incurred by reason of the violation of the internal revenue law, unless he shall decide that the ends of justice do not require such proceedings, in which case he shall make rojjort, etc., and that for the expenses incurred and services rendered in all such oases he shall receive, etc., the district attorney is not entitled to recover for services unless prosecutions have been commenced.</p> <p>13. Same—Clerk Hire—Office Expenses.</p> <p>He is entitled to recover for clerk hire and for necessary expenses of the office, such as telegrams and printing and stationery. °</p> <p>14. Same—Costs of Auditing Account.</p> <p>The court clerk’s fees for recording the orders in connection with the auditing of the accounts of a district attorney should be paid directly tos the clerk by the government.</p>

Indictment for Intimidation of Voter. On demurrer to evidence. The indictment in this case was framed under section 5511, Rev. St. U. S., and charged that defendant unlawfully, by threats and intimidation, induced one Samuel Buller, a duly-qualified voter, to refuse to vote atan election, held for a representative in congress of the United States, in the city of St. Louis, on November 6, 1888.

<p>1. ' Shipping-^-Carriage of Goods—Pleading—Amendment.</p> <p>To a libel for the value of goods shipped on claimants’ vessel under a con- ; tract of affreightment, claimants answered, admitting the contract and delivery of the goods to the master of the wharf at the place of shipment, but alleged that the goods were accidentally destroyed by fire while on the pier, and before they were actually laden on board, and that the bill of lading exempted them from loss by fire at sea or in port. Libelant filed an amended libel, alleging that claimants agreed to insure the goods for the amount claimed, from the time they came into their possession until laden on board; and, having failed to make the insurance, they were liable. Held, that the amendment was not inconsistent with the original libel.</p> <p>2. Admiralty—J urisdiction—Contracts.</p> <p>The contract of affreightment, the basis of the ship’s liability, being a maritime contract, the additional stipulation for insurance while the goods were on the wharf cannot oust the jurisdiction of the admiralty.</p>

In Admiralty. Appeals from district court. • Libels for breach of contracts to furnish freight. From a decree dismissing the libels, libelant appeals.

In Admiralty. Libel for freight. On appeal from district court. Libel by S. H. Seaman and others, owners of the ship Louisiana, against A. Adler and others for freight money. Judgment for libelants, and. respondents appeal.

<p>Collision—Tug Landing Tow—Negligence—Damages.</p> <p>The tug N., in landing a tow of nine canal-boats at the dock at Port Ewen, North river, through miscalculation and the kinking of the tow upon a slack hawser, ran the libelant's canal-boat upon the corner of a gap in the dock, bringing the boat to a dead stand, causing her damage. Though the boat was old, and not very strong about the bows, the blow being much more violent than the ordinary contacts of navigation, held, that she was not unseaworthy, nor so weak as to require notice of weakness to the tug; that notice, if given, could not have affected her handling; and that she was therefore entitled to full damages.</p>

<p>In Admiralty. Appeal from district court. 31 Fed. Rep. 486.</p>

In Equity. On demurrer to bill. Bill by Ernest A. Rich and others, as heirs at law of William Bray, against Thomas Bray and Minnie G. Kinsey, also heirs at law of said William Bray, to compel an accounting of all properties in the hands of Thomas Bray coming from said William Bray, and for distribution of the estate among the heirs.

<p>Courts—Federal Jurisdiction—Appearance—Effect.</p> <p>Where the action is one oí which the circuit courts have jurisdiction, under act Cong. March 3, 1887, § 1, the controversy being one between a citizen of the state and a foreign subject, and the amount in dispute exceeding $2,000, the provision of that section in relation to the district where the action shall he brought does not affect the question of jurisdiction, and the privilege it accords to defendant is waived by filing a general appearance and answering to the merits.</p>

In Equity. On demurrer to bill. This action, commenced upon the equity side of the court, is based upon a judgment recovered in 1873, in a state court of California. The only specific relief demanded is for a money judgment. Briefly, these are the facts: In August and September, 1869, the defendant, Erwin Davis, made six promissory notes, aggregating $15,720, and delivered them, for value, to Henry P. Wakelee.

<p>Equity—Parties.</p> <p>Complainants, who claimed title to certain lands by virtue of a mortgage and foreclosure thereunder, sought to have defendant declared trustee of the land to their use, alleging that one S. had been furnished with money to pay off a judgment lien on the land, and that in violation of such trust he had bought the land for himself at the execution sale, and pending the foreclosure proceedings had conveyed to defendant. In the deed from S. the name of the grantee was omitted, and it appeared that S. was not bound by the foreclosure proceedings. Held, that 8., being a resident of the state, should he made a party.</p>

<p>In Equity. Motion for leave to file supplemental answer.</p>

<p>In Equity. On motion for appointment of receiver.</p>

<p>Partnership—Construction of Agreement.</p> <p>The articles of copartnership between complainant and defendant provided .that complainant should contribute as his share of the capital the exclusive use of his three-fourths interest in certain patented improvements, to be used in the manufacturing business of the firm, together with his three- . fourths interest in the property and assets of a certain marble company; that he should contribute such money as might be needed for the purchase of necessary machinery and materials, on which he was to have interest. He was to attend to the financial management of the business, and place the manufactured goods of the firm upon the market. Defendant was to contribute as his share of the capital his one-fourth interest in said patented improvements and his one-fourth interest in the property and assets of said marble company, and was to apply his skill and experience, and devote all his time and personal services to the business of manufacturing. The profits and losses were to be shared equally. At the termination of the partnership, each partner, after payment of the firm debts, was entitled first to withdraw his contribution to the capital, and the residue of the assets, if any, to be divided equally The business proved unprofitable, the bulk of the capital stock being lost. Held, that the articles were not open to the construction that defendant’s skill was put in against complainant’s capital so as to relieve him from liability to complainant for one-half the loss.</p>

In Equity. On bill of foreclosure. Bill by Lemuel McManness and Maris Paxson, assignees of M. C. Whitely, to foreclose a mortgage executed by defendants Henry Paxson and Maria Paxson, his wife, on lands in Morgan county, Mo.

<p>In Equity. Suit to contest the validity of a will and for administration of estate of decedent. „</p>

In Equity. Bill by Daniel T. Hedges and others to scale down and enforce an issue of the bonds of defendant county, said issue having been held void as in excess of the constitutional limit of indebtedness of the county..-Defendant demurs.

<p>1. Railroad Companies—Contracts—Ultra Vires.</p> <p>A railroad company, a corporation of Ohio, Indiana, Illinois, and Missouri, which had equipped its road under an agreement with a car trust, leased the road and equipments to defendant, a railroad company, which, to induce the car trust to leave the equipments on the road, agreed to pay the balances unpaid by its lessor at certain times, in consideration of which payments the car trust agreed to transfer and assign all its interest to defendant. All the states in which the company was incorporated, except Indiana, provided for the lease of one railroad by another. The laws of Missouri provided that the lease should not be binding until at a meeting of the stockholders, called for that purpose, a majority assented thereto in writing, or until the holders of a majority of the stock assented thereto in writing, and a certificate, signed by the president and secretary, was filed with the secretary of state. Ho meeting was called of defendant’s stockholders, but a certificate was filed, signed by the president, who owned nearly- all of the stock, and the secretary, and the road was operated by defendant without any objection from its lessor. Held, in an action by the car trust on its agreement with defendant, that defendant could not plead ultra vires as to the lease.</p> <p>2. Ukatids, Statute oe—Agreement to Pay Deist oe Another.</p> <p>The defendant having obtained the use of the equipments by its agreement to pay- the balance unpaid by its lessor, the consideration was the use of the property and the right to acquire title by such payment, and the contract was a direct undertaking, and not a guaranty, within the statute of frauds.</p>

At Law. Action by James ?. Shaw, administrator of Ella J. Shaw, deceased, founded on the Ohio statute authorizing the administrator of any person whose death was caused by the wrongful act of another, to recover damages for the benefit of the husband and children.

At Law. This was an action of unlawful detainer under section 2420 of the Revised Statutes of Missouri, which declares inter alia that “when any person shall willfully, and without force, hold over any lands, tenements, or other possessions after the termination of the time for which they were demised or let to him, or the person under whom he claims, * * * such person shall bo deemed guilty of an unlawful detainer.” Plaintiff’s ancestor, lid win 11.

<p>Nuisance—Abatement—Compensation—Police Power,</p> <p>Act Mass. Juno 1. 1867, provides that for the purpose of abating a nuisance the city of Boston may purchase or otherwise take lands within a certain district. and that the title of all land so taken shall vest in the city; and that a party whose land is taken may agree with 1he city upon the damage done, and the amount thereof shall tlien he paid to him by the city. Held, that the title to lands taken under such act vests in the city, though n.- compensation las ever been made to the owner; the taking of the lands being under the police power of the state.</p>

<p>1. Witness—Attendances ax» Fees—In Federal Courts.</p> <p>A person, under subpoma as a witness for the United States, attended court. The case was continued, and the witnesses were verbally instructed to attend at the next term. In the mean time he removed his residence into another state. Without further summons, he attended court, and was used as a witness by the United States. JMd, that he was entitled to mileage from his place of residence.</p> <p>3. Same.</p> <p>A witness for the United States, voluntarily coming to and attending court on the verbal instructions of the district attorney, is entitled to per diem and mileage, notwithstanding that his residence is out of the district, and more than 100 miles from the place at which the court is held.</p> <p> (Syllabus by the Court.) </p>

<p>1. Customs Duties—'Violation of Daws—Forfeiture.</p> <p>When property afloat is brought ashore in contravention of the revenue laws of the United States, it cannot, be forfeited unless the act was done with actual intention to defraud the United States on the part of the owner, or of some person acting under his authority, or who is the agent of the owner, or of the person from whom the owner derives title.</p> <p>2. Same.</p> <p>When property afloat is feloniously taken from the possession of the owner, and is brought ashore in contravention of the laws of the United States, and then seized by the officers of customs, it will not be forfeited as against the true owner.</p> <p> {Syllabus by the Court.) </p>

Application by J. C. Chapman for a writ of habeas corpus. On the hearing in the district court, Judge Newman delivered the following opinion: “ It appears in this case that the petitioner, J. O. Chapman, enlisted in the United States army at Atlanta, Ga., when twenty years and eighfc months old. lie is now nearly twenty-three years of age. Some live or six weeks after his enlistment he deserted from the army, and has since been at large.

<p>Evidence—Proof of Handwriting—Weight.</p> <p>The value to he given to the opinion of a witness as to the authorship of handwriting is to he determined by the opportunity and circumstances under which he has acquired his knowledge. If ho is an illiterate man, or one whose business seldom brings him into contact with writing, his opinion is entitled to much less weight than if he were an educated man, accustomed to ■correspondence, and to seeing people write.</p>

<p>Claims against United States—False Affidavit.</p> <p>It is not a ground for quashing an indictment drawn under Rev. St, U. S. § 6479, for aiding and procuring one to make a false affidavit for the purpose of procuring a pension, that the affidavit was in fact made before a proper officer, as that section applies also to the offense of using a genuine but false instrument, knowing it to be false, with intent to defraud the United States.</p>

<p>1. Patents for Inventions—Validity—False Statement as to Citizenship.</p> <p>It is not a valid defense to a suit for the infringement of letters patent granted under the Revised Statutes that the patentee in his application therefor made oath that he was a citizen of the United States, when he was not; such misstatement as to his citizenship having been made innocently, through mistake, without any improper design whatever.</p> <p>2. Same—Patentability—Gl\ss-Annf,aling Process.</p> <p>Letters patent Xo. 258,156, dated May 16, 1882, for improvements in glass-annealing furnaces, granted to Cleon Tonduer, sustained, and the defendants adjudged to infringe the same. Following Tondeur v. Stewart, 28Fed. liop. 561.</p>

In Equity. Bills By tho Corbin Cabinet Lock Company against the Eagle Lock Company, and by A. Adgate Duer against the Corbin Cabinet Look Company, for injunctions against the infringement of certain patents.

<p>1. Patents for Inventions—Design Patent—Novelty.</p> <p>Letters patent No. 15,121 granted July 1, 1884, for a design for watch-cases, which consists of a central conventional star, in which any ornament may he set, placed upon a larger star of leaves, having diamond-shaped projections between its points, both stars being in bas-relief, held not void for want of novelty.</p> <p>2. Same.</p> <p>If a design presents a different impression upon the eye from anything which precedes it, if it proves to be pleasing, attractive, and popular, if it creates a demand for the goods of its originator, even though it be simple, and does not show a wide departure from other designs, its use will be protected.</p>

<p>In Equity.</p> <p>Bill by William Schmid against the Scovill Manufacturing Company for the infringement of a patent.</p>

<p>Patents for Inventions—Infringement—Apparatus for Distilling Turpentine. 1</p> <p>In reissued letters patent No. 10,689, to J. D. Stanly, for an apparatus for distilling and purifying turpentine, the claims are fora fire-box; an arch over it, and under the retort; a retort chamber above the arch; and spaces above and below the retort, connected at one end. The products of combustion pass from the fire-box underneath the rear end of the arch; thence horizontally along the under side of the retort, to the front end, whence they ascend vertically at the side of the retort to a space above it; thence backward along the top of the retort to the chimney. In the apparatus constructed by defendant under letters patent No. 888,750, June 5, 1886, a longer retort is heated from opposite ends by two furnaces, each heating one-half. In the space between the arch and retort, in each furnace, vertical partitions pass more than half way around the retort, terminating at alternate sides. The products of combustion escape at the side and rear end of the arch and the middle of the retort, the passages deflecting them upon the walls of the fumaee, instead of upon the retort. They then ascend, and at the top of the chamber meet one of the partitions, and are made to descend to the heated arch, where another partition causes them again to ascend, the process being repeated until they escape at a chimney at the forward end. Held, that the Stanly patent protects at most the manner of delaying the products of combustion for equalizing the temperature, and is not infringed by defendant’s apparatus.</p>

<p>Patents foii Inventions—Infkingkment—Dkess-Fokms.</p> <p>In the device described in letters patent No. 233,240, to John Hall, dated October 13, 1880, for an adjustable dress-form, the upper of two series of oppositely inclined braces are hung by their inner ends to an adjustable collar on the standard, and, extending obliquely downward, are hinged to the respective ribs. The braces of the lower series are hinged to a lower adjustable collar, and, extending obliquely upward, are hinged to the ribs at the point of hinging of the upper series. The expansion of the form is effected by elevating the lower collar, and is governed by the opposing action of the upper series. Claim 3 is for the double braces, collars, and rests, in combination with the standard and ribs, substantially for the purpose set forth. Held infringed by a form having a series of braqós extending obliquely downward from a screw-collar on the" standard to the ribs to which they are hinged, to which, braces, midway of their length, are hinged another series of braces extending thence obliquely upward' at a different angle to a higher* and stationary collar.1</p>

In Equity. . On motion for an injunction. This w'as a bill to enjoin the use of an invention belonging to plaintiffs, for which they had not yet obtained a patent. The bill averred the plaintiffs to be the joint inventors and owners of an invention of an improvement in plumbers’ and jewelers’ furnaces, for which they had made application for a patent on September 11, 1888. A copy of the application, with the specifications, drawings, and claims, ivas annexed to the bill.

<p>In Equity. Bill for infringement of trade-mark.</p>

<p>1. Trade-Marks—“Iron Bitters. ”</p> <p>The words “Iron Bitters, ” being indicative of the-composition of the article so called, cannot he claimed as a trade-mark.1</p> <p>2. Same—Dishonest Competition in Trade.</p> <p>If one person can, hy superior energy, by more extensive advertising, by selling a better or more attractive article, oí- by greater frankness in disclosing the ingredients of his compound, outbid another in popular favor, he has a right to do so, provided he does not attempt to palm his goods off as those of another. This right is not impaired hy an open avowal of his intention to compete with the other, or even to drive him out of the market. But he has no right, however honest his personal intentions, to use so much of his rival's name or trade-mark as will enable any dishonest trader, into whose hands his own goods may come, to sell them as the goods of his rival.</p> <p>8. Same.</p> <p>Hence where plaintiif was the proprietor of a preparation known as “Brown’s Iron Bitters. ” and defendant of another, called “Iron Tonic Bitters ” which it falsely stated to he made by “Brown & Co., New York, ” it was held that such statement should he enjoined.</p> <p> {Syllabus by the Court.) </p>

In Equity. Suit by Stephen Jennings against Frank E. Johnson to restrain the sale of liniment in a form resembling that in which plaintiff’s'liniment is sold.

<p>In Equity. On motion for a preliminary injunction.</p> <p>Bill by the Philadelphia Novelty Manufacturing Company against theBlakesley Novelty Company for the infringement of a trade-mark.</p>

<p>In Admiralty. Libel for damages. On appeal from district court.</p> <p>Libel by Nicholas Danace against steam-tug Magnolia and Manson Bros. The decision of the district court was in favor of libelant, and defendants appealed.</p>

<p>Admiralty—Jurisdiction—Contracts.</p> <p>A libel alleged that t,ho schooner received a certain quantity of charcoal consigned to a place named on account of libelant; that the master contracted to carry the charcoal to the place of destination, there to sell the same, and account to libelant for the price at a given rate per barrel; that the agreement is the general custom among charcoal schooners; that the contract was one of affreightment, whereby the schooner was to transport the charcoal and offer it for sale, under obligation of accounting for the price named; that the. schooner sold the charcoal, and refuses to account, the master’s receipt-being for the charcoal at the stated rate per barrel, “tobe paid when sold out.” Held that it showed a transfer of the title to the charcoal to the schooner, and not a maritime contract; and that the admiralty court has no jurisdiction.</p>

<p>Tn Admiralty. Libel on insurance policy.</p>

<p>Til Admiralty, libels by United States for penalties, and by seamen for wages. On distribution of fund.</p>

<p>In Admiralty. On appeal from district court. 33 Fed. Rep. 891.</p> <p>Libel by Charles F. Eaton to recover freight on a consignment of iron rails. The respondents, Julius Neumark and others, pleaded as an offset shortage in the quantity delivered. There was a decree in the district court in favor of the libelant, and respondents appeal.</p>

<p>In Admiralty. Libel for damaged in the nature of demurrage.</p>

In Admiralty. Libel for damages. This was a libel in personam, filed to recover the value of a barge and cargo of ice, which was sunk in the Mississippi river, near Clarksville, Mo., while on a voyage from Quincy, Ill., to St. Louis, Mo. Libelant charged that the barge in question was carelessly run against an obstruction while being landed at Clarksville, Mo., and in consequence thereof sprung a leak and sunk.

<p>Collision—Between Vessels at Wharf.</p> <p>The schooner S. was towed to a wharf, and berthed on the outside and within, two or three feet of the canal-boat 0., which was unloading at the wharf. The S. was warned by the C. to keep off, or both would go aground at low water, and the 0. be injured; but the S. remained where she was, although she could easily have gotten away by employing a tug, if not by her own efforts. When the tide fell, the C. grounded, and collided with the S., receiving some injury, but finally getting away. On returning to her position, it was found that the S. had got several feet closer to the wharf, in consequence of which, at the next low tide, the vessels again collided, the C. receiving further injury. The S. could easily have moved off at high tide before the second collision'. Held, that she was liable for the damages caused by both collisions.</p>

<p>In Equity. Cross-bill to declare and enforce a trust. On final hearing.</p>

At Law. This was an ejectment suit which involved the location of Forty-First street in the village of Hyde Park; the plaintiff claiming that the street, as laid out and occupied by the village, was placed 23 feet too far north; and the case really involved the location of the southern line of the N. W. I of the N. E. 1 of section 3, township 38 N., range 14 E., and the construction of the United States survey and government descriptions, and conveyances by the canal…

<p>1. Corporations — Stockholders — Statutory Liability — Constitutional Law.</p> <p>Section 322 of tbe Civil Code of California, fixing the liability of stockholders of corporations, adopted in 1876, is not in conflict with article 12, § 3, of the constitution of California of 1879, and was by it expressly continued in force.</p> <p>2. Same—Courts—National Jurisdiction.</p> <p>New remedies afforded by state statutes will be applied, and new rights giv.en, enforced, in the national courts. Held, accordingly, that an action at law, to enforce the individual liability of stockholders, under provisions of ' th‘e' Civil Code of California, may be maintained in the circuit court of the '■United States.</p> <p>3. Same—Enforcement of Liability—Evidence.</p> <p>■ In suits to enforce the statutory liabilities of a stockholder for his proportionate share of a debt of the corporation, under the Civil Code of California, testimony that would be competent in a suit against the corporation to re-coyer such debt, to establish the demand against the corporation, is competent to establish the same against the stockholder.</p> <p>4 Same—Extent of Liability—Assignment of Stock.</p> <p>Under the Civil Code of California the liability of an owner of stock of a -corporation continues until a transfer of the shares once held by him has been entered upon the records of the corporation, and this whether the stock stood on the books of the corporation in the name of such owner, or in the name of some other person, as trustee, without disclosing the name of the true owner.</p> <p>5. Same—Director as Creditor.</p> <p>A stockholder, and even a director, may become a creditor of a corporation where the action is not tainted with fraud or other improper act.</p> <p>6. -Same—Banks and Banking—Loans to Directors.</p> <p>■ Where a bank advances money to a corporation upon a director’s becoming security, and the form of the security is a promissory note of the corporation mad'e payable to the order of one of its directors, and indorsed by him to the' bank, the transaction is between the corporation and the bank, and not between the corporation and the nominal payee of the note. In such case, when the note goes to protest, and is afterwards paid by the director, who is the nominal payee and the indorser, a liability accrues against the corporation for the amount paid in favor of the party so paying.</p> <p>Í¡ Sam;e—Reinstating. Rescinded Contract.</p> <p>Where two corporations make a valid agreement, whereby an indebtedness of one corporation's extinguished, or assumed by the other, it is competent' for said corporations, by mutual agreement duly made, to rescind such agreement, reinstate the liability of the corporation so discharged,' and place the parties in statu quo; and the stockholders of the debtor corporation in such case will become personally liable for their respective proportionate shares of thejiabilities so created or reinstated.</p> <p>8. Same—Directors.</p> <p>Where the directors of a corporation, acting in good faith, upon the reports and representations of the duly-authorized agents of the corporation, believing them to be correct, borrow money for the purposes of the corporation, it is not necessary to show that the money so borrowed was all actually appropriated to the legitimate uses of the corporation, in order to establish an indebtedness against it, or a personal liability of its stockholders in favor of" the lender of the money, or of the sureties who pay the loan.</p> <p>9. Limitation of Actions—Pleading and Proof.</p> <p>The plea of the statute of limitations impliedly admits the existence of the demand, and the burden of proving a bar by the statute is on the party pleading it, as in the case of a plea of payment. Held, accordingly, that where a portion of a demand is claimed to have been barred, the party so claiming must prove the specific amount; mere proof that some portion is barred, not showing the amount, is not sufficient to establish that the bar of the statute applies to any. In the case of a running account, embracing only one entire transaction or liability, the bar only attaches from the date of the last item.</p> <p>10. PUEADlNG-rTllTAL.</p> <p>Where a demurrer to a complaint is by the court overruled, its sufficiency will not ordinarily be reconsidered at the trial.</p> <p> (SyVahue ly the Court.) </p>

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

<p>1. Courts—Federal Courts—Claims ag/inst United States—Rejection by Comptroller.</p> <p>Under act Cong. Marc-li 3, 1887, forbidding district courts to entertain claims against the government, “which have heretofore been rejected or reported on adversely by any court, department, or commission authorized to hear and determine the same, ” the court must dismiss a claim rejected by the comptroller of the treasury. Following Bliss v. U. S., 34 Fed. Rep. 781; Rand v. U. S., 36 Fed. Rep. 671.</p> <p>2. Same—Court Oebtcers—Messenger and Crier.</p> <p>There is no incompatability between the offices of crier and messenger of the district and circuit courts; and under the rule in U. S. v. Saunders, 120 U. S. 126, 7 Sup. Ct. Rep. 407, the same person may perform the duties and receive the salaries of both.</p>

<p>In Equity. On pleadings and proof.</p>

<p>Equity—Parties.</p> <p>To a bill for the cancellation of a quitclaim deed from complainant to defendant G., P. and J. were made parties defendant, the bill alleging that they and each of them had made fraudulent representations for the purpose of procuring the execution of the deed, and a general confederating clause was inserted. There was no averment that P. and J., or either of them, were agents or attorneys for G., or that G. held the title in whole or in part for their benefit, or that they had or expected any interest in the land conveyed; and no relief was prayed for as against them. Held, that they could not be required to answer.</p>

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

At Law. On demurrer to the petition. This was an action at law to recover damages for an alleged breach of a covenant contained in a license to manufacture and sell barbed fence-wire, granted by the plaintiff to the defendant on November 25, 1885.

<p>In Admiralty.</p> <p>Action upon three bills of lading for failure to transport 559 bales of cotton by steamer Arizona.</p>

<p>In Admiralty Libel by an indorsee of a master’s draft against the vessel and the master personally to enforce payment of the draft.</p>

<p>’ In Admiralty. Libel by the Louisiana & Texas Railroad <& SteamShip Company against the steam-ship Pomona and her cargo, for salvage.</p>

35 Fed. Eop. 917. At law. Action by Paul Ravesies against the United States for fees as shipping commissioner for the port of Mobile. A demurrer to the petition was sustained, and the case is brought up as on writ of error by plaintiff.

<p>Iii Equity. Bill for injunction.</p> <p>The complainants, Richard Langdon, ,T. C. McNaughton, and L. A. Gomveli, citizens of the state of Pennsylvania, bring their bill against the Savannah, Dublin & Western Short-Line Railway, a corporation of this district; the United States Construction & Improvement Company of New Jersey, doing business in the city of Savannah; James A. Simmons, of the state of Ñew York; Thomas P. Branch, a citizen of this district; and the Central Railroad & Banking Company of Georgia,—and allege that the Savannah, Dublin & Western Short-Line Railway Company is incorporated to build and operate a railway from Savannah to Dublin and Ainericus; that the Macon & Dublin Railway Company is incorporated to build a, railroad from Macon to Dublin; that the former bought all the charter rights and franchises of the latter, and in that manner became authorized to build and equip a railroad from Savannah to Macon; that on the 18th of March the Savannah, Dublin & Western Short-Line Railway Company (which, for conciseness, we will term the Short-Line Company) and John McKetchney made a contract by which the company deposited with McKetchney all its capital stock except $60,000, its mortgage bonds to the amount of $8,000,000, with its local aid and all the bonds to be issued oil that part of the road between Dublin and Macon,—the entire property to be delivered, to be held by McKetchney as security for all of his outlay on the road, with full power to sell or pledge the same to secure funds for its construction. McKetchney, in Consideration of this agreement, obliged himself to build, construct, and equip the road from and to the terminal points above mentioned, subject to any changes that might be agreed on by the parties. On the 19th of March, McKetchney assigned by written instrument his rights under this contract to the United States Construction Company, chartered in New Jersey, to construct, build, lease, or purchase railroads. This was done with the assent of the Short-Line Company; and the bill alleges -with distinctness that this created a trust in the Construction Company to build the road from Savannah to Macon. On the 19th of March, 1887, the Construction Company and the Short-Line Companj' made a supplemental contract, whereby the former undertook to pay certain existing liabilities of the latter in the amount of $19,228.92 for the pay of civil engineers’ work, services, and material, as indicated in a schedule attached to such contract; the payment to be deemed a part of the cost of construction. The Construction Company agreed further to pay to the Short-Line Company $28,-940.95 for the charter and franchises of the Macon & Dublin, to enable the Short-Line Company to perfect its title to the Macon & Dublin Company. Copies of the several agreements before referred to are attached as exhibits to the bill, and are not questioned. On the 22d of March, 1887, an agreement was entered into between Thomas P. Branch, of Augusta, and James A. Simmons, of New York, reciting the facts that they had obtained the organization of the Construction Company in New Jersey, with a capital stock of 1,000 shares, of the par value of $100 each, and that 946 shares had been issued as full-paid stock to John McKetchney, and, together with $2,700, delivered to him as the consideration for the assignment to the Construction Company, of the contract of March 16, 1887, between the Short-Line Company and McKetchney; and that the Construction Company had undertaken to pay certain debts of the Short-Line Company, amounting to about $19,292, which John McKetchney had not assumed; and that by “assignment” and “transfer duly made” the 946 shares of Construction Company stock owned by McKetchney was now the property of Branch and Simmons, share and share alike; Branch and Simmons undertaking to advance equal portions of the amount necessary to pay the claims before mentioned against the Short-Line Company. They agreed further to hold for three years from March 22, 1887, 510 of the 946 shares of the Construction Company stock, unless otherwise mutually agreed, and that one certificate for the 510 shares should be issued to James A. Simmons and Thomas P. Branch, jointly; that it could be transferred by consent of both; that its voting power should be exercised jointly. It was agreed that the remaining 436 shares should be issued in like manner to Thomas P. Branch and Cornelius V. Sidell, jointly, with like provision as to transfer. This agreement was made binding on their legal representatives and assignees. The parties were to be entitled to an interest in the said shares proportionate to the amount each paid only, to the sum necessary to pay the debt of the Short-Line Company. Sidell and Branch received the 436 shares, and agreed to hold them upon the terms-agreed to by Simmons and Branch on the 23d of March, 1887. A copy of the agreement is attached. Simmons thereafter obtained Branch’s and Sidell’s interest in the entire matter. He became in this manner fully possessed of the assets of the Short-Line Company and the trusts of the Construction Company. On the 20th of April, 1887, Simmons agreed with Richard Langdon, one of the plaintiffs, that if he (Langdon) would discount Simmons’ promissory note for §5,000, payable four months after date, for the purpose of raising the sum which Simmons had undertaken to pay by his contract with Branch, he (Simmons) would pay to Langdon one-fourth of all the gains, profits, and emoluments which should accrue to Simmons by virtue of the contract before described. In case it became necessary to pay the note, Langdon and Simmons each agreed to pay an equal proportion. Lang-don avers that he performed his part of the agreement, hut that Simmons failed to perform his. The bill further alleges that on the 21st day of April an agreement was made by Simmons and J. C. McNaughton, one of the complainants, who gave his note the 21st of April, 1887, to the said James A. Simmons, payable four months a fter date, for the sum of §5,000. Subsequently, in lieu of this note, he gave Simmons his check for §2,000, and a new note for §3,000. McNaughton did all he had promised, hut Simmons wholly failed to keep covenant. On the 27th of December, 1887, the defendant Simmons and the plaintiff L. A. Conwell agreed that, in consideration of the payment to Sinmions by Conwell of 82,300, Simmons, his heirs, assignees, etc., agreed to pay Conwell one-sixth of the profits and emoluments of the contracts before described. In case the advances were repaid by the Construction Company, Simmons agreed to pay Conwell §791.66. Conwell paid the §2,300. In this manner the required sum was raised. Copies of all the contracts referred to are annexed and made exhibits to the hill. The complainants aver that under these several agreements they became equitably interested in all of the contracts for the construction, building, and equipment of the railway, and further that they became equitably entitled to the extent of their interest to the security of the stocks, bonds, and other assets of the Short-fine road which had been originally transferred to McKetchney for tlie purposes of the trust created in him, viz., to build the Short-Line road, and subsequently vested in James A. Simmons for che United States Construction & Improvement Company.</p> <p>The complainants charge that Branch and Simmons, who themselves, without consulting the stockholders or other officers, managed the affairs of the Construction Company, have unlawfully, secretly, and privily conspired and confederated with unknown parties to cheat and defraud the complainants; and, without the knowledge or authority of plaintiffs, or the directors and stockholders in the Construction Company, they have sold to Thomas P. Branch, for a nominal consideration, all of their interests in the stock of the Construction Company; and that Branch and Simmons have entered into an agreement to sell and deliver the entire control of the Construction Company, with all the securities, stock, and bonds of the Short-Line Company, delivered to them to build, construct, and equip the road, to the Central Railroad & Banking Company of Georgia, for the purpose of defeating the construction of the road, and to render it impossible for the Construction Company to do so, and thus to cheat and defraud plaintiffs of all returns to which they were legally entitled by their contract. The plaintiffs charge upon information and belief that Simmons and Branch have made a large profit for themselves out of the action, and that their action was void, and in excess of their power; that Branch and Simmons have not disclosed their designs, but lulled plaintiffs into a false sense of security; that plaintiffs will now be totally defeated of their rights and interests, which are of great value. Complainants distinctly charge that the attempted purchase by the Central Railroad & Banking Company of the control of the stocks, assets, and properties of the United States Construction Company is a contract or agreement which has the effect, or was intended to have the effect, to defeat or' lessen competition in their respective business, and to encourage a monopoly, contrary to the express provision of paragraph 4, § 2, Const. Ga., and that the same is therefore illegal and void, and should be so decreed by the court. They allege that the amount or value in dispute exceeds the sum of $2,000, and that all the assets and property to Avhich they have an equitable lien are in the district, and in the jurisdiction of the court.</p> <p>An amendment to the bill makes a party E. P. Alexander, a citizen of Georgia, residing in this district, and within the jurisdiction of the court, and the Savannah & Port Valley Railway Company, a corporation also within the jurisdiction.- The amendment further charges that the whole scheme of Branch and Simmons was a fraudulent speculation; that they had no intention to comply with the contract of the Construction Company to build and equip the Short-Line road; that the Construction Company was in truth nothing but a fiction, and Avas used to protect Branch and Simmons from any individual liability; that they had absolute control of the Construction Company; and that its capital stock was never actually paid in by them, but that Branch and Simmons adopted the favorite plan and device of corporate manipulators to realize large gains and accumulate fortunes at the expense of the public, and used that as stock which was a mere fiction. They charge further that the United States Construction Company is insolvent, and had admitted the rights of complainants. This was made evident by placing the plaintiff Langdon on the board of directors of that company; and Branch also admitted the rights of the complainants as they are set out in the bill; that the SaA^annah, Dublin & Western Short-line Railroad Company also had knowledge of plaintiffs’ advancements to its construction fund, and their resulting rights, and placed Langdon on the board of directors of that company also, in order that he might protect the rights of himself and of his associates; that E. P. Alexander, made party by the amendment, is president of the Central Railroad & Banking Com'pany, and in contracting for the purchase and transfer of the stock of the Construction Company acted in the interest of the Central Railroad & Banking Company; that the Savannah & Port Valley Railway Company is a corporation recently formed of the friends of the Central Railroad & Banking Company; that E. P. Alexander is likewise its president; that it is a creature of that company; that the purchase of the stock of the stockholders of the Short-Line Company was made by H. C. Cunningham, and A. R. Lawton, Jr., of the firm of Lawton & Cunningham, the general counsel of the Central Railroad & Banking Company, and cjc ojlkio of the Savannah & Fort Valley Railroad and the Short-Line Company, and the United States Construction & Improvement Co.; and that the money paid was the money of the Central Railroad & Banking Company. The bill further charges that the Fort Valley Company, and the parties in whose name the stocks purchased as aforesaid stand, are not holders for value, but in truth hold them for the Central Railroad & Banking Company of Georgia; and that the assumption by the Savannah & Fort Valley Railroad Company of the Construction Company stock bought by E. P. Alexander is itself a contract or agreement which has the effect to defeat or lessen competition, and to encourage a monopoly, contrary to the express provision of paragraph 4, § 2, Const. Ga., and should be so decreed by the court. There is a general prayer for discovery, and many interrogatories addressed to E. P. Alexander and the Savannah & Fort Valley Railroad Company, by which they sock disclosure of the transaction hereinbefore described, and the present relations of the partios, and their purposes and dispositions with reference to the complainants’ alleged interest and the stock assets generally of the Short-line Company, upon which complainants seek to assert and enforce an equitable lien.</p> <p>The prayers of the original bill aro (1) that the attempted purchase of the contracts, stock, securities, and assets of the United States Construction & Improvement Company be declared void and of no effect, and that the Central Railroad & Banking Company of Georgia ho declared a trustee for the benefit of complainants of all the stocks, contracts, assets, and other properties belonging to the Construction Company, in its possession or under its control, to the extent of orators’ interests; (2) that Simmons and Branch may bo compelled to account, generally for all money or properties received by them from the Central Railroad & Banking Company or its representatives or other parties, and that an account may be immediately taken, and that they may he declared trustees for the benefit of plaintiffs; (3) a general and special prayer for discovery, with many interrogatories to Branch and to Simmons, and others, and to the Central Railroad & Banking Company. They pray for a temporary injunction until the hearing to restrain Branch and Simmons, the Construction Company, the Short-Line Company, and the Central Railroad & Banking Company, and other parties defendant, from consummating or carrying into effect any contracts, engagement, or agreement by which complainants may be defrauded of their rights, and for general relief, subpoena, etc.</p> <p>In the amended bill the plaintiffs pray that E. P. Alexander, the Fort Valley Railway, and Construction Company may be compelled lo make full and complete discovery under oath of all contraéis, dealings between themselves and Branch, Simmons, the Construction Company, and the Short-Line Company, in relation to transfer of- all the stocks, bonds, assets, and other properties of the Short-Line Railway Company, which were pledged with the Construction Company as security for their contract to build the road from Savannah to Macon, which ma.y be in the possession and under the control of either of the defendants; and of all copies of the correspondence; and that they attach to their answer true and correct copies of all agreements, etc. They pray also that all the defendants may be enjoined from moving out of the jurisdiction of this court any of the contracts, stocks, bonds, securities,' or other property in which the complainants are alleged to be interested; and, further, that the United States Construction & Improvement Company be enjoined from transferring to any one the stocks, contracts, etc., received by it from the Short-Line Railway Company under the contract described, and for general relief. There is a prayer for subpoena against E. P. Alexander and against the Savannah & Fort Valley Railway Company in the usual form. The bill and the amendment are properly verified.</p> <p>E. P. Alexander, the Central Railroad & Banking Company of Georgia, the United States Construction &-Improvement Company, the Savannah, • Dublin & Western Short-Line Railway Company, all demurred to the bill generally, upon the ground that there is no equity in the bill; that the bill is multifarious both as to the subject-matter and to the parties; that the complainants have no title such as would justify their prayers for discovery. The demurrers were overruled, and held not sufficient to defeat the application for injunction.</p> <p>Thomas P. Branch has filed a formal answer, denying that legal service has been effected upon him. The other defendants have also answered. E. P. Alexander and the Central Railway & Banking Company of Georgia, somewhat in detail, and the Short-Line Railway Company, the Construction Company, and the Savannah & Fort Valley Railway Company, adopt the answers of E. P. Alexander and the Central Railroad & Banking-Company for the purpose of this motion. The answers may therefore be treated as identical. They cannot be held sufficiently responsive as answers upon the final hearing, and are apparently intended to be used simply in reply to the rule to show cause, and are so entered. E. P. Alexander, in his answer, admits that he purchased from Thomas P. Branch all of the stock of the United States Construction Company in good faith, and paid Branch the sum of $100,000 therefor; that by the purchase he became entitled to all the stock, and the same was by his direction transferred and put in the names of the parties now holding the same; that he was not aware of the rights of the plaintiffs, as evinced by their contracts appended to the bill; that Branch exhibited to him two certificates of stocks in the Construction Company,—one for 510 shares, and one for 436 shares; that both of said certificates were signed by Douglas Green, president, and M. J. Verdery, treasurer, who are known to him as the president and treasurer of the Construction Company. A copy of the certificate is incorporated in the answer. That in addition to these 946 shares he bought the stock of the following parties: M. J. Verdery, 20 shares; Thomas P. Branch, 15 shares; A. F. McLeish, of New York city, 15 shares; Thomas A. Simons, 2 shares; Edward W. Scott, of New York city, 1 share; Douglas Green, of New York, 1 share, lie answers that he does not believe that the United States Construction & Improvement Company was organized for fraudulent speculation, and if it. was he does not know it; that it is not more insolvent now than it was at the lime the plaintiffs made their contracts with it, and that it has the same assets now that it had at the time of the sale to him, except 1,500 shares of the capital stock of the Savannah, Dublin & Western Short-Line Railway Company, which have since been transferred by the Construction Company for a valuable consideration. As complainants are only interested in the profits that might accrue to Simmons under the contracts of the Construction Company and the Short-Line Railway Company, if the Construction Company is insolvent there could be no profits accruing out of the contracts, and the company will not be hound to respond to the plaintiffs in any amount. He denies that the Construction Company ever admitted the rights of plaintiffs, and insists that if the plaintiffs have lost it is from their own laches. He denies that Richard Langdon was over a director in the Construction Company, and gives as a reason that Lang-don never owned any stock in said company. IIo denies that the Savannah, Dublin & Western Short-Line Railway Company, since the assignment of McKetchney, could admit the existence of a lien against the Construction Company, or could bind them or any other person. He answers further that, in acting in the purchase of the stock of the Construction Company, he did not act for the Central Railroad & Banking Company, but acted in behalf of and for the interest of the Savannah & Eort Valley Railway Company, which company was duly chartered to build and operate a railway from Savannah to Fort Valley, and the stock of the Savannah, Dublin & Western Short-Line Railway Company was not purchased for the Central Railroad & Banking Company, but was purchased bona fide for the Fort Valiev & Savannah Railway Company, which company was chartered to. build a road from Savannah to Fort Valley, which was the general direction in which the Savannah, Dublin & Western Short-Line Railway was projected; that the stock so purchased by the Fort Valley and the Savannah Railway Company was that in which the Construction Company had no interest, and was that portion of the stock of the Short-Line Company which was in the names of its original projectors, and which had never been transferred or assigned to any one else; that plaintiffs never had any interest, equitable or legal, or any lien on said stock. This answer is verified by the oath of E. P. Alexander.</p> <p>The answer of the Central Railroad & Banking Company of Georgia is verified by E. P. Alexander, also, as the president of that company. This answer denies that the Short-Line Railway Company purchased from the Macon & Dublin Company its franchises, or any part of them, and that the Short-Line Company has no authority under its original charter, or under any purchases, to build a railroad from Savannah to Macon; that the contract referred to and set out in the resolution of the Macon & Dublin Railroad Company was never carried out,, and it could not now be carried out, however desirable such contract might be. It admits that the contract in Exhibit A to the bill was entered into between John McKetchney and the Short-Line Railway Company; that said contract was assigned to the Construction Company under the terms set forth in Exhibit B to the bill; that the contract set out in Exhibit C to the bill was also made. As to the contract set out in Exhibit D, as made between Thomas P. Branch and James A. Simmons, it denies any knowlege save that derived from the plaintiffs’ bill. The answer admits that it kvas aware that 946 shares of the stock of the Construction Company had been issued in two certificates,—one for 510 shares in the name of James A. Simmons and Thomas P. Branch, jointly; and the other 436 shares in the names of Thomas P. Branch and Cornelius P. Sidell, of Georgia. These certificates are now in the hands of the Construction Company, and the assignment on the back of the two certificates is signed by the parties in whose names they were issued, and they have been delivered to the company for cancellation and the issue of new scrip therefor in names of other parties, and this has been done by the Construction Company. It denies any knowledge of the contracts between Simmons and Langdon, and Simmons and McNaughton, and Simmons and Conwell, and it denies that either of the plaintiffs under the three agreements, E, P, G, annexed to the bill, are equitably interested in any of the contracts for the construction, building, and equipment of the Short-Line Railway; and it denies that the plaintiffs have any interest, legal or equitable, in the stocks, bonds, or other securities which were turned over to John McKetchney under the first contract set out in Exhibit A. It avers that Thomas P. Branch is neither a director in the Construction Company nor in-the Short-Line Company. James A. Simmons is the nominal president of the Construction'Company, but before the filing of the bill of complainants he had sold his interest therein, and his place in the board of directors would have been filled at the next meeting of the board. It is unaware of a conspiracy between Branch and Simmons to defraud Langdon, McKaughton, and Conwell, or either of them; and it further says that no part or portion of the stock, bonds, and other securities of the Short-Line Railway was ever deposited with any one for securing the contracts referred to by complainants in their bill. This is stated on the knowledge, information, or belief of the defendant. The answer states further that it is not advised what consideration Thomas P. Branch paid for the stock of the Construction Company, but denies that Branch ever purchased an interest in the contracts to build the Savannah, Dublin & "Western Short-Line Railway; that all the interest in these contracts was vested in the Construction Company under the assignment made by John McKetchney, and the said contracts have remained in the possession of the Construction Company ever since that assignment, and are now in its possession, and owned exclusively by it. It denies that Branch and Simmons, or either of them, has entered into any agreement to sell and deliver the control of the Construction Company or any of its contracts to the Central Railroad & Banking Company; and it alleges that all the stock of the Construction Company has already been sold and transferred to, and is now held by, the stockholders in said company; and that said Branch has no interest whatever in said company, nor said Simmons any other interest than that heretofore set out. The defendant admits, however, that while the stock of tire Construction Company is not held by the defendant, it is held by persons who are interested in defendant. It does not know of any purpose or intent on the part of any person to cheat or defraud either of the complainants; and if such fraud was accomplished, and if the stock of the Construction Company, was intended to be held for the security of the plaintiffs, for their advancements to Simmons, the laches of the plaintiffs made it possible for Branch and Simmons to dispose of said stocks. 11 denies further that the contracts, securities, stocks, and bonds of the Short-Tine Company have been sold or transferred to this defendant, the Central Railroad & Banking Company, and insists . that all of said contracts and securities are now hold by the Construction Company, as they were at the time of the sale by Branch and Simmons, with the exception of 1,500 shares of the capital stock of the Short-Lino Railway Company, which have been transferred to sundry parties for money advanced to said Construction Company to carry out the purposes of its organization. It does not know what profits Branch and Simmons made. It was not advised of any limitation on the power of Branch and Simmons to transfer and assign their interest in the Construction Company. If such limitation existed, and was known to the plaintiffs, they are in laches, which rendered it possible for Branch and Simmons to transfer and sell out their interest, and plaintiffs are not therefore entitled to any relief as prayed for in the bill. The answer denies that the plaintiffs have any title or interest which will justify their prayer for relief, and it denies that it has made any attempt to purchase the control of the contracts, assets, and property of the United States Construction & Improvement Company. It denies that it has the control of the Savannah, Dublin & Western Short-Line Railway Company: and that it is under the control of its own hoard of directors, duly elected at its last annual meeting, which board is engaged in discharging its duties devolving on thorn as such directors, and is endeavoring to bring order out of chaos, that has developed in the management of said company.</p> <p>The answers to the interrogatories are substantially the same as the denials in the bill. The gist of the answers are as follows: That it is not true that Himmons and Branch have transferred to the Central Railroad & Banking Company of Georgia, or to persons suggested by it, the interests of the Construction Company in the Short-Line Company. The (’entral Railroad & Banking Company has not bought, paid, or promised to pay Branch and Simmons or anybody for such interest, but the contract was entered into by E. P. Alexander individually on the one part and Thomas P. Branch on the other part, whereby the said Alexander covenanted and agreed to pay to the said T. P. Branch $100,000, on delivery to him of all the capital stock of the United States Construction & Improvement Company, which was duly carried out by the said T. P. Branch; and the said sum of $100,000 was duly paid by the Savannah & Fort Valley Railway Company, of which the said E. P. Alexander was and is a director,-said company having assumed the said contract. It is not true that the Central Railroad & Banking Company of Georgia has bought out the interest of the stockholders and incorporators of the Savannah, Dublin & Western Railway Company residing in Georgia. In the anwer to the fifth interrogatory the defendant said the stockholders of the United States Construction & Improvement Company are as follows: T. G. Hillborn, 946 shares; E. P. Allen, 47 shares; C. R. Woods, 2 shares; H. B. Hollins, 2 shares; H. C. Cunningham, 1 share; and two shares standing in the name of Janies A. Simmons, which have been assigned by Simmons. The stock-book of the Savannah, Dublin & Western Railway Company shows that there are now standing 29,775 shares in the names of the following parties: United States Construction & Improvement Company, 27,900; H. Blunn, 115; C. R. Woods, 135;-,S. A. Woods, 50; H. C. Cunningham, 150; A. R. Lawton, Jr., 149; J. K. Garrett, 50; E. P. Alexander, 49; A. Vetsburg, 50; D. M. Hughes, 1; J. L. Warren, 1; Douglas Green, 25; J. J. Wilder, 98; E. M. Green, 102; F. G. Du Bignon, 201; W. W. Frazer, 197; Wallace Cummings, 204; Charles H. Dorsett, 100; George J. Baldwin, 175. The answer closes with a general denial of the -plaintiff’s complaint, and prays that the defendant be discharged, with its reasonable costs.</p>

<p>Mobtgages—Assignment—Paboi. Waiver by Mobtgagob op Conditions.</p> <p>It is competent, for the mortgagor to waive by parol the conditions specified in a written agreement, limiting the use of a mortgage, given to secure advances, and to consent to its assignment as collateral security for a loan.</p>

<p>In Equity. Bill by David Armstrong, as receiver of the Fidelity National Bank, against the Chemical National Bank, for an accounting. On motion to expunge certain paragraphs from the answer. .</p>

<p>Internal Revenue—Special Tax—Partnership—Right of Successor.</p> <p>Rev. St. U. S. § 3234, authorizes a partnership to carry on the business of retailing liquors and cigars upon the payment of but one special tax. Section. 3241 provides that upon the death of one who has paid the special tax his legal representatives may continue the business in the same place, and in the same manner, without the payment of an additional tax, and also that the. licensee may, upon removal from the place mentioned in the license, continue the business at the place to which he removed without paying an additional tax. Held, that a member of a firm who has acquired all the interests of the the other members in the firm assets, and succeeded to the business, may carry it on under a license issued to the firm, at a place other than the old place of business of the firm.</p>

<p>1. Courts—Federal Jurisdiction—Claims for Fees.</p> <p>The act of 22d February, 1875, (18 St. at Large, 333.) which requires that the accounts of district attorneys, clerks, marshals, etc., shall be forwarded, “when approved,” “to the proper accounting officers of the treasury,” does not make presentation to such officers a condition precedent to a right of action, nor is rejection of a claim by the accounting officers of the treasury such a determination of a “commission or department authorized to hear and determine, ” in the meaning of the act of March 8, 1887, (24 St. at Large, 505,) as will bar an action in the proper courts.</p> <p>2. Clerks—Fees.</p> <p>While the general rule is otherwise, when a statute is silent as to compensation, if additional labor is imposed upon a clerk, not in the line of the duties ordinarily appertaining to such an office, and if contemporaneous construction of the statute by the attorney general, and analogous provisions of other statutes subsequently passed, indicate an intention to pay for such services, the officer is entitled to compensation.</p> <p>3. Same—Service as Jury Commissioner.</p> <p>A clerk of a circuit or district court of the United States is entitled to compensation for revising the jury-box at the rate of five dollars per day for a period not exceeding throe days for a term of the court. The clerk is entitled to charge 15 cents per folio for recording the names, residences, etc., of jurors, on a record which he is required to make by a rule of court.</p> <p>4. Same—Attendance—Per Diem—Attendance of Deputy.</p> <p>Where his deputy attends a session of the court, the clerk is entitled to a per cliem compensation for such attendance, even though the clerk has received a per diem for his personal attendance the same day at a session of the court at another place.</p> <p>6. Same—Statute—Repeal.</p> <p>The proviso relative to compensation for attendance of court officers, in the act of August 4, 1886, (24 St. at Large, 253,) was repealed by the proviso covering the same subject-matter in the act of March 3,1887, (24 St. at Large, 541.) And since the passage of the latter act it is not necessary that business be transacted in court to entitle the clerk to his per diem,; it is sufficient if the court be opened for business by the judge.</p> <p>6. Same—Service as Commissioner.</p> <p>The offices of clerk and commissioner are compatible. A person who holds two distinct compatible offices may x'eceive the compensation of each. A clerk is given a per diem fee “for his attendance” at a session of the court; a commissioner is given & per diem fee “for hearing and deciding,”-—services clearly distinct.</p> <p>7. Same—Attachment for Contempt—Docket and Record Fees.</p> <p>An attachment against a defaulting witness or juror for contempt of coxxrt is an independent suit, and a “cause” for which a docket fee is chai'geable under the fee-bill. The clerk is required to make a final record of the proceedings in such a case.</p> <p>8. Same—Warrant for Transportation—Docket Fees.</p> <p>The clei’k is entitled to a docket fee for a hearing by the court on application for a warrant for the transportation of a defendant to another district under the provisions of section 1014, Rev. St.</p> <p>9. Same—Filing Papers.</p> <p>The clerk is entitled to charge for filing each separate paper sent up by-commissioners after hearing in criminal cases, and for filing each separate account of deputy-marshals, being the vouchers to accounts current of the marshal.</p> <p>10. Same—Approving Court Officials’ Accounts.</p> <p>The fees of the clerk for entering1 orders approving accounts of marshals, clerks, attorneys, commissioners, etc., as required by the act of February 22, 1875, (18 St. at Large, 883,1 and for certified copies of such orders for the department, are properly chargeable againstt.be United States.</p> <p>11. Same—Entering Official Proceedings.</p> <p>Where, by order of the court, the clerk enters upon the minutes, as memorial services in respect to the late vice-president, a proceeding in court of official character, the i'oo for entering is properly chargeable to the government.</p> <p>12. Same—Reporting Account of Witness and Jury Fees.</p> <p>The statute requires that jurors and witnesses shall be paid upon the orders of the court. When the clerk states the accounts of jurors and witnesses, taking their affidavits as to travel and attendance, and presents the accounts stated in a report to the court for ils approval, he is entitled to the fee prescribed by the statute “for making any report. ” The original orders signed by the judge should be entered of record, and placed upon file by the clerk, and he is entitled lo a fee of 10 cents for filing each.</p> <p>13. Same—Criminal Procedure—Commitment.</p> <p>In a state where the use of local jails for United States prisoners is permitted, whenever a prisoner is committed to jail a copy of the writ of commitment showing grounds thereof should bo left with the jailer. In case of a proceeding before a judge or commissioner, in which it is necessary to commit the defendant to jail to await a hearing or pending examination, a writ to commit is necessary, setting forth the cause of detention, and why examination is postponed. After hearing and order committing for trial, a final writ- of commitment is necessary, reciting the hearing, finding of probable cause, and that prisoner is committed in default of bail to await trial. Where a defendant, is arrested on bench-warrant, and brought before the court, and is committed in default of bail to await trial, the writ of commitment should state the cause of detention until a trial can be had. After conviction a final writ of commitment is necessary setting forth the fact of trial and conviction, and the term of imprisonment prescribed in the sentence. The copy commitment delivered to the jailer should, where practicable, he certified, and bear the seal of the court.</p> <p>14. Same—Final Record.</p> <p>A state law. passed since 1789, cannot affect criminal procedure in the federal courts. Unless there be an express statute to the contrary, the federal courts are governed in criminal causes by the general common-law procedure. A final record was required to he made by the clerk at common law, and the general method of making the record prescribed by the common law should be followed now, subject to such changes as have been wrought by the character of our institutions, and the modifications made necessary by the enlarged bill of rights of the federal constitution.</p> <p>15. Same.</p> <p>A criminal information must be founded on an affidavit charging a crime, and a preliminary hearing finding probable cause, and fixing reasonable bail by the committing magistrate, otherwise the proceeding is not in accordance with due process of law, and is contrary to the fourth, fifth, and eighth amendments to the constitution. The proceedings before the committing magistrate showing a compliance with these constitutional provisions, being a necessary part of the proceeding, should be entered upon the final record.</p> <p>16. Same—Suiipcmnas—Cortes.</p> <p>At common law the names of only four witnesses could ho included in one writ of subpoena. The witness was served by leaving with-him a copy of the subpoena, or a ticket which contained the substance of the writ. It was the duty of the party or his attorney to make the copy subpoenas or tickets, and furnish them, with the writ, to the officer for service. Section 829, Rev. St., requires that the clerk shall insert in each writ of subpoena the names of as many witnesses in a cause as convenience in serving will permit. Where the clerk makes the copy subpoenas or subpoena tickets, and furnishes them to the marshal for service, at the request or by the acquiescence of the district attorney, the clerk is entitled to charge the government for making such copies.</p> <p>17. Same—Counting Record—“Folio. ”</p> <p>In determining the number of folios in a final record each separate and distinct order, notice, or other pa.per is to be counted separately, according to the rule prescribed in section 831, Rev. St., and the aggregate of the folios so found is the number of folios in the record.</p> <p> (Syllabus by the Court.) </p>

<p>In Admiralty. On appeal from district court. Libel for damages.</p> <p>Libel by Charles C. Williams against the steam-boat Whisper, for a collision between the steam-boat and libelant’s barge. The district court found the steam-boat alone in fault, and claimant appealed.</p>

<p>1. Removal of Causes — Criminal Actions—Railroad Companies—Penalty foe Illegal 'Rates.</p> <p>Act Iowa, April 5, 1888, § 27, entitled “An act to regulate railroad corporations, ’’provides “that any such, railroad corporation guilty of extortion * * *. shall forfeit and pay the state of Iowa not less than $1,000 nor more than $5.000, s * * to be recovered in a civil action by ordinary proceedings instituted in the name of the state.” Held, that an action for such penalty, brought by the state, is one of a criminal nature, and not removable under act Cong. March 3, 1887, § 2, which provides “that any suit of a civil nature, at law or in equity, may be removed. ”</p> <p>2. Same.</p> <p>It is not the form, but the nature, of the action, that determines the question of removal.</p>

<p>On Motion to Remand.</p> <p>Action by W. G. Huskins against the Cincinnati, New Orleans & Texas Pacific Railway Company for personal injuries.</p>

In Equity. On demurrer and exceptions. In tho first of these three actions J. H. Winters is plaintiff, and David Armstrong, receiver of the Fidelity National Bank, is defendant, and in the two others the receiver is plaintiff, and W. II. Stanage and William Wood, respectively, are defendants.

<p>Equity—Multiea biottsnkss.</p> <p>Where the same relief is asked against several defendants, and all based on the same transaction, and it appears that, unless they can be joined in one bill. 70 or 80 suits, all growing out of the same character of transactions, will have to be brought, the bill will not be held had for mnltifariousness'.</p>

<p>At Law.</p> <p>Actions upon insurance policies, by M. Nussbaum & Co. against the Northern Insurance Company of London and Aberdeen and others.</p>

In-.Equity. Bill by policy-holders of a life insurance company to enforce the termination of their contracts, and payment pf the value of ■their policies.

<p>Carriers—Of Goods—Connecting Carriers—Liability for Loss.</p> <p>Each of several connecting carriers is liable to tbe owner on a through bill of lading issued by the first, for damages to goods shipped, with recourse against the one in fault.</p>

<p>In Equity.</p> <p>. Bill by the Frankfort Whisky Process Company against the Mill Creek Distilling Company and others for the infringement of a patent.</p>

<p>In Admiralty. Petitions by John Jackson and T. T. Lewis against the surplus and remnants. For former opinions, see 35 Fed. Rep. 548, 36 Fed. Rep. 493.</p>

<p>Motion to Remand.</p> <p>Action by the Tennessee Coal, Lumber & Tan-Bark Company et al. against George B. Waller.</p>

On petition of Walter S. Harsha, clerk of the circuit court, for an order to pay money into court. This was a bill of foreclosure, upon which a decree for the sale of the property had been passed and executed.

<p>1. Pubtao Lands—Raitaioad Grants—Construction.</p> <p>Under theTJnion Pacific, Railroad acts defendant company had a land grant in prtesmti from Kansas City to Cheyenne via Denver, and its road was in process of construction. The Denver Pacific Railway <fc Telegraph Company had graded a road-bed from Cheyenne to Denver. Subsequently, by act Cong. March 3, 1809, entitled “An act to authorize the transfer of lands granted to” defendant company, to the latter, defendant was authorized to contract with that company for the construction and operation of defendant’s road between Denver and Cheyenne, “and to grant to said Denver Pacific Railway & Telegraph Company the perpetual use of its right of way and depot grounds, and to transfer to it all the rights and privileges ” pertaining to that part of the road. The act further provided that “said companies are hereby authorized to mortgage their respective portions of said roads, as herein defined, ” for a certain amount per mile, “and each of said companies shall receive patents to the alternate sections of land along their respective lines of road, ” in the same manner as under the previous grant to defendant, field that, under the act of 1809. defendant's grant remained a continuous grant from Kansas City to Cheyenne, and the only effect of the act was to divide the grant between the two companies.</p> <p>2. Same—Interpretation by Land Department.</p> <p>While it is true that, under the general rule that railroad land grants are to be limited lo lands situated at right angles to the general line of the road, t here would be a tract south and west of Denver which might not be covered by the grant, because outside of the angles of both branches of the road, yet, where the land department has construed the grant and the act of 1889 to embrace such tract, and has issued patents accordingly, and such construction has remained unchallenged for 15 years, and rights of third persons have attached, the court will not set aside such patents, there being some doubt as to the true construction of the acts.</p>

<p>Public Lands—Railroad Grants—Exceptions—Homestead Entrys.</p> <p>Tbe word “ attached, ” in 12U. S. St. at Large, 492, (the Union Pacific land grant act,) granting land “to which a pre-emption or homestead claim may not have attached at the time'the line of said road is definitely fixed, ” means the filing-of an entry in regular form by a settler; and the fact that subsequently to the definite location of the road such an entry is set aside because made by a person not entitled to hold a government claim, gives the company no right to the -land.</p>

<p>Contracts—Requisites—Agreement.</p> <p>Defendant wrote plaintiff: “When you can give $1,000 for my interest, send your deed and money,” to winch he replied: “I am not willing to give more than $750;” but six days later his agent wrote to defendant: “I am directed to accept your offer,” to which defendant replied: “I have turned my business [over] to W., and he will trade with you, and then send me deed. * * * Upon presentation of deed from him, will sign and send back. ” Meld, that there was no contract.</p>

<p>Attachment—In Federal Courts—Insolvency Proceedings in State Court.</p> <p>Under Rev. St. U. S. § 915, entitling plaintiff in a common-law case in a federal,court to remedies by attachment or other process similar to those pro- • vide'd by the laws of the state in which the court is held, and requiring similar preliminary proof and security; and section 933. which provides that an attachment shall be dissolved on any contingency on which an attachment would be dissolved in the state courts;—proceedings in an action in which an attach-meat has been levied will bo stayed where iasolvency proceedings against the debtor are instituted in the state courts, as otherwise the plaintiff would acquire an undue advantage over the state creditors, which is contrary to the intent of the statute.</p>

<p>At Law. Agreed case.</p>

At law. On motion for new trial. Action by David J. Hennessy against the city of St. Paul for damages caused by tearing down and removing plaintiff’s building. Verdict for plaintiff, and defendant moves for a new trial.

<p>1. Carriers — Interstate Commerce Commission—Constitutional Law—Judicial Powers.</p> <p>Congress, in establishing “inferior courts,” and prescribing their jurisdiction, must confer upon the judges appointed to administer them, the constitutional tenure of office,—that of holding “during good behavior, ”—before they can become invested with any portion of the judicial power of the government.</p> <p>2. Same. ■</p> <p>The act to regulate commerce do.es not undertake either to create an “inferior court, ” or to invest the commission appointed thereunder with judicial powers or functions.</p> <p>3. Same.</p> <p>The interstate commerce commission is invested with only administrative/ powers of supervision and investigation, which fall far short of making it a court, or its action judicial, in the proper sense of the term. Its action or conclusion upon matters brought before it for investigation is neither final nor conclusive; nor is it invested with any authority to enforce its decision or award. It hears, investigates, and reports upon complaints made before it, but subsequent judicial proceedings are contemplated and provided for as the remedy for the enforcement of the order or report of the commission in all cases where the party against whom its decision is rendered does not yield voluntary obedience thereto.</p> <p>4 Same—Effect of Report.</p> <p>The commission is charged with the duty of investigating and reporting upon complaints; and the facts found or reported by it are only given the force and weight of •prima fume, evidence in such judicial proceedings as may thereafter be had for the enforcement of its recommendation or order. The functions of the commission are those of referees or special commissioners, appointed to make preliminary investigation of, and report upon, matters for subsequent judicial examination and determination. In respect to interstate commerce matters covered by the law, the commission may be regarded as the general referee of each and every circuit court of the United States upon which the jurisdiction is conferred of enforcing the rights, duties, and obligations recognized and enforced by said law.</p> <p>5. Same—Power of Congress.</p> <p>Congress, under its sovereign and exclusive power to regulate commerce among the several stales, has the power to create a commission for the purpose of supervising, investigating, and reporting upon matters or complaints connected with or growing out of interstate commerce; and no valid constitutional objection can be urged against making the findings of the commission prima facie evidence in subsequent judicial proceedings. Such a provision merely prescribes a rule of evidence, clearly within well-recognized powers of the legislature, and in no way encroaches upon the court’s proper functions.</p> <p>6. Same—Power of Circuit Court.</p> <p>The act does not make the circuit court the mere executioner of the commissioners’ order or recommendation, so as to impose upon the court a nonjudicial power. The courtis not restricted to the mere ministerial duty of enforcing an order of the commission. The suit in this court is, under the provisions of the act, an original and independent proceeding, in which the commissioners’ report is made prima facie evidence of the matters or facts therein stated. The court is not confined to a mere re-examination of the case as heard and reported by the commission, but hears and determines the cause de now, upon proper pleadings and proofs; the latter including not only the prima facie facts reported by the commission, but all such other and further testimony as either party may introduce, bearing upon the matters in controversy.</p> <p>7. Same—Jurisdiction—Citizenship.</p> <p>The right asserted by petitioner arises and is claimed under a law of the United States which relates to a subject over which congress has exclusive control; and this is sufficient to sustain the court’s jurisdiction, independent of the citizenship' of the parties to the controvers3r, since it involves a federal question.</p> <p>8. Same—Common Carriers—Bridge Companies.</p> <p>Where a railway company, by contract with a bridge company, acquires the right to use a bridge, with its approaches, for the engines, cars, and trains of the railway company, the first section of the “act to regulate commerce” regards the railway company as the owner or operator of the bridge and approaches, for the time being, as to all freight transported by the railway company over the bridge; and as to all such traffic, the railway company, and not the bridge company, must be regarded as the common carrier. Such a bridge company is not, either in law or in fact, a common carrier of interstate traffic, within the scope and meaning of said section; and it cannot invoke the provisions of said act, to compel railway companies to transact business with or through such bridge company. Between such a bridge company, and the railway carriers of the country, the act establishes no such reciprocal relations, duties, and obligations-as require the latter to form business connections with the former.</p> <p>9. Same—Transfer Companies—Switching Cars.</p> <p>Where a corporation, which is under no legal obligation to do so, voluntarily contracts to switch cars over its tracks, between two or more railways, for'which service it collects a certain switching charge for switching the cars, loaded or empty, but charges no traffic rates on the freight transported or transferred in the cars, such corporation, in the performance of such service, assumes none of the responsibilities of a common carrier, but only those of a switchman. In respect to cars or traffic thus handled, such corporation can only be regarded as a switchman, or transfer company; and it is no more a common carrier of interstate commerce or traffic, within the provisions of the law, than a city transfer company, which checks a passenger’s baggage at the hotel where it is received, and carries it, for an agreed compensation, to the station of the railway over which it is to be transported into another state.</p> <p>10. Same—Bridge Companies—Charges for Transfer.</p> <p>When a bridge company, owning no freight cars of its own, solicits freight for railway companies, who will furnish the cars, and over whose lines the freight is to go, and merely transfers such cars over its bridge, delivering them to the railway companies furnishing the same, and charging for its service its regular bridge-toll, but making no charge for transporting the freight contained or carried in the cars, such a bridge company is not a common carrier of such interstate freight. The object and purpose of the bridge company in thus constituting itself the soliciting agent for the railway companies Who are willing to .provide the cars for the freight it may secure, is mani-' festlv to obtain tolls for the use of its bridge; and the law'does not require the railway companies to'keep up such an arrangement with the bridge company, in order to protect its interest in securing tolls for its bridge.</p> <p>11. Same—Transportation Charges—Tolls.</p> <p>Where the charter of a bridge company makes its bridge and approaches thereto, such as it had author^ to construct, a public thoroughfare or highway for the use of which by railroads, or street cars, wagons, vehicles, animals, and foot-passengers it was authorized to charge “reasonable tolls, ” for the collection of which suitable toll-gates could be established, the word “tolls,” as used in such a charter, is strictly applicable to charges for the use of its highway, rather than to compensation for transportation services which the bridge company may perform or ho permitted to render.</p> <p>12. Same—Construction of Charter.</p> <p>Where the charter of a bridge company confers upon it the franchises and powers of building, maintaining, and operating its bridge and approaches, designated as its terminal facilities, such franchises and powers do not, in and of themselves, constitute the bridge company a common carrier of property: on the contrary, they are appropriately confined to the erection, operation, and maintenance of a thoroughfare or' public highway, open to the use of others, common carriers and private parties, upon making compensation therefor in the shape of “reasonable tolls.”</p> <p>13. Same.</p> <p>The charter powers of said company, neither expressly nor by any clear implication, confer upon it authority, “io equip its road, and to transport goods and passengers thereon, and charge compensation therefor;” nor do they in any way constitute said company a common carrier, the rule of construction applicable to such charters being that “no power is conferred upon a corporation which is not given expressly, or by clear implication. ”</p> <p>14. Same—Connecting Carriers—Interchange of Traffic.</p> <p>Where the charter of a railroad company provided “that any and all such railroad or railroads hereafter constructed may connect and join with the road hereby contemplated. ” the connection thus authorized is a physical and not a business connection, and it does not require an interchange of traffic at the point of junction.</p> <p>15. Same—Combinations to Prevent Continuous Carriage.</p> <p>The seventh section makes it unlawful for any common carrier, subject to the provisions of the act, “to enter into any combination, contract, or agreement, express or implied, to prevent, by change of lime-schedule, carriage in different cars, or by other means or devices, the carriage of freights from being continuous from the place of shipment to the place of destination, ” etc. It is no violation of said section for a railroad company to enter into contracts with other companies for the establishment of through routes, and through rates, for 1he continuous carriage of interstate traffic. Such contracts are in nowise inconsistent with the things forbidden by said section.</p> <p>16. Same — Connecting Carriers — Peasonabbe, Proper, and Equal Facilities.</p> <p>The second clause of the third section provides that “every common carrier subject to the provisions of this act shall, according to their respective powers, afford all reasonable, proper, and equal facilities for the interchange of traffic between their respective lines, and for the receiving, forwarding, and delivering of passengers and property to and from their several lines and those connecting therewith, and shall not discriminate in their rates and charges between such connecting lines, ” etc.: but neither this nor any other provision of the law requires of the common carrier of interstate commerce the duty of either, forming now connections, or of establishing new stations for the reception and delivery of freights. The aet to regulate commerce deals with such common carriers as it finds them, and leaves to them full discretion as to what extensions they will make of their lines, the connections they may form, and the yards and depots they may choose to establish. When railroad companies, in compliance with their ciiarter obligations, have provided themselves with convenient, suitable, and ample stations and depots for the accommodation of their business, the law imposes upon them no duty, either to the public or other railroad lines, of making new stations, yards, or depots, even though such additional constructions might be for the convenience of the public or of other carriers. Congress has certainly not undertaken—even if it possessed the power—to deal with such matters.</p> <p>17. Same.</p> <p>When a new railroad makes a physical connection with an old railroad at a point other than the established yard or depot of the old road, hut neither company has any yard, station, depot, or ground, at the point of connection, nor any buildings, sheds, or platforms there for the reception and accommodation of freights to he handled and exchanged at that point, nor any clerks or employes stationed there for the inspection of ears, reception of freights, etc., an interchange of traffic at such a point cannot be made in a proper and convenient way to either company; and no authority is conferred upon the commission or upon this court to compel the old company to provide at said point of connection the same or equal facilities which it had previously provided at its regular, established yards and depots.</p> <p>18. Same.</p> <p>Where a new railroad makes a physical connection with an old railroad, at a point other than the established yard or depot of the old road, and there are no facilities at said connection for receiving, forwarding, or delivering freight, individual shippers or consignees of freight have no right to require the old company to receive or deliver their traffic at such point of connection; and the new company, or other companies using its tracks, cannot properly demand or require of the old company to concede to it or them rights and facilities which the old company is under no obligation or duty to grant or provide for individual owners or shippers of interstate commerce. This would be conferring upon common carriers engaged in transporting interstate traffic rights and privileges superior to those intended for the benefit of such commerce itself. The law was not designed to advance the interests of carriers, but was intended for the benefit and advantage of the commerce they transported; and'the provisions of the act all look to that as its object and purpose.</p> <p>19. Same—Undue or Unreasonable Preferences.</p> <p>The fact that a railroad company interchanges traffic with certain railroads, at its regular, established yard or depot, (where it has provided all reasonable, proper, and equal facilities for that purpose,) and refuses to interchange traffic with a new road at a point of connection where no such facilities exist, does not constitute any “discrimination,” or any “undue or unreasonable preference or advantage,” in favor of the railroads with which such interchange is made.. The third section of the act does not mean that whatever facilities a railroad company may furnish or provide for the interchange of business with connecting lines at any one place, (such as its regularly established and properly equipped depot,) it is bound to provide for any and all other railroads at such other and different points as they may select in making their connection. On the contrary, said 'section means that where a railroad subject to the provisions of the act has provided and established at any given place its facilities in the shape of yards, stations, and depots for the interchange of traffic, or for the receiving', forwarding, and delivering of passengers and property, and there affords such facilities to some of its connecting lines, it shall not deny to other connecting lines at that point the same proper, reasonable, and equal facilities.</p> <p>20. Same.</p> <p>It by no means follows because certain facilities for the interchange of freight are furnished by a railroad to another connecting line or lines at one point, upon certain terms, conditions, and considerations, and where ample accommodations for the transaction of such business are provided and maintained at the joint expense of the companies using them, that another company, making a physical connection with the road furnishing such facilities at another, different, and distant place is entitled to demand at said different point of connection the same or equal facilities. The company making the physical connection, at a point other than that at which the established road has already provided its facilities, and conducts its interchange with other connecting lines, cannot demand or require an interchange at such point of physical connection without first furnishing at such point reasonable and proper facilities for the interchange sought. " In cannot rely upon the terminal facilities at another point of the road with which it has formed the physical connection; nor can it compel the road with which, the connection is made to join with it in the expense of providing at that point the facilities necessary and proper for the interchange.</p> <p>21. Same—Similar or Dissimilar Circumstances.</p> <p>Ho provision of the act confers equal facilities upon connecting lines, under dissimilar circumstances and conditions. On the contrary, even as to interstate commerce itself, the distinction is recognized throughout the law between discriminations and preferences which are just and reasonable and those which are unjust and unreasonable, according as they are made or given under similar or dissimilar circumstances and conditions. All discriminations- and preferences are not forbidden or made unlawful, but only such as are unjust, or undue, or unreasonable. In each and every case, therefore, the question whether a discrimination is unjust, or a preference is undue or unreasonable. either as to the common carrier or the commerce it may transport, involves a consideration of the circumstances and conditions under which such discrimination or preference is made or given.</p> <p>22. Samk—1Terminal Facilities—Change ov Connecting Point.</p> <p>An interchange of traffic at a new point of connection between railroads, where there are no buildings, sheds, platforms, or other facilities for the proper care, protection, and handling of freight, and no clerks or employes stationed there to look after and attend to the business, cannot possibly be carried on without requiring the old road to concede the use of its track and terminal facilities to the new road, or without imposing upon the old road the trouble, inconvenience, and expense of handling the traffic interchanged between them; and neither the commission nor this court has any authority to require the old road to concede the use of its Iracks and terminal facilities in order to accomplish an interchange of traffic; nor can this court or the commission impose upon the old road the duty of making such interchange at its own expense, over its own tracks, with its own engines, at its own yard, and with its own employes. Such interchanges between railroads are,arranged by mutual agreements, fixing the compensation to be paid for services, and for the use of improvements, and providing for “prorating” the expense incident to such interchange. But if the parties cannot themselves agree upon such terms, neither this court nor the commission can make an agreement for them, under the existing law, and under circumstances such as exist in this case.</p> <p>23. Same—Discrimination.</p> <p>The provision in the third section of the act, to the effect that a common carrier shall not, bo required “to give the use of its tracks and terminal facilities to another carrier engaged in like business, ” is a limitation upon, or qual iiication of, tile duty of affording' all reasonable, proper, and equal facilities for the interchange, or for the receiving, forwarding, and delivering, of trafile to, from, and between connecting lines; and therefore it is left open to any common carrier to contract, or enter into arrangements for the use of its tracks and terminal facilities, with one or more connecting lines, without subjecting itself to the charge of giving an undue or unreasonable preference or advantage to such lines, or of discriminating against other carriers who are not parties to. or included in, such arrangements. No common carrier can therefore justly complain of another that it is not allowed the use of that other’s tracks and terminal facilities upon the same or like terms and conditions which, under private contract or agreement, are conceded to other lines.</p> <p>24. Same—Transportation of Interstate Traffic—Rates.</p> <p>The first section, of the act provides that all charges for services rendered by common carriers subject to the provisions of the law “shall be reasonable and just,,” and prohibits and declares unlawful “any unjust aud unreasonable charge.” This is the sole requirement of the law upon the subject of rates which common carriers, subject to the provisions of the law, may demand for the transportation of interstate traffic.</p> <p>25. Same—Timo ugh Routes and Rates.</p> <p>Arrangements in respect to through freight traffic and joint through rates or charges, as well as the forms of hills of lading, and the apportionment to ho made of such joint traffic rates, and of losses or damage to freight in course of transit, 'are all matters of private arrangement. Such arrangements, which usually include the reciprocal interchange of cars, and the use of each other’s tracks and terminal facilities, are prompted by considerations varied and complex. In some instances, and between some companies, they may be mutually desirable and beneficial, while in other cases, and with other connecting lines, they might be prejudicial and injurious to the interest of one or both; and companies in the latter situation cannot properly claim, as matter of right, what the former have acquired under and by virtue of private contract or arrangement.</p> <p>26. Same—Traffic Arrangement—Common Law.</p> <p>At common law, the refusal of a common carrier to make through traffic arrangements at or upon joint through rates, with one connecting railroad company, such as it makes or enters into with another connecting line, does not constitute any undue or unreasonable discrimination in charges or facilities.</p> <p>27. Same—Act of 1866.</p> <p>Section 5258, Rev. St. U. S., (embracing act June 15,1866,) imposes n'o duty; it merely permits or authorizes the carriage oí traffic from one state to another, and, to that end,-the formation of continuous lines by mutual agreement. It confers no power to compel a railroad company to make through routes and through rates with one connecting line because it has, by agreement, made them with another.</p> <p>28. Same.</p> <p>It is clear that from the provisions of section 6 of the act two or more common carriers may lawfully enter into contracts or agreements for the establishment of through routes at or upon joint through rates; because copies of such contracts and agreements, and of the joint tariffs of such carriers, are required to be filed with the commission. If, in the exercise of the right thus impliedly, if not expressly, recognized, a common carrier, by private arrangements, forms a through route, and establishes joint through rates, with certain connecting lines, it cannot be compelled to concede to all other connecting railroads the same or equal through rates, on traffic which the latter may offer for transportation.</p> <p>29. Same,</p> <p>The act does not undertake to create between connecting lines such an agency or quasi partnership relation as is necessarily involved in agreements or arrangements for the establishment of through routes and the making of through rates. As such arrangements exist by contract, express or implied, the fact-that a common carrier enters into them with one or more connecting lines does not impose upon such carrier the duty or obligation to make the same or like contracts with all other lines.</p> <p>30. Same.</p> <p>No authority is conferred upon common carriers of interstate commerce to issue through "tickets to passengers, or through bills of lading for property, at through rates, over connecting lines, in the absence of such arrangements between the companies.</p> <p>31. Same—English Acts.</p> <p>The commission is not invested with authority to establish through routes, nor to fix through rates, between connecting lines. The English act of 1873, amendatory of the act of 1854, did confer such authority upon the English commission; but our act to regulate commerce contains no such provision, and confers no such authority.</p> <p>32. Same-Rights of Consignors to Route Shipments.</p> <p>An individual shipper or consignor cannot legally require a railroad company to send a shipment, by a particular route, beyond the company’s line, at the same or equivalent through rates which such company may have established with other copnecting lines; and what the individual shipper of interstate commerce may not lawfully demand, common carriers engaged in transporting such commerce may not lawfully require, of connecting lines.</p> <p>33. Same—Through and Local Traffic—Discrimination.</p> <p>In the absence of through traffic arrangements between two railroad companies, the one has the right to treat freights tendered to it by the other as local business, and to charge for the transportation thereof its local rates to destination; and in doing so no discrimination is made against the other company on the traffic it carries; nor does the company charging local rates on such freights make or give any undue or unreasonable preference to other lines, or to the traffic they handle, with whom it has agreements for through routeing, and at through joint rates, which may be lower than its local rates to the same points; because the service in the. two cases is not the same, or identical.</p> <p>34. Same—Obligation of Contracts.</p> <p>Neither the act to regulate commerce, nor the act of June 15,1866, (Rev. St. U. S. § 5258,) was ever intended to invade the domain of private contracts between common carriers, which were valid when made, and are not in conflict with the provisions of the law. The observance of good faith between parties, the upholding of private contracts, and enforcing their obligations, are matters of higher moment and importance to the public welfare, and far more reaching in their consequences, than the public policy sought to be established in the facilitation of Commercial intercourse among the states, which the act of June 15, 1866, aimed to promote.</p> <p>85. Same—Ookstkitction ov Act.</p> <p>The law should bo as liberally construed in favor of commerce among the states as its language will permit; but when complaint is made, or relief is sought, solely or mainly in the interest of the common carriers engaged in the transportation of such commerce, the act complained of, or the right asserted, should not rest upon any doubtful construction, but should clearly appear to have been forbidden or conferred. And where the complaining carriers are not in a position to commend themselves to the favorable consideration of a court of equity, no strained construction of the Jaw should be made, in order to afford them, or either of them, the relief they seek at the hands of the court.</p> <p>88. 8am e.</p> <p>Under the terms and operations of a contract made by a bridge company and three railroad companies, the railroad companies secured and enjoyed all reasonable, proper, and equal facilities for the interchange of cars and traffic between them, which interchange was conducted for many years ¡at the regular, established yard or depot of one of them, and the expenses of such interchange were shared by them in certain proportions, fixed by contract. After the passage of the ac't to regulate commerce, one of the railroad companies voluntarily abandoned those facilities, and changed its business to another bridge,—not in the interest of the public, nor of the interstate commerce it handled," but for its own private benefit and advantage,—and then sought to compel the company (at whose yard the interchange of traffic had been conducted) to allow such interchange at a now point of connection, and to afford at such point facilities equal to thoso which the applicant had voluntarily abandoned. Held, that the application ought not to be granted.</p> <p>87. Same—Powsits ov Ookukess.</p> <p>Possessing such sovereign and exclusive power over the subject of commerce among the states, it is difficult to understand why congress may not legislate in respect thereto, to the same extent, both as to rates and all other matters of regulation, as the states may do in respect to purely local or internal commerce; but the court is not called upon in the present case to say what would or would not come within this regulating power, for the existing law does not undertake to prescribe anything more upon the subject of rates than that they shall bo reasonable and just; and it does not undertake to require a common carrier, suoject to its provisions, to establish through routes and through rates with all connecting lines, merely because it may have done so with one of them.</p>

<p>1. CARRIERS—INTERSTATE COMMERCE ACT—INDICTMB11ÍT.</p> <p>The offense oí “unjust discrimination,” under section 2 of the interstate commerce act, (24 U. S. St at Large, p. 379,) is not confined to discrimination hy means of some device, as hy a special rate, rehate, or drawback, but is committed by directly giving different rates to different persons; and an indictment under that section need not aver by what particular device the discrimination was accomplished.</p> <p>2. Same.</p> <p>Under section 3 of the act, making it unlawful for a carrier “to make or give any undue or unreasonable preference or advantage to any particular person, company, firm, corporation, or locality * ':i * in any respect whatever, or to subject any particular person, company,” etc., “to any undue or unreasonable prejudice or disadvantage, ” a count in an indictment is sufficient if it shows with requisite certainty that the defendant has committed an act giving one shipper or class of shippers an advantage, or subjecting others to a disadvantage; and it need not allege that the discrimination was committed “ under substantially similar circumstances and conditions, ” as required under section 4, containing the “long and short haul” clause.</p> <p>5. Same.</p> <p>A count whose language is so uncertain as to leave it in doubt whether it means to charge that defendant demanded of merchants in Hannibal greater compensation for carrying goods from that city to Helper, Kan., than he demanded of another railroad company for carrying goods between the same points, or greater than he demanded of that company for carrying goods from Chicago to Helper, is bad on demurrer.</p> <p>4. Same;</p> <p>A count under section 6 of the act, charging that on a day named defendant, as agent, etc., charged and collected of another railroad company a less rate of compensation for carrying goods between Hannibal and Helper than 46 cents.per 100 pounds, which rate had been “established and.puhlished”-between those points prior to the day named, and that said rate was “in force on that day,” negatives a reduction by defendant's company prior to or on the day in question.</p> <p>6. Same—Agency of Defendant.</p> <p>Under section 10, making any agent of a railroad company subject to the provisions of the act amenable to its penalties, who willfully does any of the prohibited acts, an allegation that defendant, at the time the offense was committed, was agent of a certain railway company, and had general charge of its freight-office at Hannibal, sufficiently shows that the offense was committed under color of his office or agency; and it is not necessary to allege or prove that the particular act complained of was done under the direction or authority of the principal.</p>

<p>Carriers—Of Passengers—Discrimination against Colored Persons.</p> <p>Plaintiff, an educated colored clergyman, the holder oí a first-class ticket on defendants' steam-boat, when the supper bell rang, seated himself at the table, and, on the captain requesting him to move to another table because the other passengers had complained of his presence, he refused. The captain thou had another table fixed up for the other passengers, and plaintiff was left alone, his supper being furnished him. Held, that there was no discrimination against, plaintiff on which to base a libel for damages against the owners of the boat.1</p>

In Admiralty. Libel for damages. On appeal from district court. Libel by the Western Manufacturing Company against the steamer-Guiding Star, for damage to goods in course of carriage. Decree for respondent, and libelant appeals.

Appeal frqm Taxation of Costs in District Court. In this case, a decree having been entered dismissing the bill with costs to the defendants, the clerk, on the application of the defendants being required to tax them, disallowed an item for solicitor’s fees of “23 depositions at 82.50, §57.50,” on the authority of Tuck v. Olds, 29 Fed. Rep. 883.

<p>Application of William McLean, acting commissioner of pensions, for an order upon a witness.</p>

<p>Order on W. E. Hale, Sheriff, to Show Cause.</p> <p>On September 8, 1888, D. H. Terry was adjudged guilty of contempt,, and to he imprisoned therefor for the term of six months in the Alameda county jail. 36 Fed. Rep. 419. He claimed credits, and the sheriff declared his intention to allow the credits, and discharge the prisoner on January 31, 1889. This coming to the knowledge of the United States attorney, that officer filed a petition stating the facts, and obtained an order upon the sheriff to show cause why he should not detain the prisoner in custody for the whole term prescribed in the judgment. The facts as stated in the petition being admitted, the question was whether the defendant was entitled to the credits claimed.</p>

In Bankruptcy. The petition was filed by the petitioner, who was a creditor of and had a provable claim against the defendant, a bankrupt, to set aside a discharge granted to him in February, 1879, on the ground that the bankrupt had been guilty of fraud in his application for the benefit of the bankrupt law. The petition was filed in this case on the 27 th of August, A. I). 1888.

<p>In Equity. Bill for infringement of patent, bee 31 Fed. Rep. 344. On exceptions to master’s report.</p>

<p>1. Removal of Causes—Citizenship—Non-Residents of Different States.</p> <p>Where, in a cause removed from a state court to the circuit court of the United States for the Northern district of Georgia, it appears that the complainant is a'citizen of the state of Alabama, and the real defendant having an interest in the controversy is a citizen of the state of Ohio, removal having been made by the citizen' of Ohio, on motion to remand upon the ground that the citizenship of the parties was not suchas to give the-circuit court jurisdiction, held, that the cause was removable.</p> <p>3. Same—Procedure.</p> <p>If it is irregular to file an affidavit and bond for removal the day before taking a formal order making movant, a, party and removing the cause, such irregularity is cured by an order the next day making him a party and reciting the fact as to the filing of the bond and removal of the cause.</p>

<p>1. Courts— Jurisdiction—Carriers—Injuries to Passen&ers.</p> <p>A railroad company, whose road extends from Atlanta, Ga., through South Carolina to Charlotte, N. C., the office of its division superintendent being in Atlanta, may be sued in the Georgia courts by a citizen of Georgia, for personal injuries received while traveling on its road in South Carolina, especially where it appears that the train on which the accident happened was being operated under the superintendent’s control.</p> <p>2. Railroad Companies—Actions—Service of Process.</p> <p>Under Code Ga. § 3407, which provides that the lessee of a railroad shall be liable to suit of any kind in the same court or jurisdiction as the lessor before the lease, service of summons in an action against a lessee railroad company by leaving a copy at the office of the superintendent in the county in which the declaration alleges were and are situate the principal offices of the lessor and lessee, is good.</p>

<p>In Admiralty. Appeal from district court.</p> <p>Libel by E. M. Freeman against.-the ship Undaunted, for half pilot-age. The district court dismissed the libel and libelant appeals.</p>

<p>At Law. Ejectment by Emily Deguire and Paul W. Deguire against the St. Joseph Lead Company. On motion to strike out part of reply.</p>

<p>Indictment for Carrying on the Business of a Retail Liquor Dealer Without Having Paid the Special Tax.</p>

Demurrer to Indictment for Perjury. Defendant entered a quarter section of land in Escambia county, Ala., under Rev. St. U. S. § 2289, and afterwards, under section 2301, commuted his homestead entry into a cash entry.

Habeas Corpus. The petitioner sought the discharge of his son, Oarl Cosenow, from the army of the United States, upon the ground of his infancy at the limo' of his enlistment. From the return of the commanding officer il„appeared that Cosenow was enlisted at Fort Wayne, Mich., under the name of Fred.

<p>In Equity.</p> <p>Bill by the American Bell Telephone Company against the Wallace Electric Telephone Company, for the infringement of complainant’s patents.</p>

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

<p>1. Patents for Inventions—Anticipation—Celluloid—Printing from: Engraved Plate.</p> <p>Claim 2 of letters patent No. 348.222, granted August 31, 1886, to the Celluloid Manufacturing Company, is for the improvement in the art of printing with engraved plates on pyroxyline compounds, consisting in (1) inking the plate with an ink containing or consisting of a solvent of pyroxyline and a.pigment, and (2) in subjecting the material to heat and pressure while in contact with the inked plate. The testimony of one of two witnesses by whom it was sought to prove anticipation was based on hearsay, and none of the products printed in his establishment, and showing the alleged anticipation, were produced. . That of the other was contradicted in many important particulars by the inventors and another. The exhibits in support of alleged anticipations were all made after the patent. In previous attempts to print on celluloid the ink blurred, and was easily erased, while the printing by means of the patented process resembles the finest engraving on ivory Neld, that the process is a novel and valuable invention; though the materials previously existed, they had not been used before in the combination claimed; and that the patent is valid.</p> <p>2. Same—Specifications—Sufficiency.</p> <p>The mere failure of the specification to disclose fully the nature of the ink, the evidence showing that various inks containing a solvent of pyroxyline cannot be successfully used, does not avoid the patent under Rev. St. § 4920, providing that defendant may plead that for the purpose of deceiving the public the specification was made to contain less than the whole truth. It must be shown in addition that the omission was with a fraudulent intent.</p> <p>3. Same.</p> <p>It is unnecessary, also, m the specification, to caution against an ink with a solvent of such volatility as to make it useless.</p>

<p>In Equity.</p> <p>Bill by Daniel Leary and others against Hugo Hohenstein, for the infringement of a patent.</p>

<p>Patents for Intentions—Anticipation—Manifold Paper.</p> <p>The claim in letters patent No. 348,073, August 24, 1886, to John T. and Frederick W.Underwood, for a composition for transfer surfaces for producing copies of type-writing, is for the coloring composition therein described for the manufacture of a substitute for carbon paper composed of a precipitate of dye-matter in combination with oil, wax, or oleaginous matter, substantially as set forth. That in letters patent No. 348,073, issued the same day to the the same persons, on an application bearing the serial number next succeeding that for the former patent, and the same date, for an improved reproducing surface for type-writing and manifolding, is for a sheet of material coated with a composition of precipitate of dye-matter, obtained as described, in combination with oil, wax, or oleaginous substance, substantially, etc. The composition in each is the same. Held; that the only advance of the latter patent is the spreading of the composition on paper, and that such patent is void for want of invention, and that a suit based solely upon it cannot be maintained.</p>

<p>1. Patents for Inventions—Anticipation—Corn-Cob Pipes.</p> <p>Letters patent No. 205,816, July 9,1878, to Henry and Anton Tibbe, tbe claim of which is, “as a new article of manufacture, a smoking pipe made of corncob, in which the interstices are filled with plastic self-hardening cement,” plaster of Paris being indicated in the specification as a suitable plastic ce- • ment, are void for want of invention; corn-cob pipes, the bowls of which were lined with plaster of Paris, or a plastic cement prepared from meerschaum dust, having been manufactured and sold more than two years before application for the patent.</p> <p>2. Same—Estoppel to Deny Validity—Former Licensee.</p> <p>One who has had a license to sell a patented article is not thereby estopped from questioning tbe validity of tbe patent in vindication of acts done since the license expired.</p> <p>8. Same—Attorney in Fact.</p> <p>One who, under power of attorney from the patentees, conveys the patent-right, and who, under another agreement, receives a proportion of the proceeds of the sale, the patent being conveyed by tbe assignee, through mesne conveyances to the original patentees, who convey to another, is not thereby estopped, either by deed or inpais, from denying that the patent is valid.</p>

<p>Patents for Inventions—Invention—Printing on Rubber.</p> <p>The specifications in letters patent No. 283,057, August 14, 1883, to F. B. Aldrich, state that the invention consists in a fabric composed wholly or partly of rubber having useful or ornamental designs printed or stamped on one or both surfaces with an ink or compound of a different color, by means of rollers, blocks, or in any other suitable manner, the ink or compound preferably containing rubber, caoutchouc, or the like. The ink or compound is. disclaimed. Rubber fabrics having ornamental figures printed on them are described in the Dunbar & Lothrop patent of December 14,1875, and the patent of March 30,1880, to Brigham and others. Held that, as the alleged improvement consisted only in printing upon the fabric with a different kind of ink, the patent is.void for want of invention.</p>

<p>In Equity.</p> <p>Bill by Douglass P. Maltby against John H. Graham and William A. Graham for the infringement of a patent. For opinion on motion for preliminary injunction, see 35 Fed. Rep. 206.</p>

<p>In Equity. On motion for preliminary injunction.-</p> <p>Suit by the Norton Door Check & Spring Company against Henry J. Hall and others to restrain the infringement of letters patent No. 144,926, November 25, 1873, to F. H. Richards for an improvement in door-springs. The invention is fully described in Norton Door Check & Spring Co. v. Elliott Pneumatic Door-Check Co. et al., 26 Fed. Rep. 320, except that in the cylinder cap there is a threaded hole, in which is located a screw having a longitudinal V-shaped groove on one side. The area of the groove increases towards the point of the screw, so that the aperture formed by it may be increased or decreased by withdrawing or further inserting the screw, thus regulating the escape of air. In the Sargent door-check, manufactured by defendants, there is a cylinder combined with a piston adapted to move in it. As the door opens, the piston is entirely withdrawn from the cylinder, but as it closes, the piston enters the cylinder, and compresses the air in it. At the closed end of the cylinder is an adjustable valve, which permits the slow escape of the air. The door-check used in Colt’s armory in 1863 consisted of a tube attached at about the middle of the width of the door on the side facing the jambs inclosing. Within the tube was a weight suspended at the end of a cord, which passed over a sheave near the top of the door, and thence horizontally to the under side of the lintel to which it was attached. At the lower end of the weight was a piston, which fitted the tube so as to make it substantially air-tight, and at the bottom of the tube was a hole, covered by a poppet-valve, which, on the descent of the weight and piston, nearly closed the hole, so as to permit the air to escape slowly.- A vertical screw, on the point of which the bottom of the valve rested when in its lowest position, prevented the valve from falling entirely to its seat, and by adjusting the screw the rapidity of the escape of the air could be regulated.</p>

In Equity. On motion for preliminary injunction. Bill by the Standard Folding Bed Company against C. P. Keeler and others for the infringement of a patent.

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

In Admiralty. On exceptions to master’s report. The bark Kobbe was seized at Mobile September 12, 1888, under libel of the Revere Copper Company, for copper claimed to have been furnished at New York to her as a foreign vessel. The captain had given sundry drafts payable at Pensacola, whither, under a charter to Chiesa, (see Chiesa v. Conover, 36 Fed. Rep. 334,) the vessel was to have gone to take on a cargo of lumber for South America.

<p>1. Maritime Liens—Advances—By Charterer after Seizure.</p> <p>A claim for a sum advanced by the charterers after a vessel has been seized, and while in the custody of the court, cannot be allowed as a lien on the vessel where the advancements are not necessary for the due care and preservation of the vessel, and the charterers have actual notice of the seizure.</p> <p>2. Same—Subrogation.</p> <p>The charterers are, however, subrogated to the rights of the stevedore, to to whom they paid the mone3r, and thus have a statutory lien therefor, to be satisfied out of the remnants, if any.</p>

<p>Makitimb Ltknb—Services.</p> <p>Libelant was employed by the owner of a boat to run it for her. He did not act in any particular capacity, but performed all kinds of services, sometimes hunting up business for the owner, and doing work not connected with the management of the boat. There was no contract as to how much he should he paid for his services. Held, that he did not have a lien on the boat for such services, as it was evident that he relied upon the credit of the owner for his pay.</p>

<p>In Admiralty.</p> <p>libel in rem by the city of Milwaukee against the steam-barge Curtis, the schooner Camden, and the steam-tug Welcome, for injuries to a bridge.</p>

<p>1. Shipping—Carriage of Goods—Seizure by Legal Process—Duty op Carrier.</p> <p>A carrier-by sea, whose cargo .s attached by legal process, is bound to interpose in the suit, and to protect the interest of a foreign cargo-owner, by all necessary and appropriate means under the local law, until tbe consignee is properly informed, and bas reasonable opportunity to take on himself the burden of litigation; and to give prompt notice of tbe attachment, and any other necessary information.</p> <p>2. Same.</p> <p>Bills of lading were issued for cargo taken on board two vessels. Drafts were drawn by the consignor against the goods, which were negotiated, and accepted on the faith of the bills of lading. The goods were afterwards attached at the port of loading in a suit against the consignor, and removed from the vessels against the master’s protest; but prompt notice of the attachment was not given to the consignee, nor were such legal means taken as the state laws specially provided to defend the goods or to secure tlie consignee’s interests, which means, if taken, might have averted the seizure. Held/, that the vessels were therefore liable to the consignees for non-delivery of the goods.</p> <p>3. Same—Bills op Lading—Implied Exceptions.</p> <p>Semble, under the decision in Stiles v. Davis, 1 Black, 101, a seizure by judicial process of. goods in the possession of a carrier, not brought about by laches or connivance on the part of the carrier, and of which he gives prompt hotice to the owner, is one of the implied exceptions in the carrier’s contract, limiting, pro tanto, the rule of the common law that the carrier is liable for non-delivery under the bill of lading through any causes not excepted therein; but this does not absolve the master of a vessel from his maritime duty to intervene for the protection of a foreign owner’s interests.</p>

<p>Shipping—Liability of Owner—Injuries to Seamen—Defective Premises.</p> <p>The libelant, a seaman, while engaged in some work on the deck of a vessel belonging to claimant, stepped upon an iron grating over a coal-hole, which turned and let him down into the hole, injuring him. There was an iron frame around the coal-hole, elevated about three inches above the deck; and upon the shoulder of this frame the grating in question rested. The testimony of the libelant, which was supported bv several witnesses, was to the effect that the shoulder of the frame was so worn away that when a weight came upon one side it turned for lack of support. A few days before the accident another seaman had stepped upon the same grating and been thrown to the deck; and'after the accident the captain placed a new cover over the hole, resting upon the deck. One whose business it was to keep claimant’s vessels in repair, testified that he did not think the coal-hole frame and grat-‘ ing defective; but the claimant did not attempt to get the testimony of offi-, cers or men, nor was the coal-hole frame produced, though in the possession of claimant’s counsel. Held, that the claimant was liable for the injuries suffered by libelant.</p>

In Admiralty. Libel for damages. On appeal from district court. Libel by William M. Andrew's and others against the steam-ship Wydale, and intervening libel by Walker & Fowler and others.

<p>1. Courts—Federal Jurisdiction—Sutts by Assignees—Contracts.</p> <p>An action for damages lor the breach of a contract of lease is an action “founded on contract,” in the sense in which that expression is used in the restriction contained in the first section of the act of March 3, 1875, which provides: “Nor shall any circuit or district court have cognizance of any suit founded on contract in favor of an assignee, unless a suit might have been prosecuted in such court to recover thereon if no assignment had been made, except in oases of promissory notes negotiable by the law-merchant, and bills of exchange. ”</p> <p>2. Same—Pleading.</p> <p>In an action “founded on contract, ” brought by an assignee, the declara tion must show that the suit could have been maintained by the assignor if no assignment had been made.</p>

In Equity. On demurrer to bill. Bill by Rosenbaum Bros, against the Council Bluffs Insurance Company. For opinion on motion to set aside the order granting leave to file the bill, see ante, 7.

<p>Federal Courts—Jurisdiction of Circuit Court—Copyright Laws—Qui Tam Actions.</p> <p>In view of act July 8,1870, § 106, conferring on the circuit courts jurisdiction of all actions arising under the copyright laws, whether civil or penal in their nature, those courts, under Rev. St. O'. S. § 629, cl. 9, giving them jurisdiction of all sui,ts arising under the copyright laws, have jurisdiction of qui tarn actions for penalties imposed hy section 4963, for violations of the law relating to copyright, though by section 563 the district courts have jurisdiction of all suits for penalties and forfeitures incurred under the laws of the United States.</p>

<p>Removal or Causes—Practice—Time to Plead.</p> <p>Under the statute requiring that after the filing of the petition and bond for removal the petitioner shall file a copy of the record in the circuit court on the first day of the next term, and that the cause shall then proceed in the same manner as if it had been originally commenced in said circuit court, while the court's jurisdiction becomes vested when the petition and bond are filed, the time for pleading does not begin to run till the record is entered.</p>

<p>Removal of Causes—Jurisdictional Amount.</p> <p>A declaration containing a special count on an insurance policy for $2,250, alleging a total loss, and concluding to plaintiff’s damage $2,000, “for the recovery of which, with just costs, plaintiff brings suit, ” and common money counts in assumpsit for $2,000, concluding as in the first count, shows that the amount in dispute exceeds $2,000, and the action is removable under the act of March 3, 1887</p>

<p>1. Equity—Auxiliary Suit—Subpcena—Service.</p> <p>Wher* it is hold, that an action at law cannot ho maintained on an insurance policy Aiiless it is reformed, and the action is continued to enable plaintiff to procure such reformation, a bill filed for that purpose is auxiliary to the action at law, and a subpoena to defendant in the equity suit is properly served on its attorneys in the law action.</p> <p>2. Same—Bii.l for Km formation in Am of Law Action.</p> <p>Though plaintiff might have filed his bill for reformation in the first instance, ho was not bound to do so, but had the option to adopt the course pursued.</p>

<p>Sl’JKClFI c Pkrformanor.</p> <p>A court of equity, as a rule, will not enforce the performance of a contract to construct or repair a railway.</p> <p> (Syllabus by the Court.) </p>

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

<p>Quieting Title—Bes Adjudicata.</p> <p>A decree quieting title in plaintiffs in a suit under Code Civil Proc. Colo. § ,257, providing that an action- may be brought by any person in possession of real property “against any person who claims an estate or interest therein adverse to him for the purpose of determining such adverse claim, estate, or interest, ” is conclusive against all adverse claims or interests then held by defendants, whether pleaded in defense or not.</p>

<p>In Equity. On demurrer to hil.1.</p>

<p>In Equity. Injunction.</p>

<p>In Equity. Bills for legacies.</p> <p>Bills respectively by the Georgia Infirmary for the Belief and Protection of Aged and Afflicted Negroes and the city council of Augusta, against Jones and another, administrators c. t. a. of Gazaway B. Lamar, for the payment of certain legacies given to complainant.</p>

<p>At Law.</p> <p>Action by Winfield S. White and Serelda White against Harrison J. Rukes to recover land. Trial by the court.</p>

<p>On Exceptions to Report of Special Master.</p>

<p>1. Factors and Brokers—tCommissions.</p> <p>The plaintiff agreed to obtain the orders of responsible parties for goods manufactured by the defendant, and, after a number of orders had been ob- • tained. the defendant rendered an account of sales made, and agreed to pay plaintiff any commissions that might be due him on account of such sales, reserving no right to question the responsibility of those giving the orders. Meld, that as there was no proof that the defendant had suffered any loss on account of a lack of such responsibility, the plaintiff was entitled to recover his commissions without showing such responsibility.</p> <p>2. Same.</p> <p>But plaintiff was not entitled to recover commissions on his contract with defendant for orders sent by him but which were never received, although there were circumstances from which the defendant might have inferred that such orders had been sent; the latter not having agreed to notify the plaintiff of missing orders.</p>

<p>United States Commissioners—Docket Fees—Act Cong. Aug. 4,1886.</p> <p>Act Cong. August 4, 1886, (34 St. at Large, 374,) making appropriations to supply deficiencies, which expressly declares that commissioners shall receive no docket fees, amends Rev. St. U. S. §§ 838, 847, authorizing such fees, and takes away the right to them.</p>

<p>At Law.</p> <p>Action by Julius H. Heyward against the United States for fees as commissioner.</p>

<p>At Law.</p> <p>Action by John L. Thornley against the United States for fees as commissioner.</p>

<p>Pleading—Amendment of Answer—Xew Defense—Materiality.</p> <p>In an action on a policy of marine insurance, on application to amend the answer by the insertion of a clause in the application for insurance warranting the vessel to be commanded by a certified captain, held, that if the clause operated as an inducement to the defendant to accept the risk, defendant was at liberty to avail himself of such defense under an amendment made since the trial. If the statement was one not material to the risk, defendant should not now be allowed to set it up as a bar in a case wheré his amendment as to representation gave him opportunity to prove in defense whatever fact he selected for a defense when he made his contract. Hence the motion was denied.</p>

<p>1. Evidence—Documentary—Public Records.</p> <p>In tbe absence of statute authorizing entries in a book termed the “Record of the Register of Swamp Lands, ” relating to tbe disposition of such lands belonging to a county, certified copies of such entries are not admissible in evidence as public records.</p> <p>2. Same—Deed—Seal.</p> <p>A certified copy of a deed is admissible, though it shows no seal opposite the grantor’s signature, when the attestation clause recites that the deed was executed “under the hand and seal” of the grantor. Following McCoy v. Cassidy, 9 S. W. Rep. 926.</p> <p>8. Public Lands—Swamp Lands—Conveyance by Deed oe Commissioner.</p> <p>Under Sess. Laws Mo. 1868, p. 67, declaring that deeds for county swamp lands, theretofore executed by commissioners, should be “deemed and held to be valid and legal, ” and vest in the purchasers “all right, title, and interest of the counties in-such lands, as fully as if * * * patents or deeds had been granted by the governor, ” who was the proper officer to execute deeds for such lands, such commissioner’s deeds are, equally with a patent, prima facie evidence of a prior purchase in conformity with law, and a payment of the purchase price at the established rate.</p>

<p>1. Writs—Service of Process—Pleas in Abatement.</p> <p>A plea in abatement in an action commenced in the state court against a foreign corporation showed that the writ was not properly served as a writ of summons, hut the writ and return showed that the writ issued and was served as a writ of attachment. Held that, as the plea did not deny that the person with whom the copy was left was defendant’s known agent or attorney. or that it was left with him at the place of attachment, it was bad, such service being authorized by the state laws, (II. L. Vt. § 881.)</p> <p>2. Same—Attachm ent—Stiff i oibncy.</p> <p>Such service is sufficient to hold the property, though not to support a personal judgment, and a motion to dismiss should be denied.</p>

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

<p>Writ of Habeas Corpus for the Release of Detained Immigrants.</p> <p>On the 21st of February, 1889, 21 Armenian immigrants arrived at this port by the Netherlands steamer Lecrdam. On tbe following day the secretary of the commissioners of emigration sent a letter to the collector, stating that he was directed by the commissioners to report these immigrants, naming them, as persons “liable to become a public charge.” The collector thereupon directed that the immigrants be not allowed to land, but returned by the Leerdam, which was intending to sail on her return voyage on the 23d or 24th. The immigrants were detained in the mean time at Castle Garden under the regulations of the secretary of the treasury, which provide that their custody there shall not be deemed a landing from the ship.</p> <p>On the 23d a writ of habeas corpus was issued, returnable forthwith, upon a petition setting forth that the report had been made without any examination of these immigrants by any of the commissioners, and without authority. The writ was addressed to the collector, and to the commissioners of emigration. The return of the collector set forth a report from the commissioners stating that the persons were “liable to become a public charge,” and that they were accordingly held for return, and landing refused. The return of Commissioner Stephenson, on whom the writ was also served, stated that the report had been made without authority of the commissioners, and without examination of the immigrants by any of the commissioners. A traverse was filed to the return of the collector, substantially to'the same effect.</p>

<p>1. Customs Duties—Construction of Laws.</p> <p>Where two provisions of the tariff act apply to an imported article, the first of which provisions is qualified by the phrase, “not otherwise provided for, ” while the second contains no such qualifying phrase, the article is properly dutiable under the second provision, and must be held to be therein “otherwise provided for, ” so as to take it out of the operation of the first provision.</p> <p>3. Same—Articles of Various Uses.</p> <p>When an imported article is a “painters’ color,” and also a “polishing powder, ” it is not necessary to show that its predominant use is as a polishing powder, in order to make it dutiable as such. It is sufficient if its use for that purpose is a substantial use.</p> <p>8. Same—Oxides ok Iros.</p> <p>. . Oxides of iron, which are in general nse both as “colors” and as “polishing powders, ” are properly dutiable under the provision in Schedule if of the act of March 3, 1883, for ‘"‘polishing powders of every description, hy whatever name known;” and not under the provision of Schedule A. for “colors and paints, including lakes, whether dry or mixed, or ground with water or oil, and not specially enumerated or provided for in this act. ”</p> <p> {Syllabus by the Court.} </p>

At Law. This was an action against a former collector of the port of New York, to recover duties alleged to have been exacted in excess of the lawful rate on certain “Thybet Coatings.” Duty had been assessed and exacted at 35 cents per pound and 40 per cent, ad valorem, under the provision in Schedule K, act of March 3, 1883, for “manufactures of every description composed wholly or in part of worsted, valued at over 80 cents per pound.” The importer claimed them to be…

<p>1. Customs Duties—Classification—Chinese Shoes.</p> <p>Chinese shoes, consisting of an upper part of cotton or silk and a sole of felt and leather, the felt being made from hair mixed with wool fiber, and paper, stiffened with rice starch, are taxable, not under the act of 1883, Schedule K, par. 14, imposing 40 cents per pound and 33 per cent, ad valorem on clothing, ready-made, and wearing apparel, 'not enumerated, composed wholly or in part of wool, worsted, alpaca, or other hair, made up by the tailor, seamstress, or manufacturer, but as non-onumerated articles at the highest rales at which their component mat erial of chief value may bfe chargeable. The cotton shoes, therefore, fall under Schedule 1, par. 7, imposing do per cent, ad valorem on manufactures of cotton not specially provided for, and the silk ones under the last paragraph of Schedule L, imposing 30 per cent, ad valorem on goods not specially enumerated, made of silk, or of which silk is the component material of chief value.</p> <p>2. Same.</p> <p>A definition adopted and acted upon for along time should not he regarded as changed by a subsequent act of congress unless the intention to change is clearly manifest.</p>

<p>In Equity.</p> <p>Suit by Philip Hake against George F. Brown and another, lor the infringement of a patent.</p>

<p>In Equity. Bill to restrain the infringement oi a patent.</p>

In Equity. Bill by tho ¡Sheldon Axle Company against the Standard Axle-Works, to restrain defendant from using a certain patented machine within territory claimed exclusively by complainant.

<p>Patents for Inventions—Infringement—Coating Metals with Bubber.</p> <p>The invention described in letters patent of May 6, 1879, to Isaac Adams, Jr., for an improvementjn coating metallic articles with rubber, consists in interposing between the metallic article and the rubber a thin film of any metal, preferably copper, which at the temperature of vulcanization has a considerable tendency to unite with the sulphur in the rubber. In view of the fact that the patent proceeds on the theory that the film must be very thin, and that copper is the best metal, because a firm cohesion may be obtained from a very thin film of it, and in view of the opinion on granting an injunction, (21 Bed. Bep. 67,) recognizing such to be the theory of the invention, held, that defendants are not in contempt by using an alloy of copper and zinc, which need not be thin.</p>

<p>In Equity.</p> <p>Bill by the Sawyer Spindle Company against Charles G. Buttrick and others for the infringement of a patent.</p>

In Equity. Motion for leave to amend and take further proofs. The complainants in this case wore defeated at final hearing because they declared only on one of the patents granted for their invention. Ante, 682.

In Equity. On motion for preliminary injunction. Suit by the Martha Washington Creamery Buttered Flour Company of the United States, Limited, against Alfred Martien, individually and as trading as the Brunswick Manufacturing Company, to restrain the infringement of a trade-mark for prepared flour. Complainant alleged a license to defendant to use the trade-mark, together with the machines covered by certain letters patent, in the manufacture and sale of the flour.

<p>In Admiralty. Seizure for breach of neutrality laws.</p> <p>This libel was filed on the 6th of February, 1889, to obtain a judgment of condemnation and forfeiture of the steamer Carondelet and her cargo, for alleged violation of section 5288, Rev. St. U. S. The libel charged that the steamer was loaded with camion, arms, and ammunition, and other material of war, “with intent to enter into the service of a certain district and people of Hayti, to-wit, certain rebels in insurrection against the organized and recognized government of the republic of Hayti, and to commit hostilities against the subjects, citizens, and property of that republic;” and that she was “fitted out and armed within this district with that intent.” The steamer was seized by the marshal on the same day. Answers were filed on the 8th of February, denying the alleged grounds of forfeiture, the Now York & Texas Steam-Ship Company. by Mallory & Co., their agents, claiming the steamer; and Leoncio Julia, consul of the Dominican republic, claiming the cargo. The vessel was a freight steamer only, unfitted for warlike purposes. Before seizure she had cleared for Samana, a port of the Dominican republic. She had been chartered by Mr. Julia, as consul, to transport her cargo of arms, to be delivered to the Dominican government at Samana; and bills of lading were delivered by the steamer, making the cargo deliverable there to the representatives of the Dominican government. For the libelant it was claimed that the arms were designed to aid the Hippolyte faction in Hayti, as against Legitime; and that they were not intended to go to Samana. By consent the trial was commenced on the 9th, but on that day, counsel for the government not being in readiness, an adjournment was had until the I2th, and the cause was hoard on that and the following day.</p>

At Law. Action by Hardman and others to recover of one Brett a sum of money received by him as the valuó of a cargo of lumber lost at sea, which plaintiff's had underwritten. Trial by the court without a jury.

<p>'In Admiralty. Libel for damages for delay in transporting cattle.</p> <p>The respondents on the 22d of September, 1888, agreed to transport upon the next voyage of their steamer Tower Hill, from New York to ■London, 275 head of cattle and 500 head of sheep; the cattle to be shipped :on notice of the time of sailing, to-wit, about September 29th. On the arrival of the steamer she” was found to have sustained some damage, 'which would cause detention, at first supposed to be slight; and notice 'was given to the libelant that she would sail on October 3d. It was afterwards found that the damages were much greater than -supposed; and the steamer did not sail until the 15th, when she carried the agreed number of cattle and sheep. The libel is to recover damages for the expenses ot keeping the live stock, and the loss of weight in the mean time.</p>

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

<p>Collision—Between Sailin'!} Vessels—Fog-Siunals.</p> <p>The schooner M. was. between 4 and 5 a. m., running close-hauled on the port tack between Cat-Head point and the Manitou islands, Lake Michigan. Her course was about west-south-west, with the wind south by west. There was a dense fog, and two blasts of her fog-horn were sounded at proper intervals. Hearing- a single blast of a fog-horn from a schooner, which proved to he the S., over the M.’s starboard bow, the iVI.’s captain assumed that she wasi-unning about south-east, close hauled on the starboard tack, and,immediately ported, and went off two points to starboard, when, hearing another single blast about ahead, he ported another point, bringing his course west by north, which he held until the ÍS. -was disclosed through the fog running about easi-north-east, and so close that collision was inevitable. The S. claimed that the wind was south-south-east, but the evidence showed that it was from south by west to south-south-west, thus giving the S. the wind free. Held, that as by the supplemental rule 12, new sailing rules 1883, a vessel with the wind free is required to sound three blasts on her fog-horn, the S. was at fault in giving an improper signal.</p>

In Admiralty. Libel for damages. On appeal from district court. 32 Fed. Hep. 845. This is an action by the owner of the stpam-tug Talisman to recover from the steam-tug America the damages sustained by a collision between the two tugs on the night of March 5, 1886, in the North river.

<p>In Admiralty. On distribution of an award for salvage.</p>

<p>Courts—Federal Courts—Citizenship—Collusive - J oinder—-Partition.</p> <p>Complainant, a citizen of Texas, the heir of B., sued his co-heirs, citizens of Arkansas, claiming from the first defendant, who had obtained the legal title to the ancestor’s property, a one-fourth interest, and from the other two defendants, partition. The last two defendants filed a cross-bill, claiming separate ownerships of one-fourth interest, and also partition. Held that, although the interests of the last two defendants and that of complainant were the same as against defendant who claimed the legal title, their interests were not so identical in other respects as to require their being joined as complainants; and a plea in abatement to the jurisdiction on the ground that they were collusively made defendants to give the federal court jurisdiction, should he overruled.</p>

At Law. Motion to sot aside an order remanding the cause to the slate court. Action by Lucí on Birdseye against F. W. Shaeffer and others, to recover certain land.

<p>In Equity. Bill for injunction. On final hearing. Eor opinion on demurrer to answer, see 35 Fed. Rep. 84.</p> <p>This was a bill to restrain the laying of a railroad track along Gratiot .street in the city of St. Louis, as authorized by a municipal ordinance and by the general statutes of the state. Complainant owned a lot abutting on the street, on a portion of which lot it had erected a ivarehouse used for the storage of agricultural machinery. It based its right to relief on the ground that the laying of a railroad track along the street in front of its property would cut off access to one entrance of its warehouse, and lessen the market and rental value of its property, and that under section 21, art. 2, of the constitution of the state of Missouri, the track in question could not lawfully be laid until such damages had been ascer-i tained and paid. Section 21 is as follows:</p> <p>‘•Private property shall not be taken or damaged for public use without just compensation. ¡Such compensation shall be ascertained by a jury or board of commissioners, * * * and until the same shall be paid to the owner, or into court for the owner, the property shall not be disturbed, or the proprietary rights of the owner therein divested.”</p> <p>Section 4, art. 12, Const. Mo., referred to in the opinion, contains the following provision:</p> <p>“The right of trial by jury shall be held inviolate in all trials of claim's for compensation, when, in the exercise of said right of eminent domain, any incorporated company shall be interested either for or against the exercise of said right. ”</p>

<p>1. Municipal Corporations—Gas Companies—Exclusive Franchise.</p> <p>Rev. St. Ohio, § 2480, provides that, if a gas company neglects for six months to lay-pipes and light streets after requirement and notification by the common council of a city or town, the council may erect gas-works for lighting such streets and all other streets not already lighted. Section 2482 provides, that neglect by any .company to furnish gas to citizens and other consumers, or to the municipal corporation, in accordance with the prices fixed by the council, shall forfeit all rights of the gas company under its charter, and that the council may proceed to erect, or may empower any person to erect, gasworks for the supply of gas to such corporation and to its citizens. Section 2486 confers upon the council a general power, to be exercised whenever deemed expedient and for the public good, to erect gas-works at the expense of the corporation, or to purchase any gas-works already erected in the corporate limits. Held, that although a company had erected gas-works in a city by the authority of the city, and had complied with all the requirements of the common council, there was nothing in the above sections which precluded the city from building its own gas-works.</p> <p>2. Same—Vested Rights.</p> <p>A company chartered under the laws of Ohio for the manufacture of gas was authorized by a city to erect works, and occupy its streets for the purpose of laying pipes and gas-mains. The city fixed the price of gas, and directed the manner of laying mains, as it had authority to do; and from time to time made contracts with the company for lighting the streets. The last contract made fixed the price of gas for public and private consumption for a period of five years, and required of the company, as a condition precedent, that it should lay pipes for public lighting along streets where for long distances there was no private consumption. Held, that as the company did not have the exclusive right to the use of the streets for laying gas-pipes, and the city was under no obligation to purchase gas from the company, no vested rights of the latter wore disturbed when, on the termination of the five-years contract, the city refused to take any more gas of the company, and determined to build its own gas-works.</p>

<p>Condemnation Proceedings.</p>

<p>At Law.</p> <p>Action by Thomas W. Paddock against the Atchison, Topeka & Santa Fe Railroad Company, and Pullman’s Palace Car Company, for damages for ejectment from a train.</p>

<p>1. Costs—Right to Costs in Federal Courts.</p> <p>Rev. St. U. S. § 968, providing that a plaintiff recovering less than §500 in a case which cannot be brought in a federal court unless the matter in dispute, exclusive of costs, exceed that sum, shall not be allowed costs, wastakenfrom the judiciary act of September 24, 1789, which placed the minimum jurisdictional amount at §500. It was not changed when the minimum amount was changed by act March 3, 1887. Held, that the courts cannot construe it, as . changed, to conform to the new amount.</p> <p>2. Witness—Fees—Voluntary Attendance.</p> <p>Witnesses may become entitled to fees as having attended a federal court “pursuant to law, ” though they have done so voluntarily, without being subpoenaed.</p> <p>3. Same—Mileage.</p> <p>Rev. St. U. S. § 848, allows a witness mileage to and from his residence. Section 876 provides that a subpoena may run into another district as to witnesses living not more than 100 miles from the place of trial. Section 863 authorizes depositions by witnesses living more than that distance. Held, that witnesses voluntarily attending a court more than 100 miles distant from their residences can only recover mileage for 100 miles.</p>

<p>1. Navigable Waters—Interstate Regulations.</p> <p>The power to regulate commerce among the several states comprehends the power to regulate the navigable waters of the United States on which such commerce may be or is carried, and to this end congress may make any regulation concerning such navigation, including the vessels engaged therein, as may be necessary and proper to secure and maintain the safety and convenience of the water-way; which regulations are so far applicable to vessels engaged only in intrastate commerce thereon as to those engaged in interstate commerce.</p> <p>2. Same—Carriers oe Passengers.</p> <p>The regulation contained in section 4465 of the Revised Statutes, forbidding a steam-boat to carry more passengers than allowed in her certificate of inspection, held- to apply to such boats engaged in carrying passengers on a navigable water of the United States between ports of the same state only.</p> <p> (Syllabus by the Court.) </p>

<p>1. Gaming—Contracts for Future Delivery—Conflict of Laws.</p> <p>Contracts for the future delivery of cotton, made hy a commission merchant in New Orleans, to be performed there, for his principal, residing in the state of Mississippi, are governed by the laws of the state of Louisiana, and, if valid in that state,,will be enforced by the circuit court of the United States in the ■ state of Mississippi.</p> <p>2. Same—Intent—Burden of Proof.</p> <p>A contract for the future delivery of cotton is valid and binding unless shown by those challenging its validity that it was mutually agreed and understood by the parties to the contract when it was made that there was to be no delivery of the property, but that only the differences in the 'price were to be paid at the time the contract by its terms required delivery should be made.</p> <p>8. Same—Customs and Usage—Validity.</p> <p>The rules and regulations adopted by the New Orleans Cotton Exchange in the settlement and substitution of contracts for the future delivery of cotton, when not used.to promote a gambling transaction, are valid and legal, and are binding upon all persons familiar with such rules and regulations, or chargeable with knowledge thereof, when they employ members of said exchange to buy or sell on the floor of said exchange cotton for future delivery, and who in good faith so buy and sell in accordance with the said rules and regulations.</p> <p>4. Same—Factors and Brokers—Right to Commission.</p> <p>A commission merchant, who in good faith buys and sells cotton for future delivery under the directions of his principal, without knowledge or reason to believe that said principal had no intention to deliver or receive said cotton, but only expected to pay the differences in the price at the maturity of the contracts of purchase or sale, may recover from said principal compensation for services performed, and money advanced at his request, notwithstanding the existence of such illegal intent on the part of the principal.</p> <p>5. Same—Right to Demand Margins.</p> <p>When, under the rules and regulations of the New Orleans Cotton Exchange, a commission merchant becomes the guarantor for the performance of the contract entered into by him for his principal, he has the right to demand margins from said principal to secure him against loss on account of said contract, and to close out said contract in the event the principal fails to remit said margins on demand, and said commission merchant may, upon the default of his principal in the remittance of said margin when so demanded, close out said contract, and recover the losses sustained by him, although the party with whom the commission merchant dealt for his said principal has made no demand for any margin.</p> <p>8. Principal and Agent—Liability of Agent.</p> <p>Where the agent, at the time of making a contract, discloses the name of his principal, he is not personally liable or bound to those who are thus notified that he acts as agent, for the default of the principal.</p> <p> (Syllabus by the Court.) </p>

<p>At Law. Action to recover customs duties.</p> <p>The plaintiff’s firm of A. D. Juillard & Co., of the city of New York, on the 5th day of June, 1886, imported into the port of New York from Liverpool, by the steamer Republic, three cases of “ scoured wool-tops,” as described in their entry and invoice. The wool in suit belonged to class 2, the value whereof at the last port or place whence exported to the United Slates, excluding- charges in such port, was less than 30 cents per pound. The duty upon wools of the second class, of the value of less than 30 cents per pound, is 10 cents per pound, under Schedule K (Heyl, Imp. D; 358a.) This wool had been concededly scoured. Schedule K, (Id. 356a) provides that “the duty on wools of all classes, which ■shall be imported scoured, shall be three times the duty to which they would be subjected if imported unwashed.” The same schedule (Id. 3565) also provides that “the duty upon wool of the sheep * * * which shall be' imported in any other than ordinary condition as now and heretofore practiced, or which shall be changed in its character or condition for the purpose of evading the duty, or which shall be reduced in value by the admixture of dirt or any other foreign substance, shall he twice the duty to which it would be otherwise subject.” The double duty of 60 cents per pound was assessed upon, this merchandise by the collector by virtue of the last clause above mentioned, and under the claim that the merchandise in suit was scoured wool, imported “in other than ordinary condition.” The plaintiffs duly protested, appealed, and brought this suit, to recover the alleged excess of duty between 60 cents and 30 cents per pound, and for the determination of the question whether scoured wool-tops are dutiable at 30 cents per pound as scoured -wool, or at 60 cents per pound as wool imported “in other than ordinary condition,” under the provisions of the tariff act of 1883 above quoted. It was contended by the plaintiffs that the clause in paragraph 356 (Heyl, Imp. D.) “imported in any other than ordinary condition as now and heretofore practiced ” was intended by congress to refer to some degradation, and not to any improvement, of the merchandise. On the part of the defendant it was claimed that the language of said paragraph covered any other than ordinary condition of wool as then or theretofore imported, whether such condition were a degraded or an improved condition. It was shown upon the trial that wool-tops were something more than scoured wool in its ordinary condition. To make wool-tops the wool in the bale is sorted, then scoured, then dried over a drying-machine, then piit through the carding-engine, and then through the back-washing machine, which further cleanses it, oils it, and brings the fibers parallel to each other. After that, it is wound into balls, and these "balls are placed in the combing-machine. The com bing-machine takes the short fibers out, and also all foreign substances, such as vegetable matter. The refuse part is called the “noil,” and the perfect part, after it comes from the comb, is a “sliver.” Then it is gilled, and wound into balls, which are known as “wool-tops” in trade and commerce. In average wool about 35 pounds of tops are produced out of 100 pounds of w'ool, which is the shrinkage in weight from the wool as it comes in the bale to the completed article of wool-tops, and there is a corresponding increase in the value of the article.</p>

At Law. This was an action against a former collector of the port of New York, to recover duties alleged to have been exacted in excess of the lawful rate on certain feather trimmings imported by the plaintiff.

<p>1. Bankruptcy—Fraudulent Conveyances—Husband and WrFE.</p> <p>The bankrupt, M.. in 1806, some years before his insolvency, had a judgment recovered against, him by default by one L. Before that lie had dealt in real estate in his own name, and then held some property on which the judgment was alien. Thereafter, he continued and extended his real-estate business, making all contracts and obligations in Ms own name, but taking titles in his wife5s name. In 1807 he bought several lots, paying for them out of his own means, taking title in his wife’s name. In 1870 and 1871 he built five valuable houses thereon, doing all the business in bis own name, and subsequently collecting the rents in his own name, and using them at his discretion. Held (1) that, there being no fraudulent intent as respects subsequent creditors at the time of the purchase of the lots, the wife, under the New York statutes, should retain 1he money invested in the lots, less the then existing judgment of L. (2) That the title taken in the wife’s name was designed as a cover only for the husband’s business; that the buildings were not within the same protecting statute as the lots; that they were not intended as a gift to her, and, if they had been, the gift was not reasonable in amount, as respects existing or subsequent creditors, and was invalid as against existing creditors and also as against subsequent creditors misled by the husband’s apparent possession and ownership of the property</p> <p>2. Equity—Conveyance Subject to Lten of Judgment—Marshaling Assets —Release.</p> <p>M. having conveyed a house and lot subject to the lien of L.’s judgment, but without any agreement, on the part, of the grantee to pay it, it appeared that the amount of the judgment was neither deducted from the consideration nor part of the price. Held, that M. had no equity to require the grantee to pay L.’s judgment, and that the land did not become the primary fund therefor: and that L.’s subsequent release of that property did not prevent, his recourse against the houses and lots in suit; the same as regards his release of other property at M "s request.</p> <p>3. Creditors' Bill—Wipe’s Kqutty—Bents and Profits.</p> <p>Upon decree charging the property with payment of the bankrupt’s unsecured debts, held, (1) wife first entitled to the proceeds of a house and lot previously settled upon her in good faith, the proceeds being probably used W the husband in payment of debts incurred in the new buildings; (2) wife answerable for such rents and profits only as (¡ame to her hands.</p>

<p>1. Courts—Federal Jurisdiction—Crimes.</p> <p>A cession by a state to the United States of “exclusive jurisdiction” over certain land, providing that, the state shall retain concurrent jurisdiction with the United States so far that all process, civil or criminal, issued under authority of the state, may bo executed by the state officers upon any person amenable to the same within the limits of the land so ceded, confers on the-United States “exclusive jurisdiction,” within the meaning of Rev. St. U. S. § 5809, prescribing punishment for crimes committed in places within the exclusive jurisdiction of the United States.</p> <p>2. Same—Burden of Proof.</p> <p>The burden is on the government to show that the crime was committed on, land which was under the exclusive jurisdiction of the United States.</p> <p>3. Homicide—Indictment—Degree of Grime.</p> <p>Under a statute providing that one may be found guilty of any offense, the commission of which is necessarily included in the one with which he is charged, one charged with murder inay he found guilty of manslaughter.</p> <p>4. Same—Murde r—Deeinition.</p> <p>Murder is where a person of sound memory and discretion unlawfully and feloniously kills any human being, in the peace of the sovereign, with malice prepense or aforethought, express or implied.</p> <p>5. Same-Malice.</p> <p>Malice, as applied to murder, need not denote spite or malevolence, hatred or ill will, to the person killed, nor that the slayer killed his victim in cold blood, as with a settled design; but a killing from an evil design and malignant spirit may he of malice, implied by law from the absence of lawful excuse.</p> <p>6. Same.</p> <p>All the facts in the case, however trivial, should be considered as bearing on the question of malice.</p> <p>7., Same—Accidental Killing.</p> <p>The killing of a person by the accidental discharge of a pistol'by one engaged in no unlawful act, and without negligence, is homicide by misadventure, and is no crime.</p> <p>8. Same—Manslaughter.</p> <p>Any unlawful and willful killing of a human being without malice, including a negligent killing, which is also willful, is manslaughter, and it may exist where there is no evidence of sudden heat of passion.</p> <p>9. Same—Intoxication as Defense.</p> <p>Intoxication is no excuse for crime, hut should be considered as affecting defendant’s mental’ condition, with reference to his capability of a specific intent.1</p> <p>10. Same—Reasonable Doubt.</p> <p>A reasonable doubt of guilt sufficient to acquit exists, if, after an impartial comparison and consideration of all the evidence, the jury can candidly say that they are not satisfied of defendant’s guilt.2</p> <p>11. Same.</p> <p>The jury should convict, if, after an impartial comparison and consideration of all the evidence, they have an abiding conviction of defendant’s guilt, such as they would be willing to act upon in the more weighty and important matters relating to their own affairs.3</p>

<p>1. Patents for Inventions—Construction.</p> <p>Though a-patentee of a combination, whose original claim was rejected in view of the prior state of the art, is to be held strictly to the combination described in his modified claim,-he is entitled to the benefit of the doctrine of equivalents.</p> <p>2. Same—Patentability—Saw-Mill Dogs.</p> <p>Claim 1 of letters patent No. 196,102, October 16, 1877, to George W. Rodebaugh, for an improvement in saw-mill dogs, is for the combination of an eccentric lever, pivoted to the standard, with a connecting strap articulated to an arm of the reciprocatory shaft carrying the dog-head, the parts being so arranged that a downward movement of the lever will imbed the dog into the log, and lock it there, the lever assuming a perpendicular position against the standard, out of the way. Held, that the use of such eccentric lever in place of the “T” lever used in the prior invention, described in the Craney patent, the operation of the two being the same, and the alleged difference, that the eccentric lever is not affected by back pressure, being strongly denied, and it being always intended, that the lever shall be locked or held in place by a weight, is not a patentable improvement.</p> <p>8. Same.</p> <p>The arrangement by which the lever is perpendicular to the standard when the dog is locked, if an equivalent for a lever which locks horizontally, is anticipated by the Craney device, and, if a patentable improvement, is not infringed by defendant’s combination, which does not use it.</p> <p>on application for rehearing.</p> <p>4. Same.</p> <p>The device was anticipated also by the Ely patent, No. 163,309, May 18, 1875, for a head-block, which was a combination of an eccentric lever working with a cam, and operating on the vertically reciprocating bar carrying the dog, and capable of locking the bar in any position; the dog-head being carried upon a cylinder in substantially the same manner.</p> <p>5. Samé—Construction of Claim.</p> <p>The original claim was the eccentric lever and connecting strap combined with the vertical shaft carrying the dog-head, substantially, etc., and was rejected on referring to the Ely patent, field, that claim Inf the patent must be limited to the specific device described, and is not infringed by a device in which the lever has its greatest locking capacity when1 in a horizontal position, and losing its locking capacity when perpendicular.-</p>

<p>In Equity.</p> <p>This was a bill for infringement of letters patent of the United States No. 300,687, to John M. Boyd, for hay elevators. The defendant manufactured hay carriers under letters patent of the United States No. 279-869, to Prank B. Strickler. The defenses were want of novelty and non-infringement.</p>

In Admiralty. libel, by ¡Stephen IT. llalli and others against Howard .D. Troop and others, to recover $22,000 for cargo sold by master at Calcutta, in iMarch, 1886.

<p>1. Shipping—General Average—Place of Adjustment.</p> <p>The 'bark Nina Matliild.'., with a general cargo from Leghorn, bound for New York, put into Bermuda in distress, where she was subsequently condemned and sold. Portions of the cargo were delivered by the captain at Bermuda to the agent of the consignees, and average bonds were signed at Bermuda by the respondents, whereby they agreed to pay their contribution in accordance with the established usages ancTlaws in similar cases. The adjustment was subsequently stated by New York average adjusters according to New York rules. Held, that New York was the proper place for stating the adjustment, and that New York rules must govern; also, that it was plain from the evidence that the parties so understood it at the time of the delivery of the cargo at Bermuda.</p> <p>3. Evidenc®—Presumptions—Laws op Foreign Country.</p> <p>In the absence of an averment, supported by proof, that the usages and laws of Bermuda are different from th e usages and laws of New York in such cases, the court must proceed on the presumption that the usages and laws of Bermuda are similar to the laws in force in the port of New York.</p> <p>8. Admiralty—Pleading—Amendment.</p> <p>Where the proofs show that libelant is entitled to recover more than the amount for which judgment is demanded in the libel, he will not he limited to the amount stated in the pleading, but the libel may be amended in respect to the amount claimed, so as to conform to the facts.</p>

<p>Coja,ison-—Between Steamers—Overtaking Vessel—Passing Too Near— Suction.</p> <p>The steam-tug H. was going out of the bay of Now York towards the Scotland light-ship."’ Overtaking her was the steam-boat B. As the B. came up with and began to draw ahead of the H., the latter gave a sudden sheer, and went into the side of the steamer. Both vessels were damaged, and cross-libels were tiled. It appearing that the H.’s sheer was caused by the suction from the wheels of the B., held, that the collision was caused by the failure of the B., as the overtaking vessel, to come up along-side of the II. ata sufficient distance to pass her m safety.</p>

<p>1. Cotatsion—Between Steam-Shit and Ferry-Boat—Steed and Course oe Steam-Siut.</p> <p>An ocean steamer proceeded up the North river on an ebb-tide and in daylight at a speed of at least 8 to 10 miles an hour, until not more than 300 feet from a ferry-boat, which was then 5 points off its starboard bow, and was beginning to cross its course at about the same speed. The ferry-boat suddenly checked its speed, and, there then being no time to change the steam-ship’s helm, the vessels collided. Held, that tho steam-ship, whose officers know that the ferry-boat was about to cross its course, was in fault for maintaining its course and speed until it was unable to meet the emergency.</p> <p>2. Same—Lookout on Ferry-Boat.</p> <p>The ferry-boat was struck abaft the wheel-house, from the rearward. Tho upper part of the pilot-house was protected by sliding windows, having a solid door on the after-port side, and one of the wheelmen, who had an unobstructed view ahead and on each side, did not see what had struck the ferryboat until the door was opened. Held, that the absence of a lookout forward did not contribute to the collision, and was not a fault.</p> <p>3. Same—Checking Speed oe Ferry-Boat—Overtaking Vessel.</p> <p>The ferry-boat checked its speed because of a tug and tow, 500 or 600 feet ahead, passing between the ferry-boat, and its slip. None of the officers of the ferry-boat saw the steam-ship before the collision. Held, that as the ferryboat might liave maintained its speed and course for 200 or 300 feet more with no risk, and by doing so would have cleared the steam-ship, it was in fault in checking its speed in the absence of an emergency without due consideration of the movements of a following vessel.</p>

In Admiralty. Libel for damages. On appeal from district court. 35 Fed. Rep. 327. •Libel by Robert MacMaster and others, owners of the bark Mary Mac-Master, against the tug R. W. Burke and the tug Sammie, for a collision between the bark and a car-float, while the bark was in tow of the Burke and the float was in tow of the Sammie. Decree against both tugs, and both appeal.

<p>1. Collision—In Chicago River—Tugs and Tows.</p> <p>The barge A., loaded quite deeply with iron ore, was proceeding up the south branch of the Chicago river, in tow of the tug T. She had her steam on, but was not using it for propulsion. Her course lay along the west bank of the river. When she reached the bend of the river between Mason’s slip and Allen’s slip, the curve being from west to east and hack again, she was obliged to swing over to the middle of the stream, in order to pass a schooner, lying at a dock just at the point of the bend, the river being only about 120 feet wide. The I., with libelant’s schooner in tow, was just rounding the east curve, going down the river, at the rate of five or six miles an hour, and checked her own headway for a moment, hut without checking that of her tow, and then proceeded rapidly on her way, and in attempting to pass on the east side of the river, between the stern of the barge and the dock, the collision occurred. Held, that the I. was at fault in attempting to take her tow through so perilous a passage, with the barge occupying so much space.</p> <p>2. Same—Imputed Fault.</p> <p>The signal by the T. for the I. to go ahead, after she had cheeked her speed, though it may have contributed to the collision, cannot be imputed as a fault to her tow, the A.</p>