Volume 38 — Federal Reporter

<p>1. Public Lands — Grant to Railroad Company. The congressional acts oí 1882 and 1864 granting aid in the construction of a railroad and telegraph line to the Pacific ocean, etc., operated as a present grant of land to the railroad company, upon conditions subsequent, which could only be defeated by breach of conditions, and divestiture of title thereupon, by proper legal proceedings on behalf of the United States.</p> <p>2. Same — Lands Granted. The lands granted were the odd-numbered sections within 20 miles of the line of the road, such as were public lands at the date of the act, not sold, reserved, or otherwise disposed of by theUnitod States; and such odd-numbered sections within the same limits as were public lands, to which a pre-emption or homestead claim had not attached at the time the line of the road was definitely fixed.</p> <p>3. Same — Oonclijsivekess op Grant. No right other than that oí the railroad company could be acquired or initiated in any of said odd sections ol' land, after the filing in the local land-office of the district, on January 80, 1865, of the order of withdrawal provided for in section 7 of the act of July 1, 1862.</p> <p>4. Same — Filing Map op Route. The filing of the map of the general route and the withdrawal thereupon protected the lands against the acquisition of any right by any other parties until the line should become “definitely fixed,” when the grant became specific by attaching itself to every odd section within the prescribed limits.</p> <p>5. Same — State Selections op Lieu Lands. • State selections of lieu lands for school purposes made upon lands unsur-veyed by the United States are utterly void.</p> <p>6. Same. All the state selections shown in the bill being upon lands unsurveyed by the United States at the date of selection, in townships 2 8., 1 E., and 3 S., 3 E., Mt. Diablo B. and M., were therefore void.</p> <p>7. Same — What are Surveyed Lands. Lands are not surveyed lands by the United States until a certified copy of the official plat of survey has been filed in the local land-office.</p> <p>8. Same — State Selections — Validity. The state selections in question were also void, for the reason that the act of 1853, under which these selections were made, excepted from selection by the state in lieu of school sections lost, “lands reserved by competent authority” and “lands claimed under any foreign grant or title,” and “mineral lands. ”</p> <p>9. Same — Priority of Grant. No right of any kind had attached to these lands when they were withdrawn fctr the purposes of the railroad grant on January 30, 1865, that, under the recent decision of the United States supreme court, in ¡7. S. v. McLaughlin, 8 Sup. Ot. Rep. 1177, could prevent that grant from attaching. It was, therefore, the first grant to attach, and by performance of the conditions subsequent the title of the company became absolute.</p> <p>10. Same — Lands Excepted from Confirmation. .The selections in question were excepted from confirmation by the act of 1866, (14 St. 218;) but had it been otherwise, it was not in the power of congress at that time to divest the right of the company.</p> <p>11. Same — Confirmatory Act of March 1,1877 — Effect. The actof March 1,1877, (19 St. 267,) for like reasons, cannotafEect the rights of the railroad company. At the date of this confirmatory act, seven years after the title of this company became perfect, the United States had no interest whatever in the land upon which the act could operate.</p> <p>12. Same — Sale to Third Persons — Notice. Parties purchasing under state locations in township 2 S., 1 E., since June 10, 1865, had official record notice of the right of the railroad company; for the map filed in the office of the register of the local land-office had distinctly indorsed upon it in red ink the following, viz.: “The odd-numbered sections on this plat are granted to the Western Pacific Railroad. ”</p> <p>13. Limitation of Actions — Running of the Statute. The statute of limitations does not run against the United States; and the cause of action here was not stale, the company having been, from the first, active in pursuing its right before the department of the interior.</p> <p>14. United States — Contracts Relating to Public Lands — Actions. The government is not without interest in this action, being responsible to the company for the land or its full value, by reason of the statutory grant and contract in the congressional acts of 1862 and 1864.</p> <p>15. Public Lands — Mexican Grant. " The Mexican grant called “Las Pocitas, ” was a float, — a grant of two leagues within 'exterior boundaries embracing ten or more leagues, which two leagues so granted were confirmed and patented to the claimants, and the odd-numbered sections outside of the two leagues granted and confirmed, but inside of the exterior boundaries, passed to the railroad company.</p> <p>16. Same. The prior decision, in JSFewh.aU v. Sangm\ 92 U. S. 761, by the United States supreme court, materially limited in its operation by the recent decision in U. 8. v. McLaughlin.</p> <p> (Syllabus by the Court.) </p>

<p>Railroad Companies — Insolvency and Receivers — Carriers—Loss of Goods. A claim by the consignee of goods against a railroad company as a common carrier, for the value of goods lost by fire while in possession of the carrier, and before the road is placed in the hands of a receiver in a foreclosure suit, is not entitled to a priority, before the claims of the bondholders.</p>

At Law. Action by William J. Whelan against the Now Fork, Lake Erie & Western Railroad Company, for damages for personal injuries. Plaintiff was in a streeLrailroad car in the city of Youngstown as a passenger. As the street-car was passing the crossing of the defendant’s railroad, a locomotive ran into it, knocking it off the track, and throwing plaintiff from the car upon the ground,-injuring him severely.

<p>At Law.</p> <p>Petition by school-district No. 2, of Lake county, for the condemnation of the placer title of respondent, Searl, to land occupied by petitioner’s school-house.</p>

At Law. Action on a policy of fire insurance. On the 1st day of October, 1887, the defendant issued to the plaintiffs a' policy of insurance for $3,000, against loss by fire on their stock of general merchandise in their store-house at Riverside. The store-house and goods, and most of the plaintiffs’ mercantile books, were destroyed by fire, and this is a suit to recover the amount of the policy.

<p>ATTORNEY AND' CLIENT — DTSBABMENT—BREACH OB TbUST. An attorney -who, after having been employed by one party to a litigation, and having ceased to be thus employed, seeks employment by the adverse party, offering to impart to the latter important information, is guilty of such a breach of trust as requires his disbarment.1</p>

<p>In the Matter of the Account of John R. Upchurch against the United States for services rendered as special deputy marshal.</p>

<p>1. Copyright — Forfeitures—j? alse Notice. Rev. St. U. S. § 4963, provides that every person who shall insert or impress notice of copyright on any article not copyrighted “shall be liable to a penalty of $100, recoverable, one-half,” etc. Meld, that though, where one on different days under different circumstances prints separate copies, each separate transaction may constitute a separate offense, yet that the printing of many copies as a single continuous act is but one offense, and each imprint is not a separate cause of action.</p> <p>2. Same — Qux Tam Action — Petition. A petition alleged that on a certain day, and at divers times between that day and the-commencement of the action, defendant engraved, etc., and sold to the number of 10,000 copies, a certain print, etc. Meld, that but one cause of action for a single penalty of $100 was stated.</p> <p>3. Same — Article not Subject to Copyright. The article upon which the false notice was placed was described in the petition, the description Showing it to be the subject-matter of copyright;' but the petition further averred that the article was not subject to copyright. Meld, that in such an action the court will not labor on demurrer to reconcile inconsistencies in pleading, and that, as the penalty is not recoverable for placing the notice on an article that cannot be copyrighted, the petition was bad.</p>

At Law. Action to recover customs duties. The plaintiffs, the firm of Luckemeyer, Sehefer & Co., of the city of New York, on November 14, 1887, imported certain women’s dress goods, composed chiefly of wool, with a very slight percentage of cotton, and valued at not exceeding 20 cents per square yard.

In Admiralty. Libel for freight, and cross-libel for damage in vessel’s refusal to deliver cargo.

<p>In Admiralty. Libel for damages. On appeal from district court.</p> <p>Libel by Peter Anderson against the steam-ship E. B. Ward, Jr., for damages for negligence. Decree for claimant, and libelant appeals.</p>

In Admiralty. Action for personal injuries received by libelant, while engaged in trimming grain in the hold of the steam-ship Wells City, through the falling upon him of one of the ship’s hatch-covers.

<p>Application for Removal.</p>

At Law. On motion to remand. . Action by M. B. Patchin against W. W. Hunter and John H. Parks, originally brought in the state court, and by defendant Parks removed to this court.

<p>Fedebal Coubts — Jurisdiction. Under act Cong. 1887, providing that where the jurisdiction of the federal courts is founded only upon the fact that the action is between citizens of different states, suit shall be brought only in the district of the residence of either the plaintiff or defendant, a suit brought by two persons on a contract entered into by them as partners cannot be maintained in a district of which the defendant and one of the plaintiffs are non-residents.</p>

<p>Courts — Federad Circuit — Public Lands — Grants—Claim to a Patent. Under act Cong. March 3, 1887, § 1, the court of claims has jurisdiction over “all claims founded upon the constitution of the United States, * * * or upon any contract, express or implied, with the government of the United States, in respect to which claims the party would be entitled to redress against the United States, either in a court of law, equity,'or admiralty, if the United States were suable. ” Section 2 gives the circuit courts concurrent jurisdiction when the amount involved exceeds $1,000 and does -not exceed $10,000. Held, that, the word “claims” embraced a claim to a patent to lands earned by a land-grant railroad company, and that the United States circuit court has jurisdiction of an action to determine the right to a patent under the grant.</p>

<p>In Equity. On motion to strike third amended bill from files.</p> <p>Bill by Metropolitan National Bank against the St. Louis Dispatch Company and others. Motion by Dispatch Company.</p>

<p>On Application for a Preliminary Mandatory Injunction.</p>

<p>Railroad Companies — Insolvency and Receivers. The property of the defendant, railway company, which was insolvent, was made up of the consolidation of a number of lines, some of which were taken by lease. Receivers were appointed to manage the entire system, and it was provided that any lessor might at any time assert his right to possession of lines leased by him for unpaid rent. On the petition of the receivers, showing that one branch of the system, leased to the defendants by the intervenor, was darning more than operating expenses, an order was made directing that after meeting obligations which had been directed to be discharged by former orders the rental on such branch should be paid to the intervenor, until oth- " erwise directed, out of the rents and profits. Ibid that, as the obligations directed to bo paid by former orders amounted to a large sum, and were never paid, the intervenor had no right to rely upon said order, and was not entitled to rent under it.</p>

<p>1. Ejectment — Defenses—Eraudulent Conveyances— Execution — Sale. It is a good defense to an ejectment that plaintiff's title is derived from a conveyance to her in fraud of her grantor’s creditors, one of whom after-wards obtained a judgment, and issued execution under which the land was sold to defendant’s predecessor in title, such fraudulent conveyance being void hy the state statutes.</p> <p>2. Same. It is immaterial whether the execution creditor was or was not the purchaser at the sale.</p> <p>8. Same — Laches. Defendant may rely on his equitable title and possession, and need take no action to obtain'the legal title, and lapse of time, therefore, does not affect his right to interpose the defense.</p>

<p>1. Banks and Banking — National Banks — Insolvency — Action against Shaukholdek — Pleading. In an action by the receiver of a national hank against a shareholder to re--, cover an assessment ordered by the comptroller, an allegation in the petition that on a day named “the comptroller of the currency, in order to pay the liabilities of” the bank, “made an assessment upon all the said shares of the capital stock of said” bank of 100 per cent, upon its par value, “and ordered the stockholders to pay the same on or before” a day named, is sufficient to show that the requisite action was had by the comptroller, not only as to determining- upon the necessity of an assessment, but also as to the enforcement thereof by suit against the delinquent stockholders.</p> <p>2. Same. i An allegation following, “that by virtue of the premises, and of the statutes in such case made and provided, the defendant became and is indebted to your petitioner in the sum of, ”et,c., sufficiently shows that defendant had become indebted in the sum named, and also that such indebtedness still continued when the petition was hied, and is ermivalpTit to an allegation of non-payment.</p>

<p>1. Taxation — Assessment—V aridity. By the act oí 1882, (Comp. 1887, § 2735,) real property must be assessed to the owner thereof, unless it is unoccupied, and the owner unknown; and an assessment made to a person not the owner of the property is invalid.</p> <p>2. Same — -"Owner.” The owner of property, for the purpose of taxation, is the person having- the legal title or estate thereto or therein, and not one who, by contract or otherwise, has ¡i mere equity therein, or a right to compel a conveyance of such legal title or estate to himself.</p> <p>3. Same — Tax-Deed—Sti duration — Epvect. An act of the legislature (Comp. 1874, p. 707, § 90) made a tax-deed conclusive evidence of the regularity of the assessment, except for fraud; and, on the trial of an action brought by the grantee in such a deed to recover possession of the premises mentioned therein, the parties stipulated the existence of certain facts, from which it appeared in the judgment of the court that, the assessment in question was made to a person not then the owner of the property. Held, that the effect of such stipulation was a waiver by the plaintiff of the conclusive character of the deed in this respect, and an admission that., if in the judgment of the court the person to whom the property was assessed was not the true owner thereof, then the assessment was invalid, and the tax-deed void.</p> <p>4. CONSTFI’IITIONAR ÍjAW— OBR1GATION OP CONTRACTS — TAXATION—TaX-I>EED AS Evidence. A tax-deed made in pursuance of a sale of property for a delinquent tax, under an act which provided that such deed shall be conclusive evidence of the regularity of the assessment, except for fraud, is a contract with the state that the deed shall so far remain conclusive evidence of title in the grantee therein, and a subsequent act of the legislature, making such deed only prhna facie evidence of such regularity, is void, because it impairs the obligation of the contract. The ruling in Marx v. Úanihorn, 12 Sawy. 877, 80 Fed. Rep. 579, on this point, affirmed.</p> <p> (Syllabus by the Court.) </p>

<p>1. Pleading — Copy of Account — When Necessary. A complaint against a United States marshal and his sureties alleged in each of 144. counts the receipt by the marshal from the government of a specified sum of money earned by a certain deputy-marshal, and his failure to pay the same, and the assignment of this claim by the deputy-marshal to plaintiff. Held, that the counts showed distinct and separate claims, each being a single transaction, and the suit was not on an account, so as to entitle defendants to a copy thereof.</p> <p>2. Same — Complaint. The allegation in each count was that on a certain day plaintiff’s assignor was duly appointed deputy, “and performed services in the cause of U. S. v. C., in the serving and executing process issued in said cause, whereby he became entitled to the sum of $-, for lawful fees and mileage, as will fulty appear by itemized statement thereof indorsed upon the warrant in said case, and delivered to said [marshal;] that no part of the same has been paid, al- • though payment has been frequently demanded, and although the said [marshal] has duly presented the statement of said services to the proper department of the government, and has received * * * the amount so earned by the said [plaintiff’s assignor,] and allowed by the government for his lawful fees and mileage; that heretofore, and before the commencement of this action, said [plaintiff’s assignor,] for value, duly assigned said cause of action to plaintiff. ” Held, that the complaint was sufficient; and a motion to make more definite and certain was overruled.</p>

<p>1. Abatement and Revival — Forfeitures under Revenue Laws— State Statutes. Actions for forfeitures under tile revenue laws arise solely under the statutes of the United States, and are in no way subject to state legislation; and the question of the survival of such actions is not affected by the statutes of the state where the cause of action arose.</p> <p>2. Same — Revenue Oases — Common-Law Rule. Section 955, Rev. St. U. S., refers to the course of procedure only where actions survive, and, in the absence of any United States statute prescribing what actions do survive, the question in revenue cases must be determined by the common law, by which all such actions abate upon the death of the wrong-doer, except only where the acts are divisible, and the wrong-doer’s estate has derived benefit from the tort.</p> <p>3. Same — Revenue Oases — Death oe Party. ' Suit having been brought in 1862 for forfeiture of the value of an importation of gloves for fraudulent under-valuation, under section 66 of the act of 1799, (1. St. at Large, 677.) and, upon defendant’s default, an assessment of damages being made, and a judgment entered after his death, which was set aside on motion as irregular, upon scire facias to revive the action against his administrator, held,, that the act of 1799, though in part remedial, was mainly punitive, and in this case highly penal; and the action for forfeiture, not being divisible, as respects the actual pecuniary loss to the government, was subject to the general rule, and abated by the defendant’s death.</p>

Petition of John Grimley for habeas corpus. From an order of the district judge discharging the prisoner, respondent appeals.

<p>1. Office and Officer-t-Revlew of Conduct. Where a statute confers discretion on a public officer, which is exercised by him in good faith, the courts cannot review his action, though based on false reports made by negligent subordinates.</p> <p>2. Custom Duties — Collector—Liability. The collector of customs is not responsible in damages for negligent acts on the part of his subordinates, in the absence of proof that such subordinates were known by him to be careless or incompetent, or were selected by him without proper care. Following MoberUon v. Sichel, 127 U. S. 007, 8 Sup. Ct. Rep. 1286.</p> <p>3. Same — Trover—Case. A collector of customs who sells unclaimed goods in pursuance of section 2976 of the Revised Statutes, in the belief that they are deteriorating in value, is not liable in trover, or in an action on the case for negligence, even though it appears that there was no substantial deterioration, if he acted in good faith, and was not personally guilty of negligence.</p> <p>4. Same. Where a statute authorizes the collector of the port to sell goods “upon due notice, ” and the clerk whose duty it was to give such notice failed to put up any notice whatever, the collector could not beheld liable for his negligence in that regard, in the absence of proof of negligence on his part in tie selection of the particular individual who was assigned to that duty.</p> <p>5. Same. ■ The collector of the port cannot be charged with negligence in delegating to the appraiser the duty of examiningmerchandise, and reporting whether it is deteriorating in value within the meaning of section 2976 of the Revised Statutes.</p>

At Law. This was an action to recover duties alleged to have been exacted in excess of the lawful rate on certain curry-combs imported by plaintiff. The collector had classified them as “manufactures composed in part of iron, not specially enumerated or provided for,” under the provision therefor in Schedule C of the tariff act of March 3, 1883, and' assessed them for duty at 45 per centum ad valorem.

At Law. The plaintiffs, H. B. Claflin and others, in 1884 and 1885 imported into the port of New York various importations of cotton goods consisting of articles'shown on the trial to be known in trade and commerce in this country under the names of “mosquito net, Hamburg net, Nottingham curtain net, taped and not taped, Nottingham pillow shams, Nottingham tidies, and Nottingham bed-spreads.” They were classified for duty by the collector of customs at 40 per cent, ad…

<p>At Law. On motion for direction of verdict.</p> <p>This was an action to recover moneys exacted as duties -and alleged to be in excess of the lawful rate. The articles imported were paper lampshades, composed of metal and paper, the latter being concededly the component material of chief value. They had been classified for duty as “manufactures composed wholly or in part of metal not specially enumerated or provided for” under a provision therefor in Schedule 0, act of March 3, 1883, and assessed for duty at 45 per cent. The importer claimed that they were “manufactures of paper, or of which paper is a component material, not specially enumerated or provided for,” and dutiable at 15 per cent, under a provision therefor in Schedule M of the same-act. It was shown upon the trial that the shades were made of colored and ornamented paper, with a thin ring of wire at the top and bottom to hold the paper in shape, and with a wire frame-work across the top, which would slide part of the way over -a lamp-chimney, and hold the shade in position; that the shades could not be made fit for use without the metal portions; and that the elements of cost in the article, were as follows: Paper, 18 marks 75 pfennings; wire rings and framework, and cost of cutting same, 4 marks; labor for making and finishing shade, 4 marks 25 pfennings.</p>

<p>1. Customs Duties — Statutms—Constbuction. The word “cloth” in the provision for “cotton cloth” in Schedule I of the tariff act of March 3,1883, is used in its popular and common acceptation, and not in a commercial sense. Following MaiUard v. Lawrence, 16 JIow. 251; Greenleaf v. Goodrich, 101 U. S. 278.</p> <p>2. Same — Property Subject to. A woven fabric made of cotton is dutiable under a provision in the tariff act for “cotton cloth, ” notwithstanding it is not known among merchants and dealers as “cotton cloth. ”</p> <p>3. Same. Embroidery canvas (called in trade “Penelope”) made of cotton, and containing less than 100 threads to the square inch, is dutiable át cents per ' square yard, under the provision in Schedule I of the tariff act of March 3, 1883, for “all cotton cloth, colored, not exceeding 100 threads to. the square inch;” and not at 35 per centum ad valorem,, under the provision in the same act and schedule for “all manufactures of cotton not specially enumerated or provided for. ”</p> <p>4. Same. Cotton canvas, embroidered with worsted, valued at over 80 cents per pound, is properly dutiable at 35 cents per pound and 40 per centum ad valorem, under the provision in Schedule K of the tariff act of March 3, 1883, for “all manufactures of every description composed wholly or in part of worsted, not specially enumerated or provided for, ” and not at 35 per centum ad valorem, under the provision in Schedule I of the same act, for “all manufactures of cotton not specially enumerated or provided for. ” Kohlsaat v. Murphy, 96 U. S. 153, distinguished.</p>

At Law. Action to recover back custom duties. The plaintiff brought this action to recover back duties alleged to have been exacted in excess of the lawful rate on certain importations made by him in 1888 and 1884. The importations consisted of two classes of goods, — the eyelets with hooks on them, such as are often worn in the Uppers of men’s shoes, and the elastic goring which is put into the uppers of Congress gaiters.

<p>Indictment for Offenses under the National Banking Acts.</p>

<p>Co cuts — J inn sdiotion — Federal Courts. Defendant was charged before a state court with perjury in having testified falsely before a notary public in a proceeding under Ilcv. St. U. S. c. 8, tit. 2, regulating the taking'of testimony in a contest for a seat in the house of representatives of the united States. Held, that the offense is cognizable only by the federal courts, under Eov. St. U. S. g 5892, providing for the punishment of perjury in any case in which the laws of the United States authorize an oath to be administered, and the second section of the judiciary act of August 18, 1888, giving the United Stales courts exclusive cognizance oí all crimes cognizable under the authority of the United States.</p>

<p>Elections and Votebs — Aekest op Voters at Polls. There is no law authorizing the arrest of a person while offering his ballot at the polls, for any cause relating to his right of suffrage.</p>

<p>1. Post-Office — Laroent from: Mails — Rev. St. U. S. § 5467. The two clauses of Rev. St. U. S. § 5467, describe two separate and distinct ofienses, viz.: (1) Secreting, embezzling, or destroying a valuable letter; and, (2) stealing the contents of such letter. These two clauses should be read disjunctively.</p> <p>3. Same — Indictment. It is not necessary, in an indictment under the first clause for secreting and embezzling, to allege that the letter had not been delivered to the party to whom it was directed; nor, under the second clause, for stealing the contents, to allege that the letter was intended to be conveyed by mail or mail carrier.</p> <p>3. Same — Letters Deposited in Letter-Box. It is sufficient evidence that letters are “intended to be carried by a letter carrier” that they are deposited in pillar-boxes to be carried to the post-office, although it be intende'd to intercept them after they have passed through the hands of a suspected employe.</p> <p>4. Same — Decoy Letter. It is no defense to an indictment, of a post-office employe for embezzlement that the letter embezzled was a “decoy,” addressed to a fictitious person or place, and was never intended to be delivered, nor that it was made up so as to attract attention, and indicate that it contained money.</p> <p> {Syllabus by the Court.) </p>

<p>Patents for . Inventions — Infringement—Preliminary Injunction. In a suit for the infringement of a patent, a preliminary injunction 'will be denied where the court is doubtful on the question of infringement, and preliminary injunctions in other cases for the infringement of the same patent have been denied.</p>

<p>In Equity.</p> <p>Bill by Herman Royer against William Coupe and others for the infringement of a patent.</p>

<p>Patents for Inventions — Invention—Machine for Treating Raw Hides. Letters patent No. 172,816, issued January 18, 1876, to Herman Royer, the claim of which, broadly, is for the combination with a raw-hide fulling-ina-chine of an automatic reverser, are void, the elements being old, and their combination requiring no invention.</p>

<p>1. Patents for Inventions — Construction op Claim — Faure Secondary Batteries. Tile specification in letters patent No. 252,003, issued January 3, 1882, to 0. A. Fauré, describes the secondary batteries invented by Gaston Planté, in whicb the plates have comparatively limited capacity, and require a long and expensive operation for their formation, and states the patentee’s object to be to prevent such waste of time and money, and to construct a more powerful battery. Claim 1 is “as an improvement in secondary batteries, an electrode consisting, ” etc. Held, that a secondary battery, as distinguished from a primary one, is an element of the combination.</p> <p>3. Same. There being well-known primary batteries, and well-known secondary batteries, though there are others not definitely classifiable, the term “secondary battery,” as used in the patent will not be construed as including a primary battery which has been exhausted and partially restored by being charged from an independent generator.</p> <p>8. Same. Claim 1 being for “an electrode, ” etc., and the words “apair of electrodes” being used in another claim, and it appearing from a foreign patent and the file-wrapper and the domestic patent that the patentee’s attention was drawn to the distinction between one and two electrodes, the claim cannot be limited to the use of two electrodes, but a battery containing one Faure electrode, though the other is dissimilar, is within the claim, if the two operate to receive and discharge electricity as stated in the specification.</p> <p>4. Same. Claim Í is for “an electrode consisting of a support coated on one or more faces with an active layer of absorptive substance such as metal or metallic compound applied thereto in the described condition so as to be or instantly become spongy, and thus capable of receiving and dischai'ging electricity, as stated; in contradistinction to a metallic plate itself rendered spongy by the disintegrating action of electricity, substantially,” etc. It is stated that the oxides or salts of lead not soluble in the electrolyte is deemed most advantageous for covering the supports, but that the invention includes generally substances capable of absorbing and storing electricity-; for example, manganese, or any salt, the oxide of whose base is insoluble; that the active materia! may be applied in various ways as in the form of paint, paste, or cement, in the form of a deposit by galvanic action or chemical precipitation or otherwise. In charging, the electricity produces a reduced mass of porous lead on one electrode and a mass of peroxide of lead on the other, and in discharging the reduced lead becomes oxidized, and the poroxidizod lead is reduced. Held, that the claim includes a coating soluble in the electrolyte and one which is applied after immersion by-galvanic deposit or chemical precipitation from a solution in the liquid.</p> <p>5. Same — Date op Invention. The patentee cannot claim the invention earlier than October 20,1880, which was the date of his French patent, he being then a citizen of France.</p> <p>6. Same — Anticipation. The Flectrician oí 1863 contained an article entitled “Secondary Batteries, ” but there was no evidence that a successful secondary battery having the characteristics therein mentioned was ever made, though similar structures were proved inoperative; and in charging such battery a reduced mass of porous lead on one electrode and a mass of peroxide of lead on the other were not produced. A person skilled in the art, after reading the article, would be unable to produce a Faure battery in any of its practical forms. Held no anticipation.</p> <p>7. Same. A witness testified to reading an article 25 years before, and to experiments and results by him which would amount to anticipation. The article was not produced, and the witness was not corroborated, and some oí bis statements were shown to be inaccurate. Since then he had taken out more than 30 patents, and had written 5,000 articles on scientific subjects, none of which referred to the alleged invention. ' Held insufficient to rebut the presumption of novelty arising from the grant of the patent.</p> <p>8. Same. An electrical engineer testified that in 1879 he suspended in dilute sulphuric acid a lead plate having a coating of lead powder secured to it by means of blotting paper, a strip of wood, and a string, and opposite this he suspended a plate of amalgamated zinc. He also made another cell by suspending two such, coated lead plates in the electrolyte. He connected the two cells and charged them for several hours on each of several days. In one instance he made a coating of red oxide of lead and in another of litharge. His experiments were successful, and he made full memoranda of them, which were soon after destroyed by fire, and which he afterwards undertook to reproduce, though he did not describe particularly the batteries. In July, 1880, he laid in dilute sulphuric acid, in contact with metallic zinc, lead plates, some of which contained in a groove yellow oxide, and others sulphate of lead, whereby the oxide and sulphate were reduced to metallic lead, and the zinc was dissolved. He then suspended in one cell two plates which had contained sul- . phate, and in another two which had contained oxide, and charged them. These were afterwards lost. In September, 1880, he treated similarly plates which were filled with litharge and sulphate. On the issue of the Faure patent he demanded interferences, and was successful. He was corroborated in important particulars by three witnesses, who saw experiments. Held an anticipation, except as to "the method of applying the layer to the electrode in the form of paint, paste, or cement.</p> <p>9. Same — Disclaimer. As the real" invention of the patentee was the application before immersion in the electrolyte of the active layer, in the form of paste, paint, or cement, insoluble in the electrolyte, so as instantly to become spongy, and. was generally so understood, and as such invention was one of great merit, and as it is fully described in the specification, and the claim as to it would not be mutilated by a disclaimer as to the residue, the patent should be allowed to stand on filing such disclaimer, as authorized by Eev. St. §§ 4917, 4923, and complainant in a suit in which infringement is established may thereupon have a decree, but without costs.</p> <p>10. Same — Series op Cells— Construction op Claim. Claim 4 is: “In a secondary battery, a series of cells comprising each a pair of electrodes with an active, spongy layer thereon, combined with non-porous partitions between adjacent cells, substantially, ” etc. The specification states that it is advantageous to apply a non-porous partition to the plates so as to cut off all communication between the cells, and that this combination » of non-porous diaphragms with the electrodes is a portion of the invention; that the arrangement permits the employment of thin sheets of lead, while securing, sufficient stiffness, and affording means of securing the parts without leakage between adjacent cells on each side of the leaden plate; that when the supporting plates are to be placed so as to permit distortion by mechanical strain stiffness may be imparted by applying them on wood or' hard rubber non-porous boards, so as to prevent the passage of liquid between the cells. Held, that there would be no invention in a mere aggregation of cells, but that the claim would be valid by limiting it to the combination of the electrodes with non-porous partitions as described.</p> <p>11. Same — Plates eor Secondary Batteries. The claim of letters patent Ho. 312,599, issued February 17, 1885, to J. W. Swan, is for a perforated or cellular plate for secondary batteries, having the perforations or cells extending through the plate in which the active material is packed. Such plates hold the active material securely, extend the area of electric communication between the continuous metallic conductor and the porous material, and by their use the warping or fracturing effects of the changes of oxjdation are almost annulled. Held, that the construction of such plates involved patentable invention.</p> <p>12. Same — Expansion op Application. The original specification stated that the plate shown in the figures was constructed with cells or cavities for the reception and retention of spongy lead, and might he closed on one side, as shown in one of the figures. There was no evidence of alterations in the drawings, and the file-wrapper showed that the original drawings were in the office when the claim for a perforated plate was presented, which was after the original specification was filed. Held, that the original specification described a perforated plate, and that the patent in covering it did not unlawfully expand the original application.</p> <p>18. Same — Date op Patent. A statement in the specification that the patentee has obtained a prior foreign patent, is not proof thereof, and does not carry the invention back to the date of such patent.</p> <p>14. Same — Anticipation. The application having been filed January 18, 1882, the English pafont to John S. Sellon, though dated September 10, 1881, was not an anticipation, it not having been sealed until March 10, 1882.</p> <p>15. Same. A witness testified that prior to August, 1881, ho made perforated lead plates upon both sides of which he precipitated previously prepared lead sponge, covering the surfaces and filling the perforations. He also placed lead sponge on one or both of two perforated plates, and then united them, the sponge being retained between them and filling the perforations, thus making one electrode. He also placed 1he paste on cloth or asbestos, and inclosed it between perforated plates. Woven lead wire was coated with a paste by him also. Batteries thus constructed were successful. Corroborating testimony was given by two others and there was no conflicting' evidence. Held an anticipation, and, if not complete, that there was nothing remaining of which to predicate patentable novelty.</p> <p>16. Same — Patentability. In letters patent No. 318.828, issued May 26, 1885, to J. W. Swan, the claim is: “In a battery plate or electrode composed of a conducting support combined with active material, the support in the form of a plate with angular or equivalent holes, ceils, or perforations extending through the same, and separated from one another by webs, walls, or partitions of uniform cross-section, the active material being placed in said holes, ” etc. Held, that it covered no patentable invention, not included in the first Swan patent.</p>

<p>In Admiralty. Question reserved.</p>

<p>In Admiralty. Libel to recover demurrage for detention in discharging scrap-iron. Gross-libel for shortage in the delivery of the iron.</p>

Ill Admiralty. Action against the ship Iroquois for improper discharge of libelant’s iron ore, whereby libelant was compelled to pay extra forwarding charges.

In Admiralty. Libel for damages. On appeal from district court. The Phenix Insurance Company of Brooklyn libeled the steam-tugs I. K. Wilbur and Quaker City for a collision in which the canal-boat H. M. Burruss, towed by the former, was sunk at the loss of libelant.

<p>Collision — Between Tugs — Mutual Fault — Injury to Boat at Pier.</p> <p>The tug F. lay in the North river, stern to the docks, drifting with the flood tide, and about to back into her slip when opposite it. The tug G., comingup stream, close to the docks, at a speed of at least four knots, observed the F.. blew one whistle to show that she intended to pass inside of her, received no reply, and kept on. The pilot of the F., without looking astern of him, backed, collided with the G., and threw the latter against the boat H., which lay at the pier. Held, that both tugs were liable for the damage to the H.,— the G., for maintaining her speed, in her position, after observing that her signal was unanswered; the F., for backing without looking astern to see if the way was clear.</p>

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

<p>Wharves — Municipal Corporations — Department of Docks.</p> <p>The New York municipality is liable for damage caused to a vessel-owner by the failure of the department of docks as its agent to keep in proper repair one of the city's wharves, on Blackwell’s island, though its use is deyoted solely to the department of charities and corrections.</p>

<p>At Law. Motion to dismiss.</p> <p>This is an action brought by the plaintiff, Cornelius Ferguson, in his official capacity as shore inspector, under the laws of the state of New York, to recover penalties from the defendants, P. S. Ross and Joseph B. Saudford, for depositing prohibited materials in the waters of the bay and harbor* of New York. Plaintiff is a citizen and resident of New York, (Eastern district;) defendants are citizens and residents of New Jersey. The actions were begun in the state supreme court, and removed here by the defendants, under the act of March 3, 1887. Upon the trial, defendants moved for a dismissal on me ground that the court had no jurisdiction of the subject-matter of the actions. The motion was denied, with leave to renew after verdict, when the questions raised could receive more careful consideration. Verdicts were found for the plaintiff in both cases, and upon motions for a new trial the question of jurisdiction is again presented. The act of which it is claimed the defendants were guilty in each particular case was the dumping of dredging-material in the hay and harbor of New York. The statute under which these actions were prosecuted is chapter 601 of the Laws of 1875 of the state of New York, as amended by chapter 414 of the Laws of 1885. This act makes it unlawful to deposit such materials within certain specified limits, including the hay and harbor of New York; and provides that any person offending against the provisions of the act shall he guilty of a misdemeanor, and shall, upon conviction, be punished by the infliction of a fine of not less than $100 nor more than $500, or by imprisonment as in case of misdemeanors, or both, in the discretion of the court. Out of any moneys received from fines under the act such sum or sums shall be allowed and paid for the expenses and disbursements attending the arrest as the court or magistrate may deem reasonable and proper. The act next provides for the appointment of a “ shore inspector” of the counties named, to hold office for three years, and to serve until his successor shall be appointed. He is given an annual salary of $2,000, (in lieu of all other compensation,) which, with the sala-lies of his subordinates, is made a county charge. It is made his duty to investigate and report any and every violation, of the provisions of the act, and he is given power to arrest offenders. To carry out the objects of the act the sum of $15,000 is appropriated for expenses. It is made a county tax, and, when raised, is paid over to the state comptroller. By the eighth section of the act (the particular one under which these actions were prosecuted) it is made unlawful to permit any dredgings and materials taken from any slip, basin, or shoal in the port of New York to be deposited or placed elsewhere than beyond certain prescribed limits. For each and every violation of the provisions of this act all persons so offending are made jointly and severally liable to pay a penalty of $1,000, together with costs, for each and every such offense. Such penalty is to be recovered by and in the name of the said inspector, in a civil action, in any court of competent jurisdiction in the state. The inspector is given power in his discretion, with the consent of the court, to remit all or any part of the penalties thus incurred; and it is further provided that all moneys recovered by civil action, after deducting costs, counsel fees, etc., shall be paid into the treasury of the state. The penalties, and the mode of recovering the same, shall, it.is further provided, be deemed to be substituted for all others theretofore provided by law for the same or like offense. The object- of the act, as declared in the title, is to protect the shores and bay of New York, and the seaside resorts near the same.'</p>

<p>EqUITV — PLEADING—CROSS-BILL—GERMANE TO BILL.</p> <p>Complainant filed a bill to-remove a cloud on his title, alleging that defendant issued an attachment in Iowa against R., and levied on the land in question, which stood in the name of R/s wife; that defendant filed a supplemental petition in that suit against R. and wife, alleging that the land actually belonged to R., and had been conveyed by him to his wife in fraud of creditors; that without service on or notice to Mrs. R., and without appearance by her, defendant obtained a decree under which the land was sold, and he became the purchaser; that complainant had in good faith obtained the title from Mrs. R. Reid that, as by the laws of Iowa a creditor may attach land fraudulently conveyed, and afterwards file a bill to set aside the fraudulent title, defendant had a right in this suit to file, as germane to the bill, a cross-bill alleging that complainant was not a bona fide purchaser, and praying to have his pretended title declared void, and the title declared to be in defendant.</p>

In Equity. Bill for partition and accounting, filed by Sarah E. Mc-Closkey and others against Samuel Barr and others. On hearing as to sufficiency of pleas.

<p>In Equity. Rill to obtain a priority in the nature of an equitable lien on the assets of an insolvent national bank.</p>

<p>1. Constitutional Law — Inheritance Tan.</p> <p>Act N. T. 1885, as amended by Laws 1887, c. 713, imposes a tax of 5 per cent, upon the value of property passing to any person not within certain degrees of consanguinity to the decedent, by will or the intestate laws, from any person who may die seised or possessed of the same while a resident of the state, or which is within the state at the time of his death. Held, that as the law operates alike on all property and persons similarly situated, and the assessment is made by a judicial officer, after due notice and.opportunity to be heard, it does not conflict with the fourteenth amendment to the federal constitution.</p> <p>2. Same — Tax on United States Bonds.</p> <p>Where the property of the decedent includes United States bonds, the tax may be assessed upon the basis of their value. The tax is not imposed upon the bonds, but is merely a tax upon the privilege of acquiring property by inheritance.</p>

<p>At Law.</p> <p>Action by W. S. Powell against the Oregonian Railway Company,</p>

<p>Corporations — Organization roe. Illegal Purpose — Rights or Stockholders.</p> <p>Individuals owning a grant from the Mexican government of lottery franchises and privileges, organized a corporation under the public improvement law of Louisiana, for the avowed purpose of constructing, operating, and developing various public improvements in Mexico, but for the real purpose of carrying on a lottery in that republic. The capital stock was fixed at §1,000,-000, all of which was issued as fully paid-up stock to subscribers who paid nothing therefor. Held, that as by the constitution of Louisiana the lottery business is prohibited unless the privilege is granted by the state, as is also the issue of paid-up stock without any payment in fact being made, the subscribers to the original stock acquired no interests which a court would protect.</p>

In Equity. On exceptions to master’s report. ■ Bill by Howland G. Hazard against the Credit Mobilier of America, Royal E. Robbins and others, directors of the Credit Mobilier, and the Union Pacific Railroad Company, to restrain the majority of the stockholders of the Credit Mobilier from fraudulently discontinuing a suit brought by it against the Union Pacific Railroad Company in the state' of Massachusetts, on a note for $2,000,000, given by the railroad company to the…

<p>1. CORPORATIONS — STOCKHOI/DE RS— FRAUD.</p> <p>A bill by a stockholder of the P. Oo. to restrain the D. Co. from issuing certain mortgage bonds intended to secure an illegal advantage to the C. Oo.', in breach of an agreement between the J). Co. and the F. Co., alleged that the P. Co. was the equitable owner of stock in the F. Co., and that, it designed, when it acquired the legal title to such stock, to exchange it in disregard of plaintiff's rights for stock of the D. Go., and that the fraudulent issue of mortgage bonds bjr the I). Co. would place a lien for their amount "before the stock, which complainant would be entitled to receive as a stockholder of the P. Co. The bill prayed that the D. Co. and the 0. Co. be enjoined from disposing of the bonds, and that the P. Co. be enjoined from exchanging its stock of the F. Co. for that of the D. Oo. until the agreement between the F. and D. Cos. had been complied with, lie Id that, conceding that complainant had the right to sue on behalf of the P. Co., a cause of action was not stated, as the P. Co. could not be heard to complain until it became a stockholder in the D. Co., and, as it was not a party to the agreement between the D. and P. Cos., it could neither enforce it nor restrain its breach.</p> <p>2. Same — Pleading—Multifartousness.</p> <p>If the bill be taken as stating a cause of action by complainant against the P Co. the bill is multifarious, as the other defendants have no interest in the controversy.</p>

<p>Bankruptcy — Assignee’s Costs and Expenses.</p> <p>Under Rev. St. U. S. § 5099, providing that the assignee in bankruptcy shall be allowed out of the money in his hands “all the necessary expenditures made by him in the discharge of his duty, and a reasonable compensation for his services, ” where creditors have in good faith brought suit against the as-signee, and been defeated, and the estate is insufficient to pay both their costs and the costs and counsel fees of the assignee, the assignee is entitled to preference. .</p>

<p>1. Bridges — Liability for Defects.</p> <p>The city of Boston purchased the franchise and materials of a bridge at the entrance to its harbor, being empowered so to do by Acts Mass. 1831, c. 71, which provided that the city should always be “liable to keep said bridge and drawin good repair, ” and afford all necessary accommodations to vessels that have occasion to pass the same. By Acts Mass. 1876, c. 105, the city was authorized to do such acts as it might deem necessary to secure a bridge and draw which should be safe for the purposes of navigation, subject, however, to the provisions of other acts by which the approval of the board of harbor commissioners was required in all work authorized by the legislature of building any bridge, wharf, or draw over tide-waters. The said commissioners granted a license to the city providing for the widening of the said bridge, and the construction of a new draw, which was to be of a certain width. Reid, that the city was liable for damages done to a vessel by being caught in the draw, the city having failed to maintain the draw of the required width.</p> <p>2. Municipal Corporations — Crvm Liability for Tort.</p> <p>In such case a civil action may be brought against the city in the federal courts for the damage done, though no such right of action is conferred by statute.</p> <p>3. Admiralty — Jurisdiction.</p> <p>A court'of admiralty has jurisdiction over damage done to a vessel on navigable water by a bridge.</p>

<p>1. Railroad Companies — Muricxpal Aid — Bonds—Action to Compel Cancellation.</p> <p>A county judge, assuming to act under act N. Y. May 18, 1869, permitting municipal corporations to aid in the construction of railroads, rendered a judgment appointing commissioners to execute bonds of a town. The bonds were accordingly executed and delivered to the railroad company, but before delivery a writ of certiorari issued from the supreme court to review the judgment, which was afterwards reversed. In an action against a transferee of the bonds to compel their surrender for cancellation, held, that defendant had the burden of showing that he, or some -one under whom he claimed, was a bona fide holder for value. - - •</p> <p>2. Same — Bona Fide Holder — Evidence.</p> <p>A Texas banker, from whom defendant obtained the bonds, testified that he was informed by a resident of New York that the bonds, which were of the par value of §75,000, could be bought for §50,000, and that he bought them of a stranger to him, residing' in New Orleans, for $50,000, without making any inquiry as to their history or value, acting upon the assumption that the purchase Was a good one because suggested by such informant; that he got with them $10,000 in overdue coupons, but that that circumstance made no impression on him; that he paid for the bonds with a check signed by him as president of his bank, which check was produced from the drawee bank, at New Orleans, and was not shown to have been paid by the Texas bank; that he left the bonds at the place of purchase for several months, when he took them to New York, where he interviewed his informant, because he did not know whether he made the purchase for himself or for such informant, and afterwards sued on the coupons. Held, that his testimony did not show him to be a bona fide purchaser for value. '</p> <p>3. Same.</p> <p>Defendant testified that the banker, who was a confidential friend and financial supporter, offered to buy a third interest in his ranch, worth $150,-000, and pay him §75,000 worth of bonds, stating that the bonds were good; that defendant accepted the offer at once, making no inquiry as to the bonds, and 15 days later signed a receipt for the bonds, which were not delivered, but were placed to his credit, or held subject to his order, and which were' not seen by him until two days afterwards. He sent the coupons for collection to the same attorneys whom the banker had employed. The testimony of the banker was substantially the same. The receipt described the bonds as county bonds, and stated that they were taken in part payment for a third interest in ranch and stock. No conveyance was executed, but several months afterwards defendant and his co-owner and the banker formed a corporation, to which the ranch was conveyed. The capital stock was §500,000, divided into 1,000 shares, of which the'banker received.290. The 290 shares were the equivalent of the banker’s interest in the assets of the firm composed of defendant and his co-owner. Held, that defendant was not shown to be a bona fide holder for value.</p>

<p>In Equity.</p> <p>Bill by D. M. Jarboe & Co. against T. J. Tempter and others, and cross-bill by the Atchison Savings Bank.</p>

<p>1. TAXATION — ASSESSMENT—BOARDS OF EQUALIZATION — INJUNCTION.</p> <p>A bill to restrain a levy under a tax-bill alleged that an appeal was duly taken to the board of equalization, which was duly heard, and the valuation reduced, but that this action by the board was illegal and erroneous, and that the board proceeded without any authority of law, and without any jurisdiction, to fix the value on the premises. Rev. St. Mo. §§ 6672-6674, confers upon the board power to hear complaints, and to equalize the valuation and assessments upon property; and provides that this shall be done by raising the valuation of such property as in their opinion has been returned too low. and reducing such as has been returned too high; that they shall hear and determine all appeals made from the valuation of an assessor, in a summary way, and correct and adjust the assessment accordingly. Held, that the bill failed to show any such illegality in the action of the board as would authorize the court to interfere.</p> <p>2. Same.</p> <p>Rev. St. Mo. § 2722, provides that the remedy by injunction shall exist in all cases where an injury to property is threatened, and to prevent the doing of any “legal wrong,’’when, in the opinion of the court, an adequate remedy cannot be aiforded by an action for damages. Held that, conceding that this section confers on the federal court the right to award an injunction whenever the state court may do so, it does not authorize an injunction when the board of equalization has acted in good faith, and in conformity with law, as no “legal wrong” has been or will be done, though complainant’s property is overvalued.</p> <p>8. Same — Federal Courts — Jurisdiction.</p> <p>The fact that a writ of eertiortwi has been sued out in the state court to review the proceedings of the board of equalization, and that that proceeding is still pending, does not entitle the complainant to apply to the federal court to stay the collection of the tax until that proceeding is determined, as it is clearly within the power of complainant to apply to the state court for such relief. Nor does the general allegation that the people and officers of the county are prejudiced against complainant confer any jurisdiction on the federal court.</p>

At Law; On motion for new trial. Action by Lola Houck against the Southern Pacific Railway Company, for personal injuries. Judgment for plaintiff, and defendant moves for new trial.

<p>1. United States District • Attorneys — Compensation—Excessive Allowance — Public Policy.</p> <p>The law of the' United States limits the fee which a United States district' attorney may charge and receive in cases which he prosecutes; and when by arrangement with. defendant he is paid more than the law allows him to charge, public policy requires that all money received in excess of the legal fee should belong to the government.</p> <p>2.' Same — Taxation or Costs — Estoppel.</p> <p>The taxation, in the cases prosecuted, of a greater fee in favor of the district attorney than .the statute allows, does not preclude the government from, claiming the excess.</p>

Ill Equity. Bill to restrain infringement of patent. One Facer, being the sole owner of a patent issued to himself and one Shaub, brings this suit to restrain the defendant, the Midvale Steel-Work Company, from infringing it. The facts are stated in the opinion.

<p>In Equity. On motion for preliminary injunction.</p> <p>Suit by Henry W. Putnam and others against the Keystone Bottle-Stopper Company and others.</p>

In Equity. On exceptions to master’s report. Action by James C. Covert against Joseph B. Sargent and George II.

<p>1. Patents por Inventions — Infringement—Swinging Harness.</p> <p>The third claim of letters patent No. 171,190, to Edward O. Sullivan, December 14, 1875, is for the combination with the harness for a flro-engine, etc., of a device for suspending' the harness above the position of the horse when attached to the apparatus. The collar, which is an open one, and hames attached to it, both of which were old, and the inner and part of the outer trace only, are suspended. The specification states that the device can be applied to an apparatus using but one horse. Various persons had previously-suspended parts of the harness over the position of the horse, and there was evidence that the collar and harness had been so suspended with other parts. Jleld that, considering the prior state of the art, the device described in letters patent No. 990,320, Moveinber 10, 1885, to George O. Hale, which has for its object tbe suspension of the entire harness, is not an infringement.</p> <p>2. Same — Presumptions from Issuance of Patent.</p> <p>The rule that the issuance of a patent is presumptive evidence of the novelty and usefulness of the device applies in favor of the defendant in a suit for infringement who has a patent for his device.</p> <p>S. Same — Prior Adjudications.</p> <p>A prior adjudication of a federal .court upon the validity of a patent, though entitled to respect as a precedent in a case in another court between other parties presenting substantially the. same facts, is not conclusive, and where, the defense in the subsequent case is placed on additional grounds, and new and important facts are developed, it should stand on its merits.</p>

In Admiralty. Libel for goods lost. The facts were as follows: Libelant shipped brimstone, by the barge Tucker, from Harrison Bros. & Co.’s wharf, Gray’s Perry, Philadelphia, to Cooper’s Creek, N. J. The barge engaged the services of the tug Sarah to tow her from Gray’s Perry to Cooper’s Creek.

<p>1. Demurrage — Rights of Vessel.</p> <p>In the absence of an express contract, a vessel is only entitled to demurrage when detained through the fault of the shipper or consignee.</p> <p>2. Same — Custqm—Contract of Carriage.</p> <p>Where a custom is established requiring vessels to wait their turn in unloading at a particular port, the master is held to contract with reference to it; and, if no stipulation for demurrage is made in the contract, he assumes the risk of delay.</p> <p>3. Shipping — Carriage of Goods — Freight—Suit.</p> <p>A claim for freight cannot be sustained where the freight had not become due when suit was brought.</p> <p> (Syllabus by the Court.) </p>

<p>Shipping — Liability for Tort.</p> <p>While the libelants' vessel, B., was tied up at a wharf, the N., a much larger vessel, was made fast to the wharf, close to and outside of the B., where the water was of such depth that thfe 1ST. was certain to ground with low tide. Held that, the N. having grounded and listed over towards the wharf, her owners were liable for damages resulting to the B. from being caught between the Ñ. and the wharf, and held until the rising tide covered her.</p>

<p>1. Seamen — Wages.</p> <p>Libelant shipped on hoard a vessel, it being understood that he was toper-form services generally in return for his transportation and board. After-wards, in the absence of the regular cook, who had'told libelant, though without authority, to take his place, the libelant performed services as cook. Held, that libelant could recover on a quantum meruit for what such services were actually worth.</p> <p>2. Same.</p> <p>A special contract which the libelant signed as instructed by the captain of the vessel, after he had commenced work as cook, and by which he agreed to work for a nominal sum, was held invalid, the libelant being unable to read, and the contract not being read to him, nor any information given to him as to its contents.</p>

<p>Sai,vage — Compensation.</p> <p>Libelants, 16 in number, were engaged in receiving cotton from lighter-boats, and storing it in the defendant ship, anchored some miles from Galveston. When libelants quit work for the day, 300 or 400 “bales of loose cotton were left on deck, near the kitchen, waiting to ” be stored in the hold, where some 4,000 bales had been stored by them. They slept on the ship, and had their own cook during the time they were loading the vessel. About 5 o’clock a. m. the loose cotton bales were discovered by some one to be on fire. The libelants promptly rendered valuable service, which was necessary to assure the safety of the ship and cargo. Held that, however valuable and necessary the service of a sailor or passenger njayhave been in extinguishing a fir'd which threatens to destroy a vessel, or imperils its cargo and the lives of alt on board, it is well known that public policy forbids that either should be rewarded as salvors when the work or service rendered by them is not beyond, but within, the line of such duties as substantially and in the nature of things were in their pre-existing covenant with the vessel; and that the reasons and principles which suggest the public policy mentioned, warrant admiralty courts in considering the libelants’ relations to defendant vessel as not es-' sentially different from those of sailors and passengers in a vessel in distress,, and in refusing the allowance of salvage reward to them.</p> <p> (Syllabus by the Court.) </p>

<p>1. Collision — Between Steamers — Fog.</p> <p>The steamer C., while steering north by east, in a fog, was struck by the steamer P. on her port bow, and sunk. The testimony on the part of the C. was to the effect that the whistle of the P. was first heard on the port bow of the C.; that the wheel of the C. was at once ported a quarter of a point, and one blast of her whistle blown, to indicate that she would pass the P. port to port; that, soon afterwards, the P.’s bright, light and green light being still on her port bow, her wheel was put hard a-port, and she was swung several points to starboard, when she was struck. The testimony on the part of the P. was that while steering south half west the white light of the 0. was seen about one and one-half points off the starboard bow of the P.; that two blasts of the steam-whistle were immediately blown, and, no answer being heard, the signal was repeated; and that then one blast of a whistle being heard close at hand the P.'s wheel was put hard a-starboard, and signals given to stop and reverse; but that there was not time to reverse. The testimony that the P. was on the port bow of the 0. when the latter’s whistle was blown was corroborated by the testimony of those on board a schooner in tow of the C. The captain of the P. testified to the course of the vessel, but he had not seen the compass. He also testified that, when he first saw the white light of the 0., he did not know it was that of a steamer. Held, that the officers of the P. were negligent in not stopping when they first saw the white light of the 0., and in starboarding, instead of porting.</p> <p>Same.</p> <p>Where the 0. had two men of experience stationed as lookouts in the “eyes of the ship,'” there was a sufficient compliance with its duty as to lookouts.</p> <p>3. Same.</p> <p>The 0. was held not to be negligent in not blowing fog-signals at proper intervals where the testimony of those on board the 0. was that fog-signals were sounded at intervals of a minute or a minute and a half from the time -the fog commenced; such testimony being corroborated by those on board schooners in the vicinity, and the only evidence to the contrary being the fact that they were not heard on board the P. until after the lights of the C. were seen.</p> <p>4. Same.</p> <p>A speed of five miles an hour, in a fog, with some sea and wind, was held not to show negligence.</p>

<p>Collision — Between Steamer and Tow — Liability.</p> <p>In a collision between a steamer and the tow of a tug, resulting in injury to said tow, it appearing that the tug and steamer were both in fault, held, that a decree should be entered for the tow against both the tug and the steamer.</p>

In Admiralty. Libel for damages. The bark Excelsior, being injured in a collision with the tug Bruce and ship Hamilton Fish, brought a libel against them for damages. The facts appear in the opinion.

<p>In Admiralty. Libel for damages.</p> <p>This libel by the ship Hamilton Fish against the bark Excelsior grew out of the same collision referred to in The. Excelsior v. The Bruce and The Hamilton Fish, ante, 271.</p>

Bill to Restrain Infringement of Patent. • Motion to amend notice of appearance by limiting the same to a special-appearance to .set aside service of process and to dismiss. Connor v. Railroad Co,, 36 Fed. Rep. 273; Vannerson v. Leverett, 31 Fed. Rep. 376; Jessup v. Railroad Co., 36 Fed. Rep. 735; Halstead v. Manning, 34 Fed. Rep. 565; Manufacturing Co. v. Manufacturing Co., Id. 818; Rein-stadler v. Reeves, 33 Fed. Rep. 308; Preston v. Pire Extinguisher Co., 36 Fed.

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

<p>Equity — Practice—Costs.</p> <p>The grantees of a lease brought a hill in equity, alleging that the lessor claimed that the lease would terminate with the death of the original lessee, and asking for a reformation of the lease if such was its construction. The lessor answered, asserting such claim, and testimony was taken showing that the lease was to be terminable by the election of the lessor to take certain property on the leased premises at its value; and the lessor submitted to a decree establishing such construction. Reid, that the orators were entitled to the costs of taking their testimony and the decree, but not to the costs of the bill.</p>

<p>In Equity.</p> <p>Bill by Henry Adams and others against the Kehlor Milling Company and others, to set aside a fraudulent assignment. Decree for complainant, and for other creditors who intervened. See 35 Fed. Rep. 433. The complainants’ solicitors moved for an allowance for their services, to be taxed as costs in the case. ■</p>

In Equity. Bill for foreclosure. The Windsor Savings Bank, assignee of William B. Somers, brought this bill against S. A. McMahon and others, to foreclose a mortgage executed by said McMahon on land to secure the payment of a note to said Somers.

<p>In Equity. On demurrer to bill.</p> <p>Bill by the Western Land & Emigration Company, a corporation of Indiana, against George Guinault, recorder of mortgages for the parish of Orleans; C. Harrison Parker, state tax collector of the First municipal district of Hew Orleans; Isaac W. Patton, state tax collector for the Fourth, Sixth, and Seventh districts, and the city of New Orleans — to restrain the collection of a tax. The bill alleges, among other things:</p> <p>“(1) That in the year 1884 the general assembly of the state of Louisiana enacted an act entitled ‘An act to provide for the sale of property bid in for and adjudicated to the state, and of property on which taxes are due the state prior to December 81, 1879, to regulate in what manner said sales are to take place; to provide for the payment and cancellation of all incumbrances, and of all taxes due prior to December 31, 1879; to establish the validity of sales made in compliance herewith; to provide for the payment of costs incurred under this act, and for the payment of unpaid costs incurred in advertising and offering for sale immovable property; to enforce the payment of taxes which were due to the state prior to December 31, 1879; and to provide how the payment into the state treasury shall be made of money realized to the state from the enforcement of this act,’' — being act No. 82 of the Acts of Louisiana for the year 1884, approved on the 10th day of July, 1884. That James D. Houston, late state tax collector for the upper district of the city of New Orleans, in compliance with the provisions of said act, did advertise and offer for sale various and sundry squares and lots of ground situated in the First, Fourth, Sixth, and Seventh districts of the city of New Orleans, and, having fulfilled all the requirements of said act, did during the years 1886 and 1887 sell and adjudicate unto Domingo Negrotto, Jr., the following described squares and lots of ground, to-wit: * * * That, in compliance with said adjudications, the said Domingo Negrotto, Jr., did pay unto the said James D. Houston, then state tax collector for the upper district of the city of New Orleans, the price at which said squares and lots of ground were adjudicated to him, respectively, and the said Houston thereupon gave to the said Ne-grotto a receipt for the price of said property so paid unto him, together with a proces-verbal of the sale of each of said properties, entitling him as adju dicatee to a deed for each of said properties, as provided by the said act No. 82 of the acts of the state of Louisiana for the year 1884 aforesaid. That in compliance witli section 5 of the said act No. 82, approved July 10,1884, above referred to, the said D. Negrotto, Jr., the purchaser of said squares and lots of ground aforesaid, did assume and promise to pay, and did take said property subject to, all unpaid taxes on the same due subsequent to December 31, 1879.</p> <p>“(2) That in compliance with said adjudications and procbs-verbals of sales of said squares and lots of ground, the said James D. Houston, then state tax collector for the upper district of the city of New Orleans, did make and execute to the said Domingo Negrotto, Jr,, deeds of sale to the following described sixteen pieces of property, adjudicated unto him as aforesaid, in compliance with the provisions of act No. 82 of 1884, above referred to, to-wit: * * *</p> <p>“(3) That on the 15th day of December, A. D. 1888, the said Domingo Ne-grotto, Jr., sold, assigned, transferred, delivered, and set over and conveyed unto your orator, the Western Land & Emigration Company, all of the above-described sixteen squares and lots of ground as per act passed before Joseph H. Spearing, a notary public of the city of New Orleans, which said act is to be produced at the hearing of this cause.</p> <p>“ (4) That the said Domingo Negrotto, Jr., did on the 12th day of December, .A. D. 1888, transfer, set over, and assign unto your orator all his right, title, and interest in and to theyM'oc&s-'aerbaZs delivered to him by James D. Houston, state tax collector aforesaid, for all of said properties, with the exception of the sixteen squares and lots of ground above described; and thereupon your orator obtained from C. Harrison Parker, state tax Collector for the First district of the city of New Orleans, (the successor in office of James D. Houston, state tax collector for the upper districts of the city of New Orleans, aforesaid,) by virtue of the authority in him vested by said act No. 82 of 1884, title deeds from the state of Louisiana for each of said properties respectively, situated within the boundaries and limits of the First municipal district of the city of New Orleans, as will more fully appear by acts of sale from the state of Louisiana to the said Western Land & Emigration Company, (yoiir orator,) passed before Joseph H. Spearing, a notary public of this city, on the 15th day of December, 1888. And your orator further shows that in compliance with theproces-verbals issued to James D. Houston, late tax collector of the upper districts of the city of New Orleans, to Domingo Negrotto, Jr., the adjudicatee and purchaser at said tax-sales, and which prooss-verbals had been assigned, transferred, and delivered to your orator as aforesaid, Isaac W. Patton, state tax collector for the Fourth, Sixth and Seventh municipal districts of the city of New Orleans, (he being the successor in office of James D. Houston, state tax collector for the upper districts of the city of New Orleans,) did, by virtue of the authority in him vested by the aforesaid act Np. 82 of 1884, make, execute, and deliver unto your orator, title deeds from the state of Louisiana to each of said squares and lots of ground situated within the boundaries and limits of the Fourth, Sixth, and Seventh municipal districts of the city of New Orleans, all of which will more fully appear by said acts of sale from the state of Louisiana to the Western. Land & Emigration Company, passed before Joseph H. Spearing, a notary public of this city, on the 15th day of December, A. D. 1888, here referred to, and to be produced at the hearing of this cause. And your orator caused all of said acts of sale aforesaid to be duly registered and recorded in .the conveyance office of this parish on the 15th day of December, A. D. 1888, the day on which your orator became the owner of said properties as per acts passed before Joseph H. Spearing, notary public of this city, above mentioned.</p> <p>“(5) Now your orator avers and charges that by section 24 of act No. 77, approved April 9,1888, entitled ‘An act to provide an annual revenue,’ etc., ‘ all taxes, tax mortgages, and tax privileges shall be prescribed by three years from the date of filing the tax-rolls ’ in the mortgage office of the parish in which the property is situated; and by section 34 of act No. 96, approved July 6, 1882, entitled ‘An act to provide an annual revenue for the state of Louisiana,’ etc., it is further enacted that all taxes, tax mortgages, and tax privileges shall be prescribed by five years from the date of filing the tax-rolls in the mortgage office. That said tax-rolls are registered and inscribed in the. mortgage office of this parish between the months of March and October of each year, respectively, in which the taxes were assessed and levied for and during the years 1880, 1881, 1882, 1883, 1884, and 1885. Now your orator specially pleads the prescription of three and five years in extinguishment of all the taxes, tax mortgages, and tax privileges on said properties in favor of the state of Louisiana, assessed in the names of different parties, for the years 1880, 1881, 1882, and 1883; and your orator is entitled to have the inscriptions standing and recorded in the mortgage office of this parish against said properties respectively for state taxes for the years 1880, 1881,1882, and 1883 erased and canceled: the same being extinguished by the prescription of three and five years above mentioned, and which time necessary for the acquisition of said prescription had elapsed and run before your orator became the owner of said properties above mentioned.</p> <p>“ (6) Yo w your orator further avers and charges that there stands registered and inscribed in the mortgage office of the parish of Orleans, city taxes for the years 1880, 1881, 1882, 1883, 1881, and 1885 in the names of the persons in whose names said above-described properties are assessed. That by section 36 of act Yo. 96 of the extra session of 1877, approved April 20,1877, entitled ‘An act regulating the mode of assessing and collecting taxes throughout the state,’ etc., it is provided that ‘ the lien, privilege, and right of pledge to be in favor of the state for state taxes, the parish for parochial taxes, and the municipalities for municipal taxes, shall be concurrent for all of said taxes, provided that the privilege and right of pledge be not considered as running for a longer period than three years,’ which law, in so far as municipal taxes due the city of Sew Orleans is concerned, still remains unrepealed, unaltered, and unchanged as to the years 1880, 1881, 1882, 1883, 1884, and 1885, and which period for the acquisition and prescription had more than expired when your orator became the owner of said properties, respectively, on the 15th of December, 1888. Your orator therefore pleads the prescription of three years in bar of the lien, privilege, and right .of pledge which formerly existed in favor of the city against said properties respectively, for taxes assessed for the years 1880, 1881, 1882, 1883, 1884, and 1885. That your orator is entitled to have the inscriptions standing recorded in the mortgage office of this parish against said property, respectively, assessed in the names of the former owners above mentioned, for city taxes for the years 1880, 1881, 1882, 1883, 1884, and 1885, erased and canceled; the same being extinguished as aforesaid by the prescription of three years.</p> <p>“(7) And your orator further avers and charges that, after becoming the owmer of said propel-ties above described, to-wit, since the 15th of December, 1888, it has paid all state taxes due and owing upon said properties, respectively, for the years 1884, 1885, 1886, 1887, and 1888, being the five years prior to the acquisition of said properties by your orator, and for which your orator holds the tax-receipts and acquittances of the tax collectors of the municipal districts in which said properties are respectively situated, to be produced on the trial of this cause.</p> <p>“(8) And your orator further avers and charges that it has also paid all the city taxes due and owing upon said properties for the years 1886, 1887, and 1888, being the three years prior- to the acquisition of said properties by your orator, and for which your orator holds the tax-receipts and acquittances of the treasurer of the city of Yew Orleans; the same being all the taxes due and owing on the properties above described, bearing any lien or privilege upon said properties.</p> <p>“ (9) That your orator has in vain demanded of George Guinault, the recorder of mortgages for the parish of Orleans, the erasure and cancellation of the inscriptions of said state taxes for the years 1880, 1881, 1882, and 1883, and of city taxes in favor of the eity of Yew Orleans for the years 1880, 1881, 1882, 1883, 1884, and 1885; but that said recorder, although thereunto amicably demanded and requested, refuses to comply w-itli your orator’s demand. That the registry and inscription of said state and city taxes against said properties assessed in the names of the several parties above mentioned, creates a cloud upon your orator’s title to said properties, prevents it from selling and disposing of the same as it desires and intends to do, and prevents said properties from being placed in commerce, improved, and enhanced in value.</p> <p>“(10) That the city of New Orleans, its officers and servants, as well as the said 0. Harrison Parker, state tax collector for the Hirst municipal district, and Isaac W. Patton, state tax collector for the Fourth, Sixth, and Seventh municipal districts, in which said properties are respectively situated, pretend and assert that said taxes are still due and owing upon said properties, and threaten to advertise and sell said properties for the payment of said state and city taxes, which have been extinguished by the prescriptions of three and five years aforesaid, prior to the acquisition thereof by your orator, under the laws of the state of Louisiana, all to the great injury, detriment, and damage of your orator. That said threatened tax-sales, if made by the state or city, would cast clouds upon your orator’s title to said properties respectively, compel it to suffer irremediable damage, and subject it to vexatious litigation.</p> <p>“(11) That the city of New Orleans has already illegally and wrongfully advertised a portion of said property for sale for- taxes claimed to be due thereon more than three years prior to the purchase thereof by your orator.</p> <p>“(12) That in order to avoid a multiplicity of suits, and wasteful and expensive litigation growing out of said threatened tax-sales, your orator is entitled to invoke the equitable writ of injunction, forbidding and prohibiting the city of New Orleans, and said 0. Harrison Parker, and Isaac W. Patton,' state tax collector as aforesaid, from advertising, selling, or attempting to sell any or all, or any portion, of the squares and lots of ground above described, belonging to your orator, and upon which all taxes legally due both the state of Louisiana and city of New Orleans have been paid, under the false pretext .that the said property is still liable in the hands of your orator for the prescribed city and state taxes above mentioned.</p> <p>“(13) That during the years 1880 to 1885, inclusive, and up to the present time, there were, or are, no suits pending to prevent the state of Louisiana, through its tax collectors, or the city of New Orleans,! from collecting the taxes due for the years 1880, 1881, 1882, 1883, 1884, and 1885, and the prescription herein pleaded and interposed against said state and city for said taxes has never been renounced, suspended, or interrupted.</p> <p>“(14) That the assessment of said taxes on said properties so owned by your orator, for which the state tax collectors, O. Harrison Parker and Isaac W. Patton, and the city of New Orleans, illegally claim as due and secured by liens, pledges, and privileges thereon, and which your orator avers and contends are prescribed, including interest and penalties, exceeds the sum of three thousand ($3,000) dollars.”</p> <p>To the bill the defendants filed a general demurrer, relying upon section 5 of the act of 1882 of Louisiana Laws of 1884, as follows:</p> <p>“Be it further enacted,” etc,, “that the price bid and paid for said property shall be in full and final payment, and satisfaction of all state, city, parish, and municipal taxes due on same prior to December 31, 1879, together with all interest, costs, and charges on the same; and the recordation of the deed of sale of a duly-certified copy of same iu the mortgage office shall operate as a cancellation of all conventional, legal, and judicial mortgages, and of all taxes, tax liens, tax privileges, and tax mortgages due prior to December 31, 1879, with all interest, costs, and charges thereon on the property sold. If the price paid for said property is not sufficient to pay in full all costs and charges herein set forth, and the taxes due prior to December 31, 1879, with interest, costs, and charges thereon due by said property, then the price, after the payment of the costs and charges herein provided to be first paid, shall be divided and distributed proportionately to the payment of all unpaid state, city, parish, and municipal taxes, interest, costs, and charges due on or by the property prior to December 31, 1869. The purchaser shall, however, assume and promise to pay, and shall take said property subject to, all unpaid taxes on the same due subsequent to December 31, 1879. The balance remaining of the price of the said sales, after the payment of all the costs and charges herein provided to be paid of all unpaid taxes due prior to December 31, 1879, shall be paid into the state treasury, as herein provided.”</p> <p>And that under said section, the purchaser had assumed the payment of taxes prescribed or not.</p>

<p>In Equity.</p> <p>Action by Thomas Keely against Sarah E. G. Weir and others, to quiet title and enjoin certain alleged wrongful acts.</p>

At Law. Actions for the recovery of real estate, brought by T. H. Walker against M. Sturbans, Prank Cronkite, and James Haycock, respectively. Demurrers to the answers of defendants were filed, and were heard together.

At Law. Proceedings by the city of Chicago for the condemnation of property *of Thomas Messier and others. William Jenkinson petitions for payment of his damages.

<p>At Law. -Action on contract.</p>

<p>1. Sale — Warranty—Evidence.</p> <p>Plaintiff testified that in the negotiations for the sale of a horse worth $2,000, which he desired for breeding purposes, it was agreed that the warranty sued on, which was that the horse was a reasonably sure foal getter, should he given, and at the close of them, plaintiff executed deeds for the land which was exchanged for the horse, and that defendant at the same time executed the bill of sale of the same date containing- the warranty. Defendant testified that he never agreed to give the warranty, and did not give the bill of sale and warranty at the time of the completion of the sale, but that several days after, plaintiff asked for a bill of sale as a favor, and to accommodate him defendant made the bill of sale, using a blank therefor, and not noticing that it contained the warranty; that he had two forms of bills of sale, one of which contained a warranty and the other did not, and that he inadvertently used the former. Defendant was in the habit of giving a bill of sale and warranty for horses sold. Held, that the evidence showed the execution of the bill of sale and warranty at the time of the sale.</p> <p>2. Same — Damages.</p> <p>Defendant having agreed to replace the horse on delivery of it to him in case it should prove barren, and ample evidence of its unfitness for breeding purposes having been given in the three months following the purchase, plaintiff should have then returned it, and cannot recover expenses incurred upon it after that time.</p>

<p>At Law.</p> <p>Action by F. A. Blank against the Atchison, Topeka & Santa Fe Railroad Company, for damages for malicious prosecution. '</p>

<p>Winns — Foreign—Recording—-Doctrine or Relation.</p> <p>Comp. Laws Kan. 1881, c. 117, § 29, provides that “no will shall he effectual to pass real or personal estate, unless it shall have been duly admitted to probate, or recorded, as provided in this act. ” Chapter 37, § 116a, provides that powers of sale conferred upon executors, etc., by foreign wills, shall, as to lands situated in Kansas, be as valid there as in the state where the will was made, “provided that at the time of such conveyance (under the power) a copy of such will shall have been recorded in the office of the probate court in the county in which any land so conveyed is situated, as authorized by” chapter 117, § 24. Held, that where a foreign executor conveyed land in Kansas', under a power of sale in the will, before recording the will, but no rights of third pe,rsons intervened, the subsequent recording related back to the date of the conveyance, and made it valid.</p>

<p>At Law. On motion to retax costs.</p>

<p>1. Banks and Banking — National Banks — Forebiture oe Charter — Pleading.</p> <p>Rev. St. U. S. § 5239, declares that, “if the directors of any national banking association shall knowingly violate or knowingly permit any of the officers, agents, or servants of the association to violate any of the provisions of this title, all the rights, privileges, and franchises of the association shall bo thereby forfeited. ” The title referred to is title 62, which embraces the subject of the organization, powers, duties, and liabilities of national banks. Held that, as the section only refers to acts done by the directors, or by the executive officers with the knowledge of the directors, an information seeking a forfeiture, which charges that the association did the act, is insufficient.</p> <p>2. Same.</p> <p>In an information charging that “the banking association and the directors thereof did knowingly permit,” etc., the allegation that the association, aside from the directors, permitted the doing of the alleged acts, tenders an immaterial issue, and should bo stricken out on motion.</p>

<p>1. Offenses' against Postal Laws---Indecent Postal-Cards — Acts June 18, and September 26,1888. «</p> <p>The courts must reásonably construe tbe acts of congress, so that hypercritical judgment shall not take advantage of the elasticity of language necessarily general, to bring within it expressions merely rude, impolite, or not in good taste, but certainly to include obvious indecency of thought or expression, according to the common sense and understanding of ordinary men. And this is also the test as to the other terms used to describe the offense.</p> <p>2. Same — Construction.</p> <p>Not only may the precise words be scrutinized, but also the context and the whole writing, which shall display, when taken together, the obnoxious meaning.</p> <p>8. Same.</p> <p>A postal-card concerning the return of an article, about which the writer was in an angry temper, which contained words ordinarily called profane, and expressions too vulgar for quotation by the court, the indecency of which was disguised by the use of an initial letter, slang words reflecting on the character and conduct of the addressee, and a political epithet intended to be defamatory, all taken together, show the writing to be “indecent,” “scurrilous, ” and “defamatory, ” and being calculated, and obviously intended, to reflect on the addressee, was held to be within the statute.</p> <p>4. Same — Question of Fact.</p> <p>The obnoxious character of the writing is a question of fact for the jury, and not of law for the court. See U. 8. v. Olney, in note at end of case.</p>

<p>Patents for Inventions — Patentability—Novelty—Joint Markins Tool.</p> <p>Letters patent No. 334,135, January 13,1886, to Malcom MacDonald, are for an implement for marking and dressing the joints of cement pavements and surfaces, having on its face a Y-shaped blade with concave sides, for making the indentation or joint and convexing its sides, and laterally-concaved surfaces on its face on each side of and adjoining the blade,s and continuing the curvature of its sides for convexing the edges and adjacent surfaces of the joint, the whole face being convexed in the direction of its length, and a handle and shank being bolted between the side pieces above the blade, which iS’ also clamped between them. For many years before the application tools laterally concave and longitudinally convex on their faces were in general use, and produced, in substantially the same‘way, substantially the same re-suits. IleW, that, though the patented implement may be more perfect in lateral concavity and longitudinal convexity, and consequently do better work, the patent is void for want of novelty.</p>

<p>1 Shipping — The Master — Sale of Damaged Cargo.</p> <p>The master of a vessel has no power after arrival at the port of destination to sell that part of the cargo which has been damaged by fire while under way, and a factor who sells, as his agent, while ignorant of the wrong-doing, and applies the proceeds to the pajrment of advances made to the master, is liable to the consignor for a conversion of the goods to his own use. Ter Jackson, J, Hammond, J. per contra.</p> <p>2. Factors and Brokers — Sale of Goods Fraudulently Obtained — Conversion.</p> <p>If one having the custody of goods for carriage fraudulently appropriate them to his own use by consigning them in his own name for sale to a factor who makes advances upon them, the factor is liable for conversion to the rightful owner if he sell them and retain the advances out of the proceeds, although he be entirely ignorant of any want of title in his customer, and wholly innocent of any wrongful intention on his part. Per Jackson, J. Hammond, J., per contra.</p> <p>8. .Same.</p> <p>Cotton shipped by a vessel for transportation partly by river and partly by rail, was burned en route on the river, so that it became an indistinguishable mass, as between its owners and shippers. The master, on arriving at the destination of the vessel, consigned the burnt cotton in his own name, without disclosing the facts, and acting as if he were the owner,, to a factor for sale, drawing drafts against it which were paid by the factor as advances on the hill of lading, in the innocent belief that his customer was the rightful owner. After the cotton was sold, and the proceeds collected by the factor, hut before the credits wore actually entered,on the books, the rightful owner gave notice that he owned a proportional part of it, and demanded the proceeds, which being refused, he brought this suit for conversion. Held, per Jackson, J., that the factor was liable, and per Hammond, J., that he was not.1</p>

<p>1. Shipping — Charter-Party—Stipulation as to Weight — Mistake—Excessive Draught — Damages.</p> <p>Respondent chartered libelant’s vessel for a lump sum, contracting to load her with “not to exceed 850 tons” of guano. By error of both the master and the charterer’s agent at the port of loading, the vessel took on board over 90 tons in excess of the charter amount, by reason of which additional weight she was detained several days at the bar at her port of destination. Neld, that both parties were liable for the ship’s damage.'</p> <p>3. Same — Recovery of Charges for Additional Freight.</p> <p>lleld, also, that the ship-owner could not, in addition to his claim for damages, recover pro rata freight for the transportation of the additional weight.</p>

In Admiralty. libel by O’Neil & Co. against the steamer Chickasaw, — Memphis & White River Packet Company, claimant, — for injuries caused by collision between libelants’ barge and a barge cut loose from claimant’s steamer.

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

<p>COLLISION — Between Steamer and Ferry-Boat.</p> <p>The steamer C., while coming down the North river and approaching her wharf in New York city, was run into by,the ferry-boat B. It was found that the course of the C. was laid direct for her berth, which took her directly across the bows of the B. ;■ but that the latter did not reverse until within 209 feet of the place of collision; and there was evidence showing that the intention of the C. to keep on her course was manifested by disregarding the repeated signals of the B. Held, that the B. was in fault, although she had the right of way.</p>

<p>1. Bkmoval or Causes — Eight of Bkmoval.</p> <p>In oases coming within the removal act, of 1887, § 2. cl. 3, providing that suits “which include a controversy'which is wholly between citizens of different states, and which can be fully determined as between them, are removable by either one or more of the defendants actually interested, ” the right of removal is given to defendants interested in the controversy, irrespective of their residence or citizenship.</p> <p>2. Same — Sepaiiable Conthovehsy.</p> <p>Plaintiff, a citizen of New York, brought his action in Iowa for the recovery of the immediate possession of certain realty and damages for injury to buildings and for conversion of crops. Citizens of Iowa and of Vermont were made defendants. It was not averred that they claimed title jointly or under a common source, or had committed the injuries jointly, but the petition was drawn under the Iowa statutes for settling all adverse claims of title on the part of any and all the defendants. An amended petition set out that certain of the Iowa defendants had executed a lease in their own right to the other Iowa defendant, and that he held possession under this lease. Held, that there was a separable controversy between the plaintiff and the Iowa defendants, which was removable on the application of the alleged lessee.</p>

<p>1. Removal oe Causes — Resident Alien — Petition.</p> <p>Under act March 3, 1887, § 2, providing far the removal of a cause by a defendant being a non-resident of the state, a defendant who is an alien is not entitled to a removal of a cause from a court of the state of which he is a resident, and a cause removed by an alien defendant will be remanded where it is not averred that he is a non-resident of the state.</p> <p>2. Same — Jurisdiction to' Determine Rioht to Removal.</p> <p>The federal court to which it is sought to remove a cause may pass upon the right to a removal. The decision of the state court thereon is not conclusive.</p>

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

In Equity. On demurrers to the bills. Bills by the Manchester Fire Assurance Company against the Stockton Combined Harvester & Agricultural Works, and by 12 other insurance companies against the same defendant. Rev. St. § 723, provides that: “Suits in equity shall not be sustained * * * in any case where a plain, adequate, and complete remedy may be had at law.”

In Equity. Motion to amend bill in equity. Plaintiff moved to amend the bill after the filing of the master’s report by introducing into it a claim for damages and profits made during the time prior to the assignment of the patent to him, which included all rights to past damages.

<p>In Equity. ' Bill to set aside conveyances. On final hearing.</p> <p>cited to the point decided:</p> <p>Bradshaw v. Klein, 1 ST. B. R. 542; Cragin v. Carmichael, 11R. B. R. 511; Freelander v. Holloman, 9 R. B. R. 331; Bailey v. Clover, 21 Wall. 342; Rosenthal v. Walker, 111 U. S. 185, 4 Sup. Ct. Rep. 382; Cook v. Sherman, 20 Fed. Rep. 171; Adams v. Stern, 29 Hun, 280.</p> <p>cited to the point decided:</p> <p>Ü. S. v. Beebee, 17 Fed. Rep. 37; Maxwell v. Kennedy, 8 How. 221; Burke v. Smith, 16 Wall. 401; Wait, Fraud. Conv. §§ 287, 292, 293; Aldridge v. Muirhead, 101 U. S. 402.</p>

<p>Eeceivebs — Appointment—Dissensions among Trustees.</p> <p>A testator devised certain shares of stock to his two executors, H. and W., in trust to he sold and the proceeds held for the benefit of his wife and children. W. was not allowed to qualify as executor because he was a non-resident, and H. qualified as sole,executor, and applied to the probate court and obtained an order to sell the stock, on the ground that it was in danger of becoming depreciated. W. filed this bill, alleging that II had excluded him from participating in the trust; that the annual meeting of the corporation's soon to be held; and that by reason of dissensions between complainant and defendant as to said stock its vote cannot be cast so as to properly manage the affairs of the corporation; and praying for a receiver to take possession of the stock, vote upon it at the coming annual meeting, and sell it under the direction of this court after due construction of the will. JFeld, that the relief would not be granted. The probate court can fully protect the interests of all parties concerned.</p>

<p>Factors and Brokers — Liability.</p> <p>Cattle were consigned by C. to the defendants as stock-brokers at certain stock-yards. The plaintiff entered into negotiations with the agent of the defendants for the purchase of such cattle, informing him that he was acquainted with him and preferred to make the purchase from the defendants. The agent replied that it would make no difference whether the terms of sale were agreed upon with the defendants or with O., and referred him to the latter. The terms of sale were agreed upon with C. Weight tickets were given to the' plaintiff in the firm name of the defendants, and also a bill of sale, though not signed at the bottom, reciting that the cattle had been sold to the plaintiff by the defendants for a named consideration. It appeared that C. was a stranger to the plaintiff, and that he had been informed that the defendants were in good credit. Held, that the defendants sold the cattle as their own, and were liable to plaintiff on an implied warranty of title.</p>

<p>Municipal Corporations — Duty to Keep Sidewalks Free from Ice and Snow.</p> <p>If snow falls upon the sidewalks of a city so as to become an obstruction, it is the duty of the city to remove it, but a reasonable time must be allowed for the performance of this duty. If it unnecessarily permits such obstructions as ice and snow to accumulate to an extent that renders the sidewalks dangerous or unsafe, and persons, not themselves guilty of negligence, fall by reason thereof and are injured, the city is liable, but not otherwise.</p>

<p>At I jaw.</p> <p>Action by Julia Porterfield against F. S. Bond, as receiver of the Vicksburg & Meridian Railroad Company, to recover damages for injuries to land.</p>

<p>Public Lands — Cutting Timber — Liability.</p> <p>A receiver in a land-office in Louisiana sold land to H. & L. for $1.25 per acre. The receiver was in error as to the price; it should have been sold for $2.50. H. & L. received a certificate acknowledging payment at $1.25 per acre, and describing the land. No one is charged with fraud. Soon after IT. &L. went into possession under the certificate, they sold for cash the timber ortrees on the land for fire-wood, to defendants. Before purchasing, defendants examined the official books in the land-office, which disclosed the sale to II. & L. Several years after the sale to defendants, and after the death of H. & L., who left insolvent succession, demand was made by the government for the additional $1.25 per acre, which demand was not complied with, and a compromise agreement was entered into between the government and the succession by which all the rights of H. & L. were given up to the government, and the latter returned the $1.25 per acre originally paid by H. & L. to their succession. Held, that the act of sale made by receiver to H. & L. was not wholly ultra vvres; that at the time of the sale of timber to defendants, H. & L. were in bona fide possession of the land, with knowledge of the government, and under a certificate which in Louisiana was tantamount in its legal effect, so far as defendants were concerned, to a title translative of property; that as to defendants the sale made to H. & L. was not void ab initio; that, on the contrary, the transactions of the receiver with II. & L. imposed on the government, in law and equity, obligations of which it can be acquitted only by proper judicial proceedings, or by some such compromise as is shown to have been made by the succession of H. & L. with the government; that the government agent, acting within the scope of his authority, so.far as selling the particular land is concerned, caused a condition of things to exist of which the government had full knowledge for several years, which were misleading, and did mislead defendants into purchasing the timber from H. & L.; that in law and equitable dealing the government is estopped from demanding at this late day from defendants any further payment for the timber cut by them while H. & L. were in possession of the land under the certificate, circumstances, and facts shown by the evidence in this case.</p> <p> {Syllabus by the Court.) </p>

<p>1. Interkal Revenue — Distilled Spirits.</p> <p>Plaintiffs deposited distilled spirits in their bonded warehouse in December, 1880, and gave bond under Rev. St. § 3298 to pay the tax within three years from entry. The tax was not paid within three years, and on February 24,' 1884, the collector gave them notice to pay the tax as required by section 3184, stating, as in the section provided, that unless the tax was paid within 10 days it would be the collector’s duty to collect a penalty of 5 per centum in addition, and interest. By section 3248 the tax attaches as soon as the spirits come into existence. Held, that the tax and penalty were due and payable before March 5, 1884.</p> <p>2. Same — Exportation.</p> <p>Plaintiffs did not pay the tax within the 10 days, and on March 15th the collector gave notice that the tax and penalty were due and unpaid, and unless paid within 10 days he would distrain and sell the spirits. The penalty was afterwards paid. After March 5th permission to plaintiffs to export the spirits was given, and they gave their bond, and afterwards the spirits were exported. Held, that the penalty is imposed on the person for default, and is not a tax or duty on spirits which have been exported, and that the penalty was not discharged by the exportation.</p> <p>B. Same.</p> <p>As the statute creates a lien on all other property of the delinquent, and the same, with a certain exception, may be seized therefor, there is no presumption that plaintiffs were coerced into payment of the penalty by reason of the lien claimed on the spirits about to be exported.</p>

<p>On appeal from district court. 35 Fed. Rep. '403.</p> <p>Seizure for violation of Rev. St. § 2133. Libel dismissed, and the United States appeal.</p>

<p>At Law.</p> <p>Action by W. H. Hagedon against A. F. Seeberger, collector, to recover an alleged excess of duties collected by defendant.</p>

<p>Indictment against Ed Reeves for Robbery of the Mail.</p>

<p>In Equity.</p> <p>Bill by Charles B. Dickinson against Bussell Parker and others, to restrain the infringement of letters patent No. 282,090, issued July 3,1883, to W. Kennish.</p>

<p>1. Patents for Inventions — Patentability—Invention—Syringes.</p> <p>Letters patent, No. 319,937, June 9, 1885, to Russell Parker and others, are void so far as they profess to protect the combination of a reservoir with normally flat walls in a syringe, such reservoir, in connection with an atomizer, having been described in the prior Kennish patent.</p> <p>8. Same.</p> <p>A syringe having a normally flat tube between the pump-bulb and discharge orifice, in place of a non-collapsible tube connected with a collapsible bulb, is more compact, and less expensive, produces a more direct flow, is not so liable to become foul, may be more readily cleaned, admits of a more exact administration of small doses, and avoids all risk of the admixture of air with the injectant. Syringes thus made are rapidly supplanting the older forms.¡flattened tubing was previously known. Held, that the second claim of the patent, which covers the flattened tubing in such combination, is valid.</p>

<p>1. Patents for Intentions — Design—Patentability—'Utility—Saddles.</p> <p>Design letters patent No. 10.844, September 24, 1878, to Royal B. Whitman, describe a design for saddles in which the pommel rises at the fork to a point level or nearly level with the raised and prolonged cantle, and the pommel on its rear side falls nearly perpendicularly for some inches, when it is joined by the line forming the profile of the seat. The saddle has a special utility consisting in its adaptation to the lines of the horse’s back and shoulders, the roominess of its seat, and in its permitting the rider’s knees to come in close contact with the horse. Held, that the design is useful, so as to be patentable under Rev. St. § 4929, authorizing the issue of a patent for any new, useful, and original shape or configuration of any article of manufacture.</p> <p>2. Same — Novelty.</p> <p>The military Jenifer saddle, or the Jenifer-McClellan saddle, had a high, peaked cantle, and a high, prominent pommel, and the Granger saddle had a “cut back’’pommel and a low, broad cantle. Held, that though the Whitman design had prominent features of each of those saddles, and united two halves of old trees, it still had patentable novelty.</p> <p>3. Same — Infringement. '</p> <p>The photograph shows the point of junction of the rear side of the pommel with the profile of the seat to be an angle, while it is a curve in the manufactured articles of both plaintiff and defendant. Defendant’s saddle being an exact reproduction of that made by plaintiff, and there being a substantial sameness in the patented and manufactured designs as a whole, which would deceive an ordinary purchaser, held, that defendant infringes.</p>

<p>In Equity.</p> <p>Suit by the Pullman Palace Car Company against the Wagner Palace Car Company, the Lake Shore & Michigan Southern Railway Company, and others, to restrain the infringement of a patent.</p>

<p>Patents for Inventions — Infringement—Axle Lubricators.</p> <p>The claim of letters patent No. 243,141, May 31, 1881, to Laskey & Arnold, for an axle lubricator, is, in combination with the axle and box, the oil chamber communicating with the interior of the box, and provided with a supply orifice, an inwardly opening self-acting valve, and a male screw-thread upon the exterior of its outer portion, a force-pump or injector provided with a discharge nozzle, adapted to enter the supply orifice and push back the valve, and a coupling sleeve provided with an internal thread to engage with the thread in the oil chamber, all arranged, etc. All the claims in the original application w£re rejected, and the patent was granted only when the description and claim were modified by stating that the coupling sleeve was provided with the internal thread, etc. Various methods of lubricating axles had been previously devised, and that described in letters patent No 120,515, October 31,1871, to Harvey, consisted of a syringe with a piston, reservoir, and a communicating nozzle, adapted for insertion into a conical orifice in the hub or journal. Meld, that a device having a conical nozzle fitting into a conical orifice, instead of the screwed sleeve, was not an infringement.</p>

<p>Patents for Inventions — Infringement—Process of Making ' Wax Paper.'</p> <p>The “process of making wax paper by machinery," described.in reissued letters patent No. 8,460, to Siegfried Hammerschlag, consists in passing the paper from asupply reel over aheated cylinder, which revolves partly submerged in a vat containing melted paraffine; thence over a heated roller, which diffuses the wax equally; thence over a scraper, which removes the surplus wax; arid lastly over a polishing roller. A scraper attached to the first cylinder removes the surplus wax, and distributes the remainder uniformly over the cylinder. Defendant lays 100 sheets of paper in a tin pan and dips a piece of. felt cloth in a tank containing paraffine'melted from the bottom by steam-pipes. The saturated cloth is then placed ori top of the paper and the operation is repeated until the stack is of the desired height. The pan • and paper are then placed in a box heated by steam-pipes, and after half an hour are taken out, the felt is removed, and'the paper placed in another pan, and in a press similar to .a letter-press, which forces out the surplus wax. The paper is then placed on a table heated by coils of steam-pipes under it, and the sheets are separated by hand, and, when necessary, smoothed with a piece of felt or a flat-iron. Held,- that defendant’s process is not by machinery or the means described in the patent, and is not an infringement.</p>

In Admiralty, Action against the st.eam-ship Conserva brought under section 5283, Rev. St. U. S., to secure a forfeiture of the vessel for an alleged violation of the neutrality laws.

In Admiralty. Libel filed by the United States against the steam-ship Sidonian, -for •violation by the master of the act of 1882 known as the “Passenger Act,” (22 U. S. St. 186,) in not providing tables and seats for the use of emigrant passengers, at their meals. It is sought to enforce as a lien againgt the vessel the amount of the fine which the government alleges has been incurred by the act of the master.

<p>Collision — Steam and Sail — Negligence.</p> <p>A ferry-boat started out of her slip on a very dark night, at a time when a passing car-float rendered it impossible for the pilot to see, before he started, whether his course was clear, whereby collision ensued with libelant’s sail-’ ing vessel, which was coming up from below outside of the car-float. Held, that the ferry-boat was to blame for starting under such circumstances, when a delay of a moment would have avoided the collision.</p>

<p>Shipping — Master—Power to Contract.</p> <p>A contract made with a tug by a ship-master 60 miles at sea, that the tug shall take him into port, and about the harbor when required, and to sea again when his vessel is ready, is void, as beyond the scope oí the master’s authority.</p>

<p>Federal Courts — Action between Alien and Corporation — Where Maintainable.</p> <p>Act March 8, 1887, provides that do civil suit shall he brought before the federal courts in any district other than that whereof defendant is an inhabitant, except where jurisdiction is founded only on diverse citizenship. The act of 1873 allowed' suit to be brought also in the district in which defendant should be found. Plaintiff is a citizen of Mexico, and defendant is a Texas railroad corporation, whoso principal office is in the Eastern district of Texas, out whose railroad extends into the Western district, in which it has agents to transact its ordinary business. By Rev. St. Tex. art. 4130, defendant's public office shall be considered its domicile. By article 1198, subd. 31, defendant may be sued in any county into which its railroad extends, and process may be served on its local agent, (article 1333.) Held, that suit may bo brought in the Western district.</p>

<p>In Equity.</p> <p>Bill by Francis Dunlevy against John C. Dunlevy and others.</p>

In Equity. Bill to subject fund, to a trust. The bill of complaint in this case charged, in substance, that on December 1, 1878, Mary E. Stein, now a widow, but then the wife of Albert Stein, was the nominal owner of the steam-boat Charles Morgan, but that the same was being used and operated for the benefit of herself and husband, and her son, Harry W. Stein; the two latter persons being respectively master and clerk of the steamer.

<p>Contempt — Violation op Injunction.</p> <p>Where defendant, in violating an injunction, is not guilty of willful contempt, a nominal fine and costs will be imposed.</p>

In Equity. Bill to remove cloud on title. On May 16,1863, George K. Swift, a citizen of tbe state of Ohio, made his last will and testament, as follows: ‘"Know all men by these presents that I, George K. Swift, of Warren, in the county of Trumbull and state of Ohio, in view of the uncertainty of our abiding time, do make this my last will and testament: “Item 1. I direct that all my just debts and funeral charges be paid. “Item 2.

<p>INSURANCE — Conditions of Power.</p> <p>By the terms of a policy the insurer was not to be liable for a greater proportion of any loss on the property described in the policy than the sum insured therein should bear to the whole sum insured on such property. Held, that a statement occupying a space for the description of the property, in which different pieces of property wore specified, and opposite each piece was placed a certain sum, did not amount to an agreement by the insured that he would maintain an insurance upon the property equal to the aggregate of such sums, so that the insurer could take such aggregate as the basis upon which tó figure its proportion of loss.</p>

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

At Law. On motion to set aside assessment of damages. This was an action of replevin begun on the 21st of March, 1887, for a stock of clothing appraised at $653.88. By the writ the property was described as exceeding $500 in value. The suit was commenced in .ignorance of the statute of March 2, 1887, raising the minimum of jurisdiction from $500 to $2,000.

<p>At Law.</p> <p>Action by Weaver & Sterry, Limited, against Leverett Saltonstall, collector of customs.</p>

At Law. The plaintiff on the 3d and 12th of February, 1886, made two importations of “carmine of Persian berry extract.” These importations were classified by the collector as non-enumerated manufactured articles, dutiable at the rate of 20 per cent, under the tariff act of March 3, 1883, and duty at that rate was duly exacted thereon.

<p>1. Perjury — Plea of Prior Acquittal.</p> <p>A defendant, who had been acquitted upon an indictment for selling liquors, without payment of the special tax required by law, was subsequently put upon trial for perjury, in swearing upon his preliminary examination before a commissioner that he did not so sell. Held, that a plea of prior acquittal was bad, as the two' indictments were not f Or the same transaction, nor sustained by the same evidence.</p> <p>2. Judgment — -Res Adjudicata.</p> <p>Held, further, that his acquittal for selling liquor was a conclusive adjudication in his favor upon the subsequent trial for perjury, and that the government could not show that his oath was false.</p> <p> (Syllabus by the Court.) </p>

<p>1. Offenses against Postal Laws — Obscene Matter — Indictment.</p> <p>An indictment charged defendant with depositing in the post-office for mailing “a certain obscene, lewd, and lascivious pamphlet, of an indecent character, ” giving its title, and alleged that it “is so obscene, lewd, and lascivious'” that it would be offensive if set forth in full. Held, that a demurrer on the grounds that the pamphlet was not obscene, and that, if unfit for general circulation, it might lawfully be sent to certain persons, to whom the indictment did not show that it was not mailed, could not be sustained, as the pamphlet could not be regarded as part of the record, and therefore those questions could not be considered.</p> <p>2. Same — Meaning of Words — Rev. St. U. S. § 3893.</p> <p>The words “obscene,” “lewd,” “lascivious,” and “indecent,” as used in Rev. St. U. S. § 3893, prohibiting the deposit of publications so described in the mails, have the same meaning as given them at common law in prosecu- ' tions for obscene libel.</p> <p>3. Same — Indictment—Defenses.</p> <p>As the statute contains no exceptions to the rule making obscene publications non-mailable, the fact that a publication which would ordinarily be classed as within its meaning might lawfully be sent to certain persons, does not render it necessary to aver in the indictment that it was not sent to such persons, it being matter of defense to show that it- was sent to such persons.</p> <p>4. Same — Provínose of Court and Jury.</p> <p>The question whether or not a particular publication is obscene, lewd, or lascivious is for the jury, under instructions from the court as to the meaning of the words.</p>

In Admiralty. This was a libel for the tortious conversion of 981 tons of coal. The facts were substantially as follows: About the 12th of May, 1883, the schooner Wells'Burt, of which respondent Dunham was the owner, started from Buffalo with a cargo of 1,375 tons of chestnut coal, consigned to Chicago. On the 18th of May she arrived off Evanston, Ill., •where she was last seen at anchor.

<p>In Admiralty.</p> <p>Libel by R. B. Wigton & Sons for coal furnished to the charterers of the steam-ship Bombay.</p>

<p>Maritime Liens — Priority—Repairs—Subsequent Tort.</p> <p>The lien for damages arising out of a negligent collision takes precedence over the lien of a material-man for repairs to the negligent vessel made prior to such collision.</p>

<p>1. Salvage — Service of Tug — Award.</p> <p>A French steam-ship, built of steel, of 2,540 tons burden, 346 feet in length, worth about $200,000, with a cargo valued at $103,000, while on a voyage from Rio to New York, lost her rudder on the 29th of January, about 250 miles B. S. B. of Cape Hatteras. By the use of a temporary steering apparatus, and by going under steam, sometimes with all her engines, sometimes with only a’ part, she arrived, February 5th, about 1. A. m., off St. Helena bar, South Carolina, displaying signals of a disabled steam-ship. A pilot-boat, having onboard two full pilots and an apprentice, while cruising on her pilotage ground, sighted her about 5 a. it., and went to her, displaying the light of a pilot. The master informed her that he wanted a port, and was told that he could not enter Charleston, because of his draught, but could enter Port Royal, where the master expressed a desire to be taken, and requested the pilot to send for two tugs. One of the pilotsboarded the ship, and the .other wentoff in the pilot-boat into Coosaw river, about 25 miles, for the tugs. There were no tugs in that neighborhood engaged in sea towing, but a phosphate mining company, at work in the Coosaw river, owned five large tugs, which were constantly in use in its business. When the pilot-boat arrived two were absent, two were at work, and the other was at the company’s establishment. .After some parleying the manager of the company, on hearing that the steam-ship was a passenger vessel, consented to let the two tugs go, and telephoned for the third to come on at once. On the arrival of one of the tugs at the steamship, and after an attempt had been made to adjust the compensation, without result, the tug was placed behind the steam-ship, to act as a rudder, and the steam-ship, under her’own steam, and with a pilot in chaTge, proceeded to Port Royal, about 20 miles away. Shortly afterwards another tug came up, and a pilot was put aboard her, and a line taken from the bow of the steamship. They arrived off the entrance of the port about 6 o’clock, where the vessel anchored, the tugs going on to a coaling station, where they spent the night. The next morning they were joined by the third tug, and' the vessel was taken into port. The value of the tugs was $50,000. Held, that the service of the-tugs was a salvage service; but, in view of the minimum risk, an award of only $750 would be made to each of the two tugs that, first arrived, and $300 to the third.</p> <p>2. Same — Service of Pilot.</p> <p>The service Of the pilots in procuring the tugs was- a salvage service, for which they are entitled to $200, but the subsequent service was in the line of their duty as pilots, for which, in view of the extraordinary skill displayed in taking the vessel through a difficult channel, they are entitled to an allowance of $150 each, as extra compensation. •</p>

<p>Salvage — Compensation.</p> <p>On an alarm of distress being given by the bark B., which proved to be on fire, the tug A. proceeded immediately to the assistance of the bark, and during a period of about a half an hour, and until the city fire-boat came up, fought the flames; and, while not succeeding in subduing them, apparently prevented the fire from spreading to a quantity of oil constituting a part of the cargo. Afterwards, when it was found impossible to extinguish the fire without flooding the bark with such a quantity of water as would expose her to the danger of sinking, the A. towed the bark to certain flats, where it was hauled upon the mud and the fire was extinguished. The vessel was valued in her damaged condition at $15,000, the cargo at $55,812.56. Held, that the sum of $1,500 would be allowed the tug.</p>

In Admiralty. The first above named action was brought against the Algiers to recover for the loss of the schooner Nelly S. Jerrill and her cargo by collision. The second action was brought by a seáman on the schooner to recover for personal injuries to him arising out of the collision.

<p>In Admiralty.'</p>

<p>Removal OR Causes — Locai. Prejudice.</p> <p>The right to a removal of a cause under the local prejudice clause of the act of August 13, 1888, § 2, is not dependent on the amount involved, there being no provision in relation thereto in such clause.</p>

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

<p>Removal of Causes — Local Prejudice — Requisites of Application.</p> <p>Under act Cong. March 3, 1887, providing for the removal.of controversies between citizens of different states on the application of a defendant when it shall be “made to appear” that a fair trial cannot be had in the state court wherein the action is pending, or in any other to which it may be removed under the state law, it is not sufficient that defendant swears positively that such prejudice, etc., exists so as to render a fair trial in any state court impossible, without showing the facts on which the averment is based, as the act mentioned is a substitute for the act of 1867, which only required the belief of the applicant in such prejudice to be shown.</p>

<p>.■Removal Op Causes — Application—Time op Filing. '</p> <p>Where a -defendant, after the time to answer has expired, procures an ex parte order extending- his time, contrary to the practice in the state court, and then flies an application for removal, the application, is not filed, within the meaning of the removal act of March 8, 1887, “before the defendant is required by the laws of the state or the rules of the state court” to answer the complaint.</p>

<p>At Law. Suit by Richard S, Tuthill for fees as district attorney.</p>

<p>1.- Claims against United States — Jurisdiction of Federal Courts'.</p> <p>Act Cong. March 3, 1887, giving the United States courts jurisdiction of claims against the government, confers jurisdiction of a suit by a commissioner to recover fees earned before the passage of the act.</p> <p>2. United States Commissioners — Docket Fees.</p> <p>Act Cong. Aug. 4, 1886, does not take away the right of commissioners to receive docket fees from and after its passage, but only excepts theirpayment out of the appropriation made by that act. Following Éand v. Ü. 8., 36 Fed. Rep. 671; Belly. Same, 35 Fed. Rep. 889.</p> <p>3. Same — Fees for Warrants.</p> <p>. Rev. St. U. S. § 1014, clothes the commissioner in each state with the general powers and authority given to committing magistrates thereof; and, as committing magistrates in Illinois are by Rev. St. ill. c. 38, §§ 356, 358, 367, not only authorized but required to issue warrants for the commitment to jail of persons charged with crime pending adjournments of the examination, in default of bail, the circuit court commissioner in that state has the same power, and is entitled to $1 fee for such a warrant; as are also clerks of court by Rev. St. U. S. § 828.</p> <p>4. Same — Transcript of Docket.</p> <p>Rev. St. U. S. § 1014, makes it the duty of the commissioner, in all cases where he holds a person to bail on a criminal charge, to return to the clerk of court copies of the process and recognizances of the witnesses; and, as these would be useless without such a transcript of the docket entries as to make them intelligible, the commissioner is entitled to fees for such transcripts; and the accounting officers cannot assume arbitrarily that four folios are sufficient therefor. There being no specific provision by act of congress, he should receive the reasonable fees allowed by the state statutes.</p>

In Equity. On application for preliminary injunction.- The bill alleged in substance that complainants were the owners of a patent for a certain smoke-preventing device; that the defendant was also the proprietor of several patents for smoke-consuming devices; that the defendant had published a notice that the smoke-preventing device constructed by the complainants was an infringement of defendant’s patents; that the statement so made was false, and known to the defendant to…

<p>Equity — Practice—Evidence.</p> <p>In a suit for the infringement of a patent, leave to take testimony; the time for taking which has expired, pending another suit for the infringement of the same patent, and which testimony is alleged to be in addition to that given in the former suit and to have been obtained since the decision therein holding the patent void, cannot be granted to complainant on mere general statements disclosing nothing in regard to its character.</p>

<p>In Equity. Appeal from taxation of costs.</p>

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

<p>In Equity.</p> <p>Action by the Western Union Telegraph Company against the mayor of the city of New York and others.</p>

<p>1. Contracts — Mutual Assent.</p> <p>Intervenor’s freight agent at Cincinnati telegraphed to the receivers’ freight-agent at Springfield, Ill.: “Am asked to name rate on coal for Gas Co., Cin’t. to Springfield, 111. Can 1 make necessary rate, divided on agreed per cents., via Lafayette?” The receivers’ agent answered, “You are at liberty to make necessary rate on coke to Springfield Gas Co. and prorate on agreed per cents, via Lafayette, Ind. ” Intervenor’s agent, on receipt of this, replied: “See my wire 29th regarding rate on coal for Gas Co., Springfield. Answer. ” This was responded to by a second telegram saying: “You are at liberty to make necessary rate on coal for Springfield Gas Co.,” etc. Held, that the receivers could not repudiate the transaction on the ground that permission was given to make a rate only on coke, and not on coal,</p> <p>á. Saaie — Construction—Surrounding Circumstances.</p> <p>The receivers’ freight agent had lived in Springfield, where the gas company referred to in the telegrams was located, for a number of years; and he admitted that if he had understood the telegrams to refer to coal, he would have taken them to mean a season’s supply of coal for the gas company. Held, that the defense could not be made that the contract evidenced by the telegrams was for an indefinite quantity of coal, and did not authorize the inter-venor to make a contract for transportation of 5,000 tons of coal for the gas company, to be delivered during the year.</p> <p>3. Same — Disputing- Contract after Partial Performance.</p> <p>The receivers having been notified of the contract made by the intervenor with the shipper on the strength of the telegrams, and having complied therewith until it was half executed, it is too late to object that the telegrams did not authorize a contract for shipment of so large a quantity.</p>

<p>1. Mechanics’ Liens — Property Subject to — City Watee-Wobks.</p> <p>Code Ala. 1876, § 3440, giving mechanics or material-men doing work or furnishing material for improvements on land, under contract with the owner, etc., or with one having such a contract with the owner, a lien on the land and improvements, does not entitle one furnishing material used hy contractors in constructing city water-works for a water company to a lien against the pipes, appliances, etc., of the plant, some of which are laid under the streets of the city, as such a corporation is quasi public, and, in the absence of an express statutory provision, property intended for public use is not liable to such a lien.</p> <p>8. Same — Enforcement—Complaint.</p> <p>A complaint seeking the enforcement of such an alleged lien, not averring that the defendant water company is the owner of the land on which the works sought to be subjected are situated, is insufficient for that reason.</p> <p>8. Same.</p> <p>Such a complaint is also defective if it fails to allege that at the time plaintiff gave the defendant water company notice of its alleged lien the latter was indebted to the contractor under "the contract.</p>

<p>1. Vendor and Vendee — Rights and Remedies — Public Lands — Limitation of Actions.</p> <p>A bill alleged the purchase of swamp lands from the defendant county 30 years before, the payment of the price in full, and the issue of certificates entitling the holder "to a patent from the governor; and further averred the duty of the governor to issue the patent until a short time afterwards, when power to issue patents was conferred on the county court; and the bill asked . that the county be decreed to convey the legal title. Held, that as the bill disclosed the relation of trustee and’ cestui que trust as to the legal title, and as there were no allegations concerning the possession, and it was not shown that the county had done anything in disaffirmance of the trust until a short time before suit, nor that third persons had acquired intervening rights, the court could not declare on demurrer that complainant was barred by the statute of limitations.</p> <p>2. Same — Laches.</p> <p>Neither does the bill disclose such laches as will bar the right to relief.</p> <p>3. Same — Constructive Possession.</p> <p>Whatever constructive possession the county may have by reason of its being vested with legal title does not bar complainant’s right. Actual adverse possession is necessary for that purpose.</p>

<p>Railroad Companies — Accident to Person on Track — Evidence—'View by Jury.</p> <p>Plaintiff was run over or against by defendant’s locomotive hauling a freight train, and had his arm at elbow broken and fractured. Plaintiff says he was endeavoring to step off the track bed when he was struck by the engine. Defendant contends that he was drunk, lying with his head on the rail, and his arm near or on the rail, and his limbs extending outwardly from the road-bed. The judge allowed, against defendant’s objection, the jury to go from the court-room to make an examination of a railway engine. Held, there was no error to vitiate a verdict for plaintiff. On the evidence the findings of the jury seem to be correct.</p> <p> {Syllabus by the Court.) </p>

<p>1. Pleading — Plea in Abatement — Proof of Citizenship.</p> <p>Notwithstanding the practice conformity act of 1872 and the judiciary act of 1875, and notwithstanding the practice in Ohio of traversing all the aver-ments of the petition hy the general denial, it remains the law that a plea to the jurisdiction of the court denying the averments of the diverse citizenship, must be, in the federal courts of Ohio, by a special plea of abatement separately pleaded and, tried. Any other plea to the merits is a waiver of the plea in abatement; and all evidence upon the subject of the citizenship is irrelevant if there be no plea in abatement raising the question of jurisdiction, or some other plea to which that evidence is pertinent and, relevant.</p> <p>2. Same — Jurisdictional Question — Directing Issue — Amendment of Pleading.</p> <p>If, however, in the absence of a special plea to the jurisdiction, the court can see by the proof that there is a jurisdictional question as to the citizenship of the parties, it must, under the fifth section of the judiciary act of 1875, direct an issue to be made by the pleadings, try that question, and dismiss the suit if there be no jurisdiction; and therefore an application by the defendant to amend his pleadings in order to raise the question will and must be granted, even after the trial has commenced.</p> <p>3. Same — TraversingAverment of Citizenship of Corporation.</p> <p>The proper form of traversing the averment of the citizenshipof a plaintiff corporation, where upon special facts it is claimed that the law under which the association,is organized does not create a corporation, but only a limited partnership with a suable capacity, suggested! Eeld, that it may be done by either a general or a special traverse, but the latter is the better form.</p> <p>4. Limited Partnerships — Capacity to Sue — Jurisdiction of Federal Courts — Corporations.</p> <p>The limited partnerships of Pennsylvania having a capacity to sue and be sued by the partnership name and exercising other functions analogous to or identical with those of corporations, are nevertheless not corporations entitled to sue as artificial citizens of the states, within the purview of the constitution and laws of the United States in that behalf. The federal courts will not extend the creation of such artificial citizens of the states in order to acquire jurisdiction over organizations that are not corporations, strictly so called.</p> <p>5. Same — Suit as Corporation — Amendment of Pleading.</p> <p>Where a limited partnership sued after the manner and style of a corporation, alleging itself .to be such under the laws of another state, and it was ruled that it was not entitled to that liberty or privilege in the federal courts, it was allowed to amend its pleading, and to sue as individuals, they being citizens of other' states than that in which the suit was brought, suing after the manner and style of partners in the ordinary way of suits by partnerships, but not in its partnership name pure and simple, since that would not disclose the facts as to citizenship, but would be to treat them as corporations are treated¿n that matter in its relation to the jurisdiction of the federal courts.</p>

<p>1. Appeal — Review—Decision of Commissioner of Emigration.</p> <p>Decision of commissioners of emigration as to indigent immigrants not to be reversed by collector.</p> <p>2. Immigration — Detention.</p> <p>Removal from ship and detention by commissioners of emigration for purposes of examination not a landing.</p> <p> (Syllabus by the Courts </p>

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

<p>In Equity. On motion for preliminary injunction.</p> <p>Bill by Sargent and others against Jenkins and others, to restrain the infringement of letters patent No. 223,388, to John Gorham, January 6, 1880.</p>

<p>In Equity. Bill by the Singer Manufacturing Company against the Wilson Sewing-Machine Company and William G. Wilson.</p>

<p>1. Patents for Inventions — Construction of Claim — Water-Meter.</p> <p>The water-meter described in letters patent No. 211,582, January 21, 1879, to Lewis H. Nash, is adapted from the Calloway rotary engine, which has a piston with projections and a cylinder with recesses more in number than the projections. The only piston described in the specification is one having a side-rocking and rotating movement, which is due to the fewer projections on the cylinder than on the piston. Held, that it is such a piston that is referred to in the first claim, and such piston is an element of it, and consequently of claims 3-6 of reissued letters patent, February 8, 1887, to the National Meter Company, as assignee of Nash.</p> <p>2. Same.</p> <p>The meter described in patents to James A. Tilden is adapted from another engine invented by Galloway, (English patent December 14, 1847,) in which the projections on the piston equal in number the recesses in the cylinder, and the piston has neither the side-rocking nor rotary, motion. In the Nash meter the ports for entrance and discharge are in the ends or sides of the piston,.the ends of the cylinder act as valves, and the compound movement of the piston opens some and closes others of the ports so as to equalize the pressure at right angles to' the direction of the piston’s movements. In Til-den’s meter the ports are in the ends of the cylinder ease, so located that the contafct of the piston with the cylinder divides each recess into one filling aind one discharging passage; the piston acts as the valves, and it is essential that there shall he not merely water pressure moving the piston, but additional side pressure. Held not the same combination or combination of equivalents.</p>

In’Equity. Four suits by John H. Gordon and others against Benj. H. Warder and others, the Champion Machine Company, Whitely, Fassler & Kelly, and Abel Hoover and others, to restrain the infringement of a patent.

<p>1. Patents for Inventions — Silk Skeins for Dyeing.</p> <p>Letters patentNo. 267,192, issued to complainant November 7,1882, for “improvements in tbe art of reeling and winding silk and other thread, ” contain two claims: (1) “A skein of silk or other thread wound upon a reel diagonally from side to .side, in the manner described, and laced back and forth across its width to preserve its form, substantially, ” etc.; (2) “the combination of the lacing with a wide skein of silk or other thread in which the strands are diagonally crossed, substantially, ” etc. The form of skein described in' the patent was well known; but the method of dyeing and winding silk by the use of that form of skein had never been thought of until complainant employed it and described it in this patent, stating that the lacing “ constitutes the chief point of my invention, and is what preserves the skein in its shape, and prevents its becoming entangled in the process of dyeing. ” Held, that the claims fail to cover the invention, and the patent is void.</p> <p>2. Same — Disclaimer.</p> <p>It would be of no avail to disclaim the skein except for use in the process of dyeing, as that would not change the patent into one for the process, which is what the invention consists of.</p>

<p>t, PATENTS FOR INVENTIONS — ASSIGNMENT—NOTICE.</p> <p>Where it was agreed that certain inventions should be complainant’s property, and bo patented for its benefit, and where defendant knew that the inventions were in use in complainant’s factory, and that the inventor made them while an employe of complainant, and defendant made no inquiries as to whether complainant claimed any right to use the inventions, but took an exclusive license from the inventor, defendant is chargeable with constructive notice of the rights of complainant.</p> <p>8. Same.</p> <p>D. stated that certain inventions of his were made before he was employed for complainant, and the first products for complainant were made with his own appliances. He was employed by complainant to-experiment with reference to the subject of the inventions, was given several months time, and furnished with appliances, and accomplished the desired object by devices which had been previously used for analogous purposes. Complainant’s president testified that I). suggested the patenting of the inventions for complainant's benefit, saying that if complainant would pay the expense he (D.) wanted nothing for himself. D testified that he suggested that the inventions were worthy of patents, and he would obtain patents, but could not then spare the money, and that the president said that he (T>.) could have what money he wanted, and should be protected as if he had used his own money. Though D. remained in complainant’s employment several months after the principal patents were obtained, no attempt to agree definitely as to their respective rights was made. The expense of procuring the patents was not charged by complainant to D. Complainant’s allegations as to the agreement in different suits were somewhat at variance, and its president responded evasively to some of the interrogatories. Held, that complainant was entitled to the patents.</p>

<p>In Equity: Action for infringement of patent.</p>

<p>In Equity.</p> <p>Suit by Judson L. Thomson & Co. against the Smith & Griggs Manufacturing Company, and another.</p>

<p>In Equity .</p> <p>Bill for infringement of patents, filed by Edward S. Smith against Judson L. Thomson and John Hunter.</p>

<p>1. Trade-Marks — Imitations.</p> <p>Defendants use a bottle for bitters which has the peculiar form, color, round shoulders, and short neck of complainants’ bottle, with a label containing the words “Theller’s Celebrated Stomach Bitters,” a monogram of the letters “A. T. ” in place of the picture of St. George and the dragon, used by complainants, a black shield below the monogram greatly resembling complainants’ shield, and below the shield an imitation of the lettering upon the genuine label. Reid, an imitation well and designedly calculated to deceive.</p> <p>2. Samis — Evidence—Former Suit.</p> <p>The fact that one of the defendants was in 1870 engaged in manufacturing imitations of the goods, labels, and trade-marks now manufactured and owned by complainants, and was then successfully sued therefor, is immaterial, and the record of that suit, which was offered only for the purpose of showing that fact, is excluded.</p>

<p>Towage — Negligence—Rafts.</p> <p>A tag which undertakes to tow a rait to a certain place, and which leaves it before it arrives there, without ascertaining whether the raft is made fast or not, and without giving any order in relation thereto, is negligent, and is responsible where the raft is carried away by the tide and wind.</p>

<p>1. Towage — Collision—Liability op Tug.</p> <p>A tug, employed by a ship to move her from her anchorage in the Wallamet river to a dock in Bast Portland, under the direction and control of the pilot in charge of tbe ship, is not liable for injury caused by a collision of such vessel with another. In such case the tug and tow are but one vessel, and that one is the tow.</p> <p>2. Navigable Waters — Obstruction.</p> <p>A wire cable, used as a guide across the Wallamet river by the ferry-boat of the Albina Berry Company, when held up within 11£ feet of the surface of the water, at 18 feet from the end of the boat and 150 feet from the shore, in water over 30 feet in depth, in the vicinity of the approach of sea-going vessels, to the Irving dock in Bast Portland, is a material obstruction to navigation, and unlawful, unless sanctioned by the legislature.</p> <p> {Syllabus by the Court.) </p>

<p>In Admiralty.</p> <p>Appeals by both vessels from decree of district court under cross-libels, dividing the damages. The John 8. Darcy, 29 Fed. Rep. 644.</p> <p>The Favorita, 8 Blatchf. 541; The John Cooker, 10 Ben. 488; The Columbia, 8 Fed. Rep. 716, 25 Fed. Rep. 844; The Montieello, 15 Fed. Rep. 474; McFarland v. Lead Co., 17 Fed. Rep. 253; The Fanwood, 28 Fed. Rep. 374; The Delaware, 6 Fed. Rep. 195; The Sigel, 6 Bon. 550, 14 Blatchf. 482; The Pavonia, 26 Fed. Rep. 110; The Manhasset, 34 Fed. Rep. 422; Fay's Case, 15 Pick. 253; The Alabama, 1 Ben. 483; The Ariadne, 7 Blatchf. 212; The Mary T. Wilder, Taney, 567; The Farragut, 10 Wall. 338; The Ariadne, 13 Wall. 478.</p> <p>The Pavonia, 26 Fed. Rep. 110; The C. If. Seuff, 32 Fed. Eep. 237; The Free State, 91 U. S. 200; The Galatea, 92 U. S. 439; The Ferry-Boat Relief, 01-•cott, 104; The Favorita, 18 Wall. 598; The Montieello, 15 Fed. Rep. 476; The ISdwin H. Webster, 22 Fed. Rep. 171; The Ottawa, 3 Wall. 268; St. John v. Paine, 10 How. 563; The Genesee Chief, 12 How. 443; Haney v. Packet Co., 23 How. 287; The Ariadne, 13 Wall. 475; The City of Paris, 9 Wall. 634; The Ant, 10 Fed. Eep. 294; The B. B. Saunders, 25 Fed. Rep. 729; Goslee v. Shute, 18 How. 463.</p>

<p>Admiralty — Practice—Motion for New Trial.</p> <p>A motion for a new trial in an admiralty cause in this court comes too late if made after the term in which the final decree was entered</p>

<p>1. Admiralty — Sale—Irregularity.</p> <p>At a sale in admiralty proceedings, advertised to take place at the front entrance to the custom-house, the officer stood in the open door of the front entrance part of the time, so that persons inside the hallway, and outside the building, could hear him cry the sale. Many, if not all, the persons at the sale were in the hall. The front door was closed part of the time. About 30 persons attended, and there were several bids commencing at $300, the highest bid being $600, which was much below the value of the property. Held, that these facts did not show the sale to have been irregular, so as "to require-it to be set aside.</p> <p>2. Same-Purchase by Proctor.</p> <p>The sale having been made to the proctor of the libelant, the fact that it was for less than the value of the property is not sufficient to require that it be set aside on libelant’s application.</p>

<p>Collision — Steam and Sailing Vessel.</p> <p>The lighter Bárbara was coining down the North river, her sails filled from the starboard side, intending to go as near the Battery as was safe, and into the Bast river. A tug and sloop were discovered pointing up the river and towards the New York shore. Just before the collision the sloop starboarded her helm to go about, and struck the tug, which, to avoid damage, went ahead at full speed, and struck the lighter in her starboard bow, sinking her. The lighter would have cleared the sloop. Held that, as all the lighter had to do was to hold her course, the tug was liable for the collision.</p>

<p>1. Federar Courts — CiRctiit Courts — Jurisdiction.</p> <p>Where every jurisdictional requirement of the act of 1875 is complied with, a suit in a district in one state, for a cause not arising there, between a plaintiff residing in another state and a corporation of a third state, will not be dismissed because by the local statutes the state courts have no jurisdiction.</p> <p>2. Same.</p> <p>A foreign insurance company is “found” in the state of the district of suit, where it has complied with the statute thereof, (Laws N. Y. 1884, c. 846,) providing that foreign companies may transact business in the state after having designated the superintendent of the insurance department as its lawful attorney on whom process may be served.</p>

<p>1. Courts — Jurisdiction—Venue.</p> <p>Code Prae. La. art. 162, provides that in civil matters one must be sued before the judge having jurisdiction over the place'where he has his domicile or residence, except as otherwise specially provided. Article 165, No. 6, declares that when the defendants are joint obligors they may be sued at the domicile of any .one of them. Held that, as the laws of Louisiana creating the metropolitan police, and authorizing the issuance of warrants, impose no obligation on the city of New Orleans jointly with any other per'son or corporation, the district court of Jefferson parish has no jurisdiction of an action on siich warrants against the city, though other defendants are joined, over whom the court has jurisdiction.</p> <p>2. Same — Waiver.</p> <p>Code Prac. art. 93, provides that when one is sued before a judge having no jurisdiction over his place of domicile, but who is competent to decide the cause brought before him, and he pleads to the merit, instead of declining the jurisdiction, the judgment shall be valid. In an action against the city of New Orleans and outside parishes, an application was made for a rule for the appointment of a receiver for the outside parishes, to which rule the city was not a party. • The city attorney, however, entered a general appearance, and, no pleadings having been filed by the city, a decree pro confesso was taken against it. On an application by the city for a rehearing on the ground that the court had no jurisdiction over it, held, that the jurisdiction had not been waived.</p> <p>3. Same — Removal of Causes — Effect.</p> <p>The cause of action not being one within the original jurisdiction of the federal circuit court, that court, on removal of the cause to it, only acquired such jurisdiction over the parties as the state court had.</p>

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

In Equity. On appeal from district court. Held: ‘especially must there be distinct averments as to the time when the fraud, mistake, concealment, or misrepresentation was discovered, and what the discovery is, so that the court may clearly see whether, by the exercise of ordinary diligence, the discovery might not have been before made.’ Same doctrine was held in Moore v.'Greene,…

<p>At Law. Action to recover money on contract.</p>

<p>1 .Insurance — Actions on Policies — Evidence.</p> <p>A physician’s certificate of death, when made ex parte, is not proof of the cause of death as against the opposite party, but when explained and affirmed at the trial as to its statements by the physician who made it, it may be considered as part of the evidence.</p> <p>2. Policy— Condition — Construction.</p> <p>Where a policy of life insurance contains the proviso that if the insured “shall become so far intemperate as to impair his health, or induce delirium tremens, ” the policy shall become null and void, it is not necessary for the defendant to prove that the insured had become habitually intemperate for any length of time before his death, in order to avoid the policy; but the condition will be broken if it appear that the insured died from the effects of a single drunken debauch, continued for one day, or ten days, immediately preceding his death, and although before that time he may have led a temperate, or even a strictly abstemious, life.</p>

<p>Bill by the Chicago, Burlington & Quincy Bailroad Company, to restrain Peter A. Dey and others, constituting the board of railroad commissioners of the state of Iowa, from putting in force a schedule of charges. A preliminary injunction was granted in this and two other similar cases, but one opinion being filed, Railway Go. v. Dey, 35 Fed. Bep’. 866, to which reference is made for a fuller discussion of the questions herein considered, and for the statute under which the commissioners acted in making the schedule complained of.</p>

<p>1. Uwited States Commissioners — Fees—Drawing Complaints.</p> <p>Under Rev. St. U. S. § 847, allowing commissioners, “for issuing any warrant or writ, and for any other service, the same compensation as is allowed to clerks for like services. ” and in accordance with the construction thereof adopted by the accounting officers of the treasury, commissioners are entitled to fees for drawing complaints in criminal cases.</p> <p>2, Same — Entering Returns.</p> <p>For entering returns on warrants to arrest and to commit, and on summons required by order of the circuit court, commissioners are entitled to the same compensation as is allowed to clerks for like services.</p> <p>8. Same — Copies oe Process.</p> <p>Under Rev. St. U. S. § 1011, the commissioner is compelled to return copies of process to the court; and the accounting officers of the treasury have no right to make an arbitrary rule limiting- the'length of such copies.</p> <p>4. Same — Docket Fees.</p> <p>As the commissioner is required by the order of the circuit court to keep a docket in all criminal cases, in which he shall make entry of all proceedings before him, commencing with the complaint, ho is entitled to docket fees in cases where the proceedings before himself have been discontinued, and the prisoner taken before another and nearer magistrate.</p>

<p>1. Saltase — Implied Request — Admiralty Rule 19.</p> <p>Under rule 19 of the supreme court, in admiralty, an action for salvage may be maintained against the person upon whose request and for whose benefit the service is performed. The request may be implied as well as expressed.</p> <p>2. Same — Action in Personam.</p> <p>Upon a dispute between the owner of coal sunk and an insurance company as to whether he was insured or not, the agent of the company, in the presence of the owner and of the salvor, requested the salvor to go on and raise the coal, and it was agreed that whoever was liable would pay; the owner also saying: “I suppose I will have to pay for it if I am responsible. ” The salvor thereupon raised the coal, and delivered it to the persons directed by the owner. Meld, that the owner was liable in personam, and that it was immaterial whether the alleged insurers were liable to indemnify him or not.</p>

<p>In Admiralty. On motion to reopen case. 86 Fed. Rep. 910.</p>

<p>1. Salvage — Specific Contract — Maritime Lien.</p> <p>An agreement to pay a salvor a specified sum if' lie succeeds in raising the engines of a sunken steamer within a certain time, and a larger sum if it requires a longer time, does not deprive the salvor of his right to a maritime lien.</p> <p>2. Same — Domestic Vessel.</p> <p>A salvage service carries with it a maritime lien on the things saved, whether the vessel is foreign or domestic; the rule as to repairs and supplies, not to be extended by analogy.</p>

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

<p>Courts — Federal Jurisdiction — Suits by Assignees — Pleading.</p> <p>In an action in a circuit court, brought under the provisions of act Cong. 1875, authorizing an assignee of a chose in action to sue, the complaint must show that the assignor possessed the requisite citizenship to have maintained the action in that court.</p>

<p>Fraudulent Conveyances.</p> <p>Conveyances made without consideration, in contemplation of bankruptcy, and with the intent, participated in by the grantees, to defraud creditors, will be set aside.</p>

In Equity. On exception to master’s report. For opinion on the cross-bill for redemption, see 23 Fed. Rep. 849. Hubbard & Clark and Abbott Bros., for complainant.

At Law. On motion for a new trial. Action by Chester W. Witters, receiver, against Margaret A. Sowles, to enforce defendant’s liability as a stockholder in the First National Bank of St. Albans. Verdict for plaintiff, and defendant moves for a new trial.

<p>At Law. On motion to strike out parts of amended petition.</p>

<p>Damages — Remote and Proximate Cause.</p> <p>A boat, while loading, was injured by the swells from a passing steamer. Her loading was' completed with a full cargo, and she was then started towards her destination, 125 miles distant, and foundered near the end of the trip. Meld, that the risk of the trip should not be thrown upon the steamer, but that she was liable only for the injuries occasioned by the swells.</p>

<p>At Law. On motion for judgment on the pleadings.</p>

<p>At Law. On motion for direction of verdict.</p> <p>Action against a former collector of tbe port of New York, to recover duties paid upon certain “candied citron ” imported by plaintiff. Tbe goods in question were shown by evidence upon the trial to be the fruit of the citron tree, boiled in sugar, and then dried and packed for shipment. The collector had exacted 35 per cent, duty on the goods under the provision in Schedule G of the tariff act of March 3,1883, for “comfits, sweetmeats, or fruits preserved in sugar, spirits, syrup, or molasses, not otherwise specified or provided for in this act. ” The importer claimed that the goods were exempt from duty by virtue of a provision in the free list of the same act for “fruits, green, ripe, or dried, not specially enumerated or provided for. ” Evidence was given on behalf of the plaintiff that all brokers and dealers in foreign dried fruits dealt in the article in question; that in trade papers and mercantile prices current it was always classed among foreign dried fruits; that plaintiff had bought and sold fruits preserved in sugar, syrup, spirits, and molasses, which were done up in air-tight packages, and that dealers in dried fruits did not deal in fruits preserved in sugar or syrup which came in air-tight packages.</p>

<p>The plaintiffs, the firm of Lamb & Griesbach, in 1884 imported into the port of New York certain manufactures of jute, varying in width from .18 to 24 inches, which they claimed to be “burlaps,” dutiable at 30 per cent, ad valorem under Schedule J of the tariff act of March 3, 1883, (T. I. 338,) but which the defendant collector assessed at 35 per cent, ad valm'enn under the same schedule, (T. I. 334) as “canvas, paddings, * * * or other manufactures of flax, jute, or hemp, or of which flax, jute, or hemp shall be the component material of chief value, not specially enumerated or provided for.” The plaintiffs’ evidence tended to show that the merchandise in suit was known as “burlaps” in trade and commerce at the time of the passage of the tariff act of 1888, and the term “paddings” referred to a class of goods manufactured of jute and flax, or of jute and cotton, and not of jute exclusively. Per contra, a number of domestic manufacturers and wholesale clothing dealers testified on behalf of the defendant that the terms “paddings” and “canvas” referred to articles sometimes manufactured wholly of jute, (as were the articles in suit,) and sometimes partly of jute and other materials; that there was a difference between the manufacture of “paddings” and of “burlaps,” the former being more closely woven, of a finer grade of jute, and with a patent selvedge, which burlaps did not have; that the standard width of burlaps, as known in trade and commerce, was 40 inches, and the weight of the goods in trade always had reference to the weight of the 40-inch wide burlaps, and to no other width; that paddings were also sized, in order to make them stiff, and differed, in this respect, from the ordinary burlap of commerce; that the narrow goods of this character (less than 40 inches wide) were sometimes called “paddings,” and sometimes called “military” or “naval” canvas, and were not, prior to March 3,1883, known as “burlaps” in the commerce of this country.</p>

<p>1. Customs Duties — Protest—Grounds.</p> <p>Where import duties are paid under a protest made on the single ground that the goods should have been classified as material for making or ornamenting hats, bonnets, etc., and not otherwise provided for, instead of being classed as beads; it cannot he objected, to defeat the collector’s classification, that the goods might more properly have been classed as jet, or imitation of jet. The protest should have been in the alternative.</p> <p>2. Same — Aotxou to Recover Back — Burden of Proof.</p> <p>In an action to recover back duties paid under protest, the burden of proof is on the plaintiffs to show by a preponderance of testimony that the goods did not properly belong to the class to which they were assigned by the collector, and that they were dutiable only as claimed in the protest.</p> <p>8. Same.</p> <p>If the jury are unable to say from the -testimony whether or not the goods properly belong to the class claimed by plaintiffs in their protest, defendant is entitled to a verdict.,</p> <p>4. Same — Classification.</p> <p>Though goods are made expressly for the purpose of being used by milliners in making and ornamenting hats, bonnets, etc., yet, if they have become adapted to other uses to such an extent that the jury can say their chief and principal use is not in the making and ornamenting of hats, etc., there is a failure to show that they ought to have been classed as hat ornaments merely.</p>

<p>1. Customs Duties — Classification—Hat Ornaments.</p> <p>. Chenilles, made of a warp of silk threads laid close together with cross-threads or filling, so as to make a woven fabric, and then cutting it into strips of the width of several of the warp-threads, and then raveling out the threads on the edges of the strip, thus making a cord with a nap or burr extending around it, are, though used only for working into embroideries, dutiable under Heyl’s Revenue Laws, cl. 383, as articles not specially enumerated, “made of silk, or of which silk is the component material of chief value, ” and not, under clause 381, as “thrown silk in gum, not more advanced than singles, tram, organzine, sewing silk, twist, floss in the gum, and spun silk, silk thread, or yarns of every description. ”</p> <p>2. Same.</p> <p>Though goods are used chiefly or solely in the manufacture and ornamenting of hats, bonnets, etc., if they are bead ornaments, or are composed of silk or of metal, they are dutiable under the specific clauses relating to such articles.</p> <p>■8. Same — Artificial Flowers.</p> <p>The tariff act contains np specific duty upon artificial flowers as such; but section 2499 provides that “there shall he levied and collected on each and every non-enumerated article which bears similarity either in material, quality, texture, or the use to which it may be applied, to any article enumerated, * * * the same rate of duty which is levied and charged on the enumerated article which it most resembles, ” etc. A specific duty is imposed on “artificial flo'wers and parts thereof, of whatever material, for millinery use, and not specially enumerated.” Meld, that artificial flowers, stuck into a little stand or box, and salable as ornaments, and not good enough for millinery uses, but resembling flowers so used more than any other article, are dutiable under the last clause quoted.</p> <p>4. Same — Protest—Grounds.</p> <p>Where duties are paid under protest, on the single ground that the goods should have been classified as material for making or ornamenting hats, bonnets, etc., and not otherwise provided for, it cannot be objected, to defeat the collector’s classification, that the goods might more properly have been put into some other specific class than that designated by the collector.</p> <p>6. Same — Action to Recover Back — Burden op Proof.</p> <p>In an action to recover back duties paid under protest, the burden of proof is on the plaintiffs to show by a preponderance of testimony that the goods did not properly belong to the class to which they were assigned by the collector, and that they were dutiable only as claimed in the protest.</p>

<p>Indictment for Sending Obscene TVIatter through the Mails.</p> <p>The matter complained of was — First, a small pamphlet in paper cover, entitled “Dr. Clarke’s Treatise on Venereal, Sexual, Nervous, and Special Diseases,” and consisted mainly of a description of the causes and effects of venereal diseases; and, secondly, of two circulars, one of which described in separate paragraphs the symptoms of various venereal diseases, and the other contained a list of questions' to be answered.</p>

<p>Indictment for Carrying on the Business of a Retail Liquor Dealer, without payment of the tax. On motion for new trial.</p>

In Equity. Hearing on bill and proofs. Bill by William Fawcett against the Rubber & Celluloid Harness Trimming Company, for infringement of letters patent No. 122,163. This bill was filed in August, 1878, and the cause was at issue early In 1879. Some testimony had been taken, when, on October 8, 1879, it was stipulated that proceedings be suspended for three months from that date for the convenience of counsel.

<p>Patents por Intentions — Extent op Claim.</p> <p>As the second claim of letters patent No. 322,194, issued July 14,1886, to G-ustavus Michaelis for “the manufacture of chloroform and purified acetates, ” was found by the court to embrace only the manufacture of chloroform from the “liquid products” named, and not the manufacture of chloroform from acetone, the subsequent manufacture of chloroform from acetone only is not a violation of the injunction issued in accordance with such finding.</p>

<p>In Equity.</p> <p>Action by Thomas A. Edison, Eobert Gilliland, and A. B. Dick Company against Augustus D. Klaber, trading under the name of the Cyclo-style Company, for infringement of patent.</p>

<p>Patents eor Inventions — Construction op License — Jurisdiction.</p> <p>The circuit court of the United States has no jurisdiction of a suit by the assignee of a patent against the licensee of his assignor, for infringement, where the preliminary questions to be determined are — First, the construction of the contract licensing defendant; second, whether the terms of the contract have been complied with by defendant; third, if they have not, whether the non-compliance has worked a forfeiture of the contract, so that complainant can enforce his rights as owner of the patent, instead of those arising to him as licensor, by virtue of the assignment of the contract to him by the original licensor. Siich preliminary questions do not arise under the patent laws, and the court has no jurisdiction, both parties being citizens of the same state.</p>

<p>1. Copyright — INFRINGEMENT.</p> <p>Tlio plaintiff’s assignor devised and copyrighted a chart showing “gum sections” of artificial teeth of his manufacture, each section being arranged in a certain way, and .having thereon certain auxiliary lines and figures, by means of which the dentists who used said “gum sections” could obtain information that could not be conveyed by any old method of illustration. Defendant made a similar chart, in which his teeth were illustrated in the same manner as complainant’s. Held plaintiff’s copyright did not cover the plan or arrangement of the gum sections of his chart, and therefore defendant did not infringe.</p> <p>2. Same — Pr racy.</p> <p>To infringe a copyright the defendant must have actually copied or “pirated” the production of the plaintiff, and not merely, while ignorant of it, have made something similar.</p> <p> {Syllabus by the Cou/rt.) </p>

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

<p>In Admiralty. Libel for damages to a cargo of potatoes.</p>

<p>Shipping — Perils of the Sea — Burder of Proof.</p> <p>A bill oí lading is a policy of insurance, guarantying the safety of the goods against all risks except the perils of the sea; and whenever the shipowner, in claiming exemption from liability for an admitted loss, pleads a peril of the sea, the burden of proof is upon him to make out a prim,a fade case; and where the loss is shown to have been caused by water being driven into the hold, but it does not appear that the pumps and limber-holes were kept in proper order, or were properly inspected by the ship’s officers, the defense is not made out.</p>

<p>In Admiralty; A. F. Reed, libelant.</p>

<p>Collision — Between Steamers — Crossing- Bows — Backing when Danger Apparent.</p> <p>Where the primary fault is on the vessel hound to keep out of the way for improperly attempting to cross the other’s hows, the latter will not be held in fault except upon a preponderance of proof that she did not stop and back as soon as she had reason to apprehend danger, because the other could not or would not clear without her co-operation.</p>

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

<p>Collision — Continuing after Signal Unanswered.</p> <p>A tug and ship were approaching nearly head on when first discovered. The tug whistled, but the signal was not answered. Soon there was a confusion of signals, and the tug continued her course with no diminution of speed until the collision. Held, that the tug was responsible for want of a vigilant lookout, and for continuing her course after her signal was unanswered.</p>

<p>Removal op .Causes — Local Prejudice-Pleading.</p> <p>A petition for the removal of a cause under the local prejudice clause, which alleges that petitioner cannot obtain justice in the trial court, nor any other in the state to which the case could be removed, is insufficient in not alleging prejudice against the party seeking removal, or influence exerted by the adverse party, and the affidavit accompanying it should state the facts supporting such averments. „</p>

<p>Removal op.Causes — Separable Controversy — Nominal Parties.</p> <p>Complainant, a citizen of Iowa, filed a bill charging that a judgment had been fraudulently obtained against the city of Cedar Rapids, Iowa, in favor of defendant S., a non-resident, by means of a combination between him and others not made parties to the bill. The relief sought was to have the judgment declared void. The mayor, treasurer, and recorder of the city were made defendants, that they might be restrained from paying the judgment pendente Hie, but it was not charged that they participated in the fraud, or that they had any interest adverse to complainant. Held that, though there was no separable controversy between complainant and S., the other defendants were only nominal parties, their interest being in fact adverse to S., and their joinder as defendants could not affect the right of S. to hare the cause removed.</p>

<p>1. Courts — Federal—Jurisdictional Amount.</p> <p>. Its cash price at a forced sale is not the proper criterion for ascertaining the value of property in controversy, on the question of the jurisdiction of the federal courts, but the true rule is, what could it be sold for in the ordinary course of business?</p> <p>2. Taxation — Redemption from Tax-Sale.</p> <p>Where, under a city charter, 18 months from the time the deed is filed with the mayor are allowed in which to redeem from a tax-sale, the period of redemption is to be computed from the time a deed, properly acknowledged, is filed.</p> <p>8. Same — Power' to'-Bevy Taxes — Curative Act.</p> <p>Where a city is authorized to levy “in each and every year” a tax not exceeding 50 cents on the $100, a tax levied in 1886 for the year 1885 is invalid, and a sale therefor cannot be aided by an act curing irregularities in proceedings for the enforcement of taxes.</p>

<p>In Equity. On application to tax costs.</p>

<p>Cumulative Evidence.</p> <p>Where-, in a suit for an infringement of a patent, one of defendants, a part owner with plaintiff in the patent, shows in his answer that he had admitted that his co-defendants used the patent under his license, evidence of admissions by him to the same effect is cumulative, and should be stricken out.</p>

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

<p>1. Municipal Corporations — Fiscal Management — Limit of Indebtedness.</p> <p>In 1858 the legislature of Louisiana adopted a system of drainage for tha city of New Orleans, the work to he controlled by commissioners, and the expense to be defrayed by assessments on the land benefited. Act La. 1871, No. 30, abolished theboards of commissioners and intrusted the control of the work to the board of administrators of the city. The assessments collected were to be used only as a drainage fund, and the expenses paid by warrants payable therefrom. A constitutional amendment taking effect January 1,1875, prohibited the city from increasing its indebtedness, but allowed the increase of the debt of the drainage fund. Warrants to complainants were drawn on the drainage fund after the adoption of said amendment. Held, that the city could not be made liable for the amount of the warrants as a municipal corporation, for mismanagement of the drainage fund, whereby a deficit occurred, so as to increase its general indebtedness.</p> <p>2. Same.</p> <p>The same rule applies to warrants issued for the purenase of machinery authorized by act 1876, No. 16, which required payment to be made by warrants on the drainage fund.'</p> <p>3. Same.</p> <p>Nor would the city be liable on the theory rnat it had falsely held out that there was a fund available for the payment of the warrants.</p> <p>4. Same.</p> <p>Failure to collect the assessments and complete the drainage would not render the city liable for the amount of the warrants when it appears that the assessments had been uncollected by the commissioners, before the city took charge of the work, for 13 years, and that they wore uncollectible without incurring cost equal t.o their amount, and that the system of drainage was itself so impracticable that failure to complete it was inevitable.</p> <p>6. Same — Bonds</p> <p>The city having retired bonds issued on the drainage fund as authorized by act 1872, No. 73. and issued in lieu thereof its own bonds, it would be entitled to a credit for the amount of which it had relieved the drainage fund, though the act required the bonds retired to be replaced by bonds payable out of the same fund.</p>

<p>In Equity. On exceptions to master’s report in the matter of the intervention of Pullman Palace Car Co.</p>

<p>At Law. On demurrer to amended complaint.</p> <p>Action by Henry C. Wilson against N. Fine, to recover possession of real property.</p>

At Law. Case submitted on agreed statement. This case was submitted for trial before the court upon the following stipulation of facts: Eor the purpose of obviating the delay and trouble of bringing witnesses into court, it is hereby mutually stipulated and agreed by and between the parties to this suit, through their respective attorneys, that the following statement of facts is to be taken and considered by the court as agreed upon for the determination of this case: (1)…

<p>1. Evidence — Identification oe Person.</p> <p>A bill to recover the proceeds of certain notes alleged that such notes were stolen from complainant, a hanking corporation in Germany, by one William O. Flymj; that he purchased drafts with the notes of B. S. & Co., and gave them to defendants, his brother and sister. There was evidenpe of Flynn's</p> <p>’ identity by the bank officers, by employes of an hotel in Germany, where he stayed, by B. S. & Co.’s cashier, by photographs, and by a police inspector, who, had known Flynn for years. The record of a court in Germany of the conviction of one “William Flynn” for this larceny was also in evidence. Held, that it sufficiently appeared that William C. Flynn, defendants’ brother, took part in the larceny, and that he bought the «drafts in controversy with the notes stolen.</p> <p>2. Drafts — Bona Fide Holder.</p> <p>Where it appears that defendants were surprised to receive the drafts, and suspected something wrong about them; that they said to an officer that their brother had previously caused them a good deal of disgrace, and that the brother’s letters accompanying the drafts were suspicious in character, — defendants cannot be held bona fide holders of the drafts.</p> <p>3. Same.</p> <p>Nor can it be said that the brokers of whom the drafts were bought, or those on whom they were drawn, are bona fide holders, so as to give defendants a good title, where it appears that the drafts had never been paid.</p> <p>4. Evidence — Record oe Foreign Court.</p> <p>The record of the German court is admissible to show Flynn’s conviction, but not to prove the facts on which it was based.</p>

<p>At Law,</p> <p>Action by H. C. Carpenter against C. L. Maltby and the Savings Bank of Kansas and action by the Savings Bank of Kansas against the National Bank of Commerce of Kansas City, submitted by stipulation as an interpleader between the savings bank and Carpenter. Rev. St. Mo. 1879, § 547, provides that “every promissory note for the payment of money to the payee therein named or order or bearer and expressed to. be for value received * * * shall have the same effect and be negotiable in like maimer as inland bills of exchange.”</p>

<p>Insurance — False- Representations — Watver by Inaction.</p> <p>Mere inaction on the part of a life insurance company for a period of 30 or 35 days after it receives information that the habits of the assured are at vari-anee with the representations made by him to secure the policy does not amount to a waiver of the forfeiture.</p>

<p>At Law. On demurrer to answer and counter-claim.</p>

<p>Public Lands — Mineral Lands.</p> <p>Land returned on the government survey as mineral land, of broken and rugged surface, with every indication of mineral ground, hut on which no-mines have been located, though in the vicinity of valuable mines, and which is unfit for cultivation and entry as agricultural lands, is within the meaning of act Cong. June 3, 1878, allowing timber to be taken from mineral lands on the public domain for building, agricultural, mining, or other domestic purposes.</p>

<p>RAILROAD COMPANIES — ACCIDENTS AT CROSSINGS.</p> <p>It is the duty of a person approaching a railroad crossing to stop and look in hoth directions for approaching trains, and also to listen for the same purpose, particularly when he has reason to believe a train is likely soon to pass, and if he fails to perform this duty, or sees the approaching train and does not wait for it to pass, he assumes the risk of accident and cannot recover, unless defendant’s employes, seeing him on the track, neglected to use the means reasonably within their ¡lower to prevent the accident.</p>

<p>Master ard ServaNt — Negltgeroe.</p> <p>The intervenor was a brakeman on defendant’s road, and one of his duties was to tie the bell-cord running from the locomotive to the cars, after the locomotive was attached to the train. While discharging that <fut3r the train was suddenly started and he was thrown down and injured. As to whether the conductor had.taken charge of the train and ordered it to he started the evidence was in cqnfiict; the. intervenor himself, a switchman, and another witness-testifying that the conductor was in charge. This was corroborated by the conductor’s admissions and defendant’s failure to account for the absence of-the engineer in charge of the locomotive. For the defendant two of its employes testified to the contrary, and they were corroborated by inter-venor’s admissions,.and by his failure to explain why he had not attached the cord while the conductor was receiving his orders, as he might have done. Held,- that-the weight of -evidence was with the intervenor.</p>

<p>At Law. Action by Louis T. Nowman for damages for personal injuries.</p>

<p>Carriers op Passengers — Injuries on Freight Trains.</p> <p>It is the duty of the conductor and employes operating a freight train, as to-which some accommodations have heen provided for passengers, to give passengers thereon such attention and care as is consistent with the operation of the train, hut not such strict attention and care as are required of the employes on regular passenger trains; and a person riding on such freight train, who is injured by the negligence of the employes, is not entitled to as heavy damages as if the accident had occurred on a passenger train.</p>

<p>Petition against Receiver on a Claim for Damages.</p>

<p>On Motion to Quash Indictment.</p>

In Equity. This was a bill filed to restrain the infringement of letters patent of the United States No. 260,232, issued June 27, 1882, to Henry Huber, assignee of Peters & Donald, as well as to restrain the infringement of reissued letters patent No. 10,826, issued April 19, 1887, to James E. Boyle. Both patents are for improvements in sanitary water-closets. Huber is owner of patent No. 260,232, and sole licensee under reissued letters patenfr-No. 10,826.

In Equity. Bill for infringement of patent, filed by the National Cable Railway Company against the Mt. Adams & Eden Park Inclined Railway Company.

<p>Patents — Invention—Lining- Barrels with Glue.</p> <p>Letters patent, issued March. 10,1874, to Edward W. Leggett, for an improved mode of lining the inside of oil-barrels with glue, the .claims for which were a process “wherein the glutinous material, instead of being produced by reduction from a previously solid state, is permitted to attain only a certain liquid consistency, and is then applied to the package and permitted to harden thereon for the first time,” and “a barrel, cask, etc., coated or sized by the material, and by the mode or process whereby it is absorbed into and strengthened by the wood fiber, ” are void for want of invention.</p>

<p>1. COPYRIGHT — INFRINGEMENT—SUIT—PRACTICE.</p> <p>After hearing in a suit for the infringement of the copyright of a biographical book, the case will not be opened for the purpose of receiving newly-discovered evidence that the author was not designated by the subject of the book as his special biographer. The validity of the copyright or the right of complainant to relief does not depend on such designation.</p> <p>2. Same.</p> <p>Though Rev. St. U. S. § 4952, provides for the forfeiture of every copy of the book, and of such damages as may be recovered, only when the infringement is without the proprietor’-s written consent, yet that is not the sole provision on which a claim for relief may be founded, but there is a separate right to relief against violations of the “sole liberty of printing, ” etc., the copyrighted work, given by section 4952; and in a suit in equity, which has not jurisdiction of an action for the forfeiture, an account of profits only being claimed, allegation and proof of the absence of such written consent are not necessary.</p> <p>3. Same — Account.</p> <p>An account of profits may be decreed under the general prayer for relief.</p> <p>4. Same — Cessation of Infringement — Equity.</p> <p>Infringement furnishes ground for an injunction, and the right to an account is incident to the right to an injunction; but the cessation of the infringement removes the occasion, but not the right to an injunction, and such cessation does not deprive complainant of the right to equitable relief.</p> <p>5: Same— Lache?.</p> <p>Delay in bringing suit is no defense fo the suit when brought, whore there is no proof of acquiescence in, or of failure to object to, the acts constituting infringement, and defendant’s conduct has not been induced by any act or omission of those interested in the copyright.</p> <p>6. Same.</p> <p>Some of the parts of defendant’s book in question were quotations from conversations, letters, and speeches; in others, prominent words of statements in plaintiff’s book were taken, and used with others to convey the same idea; in others, the substance of the expression was taken with little variation of language; and in some instances portions of considerable length were copied verbatim. Defendant wrote his book with plaintiff’s book constantly before him, and so much of the ideas, language, and mode of expression was carried into defendant’s book as to show that plaintiff’s book was not used for information only, but in parts was appropriated. Held an infringement of the exclusive privilege given by the copyright.</p> <p>7. Same — Prior Appropriation.</p> <p>It is no defense that some of the appropriated parts had been previously used by others, from whose works they were taken by defendant.</p> <p>8. Same — Purpose oe Work.</p> <p>Neither is it a justification that plaintiff's work was written for a presidential campaign, while defendant’s was written for young people.</p>

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

<p>Collision — Between Steamers — Overtaking Vessels.</p> <p>The steam-ship Switzerland was going; down the bay of Mew York at the rate of 9 knots an hour. The steam-ship La Gascogne, going down at the rate of 16 knots, had overtaken the Switzerland, and was drawing ahead on her port side, when the vessels came in collision, the bow of the Switzerland striking the starboard quarter of the Gascogne. Cross-libels were filed for the resulting damage, the Gascogne contending that the collision was duo to carelessness on the part of the wheelsman of the Switzerland in allowing her to swing- to port as the Gascogne was going by; the Switzerland claiming that the Gascogne attempted to cross her bows under a port holm when the distance between the vessels was too small to permit of such a maneuver. On conflicting evidence the court found that the collision was caused by a swing to port on the part of the Switzerland, — which was carrying a port helm in the strong north-west wind, and which would so swing under such circumstances by momentary carelessness on the part of the wheelsman, — and therefore held, that the fault for the collision lay with the Switzerland in failing' to hold her course.</p>

<p>Collision — Between Steamers — Failure to Answer Signal — Duty to Stop Crossing Course.</p> <p>The steam-lighter I., going up the Fast river near the New York shore, came in collision, near Eighth-Street dock, with the ferry-boat R., bound from Hunter’s Point to the Seventh-Street slip, and having the right of way. The R. three times gave a signal of one whistle, when ofE Thirteenth street. Twelfth street, and Eleventh street, and got no answer until off Eleventh street, when she received a signal of two whistles from the I., which attempted to go near the shore, and the two collided, port bow to port bow. Held, both in fault; the I. for crossing the R.’s‘ course, and keeping to the left, near the shore, without reason; the R. for not backing sooner, under inspector’s rule 3, or as soon as the I.’s intent was made known.</p>

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

<p>1. COLLISION — OVERTAKING VESSELS— CROWDING.</p> <p>A ferry-boat overtaking a lug going up East river near Corlear’s Hook crowded her near the shore in passing. The tug meeting at the same time the cross-currents of the ebb-tide from Jackson street was swung involuntarily by the hows under the guard of the ferry-boat’s port quarter, through the effect of the cross-currents or the suction of the ferry-boat, or both combined, and was sunk. Held, that the ferry-boat was liable (1) for failure, as the overtaking vessel,' to keej> out of the way, as required by rule 22; (3) for running too near the tug in violation of 4 Bdm. St. N. Y. 60, requiring boats to navigate as near mid-river as possible, and 1 Rev. St. N. Y.*6b4, § 7, requiring a steamer passing another to keep off 30 yards.</p> <p>2. Samis — Failure to Stop — Cross-Currents—Suction.</p> <p>The tug was also in fault for failure to starboard in time to avoid the eSect of the cross-currents or suction; or, if the space was too narrow, for not stopping, as required by rule 22, and the damages should be divided.</p>

<p>In Admiralty. Libel for supplies. Un appeal from district court, ante, 512.</p>

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

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

<p>Bill to Quiet Title. Motion to remand.</p>

<p>In Equity. Bill to quiet title and enjoin actions in ejectment. On demurrer to bill.</p>

<p>In Equity On demurrer to bills. Suits to enjoin defenses at law.</p>

<p>1. Banks and Banking — Nattonat, Banks — Powers.</p> <p>Under Rev. St. U. S. $ 5190, providing that “the usual business of each national banking association shall be transacted at an office or banking house located in the place specified in its organization certificate,” a national bank cannot make a valid contract for the cashing of checks upon it, at a different place from that of its residence, through tho agency of another bank.</p> <p>2. Same — Ci-niTri'iCATE ok Authorization.</p> <p>Whatever the terms of such an arrangement, being made before the date of the drawee bank’s certificate of authorization, it is invalid under Rev. St. IT. S. § 5136, providing that no banking association “shall transact any business except such as is incidental and necessarily preliminary to its organization, until it has been authorized by the comptroller of the currency to commence the business of banking. ”</p>

<p>American Cattle Trust — Corporations.</p> <p>The American Cattle Trust, a voluntary association organized in New York to control corporations engaged in live-stock business, having obtained the-stock of the Phoenix Farm & Ranch Company, a New Mexico corporation, has no power to sell or in any manner alienate such stock, as such an act is inconsistent with the purposes of its creation.</p> <p> (Syllabus by the Court.) </p>

<p>In Equity. Foreclosure proceedings. Petition of William Kellow, Jr., administrator, for payment of judgment and costs.</p>

<p>1. - outoa.otos^Eolt.ing Stock on Ra nvroads — Ltkn.</p> <p>A mortgage on the rolling stock of a certain division of a railway contained a covenant to designate in a certain mode as belonging to that division such a proportion of the whole roiling Stock owned hy the mortgagor as that division bore to the entire railway. Held, that as against subsequent mortgagees of the entire system of railway, the first mortgage covered only such rolling stock as was thereafter designated as belonging to the division named, though the amount covenanted for was not so designated.</p> <p>2. Same.</p> <p>Where rolling stock has been purchased and designated for the division named, the lien of the first mortgage attaches and is not lost by subsequent obliteration of the designations, where such rolling stock is otherwise traceable, as against the mortgagor, or purchasers at a sale under a subsequent mortgage'of the entire railway and appurtenant rolling stock, who take with notice of the former mortgage and the lion created thereby.</p>

<p>In Equity. Bill to quiet title to land.</p>

<p>Wills — Construction—Liee-Estate—Power oe Disposition.</p> <p>A testator devised all of his estate, real and personal, to his wife, “to have and hold during her natural life, unless she should again marry, in which case she shall thereafter forfeit all right to said personal estate that giay remain,, and all right to the real estate or the proceeds thereof. * * *. The personal estate before such remarriage, she may dispose otas her necessities may require, or as her judgment may dictate to be right and expedient. : In case it should at any time be deemed of pecuniary advantage to sell my homestead, she is hereby authorized and empowered to sell and convey the same, and invest, the proceeds thereof in another homestead or in interest-bearing' securities, and have the use of said proceeds of sale during her natural life, unless she should remarry, at which time she shall forfeit all right thereto. In case of her remai’riage or death, it is my will that all my estate personal that may remain unexpended by my wife, as also my real estate, or the proceeds thereof, in case the same shall have been sold and conveyed, and the proceeds reinvested as aforesaid, * * * shall be equally divided among the children of my brothers of full blood. ” Held, that the wife took the personalty with full power of disposition.</p>

<p>At Law. Action to recover back pension money.</p>

<p>1. Customs Duties — Classification—Manures.</p> <p>By the use of the phrase “guano, manure, and all substances expressly used for manure, ” found in the free list of the tariff act of March 3, 1883, (22 U. S. St. at Large, 488,) congress has plainly said that all imported substances, whether specially provided for eo nomine, or covered by any general language descriptive of their origin or qualities, which subserve the purpose of enriching the soil, and thus increasing the crops to be raised upon it, should be free.</p> <p>8 Same — Manure Salts.</p> <p>An article, though in fact “sulphate of potash,” and at and prior to the passage of the said tariff act of 1883 generally bought and sold in trade and commerce of this country under the name of “sulphate of potash, ” is, in cases of the importations thereof which are actually used in the manufacture' of fertilizers, mot dutiable under the provision for “sulphate of potash” contained in schedule A of the same tariff act, hut is free of duty under the provision for “guano, manures, and all substances expressly used for manure,’’contained in the free list thereof.</p>

<p>Customs Duties — Construction of Act — Liquors—Beer.</p> <p>The term “liquors,” in the proviso of the tariff act of March 3, 1883, contained in Schedule H, (T. I. 308/,) providing “that there shall be no allowance for breakage, leakage, or damage on wines, liquors, cordials, or distilled spirits, ” includes fermented as well as distilled liquors, and covers lager-beer.</p>

<p>1. Patents fob Inventions — Validity—Time-Locks.</p> <p>The first and. seventh claims of reissued letters patent ÍTo. 8,660, granted January 1, 1879, to the Yale Lock Manufacturing Company, as assignee of Samuel Little, for an improvement in time-locks held valid; and the seventh claim held not an expansion of the original patent, on the authority of Tale Loch Go. v. Berkshire Hat. Bank, 17 Fed. Rep. 631, and Tale Book Go. v. Hew liaren Sav. Bonk, 32 Fed. Rep. 167.</p> <p>2. Same — Infringement.</p> <p>Defendant’s lock was substantially identical with the lock of the defendant in Yale Lock Go. v. Berkshire Hat. Bank, except that in the latter there was ■ an additional dog’, controlled bi, the time mechanism, which dog added nothing to the efficiency or value of the lock. The defense of that case was assumed by a lock company, or its president, who afterwards became president of defendant, and all the questions presented here were presented in that case. On the authority of that case, held, that defendant’s lock was an infringement.</p>

<p>1. Patents foe. Inventions — Reissued Letters — Packers for Oil-Wells.</p> <p>The first claim, of letters patent, issued February 7, 1865, to John R. Cross, for improvements in packing for oil-wells, was carefully limited to a packer in which the rings which compress or relax the packing material were operated from the top of the well by screw-rods. Held, that the second claim of reissued letters No. 7,773, dated July 3, 1877, which omits that limitation, is an undue expansion of the original. It is unimportant in a reissue issued 11 years after the date of the patent that different means for operating the rings were stated in the original specifications, as they were not claimed.</p> <p>2. Same.</p> <p>Letters patent issued February 6, 1866,’ to Robinson & Strong, described a packer composed of a cone which was placed upon the end of one of the sections of tubing, which could be made apart or attached to the tube, and a concave of elastic material, attached to the upper tubing, which, when the ' upper tubing reached the cone, was by its aid pressed out against the sides of the well. In the specifications of reissued letters No. 8,786, dated July 1, 1879, the cone became an enlargement or unyielding band or ring, and the concave became a ring, or band of elastic material, which, as the upper section moved downward, was compressed or expanded. Held, that the reissue was void for enlargement of claims.</p> <p>8. Same.</p> <p>Claim 1 of letters patent issued to Francis Martin September 13, 1865, was: “In packing the tubes of oil and other deep wells, connecting the ends of the packing device or apparatus to separate or disconnected sections of the well-tube, so as to inclose the joint within said packing device. ” Claim 3. “Connecting such separate sections of the well-tube to each other bj means of a coupling, one end of which slides on one of the sections.” Claim 4 of reissued letters.No. 7,344, dated July 25, 1876, was: “In combination with the eduction tube, * * * an elastic or flexible packing, a rim or shoulder upon the eduction tube, and a corresponding rim upon the packer support, whereby when the eduction tube is removed from the well, the rim or shoulders shall engage with each other, and withdraw the packer support. ” Held, that the reissue is not an enlargement of the second claim of the original.</p>

<p>Trade-Marks — What Constitutes.</p> <p>The word “Valvoline, ” compounded and used on packages of lubricating oils by plaintiffs, and registered as a trade-mark, may be used for that purpose, and the use thereof by defendant in the same manner will be enjoined, though defendant uses his own name in connection with the word.</p>

<p>1. Salvase — Pilots.</p> <p>The steam tow-boat R. having in charge a tow of five coal-barges, in the evening, shortly after dark, broke loose from her mooring at the Mononga-liela wharf in the port of Pittsburgh, and drifted down stream. The river was high, and full of running ice. The R. was in danger of striking craft moored to the shore, and of suffering injury by such collisions. She sounded her distress whistle, and her mate, the officer then in command, who was himself a licensed pilot, called for a pilot. The libelant, a pilot, in answer to the call, at some personal risk, jumped upon one of the floating barges, and, reaching the pilot-house of the R, took charge of the wheel, and in the course of an hour brought the boat and three of her barges safely to shore. Held, that the assistance rendered by the libelant was a salvage service. ■</p> <p>3. Same — Amount of Award.</p> <p>The R was of the value of $13,000-, but she was in no danger of total loss, nor in any extreme peril. Held, therefore, that the sum of $350 was a fair salvage compensation.</p>

<p>1. Towage.</p> <p>An offer to pay the amount agreed to be due for towage, less certain disputed claims for damages to respondents’ barges other than the one for which the towage is claimed, coupled with a demand for a receipt in full, is not a sufficient tender to destroy the lien on said barge for the towage.</p> <p>2. Same — -Application op Payments.</p> <p>A payment on the general towage account without direction by the debtor as to its application may be applied by the creditor to such jiarts of his account as he desires, before the account, is settled, or an action is brought, and if he has applied none of it to the towage against the barge in question, the barge-owner cannot complain.</p>

<p>Towage — Evidence.</p> <p>Libelant had a claim against respondents for balance on towage, the amount due being disputed, and respondents had claims against libelant l'or damages. Negotiations failed to effect an agreement, and libelant placed its claim in the hands of a collector, and thereafter exacted cash payments for towage done for respondents. At this point it was agreed, as alleged by respondents, that their demands should be canceled. Libelant denied this agreement, and the agent of respondents testified that the agreement was made with an agent of libelant, who testified as positively to the contrary. From the time of the alleged compromise towing was again done on credit, and libelant did not include its disputed claim in its bills, and gave, by its agent, a receipt in full at one time, the agent also stating that it included all demands. Held, that the weight of evidence was with respondents.</p>