Volume 4 — Federal Reporter

<p>1. Jurisdiction — Wills—Removal Act oe 1875. — By the law of Wisconsin, at the time this action was begun, jurisdiction to establish lost wills was vested in the circuit courts of the state and not in the probate courts. In an action brought in the state court by an alleged legatee under a lost will, against the sole heir at law, to establish the will, and removed to the federal court under the removal act of 1875, the parties being citizens of different states, held, that although the federal court might not have jurisdiction of such an action, if originally brought in that court, the case was removable under the act, and that, after it was transferred to the federal court, that court had jurisdiction of the same.</p> <p>See Gaines v. Fuentes et al. 2 Otto, 10.</p>

<p>1. Removal — Judgment—Appeal—Sonus Facias — Act op March 3, 1875. — Process was served upon, judgment was recovered against, and an appeal was taken by, two of several defendants In an action in a state court. A writ in the nature of a writ of seiro fa-cias was subsequently served upon two other of the defendants, while such appeal was pending, in oi-der to make them parties to the judgment. Held, upon the petition of the last two defendants, that the case was not then in a condition to be removed to the circuit court, under the last clause of section 2, of the act of March 3, 1875.</p>

<p>1. Removal — Jubisdiction—Time when Cause can Peooeed. — In the case of a removal the jurisdiction of the federal court is not complete, so as to hear and determine the cause, before the day prescribed by the statute, although a transcript has been filed.</p>

<p>1. Appeal — Circuit Court — Time.—An appeal from an order of the district court should be entered in the circuit court within ten days after the appeal is taken, although the circuit court is in session at the time the order is made, and continues so np to the end of the ten days.</p>

<p>1. Bill of Exchange — Acceptance—Agent.—An agent for the collection of a bill of exchange is liable, if he fails to notify his principal when such bill has been duly presented and acceptance according to its tenor refused.</p> <p>2. Same — Same—Same.—Certain bills of exchange addressed to “ Walter M. Conger, secretary Newark Tea-Tray Company, Newark, N. J,” were forwarded to the defendant bank for collection, without special instructions from its principal, or any information which might qualify or explain the import of the bills upon their face. The bills were duly presented to Walter M. Conger, and were accepted in writing across their face, as follows: “Accepted. Payable at the Newark National Banking Company. Walter M. Conger.” Held, in view of the facts, and in view of the decisions of the courts of the state in which the drawee of the bills resided, and where they were to be accepted and paid, and of concurrent decisions elsewhere, that the defendant did not commit any breach of duty in taking the acceptance in this form.</p>

<p>1. Negotiable Notes — Reciting Consideration — Payaste to an Administrator. — Neither the fact that a note is payable to an administrator, nor that it recites that it was for value received, “ being for a part of the third payment on the Goree plantation, as per agreement of the fourteenth February, 1874,” destroys its negotiability, or subjects it to the conditions of that agreement.</p> <p>2. Negotiable Notes — Omission of the Words “ or order.”— It is well-settled that a note omitting the words “ or order,” is not negotiable unless it contains other words of like import; but this has been changed in Tennesse by statute, and neither those nor any equivalent words are necessary.</p> <p>3. Commercial Law — State Statutes — When Binding. — While no decision or statute of a state restricting or impairing the rights and remedies secured to the citizens of the several states under the general commercial law, or divesting the federal courts of their cognizance of those rights and remedies, is binding on those courts, statutes which enlarge the commercial law will be enforced. They are not confined to the commercial law as it exists outside such statutes.</p> <p>4. Negotiable Notes — Bona Fide Holder fob Value. — Nothing less than actual knowledge of the facts relied on to establish the defence of a failure of consideration, or had faith, can defeat the right of a Iona, fide holder for value to recover on a negotiable note. Mere knowledge of suspicious circumstances, which, if followed up by inquiry, would develop the facts, is not sufficient in the federal courts, although the rule is otherwise in Tennessee. The facts in this case would not, it seems, defeat the recovery in the Tennessee state courts; certainly not in this court.</p>

<p>1. Equity — Eraud—When Plaintiff Repelled — Olean Hands. — Tlie maxim that “ he who comes into equity must do so with clean hands,” will not repel the plaintiff, unless the fraud complained of in him is a part of the very transaction as to which he seeks relief.</p> <p>2. Same — Case in Judgment. — On a bill to set aside a settlement and eliminate usury from an account which has been paid by a transfer of land, ttye confession by the plaintiff that he coerced his wife to sign the deeds will not repel him from a court of equity.</p>

<p>1. PiiVOTiCE — Set-Off — Effect of Dismissal by this Plaintiff.— Where the defendant has hied a plea of set-oil, if the plaintiff voluntarily dismisses his suit, as he may under the Tennessee statute, the defendant may elect to proceed on his plea of set-off in the capacity of plaintiff, and the cause will be tried as if he had brought an independent suit on his counter claim.</p>

<p>1. Pleading — Tennessee Code. — Any declaration which stales a cause of action, however informally, or any plea which states a defence either hy way of general denial equivalent to the general issue or special pica showing the facts constituting the defence, will he good under the Tennessee Code, whether good at common law or not.</p> <p>2. Carrier — Reasonable Regulation — How Determined. — “Where a woman was excluded from the “ladies’ car” because she was of notoriously bad character, the defendant pleaded a reasonable regulation authorizing the exclusion, and that the plaintiff came within it. Held, that it is a mixed question of law and fact whether the regulation is reasonable or not, to be submitted to the jury, on proper instructions by the court, and that it will not be determined on demurrer.</p> <p>Note. See Thomp. Carr. Pass. 306.</p>

This was a bill in equity filed by two stockholders of the Junction Railroad Company against the Junction Railroad Company and the Pennsylvania Railroad Company.

<p>1. Building Association — Title to Bank Deposit. — 0., tlie treasurer of a building and loan association, a corporation, who had received over $6,000 of the moneys of the association, opened an account in bank in his name as treasurer of the association, and in that name and title deposited $6,000, taking therefor a certificate of deposit, payable •him as such treasurer. Meld, that the money so deposited became eo instanti the property of the corporation, and no subsequent act of ratification on its part was necessary to complete its title to the fund.</p> <p>2. Same — Bankruptcy—Preference.—At the time of the deposito, was in good financial credit, but, in fact, was insolvent, and upon a creditor’s petition, filed within 60 days thereafter, was adjudged a bankrupt. The deposit was the voluntary and unsolicited act of O., and at that time no member of the association or officer (other than C. himself) knew ofor had any reason to suspect C.’s insolvency or intention to give a preference t.o the corporation. The corporation had 'not authorized C. to use its funds or commingle them with his own, and had no knowledge of any such breach of duty on his part. Held, that the corporation was not chargeable with C.’s knowledge of his insolvency and intention to givea fraudulent preference.</p> <p><3. Same — Same—Same.—The corporation, not otherwise having any cause to believe C. to be insolvent, or knowledge that the deposit was made in fraud of the bankrupt act, held, that the assignee in bankruptcy could not impeach the deposit as an unlawful preference.</p>

<p>i "Witj, — Constkuci'iox—Life Estate — Poweb to Sede in Fee.— A will contained the following clause : “ I give and devise to my honored mother, Melissa E. Downey, all my property and estate, both real and personal, to hold and enjoy the same during her life, with full power to sell the same, or any part thereof, and to appropriate the proceeds to her own use and benefit; and all deeds and conveyances of real estate by her made shall pass a title in fee to the purchasers, it being my will that she shall enjoy the same as though it were devised to her in fee. Should my mother die first, then, and in that case, I devise all the remainder of my estate to Charles Lindley Downey. After the death of my mother, I devise all of the said estate to my half-brother, Charles Lindley Downey.” Held, that Mrs. Dow-ney had an estate for life in the property devised, with the power under the terms of the will to dispose of it for the purposes named.</p> <p>% Same — Same—Poweb to Mobtoage. — Held, further, that such power did not, in the first instance, include a power to mortgage.</p>

<p>1. Firm Insurance — Action ont Policy — Evidence.—In im action upon an insurance policy the plaintiff is bound, in tlie absence of any admission by the defendant, to establish, by a preponderance of the evidence, (1) the execution of the policy, (2) the total or partial destruction of the insured property, (3) the amount of the loss or value of the insured property destroyed, (4) and such notice and preliminary proof of loss as the policy requires. ^</p> <p>2. Same — “Actual Cash Value.” — Ln such case the term “actual cash value” means the sum of money the insured goods would have brought for cash, at the market price, at the time when, and place where, they were destroyed.</p> <p>3. Same — Fraudulent Claim, — In order to establish the fact of a fraudulent claim, it must appear (1) that there was a false statement in the preliminary proof as to the value of the goods destroyed, and (2) that such false statement was made with knowledge that it was false, and with the intent to defraud 1he defendant by deceiving him as to the -value of the goods.</p> <p>4. Saaii; — .Same.—The mere fact that the loss is less than that stated in the preliminary proof, would not he sufficient to establish fraud, though if the discrepancy between the true value and that stated by the insured is large, it would bo some evidence bearing upon the issue of fraud.</p> <p>5. Same— Akson — Evidence.—In a civil ease the fact of arson need not be established beyond all reasonable doubt, but it must nevertheless ho established by a clear preponderance of all the evidence adduced.</p> <p>6. Same — Vexatious Delay — Damaues—-Evidence.—In order to recover damages for vexatious delay in the payment of a policy, it must he shown that there was no reasonable ground for contesting either the validity or the amount of the claim.</p>

<p>In Equity. Demurrer.</p>

<p>In Bankruptcy. Sur claim of Thomas Pomeroy.</p>

<p>In Equity. Matter of the clerk’s costs.</p>

<p>1. Re-issue No. 5,132 — First Claim. — The first claim of re-issued letters patent No. 5,132, dated November 5, 1872, for a new system of water-works for supplying cities and towns with water, held valid.</p> <p>Solly v. Union City, 14 O. G. 5.</p> <p>2. PATENT No. 94,747, dated September 14, 1869, for a new safety valve for street water pipes, hdd valid.</p> <p>3. Claims — Construction—Specification.—The specification of a patent may be referred to for the purpose of ascertaining the meaning of the claims.</p> <p>Bates v. Coe, 15 O. G. 337.</p> <p>Brooks Y.-FisJee 15 How. 215.</p> <p>4. Machines — Substantial Identity. — Machines are substantially the same, in the sense of the law of patents, when they perform the same function in substantially the same way to accomplish the same result.</p> <p>5. Same — Same—Fokm.—In such case form should not he regarded except ■where it is oi the essence of the invention.</p> <p>C. Is v ention — Combination—Lksskk COMBINATION. — 1 í a patented invention consists of a combination of numerous parts, including in it other new and useful combinations of less of those parts, it would seem that the patentee was entitled to the exclusive use of those lesser combinations, as well as to the exclusive use of the whole.</p> <p>Sharp r. Tiffi, 12 O. G. 1282.</p> <p>Froutyr. llutjgles, 16 Pet. 336, distinguished.</p> <p>7. Patentable Devices — Ineiíingement.—Patentable devices cannot ho used for the purpose of infringing an existing patent.</p> <p>8. Infiungement- — Combination—Yendoiu—The sale of a machine to ho used for the purpose of infringing a patented combination renders the vendor liable.</p> <p>JJow/cer v. Dows, 15 O. G. 510.</p>

<p>Patent — Infringement.—Letters patent issued to Edward A. Locke on August 2,18(59, for an improved revenue stamp for barrels, sustained.</p>

<p>1. Collison— Schooner’s Lights — The side lights of a schooner were so placed that when one stood at the stem of the vessel he could see both the red and the green light at the same time, without moving his head. Held, that the schooner was in fault for carrying lights so arranged, when an approaching steamer was thereby misled as to the course she was pursuing, and a collision ensued.</p> <p>2. Same — Same — Duty ov Steamer. — In such. casos, however, the steamer is not absolved from fault, where the change of lights indicated action on the part of the schooner, not only uncalled for hut improbable, and where the starting of the engine of the steamer, after it had once been stopped, was the immediate cause of the disaster.</p>

<p>1. Collision — Statements op Ceew. — Courts of admiralty are generally inclined to accept the statements oí a crew, as to the movements of their own ship, rather than those coming from those on board another vessel.</p> <p>The Empire State, 1 Ben. 19.</p> <p>2. Same — Conflict of Testimony.— In cases of collision, where there is a great conflict of testimony, the court must be governed chiefly by undeniable and leading facts, if such exist in the case.</p> <p>3. Sake — Vessel in Sinking Condition. — That a vessel was in a sinking condition, and soon afterwards went down, being heavily loaded with stone, may well be inferred from the fact that there is no evidence of ■ her having been seen by any one since the night of the collision, although the place of the disaster was one where vessels were constantly passing.</p> <p>4. Same — Vessel in Desperate Condition. — Where a vessel injured by a collision is abandoned by her crew and afterwards lost, it is enough to prove that her condition at the time appeared to be desperate.</p> <p>5. Same — Conversations with Crew — Evidence.—Conversations with the crew of the lost vessel, subsequent to the collision, are entitled to little weight as testimony in determining disputed questions of fact appertaining to the navigation of the respective vessels.</p> <p>The Empire State, 1 Ben. 19.</p>

<p>1. Chancery Practice — Dismissal by the Plaintiff without Prejudice. — The plaintiff will not be allowed to voluntarily dismiss his bill “without prejudice to the bringing of another suit,” unless the circumstances are such that, the court would, upon final hearing, permit the bill to be so dismissed.</p> <p>2. Same — Same—Exceptions to thf, General Rule. — The right of a plaintiff to dismiss his bill upon payment of the costs, at any time before a hearing on the merits, is not an absolute and unqualified right. It will not be allowed when, by so doing, the plaintiff will prejudice the defendant; but this injury must be of a character different from the mere ordinary inconveniences of double litigation, which, in the view of the law, are compensated by costs, and must deprive the defendant of some substantive right not available in a second suit, or that may bo endangered by the dismissal.</p> <p>3. Same — Same—Case in Judgment. — This exception is not confined to rights acquired by some order or decree entered in the case. It may arise out of any proceeding in it, and may be based on the nature of the defence, the condition of the pleadings, the agreement of the parties, or any circumstance appearing in the record which shows that it would be inequitable to allow the dismissal. Thus, where the defendant pleaded an estoppel, which, if established, would amount to a defeasance of a lien claimed by the plaintiff on his property, and which it was the object of the bill to enforce, and it appearing that this defence could he endangered by a transfer of the lien after dismissal, the plaintiffs were not allowed to dismiss.</p> <p>4. Negotiable Bonds — Lis Pendens. — The exception in favor of negotiable paper to the ordinary rule of Us pendens, has no application to a suit commenced to enforce a collateral lien created by third persons upon property not belonging to the debtor, and now in the hands of strangers to the obligation of the bonds. The controversies about the lien are independent of and collateral to those controversies about the negotiable securities which are included in the exception.</p> <p>Note.—Consult, on tlie right of the plaintiff to dismiss, Ordinances of Lord Bacon, Nos. 13, 14, 16, 17; Barton’s Suit in Equity, (Appendix;) Madd. Ch. Pr. 297; 1 Newl. Ch. 177; 1 Smith’s Ch. Pr. (2d Ed.)312, (Ed. 1842;) Beame’s Eq. Costs, 85, 229, (20 Law Lib.;) 1 Danl. Oh. Pr. (5th Ed.) 790, and compare previous editions; 1 Hoff. Ch. Pr. 327, and notes; Handford v. Storie, 2 Sim. & Stu. 196; S. C. 1 Eng. Ch. 196; Brandlyn v. Ord, 1 Atk. 571; Ruberry v. Morris, 16 Sim. 313; S. C. 39 Eng. Ch. 313; White v. Westmeath, 2 Moll. 128; S. C. 1 Beat. 17; S. C. 12 Cond. Eng. Ch. 478; Gen. Ord. No. 117, 29 Eng. Ch. (Prefix 66;) 2 De G. Macn & Gord. 852, note; Re Orrell Co. L. R. 12 Ch. Div. 681; Bierdemann v. Seymour, 1 Beav. 594; S. C. 17 Eng. Ch. 594, note; 29 Eng. Ch. 350; Craft v. Johnson, ■ Tenn. Sup. Ct. Knoxville, 1875; Ellis v. Smith, Id.; 1 King’s Dig. (2d Ed.) 945, 2; Foote v. Gibbs, 1 Gray, 412; Bigelow v. Winsor Id. 299, 301; Borrowscale v. Tuttle, 5 Allen 377; Snell v. Dwight, 121 Mass-348; Perrine v. Swaim, 2 J. C. 475; Burras v. Looker, 4 Paige, 227; Cummins v. Bennet, 8 Paige, 79; Simpson v. Brewster, 9 Paige, 245; Sea Ins. Co. v. Day, Id. 247; Saxton v. Stowell, 11 Paige, 526; Railroad Co. v. Ward, 18 Barb. 595; Wilder v. Boynton, 63 Barb. 547, 550; Ogsbury v. La Farge, 2 N. Y. 113; Smith v. Adams, 24 Wend. 585; Conner v. Drake, 1 Ohio St. 166; French v. French, 8 Ohio, 214; Louderbach v. Collins, 4 Ohio St. 251; Smith v. Smith, 2 Blackf. (2d Ed.)232; Spriggs v. Wilson, 2 Dev. Eq. 385; Sayles v. Tibbetts, 5 R. I. 79, 91; Porter v. Vaughn, 26 Vt. 624, 626; Grubbs v. Clayton, 2 Hayw. 575; Palmor v. Rankins, 30 Ark. 771; Cook v, Walker, 24 Ga. 331; Camden, etc., v. Stewart, 4 Green, Ch. 69; U. S. v. Keen, 1 McLean, 429, at p. 447; Welch v. Mandeville, 1 Wheat. 233; Goodyear v. Bishop, 4 Blatchf. 438.</p>

<p>1. Taxation — Uninhabited TotssiiiN -Several Owners — Valuation —APPORTIONMENT—CONSTITUTION op Maine. — Quwre. Whether an uninhabited township of land, situated in the state of Maine, and owned in severalty by different proprietors, was rightfully included in a tax act which made no provision for a valuation of the land of the different owners, and no apportionment of the tax, as required by the constitution of the state.</p> <p>Claris v. Strickland, 2 Curt. 493.</p> <p>2. Same — Description op Winn Lands — 'Usage.—A. tax act of the state of Maine located certain wild lands in a spociiied county, and further described them as “No. 8, B. 3. do. .do. do.,” the words “do.” being placed directly under the entry “ W. of I?. line of .state.” Held, that such description had acquired a well-known signification from a usage of more than 5Ü years, and was therefore sufficient.</p> <p>3. Same — Public and Private Property — Forfeiture.— Queers. Whether the lands of individual owners are forfeited for the nonpayment of a tax, where such lands have been included with those of the state in a valuation and assessment for the purposes of taxation, but liave been alone sold for the payment of the entire tax.</p> <p>4. Same — Equitable Interest — Legislative Resolve. — lindera resolve of tlio legislature of the state of Maine certain officers and soldiers of the revolutionary war wore each entitled to receive a certain amount of land, to be assigned by draft, and were given certificates for the same. Held, that the legislative resolve vested in the holders of such certificates an interest in their respective lots, which, at the pleasure of the legislature, could he subjected to taxation.</p> <p>5. Same — Unconditional Deed prom State. — Held, further, that subsequent unconditional deeds from the stale to the holders of such certificates, did not release said lots from taxes thus imposed.</p> <p>6. Same — Forfeiture—Subsequent Extension op Time op Payment.— Where lands have been forfeited to the state for the non-payment of a tax, and a subsequent act of the legislature has extended the time for the payment of such tax, the title to such lands under a tax sale must be established under the latter act.</p> <p>Clarke v. Strieklaiod, 2 Curt. 403.</p> <p>7. Same — Sale—Notice.—A. tax sale is void unless the notice of sale is duly published in accordance with the requirements of the statute.</p> <p>8. Same — Same.—A tax sale is void unless all the taxes under which the sale is made are valid.</p> <p>Mwdl v. Shaw, 1 Gif. 339.</p> <p>9. Same — Same—Conveyance.—A conveyance of “ all the right, title, and interest of the state” in certain lands, by virtue of a forfeiture for the non-payment of taxes, is not authorized by a statute directing a sale and conveyance of such lands.</p> <p>10. Same — Same—Irregularities—Curative Act. — Such irregularities cannot be cured by a subsequent act of the legislature, where the former owners still retain their title to the lands.</p> <p>Blornm, v. Gity of Boston, S. C. Mass. Oct. 1880.</p> <p>11. Same — Same—Federal Courts — State Courts. — It is the duty of the federal courts to follow the decisions of the state courts on state laws regulating proceedings in cases of tax sales.</p> <p>Raymond v. Longwm'th, 14 How. 76, 78.</p> <p>12. Same — Same—Construction.—Proceedings creating a forfeiture and sale of lands for the non-payment of taxes are to be strictly construed.</p> <p>Tobnan v. HoNis, .68 Me. 316.</p>

Motions for new trial, and for judgment, non obstante vere-dicto. This was an action of assumpsit brought by the receiver of the First National Bank of Allentown against the Philadelphia Warehouse Company to recover an assessment of $20, a share upon 450 shares of the'stock of said bank, of which, it. was- alleged, defendant was the holder.

. This was an action of assumpsit. The declaration set forth an agreement by defendant to pay plaintiffs $10,000 for obtaining the consent of the bond holders of the Shreveport & Texas Railway Company to a scheme of reorganization, and averred performance by plaintiff, and that subsequently defendants were satisfied with such performance, had paid plaintiff $4,000 on account, and had acknowledged a balance of $6,000 fo be due. Plea, non-assumpsit.

<p>1. Trust — Children—Creditors.—The owner of property has the right to provide that his estate may be held in such a way that his children may receive the rents and profits of it during their lives, so as not to go to the benefit of creditors, if they should be improvident or unfortunate.</p> <p>Nialwls y. Eaton, 91 U. S. 716.</p> <p>2. Same — Same—Same.—In such case it is not necessary that a will should declare in terms that the property is to be held free from creditors, where such intent is sufficiently manifest from the language used.</p>

<p>In Equity. Suit to set aside and cancel a mortgage. Motion to remove cause.</p>

<p>1. Insurance — Policy—Oral Promise — Custom--Evidence,</p>

<p>1. Contbact — Warranty or Quality.</p>

<p>1 Infringement — PRELIMINARY Injunction. — Amotion for a preliminary injunction will be granted to restrain tbe manufacture and sale of lemon squeezers witb a conical or flat bed, upon tbe ground that they infringe a patent for similar lemon squeezers witb a convex bed, where sucb patent was issued originally to tbe defendant and sold by bis wife, together witb tbe tools and stock, to tbe plaintiff.</p> <p>2. Same — Novelty—Vendor and Vendee — In sucb case, on sucb motion, tbe defendant will not be beard to dispute tbe novelty or utility of tbe invention described in tbe patent.</p>

<p>1. Patext — Evidence— Kile WitAHPEKS. — Kile wrappers are not competent as evidence, in a suit on a patent, to sliow the reduction to practice and use of inventions claimed to be prior, so as to invalidate such patent.</p>

In Admiralty. > In this case a libel in rem had been filed by the master of the schooner Theresa Wolf against the steam-ship Roman, for damages caused by a collision off Great Egg harbor, alleged to have been occasioned by the negligence of those in charge of the steam-ship. The owners of the latter filed an answer denying negligence on the part of the steamer, and alleging that the cause of the accident was the neglect of those in charge of the schooner to exhibit a torch.

<p>1. SEAWORTHINESS — IMPLIED WARRANTY — BREACH—VESSEL UNPROVIDED with Ground-Tackle Reasonably Fit por the Exigencies op a Voyage — Civil Code op California, §§ 2681, 2683.</p>

<p>1. Pleading — Set-Oee.—An indebtedness for a bouse cannot be pleaded in admiralty as a set-off to a claim for unpaid wages as pilot and carpenter of a vessel, in tlie absence of an allegation that it was agreed that the work performed as pilot and carpenter should be taken in payment for such house.</p>

<p>1. Negligence — Fellow Servants. — The owners of a vessel are not responsible for injuries sustained by a stevedore, through the negligence of a fellow servant, while unloading the cargo.</p> <p>Halverson v. iStisen, 3 Sawy. 562.</p> <p>Malone v. Western, Transportation Co. 5 Biss. 815.</p>

<p>1. Dedication of Land for Public Purposes — Definition.—“A dedication of land for public purposes is simply a devotion of it, or of an easement in it, to such purposes by the owner, manifested by some clear declaration of the fact.”</p> <p>2. Same — When Irrevocable. — Such dedication is irrevocable when third parties have been induced to act upon it, and part with value in consideration of it, although it has not been formally accepted by the public authorities.</p> <p>3. Same — Same.—In such case the irrevocable character of the dedication is not affected by the fact that the property is not at once subjected to the uses designed.</p> <p>Bowu/n's Executors v. The Town of Portland, 8 B. Mon. 232.</p> <p>4. Same — Adverse Occupation. — Ho one can acquire by adverse occupation, as against the public, the right to a street or square dedicated to public uses.</p> <p>JIoadley v. The City of Ban Francisco, 50 Cal. 265.</p> <p>People v. Pope, 53 Cal. 437.</p>

<p>1. Bridge — Navigable River — Nuisance—In-junction.—A preliminary injunction to restrain tlie erection of a bridge across a navigable river will not be allowed, where it is shown that such bridge will not be an obstruction necessarily amounting to a nuisance.</p>

<p>1. Judgment — Parties Concluded — Notice.—A judgment is conclusive upon all parties directly interested, both, as to the validity and amount of a claim, where such parties have received notice of the pendency of the suit.</p> <p>Uobhins v. The City of Chicago, 4 Wall. 657.</p>

<p>1. Lease. — Neither the reservation of rent nor any particular form of words is essential to the creation of a lease.</p> <p>2. Contract — Mastejr, and Tenant. — Contract construed, and held, under the circumstances of the case, not to create the relation of master and servant between the parties.</p>

<p>1. Railroad — Receiver— Liquidated Damages — Order oe Court— CONSTRUCTION.</p>

<p> Habeas Corpus. </p>

<p>1. INDICTMENT — WARRANT OF REMOVAL — DISTRICT JUDGE — REV. St. § 1014. — Where a district judge is applied to for a warrant of removal, and it appears from tlio indictment on which, the warrant is asked that the act alleged does not constitute an offence against the United States, or that no trial can be had in the district to which the removal is sought, it is his duty to refuse the warrant.</p> <p>In re Buell, 8 Dillon, 116.</p> <p>In re Claris, 2 Ben. 540.</p> <p>2. Manslaughter — Pilot—Negligence—Rey. St. § 5344. — Section 5344 of the Revised Statutes provides that “ every captain, engineer, pilot, or other person employed on any steam-boat or vessel, by whose misconduct, negligence, or inattention to his duties the life of any person is destroyed, * * * * shall be deemed guilty of manslaughter.” Held, that, under this section, destruction of life is the essence of the offence.</p>

<p>-1. Felony — Counteeeeiting—Pebemptoby Challenges — Key. St. $ 819. — Section 819 of the Eevised Statutes provides that, “when the ■offence charged is treason or a capital offence, the defendant shall ■ 'he entitled to twenty and the United States to five peremptory challenges. On the trial of any other felony the defendant shall he entitled to ten and the United States to three peremptory challenges ■, . -and in all other cases, civil and criminal, each party shall be entitled •■to three peremptory challenges.” Held, that the offence of uttering ;and passing counterfeit coin was not a felony within the terms of this, ■section.</p>

<p>Sur exceptions to the report of the commissioner distributing proceeds of real estate.</p>

<p>1. Bankruptcy — Judgment—Lien—Administrator’s Bond — Illinois Statutes. — Under the statutes of Illinois an assignment in bankruptcy-does not defeat the lien of a judgment recovered against the bankrupt upon an administrator’s bond, where the suit upon the bond was instituted prior to the filing of the petition in bankruptcy, although the judgment was not obtained until after such petition had been filed.</p> <p>In re Joslyn, 2 Biss., explained.</p>

<p>1. Re-issued Letters Patent No. 6,925, dated June 23, 1874, for improvement in apparatus for rendering lard and tallow and other animal matter, and for crisping and drying the refuse thereof, held,, under the circumstances of this case, not infringed by the defendant corporation.</p> <p>2. Same — Invention.—The gist of the invention is the apparatus, or combination of parts, and not any particular instrumentality by which it is put into operation.</p> <p>Beymov/r v. Marsh 2 O. G. 675.</p> <p>Wheeler v. The Clipper Mower Co. Id. 442.</p> <p>8. Same — Same—Re-issue—Claim.—A re-issue is not therefore void which first claims the instrumentality by which the combination or apparatus may be used.</p> <p>4. Same — Same—Construction.—An invention need not in fact be constructed, in order to preserve a patent, when the patentee is a citizen of the United States, and the invention is capable of construction and operation from the model and specifications filed in the patent-office.</p> <p>Wheeler v. The Clipper Mower Co., supra.</p>

<p>1. Patent No. 40,156 — Skoond Claim — Inerinoement. — Tho second claim of patent No. 40,156, issued October 6, 1863, to James Bing, for an improvement in ear-brake shoos for railway cars, held, infringed under the circumstances of this case.</p> <p>2. Invention — Construction.—In construing an invention, effect must be given to the whole of the description contained in the specification and claims.</p> <p>3. Same — Same. —A patent contained two claims — First, for a certain “lateral rocking motion” of the one part of a combination upon that of the other; second, for such combination with certain additional elements, “ the whole being' constructed and arranged substantially as specified.” Held, that such second claim could be infringed by a machine not containing such “ lateral rocking motion,” where such motion was not, in terms, referred to by the said claim.</p>

<p>1. Patent No. 40,156, issued October 6,1863, to James Bing, for an improvement in car-brake shoes for railway cars, held, not infringed under the circumstances of this case.</p> <p>2. Same — Inerinsement—Evidence.—Where a device was not intended as an evasion of a patent, but was intended for an entirely different purpose, and the infringement, if any, was purely accidental, the evidence of such infringement must be so clear as to admit of no other reasonable construction.</p>

<p>1. Patent 3STo. 155,534, dated September 29, 1874, claiming, as a new article of manufacture, a skirt protector for ladies’ dresses, having a luted or plaited border, bound with or composed of enamelled cloth, ' or other water-proof material, sustained.</p> <p>2. Same — Infrincement—Evidence.—The proof of infringement in this case held sufficient, in the absence of contradiction.</p>

<p>1. Libel — Parent—Abuuction oe Son. — A parent may maintain a libel in admiralty lor the wrongful abduction and carrying to sea of a son.</p> <p>2. Tout — Master—Ship-Owner.—A ship-owner is liable for such tort of tlie master, where the master is in command of the vessel as the agent of the owner.</p> <p>3. Abduction — Damages.—IleM, under the circumstances of this case, that the owner of the ship was not liable, but that the master was answerable in the sum of §150 to the mother of the minor for the abduction of her son.</p>

<p>I. Collision — Schooner and Steamer — Evidence Conflicting™ Schooner Held in Fault.</p>

<p>1. Collision — Steamer Leaving- Slip — Nineteenth Admiralty Rule. — The steam-boat City Point, having the steamer Narragansett in full view on her starboard hand, and being 900 feet from the slip within which the steamer was slowly moving out, and their courses crossing so as to involve danger of collision, was signalled by the steamer, after having previously sounded her starting whistle. Held, under these circumstances, that the nineteenth rule was clearly applicable, and that the City Point was bound to keep out of the way of the' N arragansett.</p> <p>The Propeller John Twylor, 6 Ben. 227.</p> <p>A. Same — East Rtver — Negligence—Rate of Speed. — It is imprudent and reckless navigation for a steamer to run at the rate of not less than nine miles an hour at the distance of about 276 feet from the piers of the East river situated on the New York shore.</p> <p>3. Rate op Speed — Statute.—A statute imposing a penalty for running along the piers of the East river at a speed exceeding 10 miles an hour, does not necessarily render a less Tate of speed prudent.</p>

<p>Motion to Eemand.</p>

<p>1. Polkty of Insurance — Lira; Tenant — Ueverpionebs—Mortgagor and Mortgagee. — A policy of insurance running in terms to a life tenant, and procured as additional security under the covenants of a mortgage jointly executed by such life tenant and the owners of the reversion, held, under the circumstances of this case, to enure to the joint benefit of all the mortgagors.</p> <p>2. Lira: Tenant — Waiver of Tnstjranok Money — Mortgagor and Mortgagee. — Held, farther, that the authority of such life tenant to waive the application of the proceeds of such insurance policy upon the mortgage debt could not be inferred from a general power to insure the mortgaged properly.</p> <p>3. Same — Same—Consent—Silence.—Held, further, that consent to such waiver could not he inferred from the silence of the owners of the reversion, when they had no knowledge of the transaction.</p> <p>4. Same — Mortgagee—Application of Insurance Money. — field, f wrther, that if, in any view of the case, tiie mortgagee could, without the knowledge of the owners of the fee, agree with the life tenant to place the proceeds of the insurance policy back upon the mortgaged premises, he was hound to see that such agreement was carried out, and that the money was so used.</p> <p>Cordon v. Ware Savings Ban/,;, 115 Mass. 588, considered.</p> <p>5. Equity Practice — Application of Insurance Money. — Held, further, that the rules of equity practice were sufficiently flexible 1o admit the proper application of the insurance money to the mortgage debt in this caso.</p> <p>G. Policy of Insurance — Loss Payable to Mortgagee — Assignment— Collateral Security. — A provision in a policy of insurance, that the loss should he payable to the mortgagee, operates to give the mort- ■ gagoc precisely the same rights and interest in a policy which he would have had if, without such words, the policy had been assigned as collateral security to the mortgage debt.</p> <p>Jones on Mortgages, § 407</p>

<p>1. Municipal Bonds— Questions as to Validity. — All questions oí doubt in relation to the validity of municipal bonds should he answered in favor of their legality, where the city has repeatedly recognized the validity of such bonds, and has paid interest on them for a series of . years.</p>

<p>1. Statute CoNSTRtmsra Statute — 'When Valid. — A statute construing and explaining a prior statute is valid, ih so far, at least, as future transactions are concerned.</p> <p>2. Statute — Railroad—Stock.—-A statute authorizing counties to take stock in railroads is applicable to a railroad duly organized under a subsequent statute.</p>

<p>. 1. Railroad — Telegraph Franchise — Contract.—A railroad, authorized and required by the act of its organization to construct a telegraph line, entered into a contract with a telegraph company for the construction of such line. Held, such contract could not he avoided by the railroad company, either as a usurpation of its function or for want of capacity to make it.</p> <p>2. Same — Same—Same—Illegal Clause. — A clause of such contract contained an agreement, upon the part of the railroad company, not to transport men or materials for any other telegraph company at less than the regular rates for passengers and freight, and not to give permission to any such company to erect another line on its lands or roadway. Seld that, if such clause was void, as in conflict with tho act of 1866, aiding the construction of telegraph lines, it could be , eliminated from the contract.</p> <p>S. Same — Same—Same—Officers—Hesoission.—Sucli contract also provided for tiro transmission without charge, by the telegraph company, of the family, private, and social messages of the executive officers of the railroad. Held that, as such free use of the telegraph was not limited to the officers who made the contract, it could be rescinded after the expiration of 13 years.</p> <p>4. Same — Same — Same — Hesotssiow —AppROPiuatioN.—Held, further, however, that such rescission would not authorize either party to appropriate to its own use the joint property of both, acquired under the contract, without paying for the same.</p> <p>Note. See Western Union Telegraph Co. v. Union Pacific Railway Co. 3 Fed. Rep. 721.</p>

<p>1. Succession Tax— Construction oe a Deed — Adequate Consideration. — A deed from a motlier to her sons conveying land “ for and in consideration of love and affection, and the further consideration of the assistance they have rendered me since the death of my husband,” is not a deed of gift made without valuable and adequate consideration, so that the grantees take a succession subject to a tax, within, the meaning of the act of June 30, 1864. Section 132,13 St. 288.</p>

Attachment. The plaintiff sued out an attachment against the property Of the defendant.

<p>1. Injunction — Attempt to Take Pebmanent Possession op Land fob Public Use — Ibbepabable Injubt. — An attempt to take permanent possession of land for public use, witliout the assent of the owner, express or implied, and without payment or tender of damages in advance, would; if consummated, be in the nature of an irreparable ■ injury, to prevent which an injunction would ordinarily be granted.</p> <p>Held, in this case, that the equities of the bill were not fully denied by the answer, and a motion to dissolve the injunction could not therefore prevail.</p>

<p>1. ExtRAditkot — -Evidencie—Act ov June 19, 3876, (19 TJ. S. St. at Largos, 597) — Knv. St. í 5271. — The act of June 19, 1876, (19 U. S. Si. at Large, 597,) amending section 5271 of the Revised Statutes, relating to eases of extradition, provides: “ in every case of complaint and of a hearing, upon the return oí a warrant of arrest, any depositions, warrants, or other papers offered in evidence shail he admitted and received for the purpose of such hearing, if they shall he properly and legally authenticated, so as to entitle them to he received as evidence of the criminality of the person so apprehended by the tribunals of the foreign country from which the accused party shall have escaped; and copies of any such depositions, warrants, or other papers shall, if authenticated according to the law of such foreign country, ho in like manner received as evidence; and the certificate of the principal diplomatic or consular officers of the United States resident in such foreign country shall he proof that any such deposition, warrant, or other paper, or copy thereof, is authenticated in the manner required by this section.” Held, that this section as thus amended provides for two classes of documentary evidence — First, original depositions, original warrants, and original “other papers;” second, copies of “any such depositions, warrants, or other papers.”</p> <p>2. Same — Original Documents--Autuentication. — Held, further, that the first class, the originals, must he documents which would he entitled to he received in the tribunals of the foreign country as evidence of the criminality of the person, in respect to the offence charged against him as committed there, if the inquiry as to his criminality in respect of such offence were being had in such foreign tribunals; and such originals must he authenticated in such a proper and legal manner as would entitle them to he received as such evidence in. such foreign tribunals.</p> <p>3. Same — Copies—A.vrnmriaKTioTS—Held, further, that the second class, the copies, must be copies of original documents, which originals would be entitled to be received in the tribunals of the foreign country as evidence of the criminality of the person, in respect to the offence charged against him as committed there, if the inquiry as to his criminality in respect of said offence were being had in such foreign tribunals, and such copies must be “ authenticated according to the law of such foreign country;” that is, authenticated as true copies of such originals, the authentication being made according to the law of the foreign country. - -</p> <p>4. Same — Authentication—Proop.—Held, further, that there was nothing'in the statute which made the certificate of the United States diplomatic or consular officers the only competent proof that either the originals or the copies were authenticated in the manner required by the statute.</p> <p>5. Same — Same—Same.—Held, further, that the original papers might be authenticated by oral proof.</p> <p>6. Same — Same—Same.—Held, further, that there was nothing in the statute which necessarily excluded the authentication of the copies by oral proof, or excluded oral proof as to what the law of the foreign country was as to such authentication, or oral proof that such oral authentication was according to the law of the forbign country.</p> <p>7. Habeas Corpus — Question op Fact — Decisión op Commissioner.— The decision of a United States commissioner as to the fact of the criminality of the accused, in a case of extradition, cannot be reviewed by the circuit court on a writ of habeas corpus.</p>

<p>1. Equity Practice — Final Hearing — Interlocutory Orders — Be-yision. — At the final hearing of a cause all the previous interlocutory orders in relation to the merits are open for revision and under the control of the court.</p> <p>Tourniquet v. Perleins, 16 How. 82.</p> <p>2. Assignee in Bankruptcy — Suit to Set Aside Assignment — Execution Creditors. — If an assignee in bankruptcy intends to bring suit against intervening execution creditors who have received part of the proceeds of an assigned estate, he must make them parties defendant to the suit brought against the assignee to set aside the assignment. •</p> <p>3. Same — Execution Creditors — Action at Law. — In such case the assignee in bankruptcy is not compelled to bring a separate action at law to recover such proceeds of the assigned estate.</p> <p>4. Same — Validity of Assignment. — In such suit the question of the validity of the assignment can be raised and determined.</p> <p>5. Same — Execution Creditors — Demand.—Demand and refusal need not he averred or proved, in order to recover in such suit.</p> <p>6. Assignment — Validity — Piling Schedules and Bond — Laws of Hew York. — The filing of schedules and bond are not essential to the validity of such assignment under the laws of Hew York.</p> <p>7. Suit to-Set Aside Assignment — Execution Creditors — Interest. In such suit interest should not be allowed against the execution creditors from the time of the levy, hut only from the time suit was commenced against them.</p>

<p>1. PLEADING — GENERAL ISSUE — DENIAL.</p>

<p>1. Patent No. 100,229, issued to Herbert L. Willis, for an improved sand-paper holder for finishing or “buffing” the soles of boots and shoos, sustained.</p>

<p>1. Re-Issue — RTew Matter-A device was patented as for a lubricator actlng by steam pressure. Subsequent investigation led to the conclusion. that, although steam rendered slight assistance, hydrostatic pressure was the active agent. Thereupon a new arrangement of parts was made in which the latter principle only was used, and the second device was patended. Held, that the patentee could not subsequently obtain a re-issue of the first patent which would cover the method of feeding a lubricant by means of hydrostatic pressure alone, operating through devices substantially as shown.</p> <p>2. Same — Same—Definition.—By new matter is meant “new, substantive matter, such as would have the effect of changing the invention, or of introducing what might be the subject of another application for a patent.”</p>

<p>1. Re-Issued Léttees PATENT granted to Join Deuelifield, January 16, 1872, for 14 years from April 20,1858, “for an improvement in cooling and drying meal,” held, not void for want of novelty.</p> <p>2. Same — Identity of Patentee. — A re-issue to Jolm Deuchfield is not void because the original patent was issued to John Deuchfield, where the change in the letter was a mere clerical and accidental mistake of the patent-office, and no question had been raised at the taking of the proofs as to the identity of the patentee, and where there was in fact sufficient evidence given to show that the original and re-issue were issued to the same person.</p>

Libel by tbe master of tbe bark Eebecca against tbe steam-tug America, for damages caused by collision with another bark while both vessels were being towed to sea by tbe tug. Tbe facts in regard to tbe collision are fully set forth in tbe opinion of tbe court. Tbe district court decided in favor of libellant, (see report of case, 36 Legal Intel. 279,) and referred tbe case to a commissioner (Wayne MacYeagh, Esg.,) to ascertain the amount of the damage.

<p>1. Part Owners — Removal of Master. — The majority in interest of the owners of a vessel have the power to remove the master, whether he be a part owner or not, and to resume possession of such vessel at their own pleasure.</p> <p>2. Same — Same—Written Agreement. — In the case of a part owner only a written agreement, entitling such part owner to possession, can defeat the exercise of such right.</p> <p>3. Same — “Sailing Right” — Estoppel.—Specific Performance._A contract for the sale of a “ sailing right ” by the part owner of a vessel is not susceptible of specific enforcement, either by way of estoppel or by a direct proceeding for that purpose.</p> <p>4. Same — Same—Breach—Remedt.—The only remedy for a breach of such contract, if any, is an action for damages.</p>

FACTS found BY THE COURT. (1.) The British steamer Whickham, owned by T. H. Davidson and others, the defendants in the original libel, sailed from Shields on the ninth of. July, 1879, bound for Lisbon, where she arrived on the 16th, and, having discharged her cargo, sailed again in ballast on the 23d for Benizaf, on the coast of Morocco, to take a load of iron ore under a charter for Philadelphia.

Motion to Bemand. This was an action of replevin originally commenced in the state court by John L. Smith, a citizen of the state of New York, against John McKay, Eugene Eobinson, Jesse H. Farrell, Henry Eose, (impleaded as John Doe,) and J. P. Johnson, all citizens of the state of Michigan.

The plaintiff having sued the defendent company on a policy of life insurance, and procured a verdict and judgment for $2,881, the defendant moved for a new trial.

<p>1. Assessment-t-Due PROCESS ov Law. — Whenever, 'by the laws of a state, or by state authority, a tax, assessment, servitude, or other burden. is imposed upon property for public uses, whether it be for the whole state or of some more limited portion of the community, and those laws provide for a mode of confirming or contesting the charge thus imposed in the ordinary courts of justice, with such notice to the person, or such proceeding in regard to the property, as is appropriate to the nature of the case, the judgment in such proceeding cannot be said to deprive the owner of his property without due process of law, however obnoxious it may be to other objections. ’</p> <p>Davidson v. New Orleans, 96 U. S. 97,105.</p> <p>2. Same — Swamp Lands — Statute oe California. — A statute of California, relating to the reclamation of swamp lands, provided that commissioners should “jointly view and assess, upon each and every acre to be reclaimed or benefited thereby, a tax proportionate to the whole expense, and to the benefit which would result from such works.” Held, that this provision certainly seemed to require an apportionment of assessments according to benefits.</p> <p>3. Same — Same—Same— Construction.— Held, further, that the question was one of constitutional law, arising wholly under the state constitution, and therefore concluded by the decisions of the supreme court of the state.</p> <p>4. Same — Same — Same — Contract. — Held, further, that the statute authorizing the assessment in question did not violate 1he obligation of any contract between the United States and California, or the United States and her patentees or grantees, or between the state of California and purchasers from her, or grantees of the United States, or any contract found in the charter of the plaintiff.</p> <p>5. Same — Same—Same—Same—Cold Coin. — Held, further, that the authorizing the assessments to be collected in gold coin did not impair the obligation of any contract.</p> <p>fjaneOo.v Oregon, 7 Wall. 73.</p> <p>6. Same — SxsiE'—Same—“Incidental Expenses.” — Held, further, that attorney and counsel foes, in prosecuting suits for the recovery of such assessments, are “ incidental expenses,” within the meaning of the statute, to be paid out of the funds raised, although such statute makes it the duty of the district attorneys to prosecute such actions.</p> <p>7. Districts pop. the Declamation of Swamp Lands — State op California— Power of Le«ikc yture — Source of Title to Lands.— The power of the legislature of the state of California to authorize the formation of districts for 1,he reclamation of swamp lands within the state at the expense of the lands so reclaimed, is not dependent upon the source or channel through which the title to such lands came.</p>

<p>1. Statute of Limitations — Coupon Attached to Bond. — A Rond, dated January 1, 1857, provided ior the payment of interest semi-annually until the principal was paid. Coupons for such semi-annual interest were attached 1o the bond. Held, in an action upon sucli bond, in the state of Wisconsin, that the statute of limitations had no application to the coupons falling due more than six years previous to the commencement of such action.</p> <p>Amy v. Dubuque, 98 ¡J. S. 470, and Clarice v. Iowa City, 20 Wall. 583, distinguished.</p> <p>2. Coupons Attached to Bond — Interest Upon Interest. — Held, f arther, that under the laws of the state of Wisconsin, as they existed at the time the bond was executed, all coupons attached to such bond should bear interest at the rate of 7 per cent, from the time they were due.</p> <p>Miller v. Jefferson, 20 Wis. 54.</p> <p>3. Contract — Obligation—Remedy.—Any cnango in the remedy which practically outs oil a portion of the cause of action, or renders the contract of less available worth, is as much within the constitutional prohibition as a law which strikes directly at the contract itself.</p> <p>Edwa/rds v. Kmrsdy, 96 U. ¡3. 595.</p>

<p>Demurrer to Complaint.</p>

<p>1. Rmmovai. — Want of Controymhsy. — In a controversy "between a railroad and its stockholders, as to the validity of certain shares of the railroad stock, the cause cannot be removed to the federal court upon the application of the holder of such stock, where Hiero is no controversy as to its ownership.</p>

<p>1. Former Adjudication — Estofpsül.—A former adjudication is an es- ■ toppel only as to the matters in issue or points in controversy, upon tlie determination of wliicli the finding or verdict was rendered.</p> <p>Cromwell v. County of Sac, 94 U. S. 351.</p> <p>2. Same — “Matter in Issue” — Definition.—The matter in issue or point in controversy is that ultimate fact or state of facts in dispute upon which the verdict or finding is predicated.</p> <p>3. Same — Matter of Evidence. — Whatever is merely matter of evidence becomes of no importance after the determination of the matter in issue.</p> <p>4. Same — Agency.—Therefore, an adjudication that certain bonds were originally issued by the agents of the defendant without authority, will preclude the plaintiff from showing in another action a ratification by the defendant of the acts of his agents.</p>

<p>1. Removal — Assignment oe Claims. — A defendant cannot acquire the right to have his cause removed to the federal courts by the purchase of the interests of his co-defendants.*</p> <p>2. Same — Controversy—Several Creditors— Contemporaneous Attachments. — Five several attachments were sued out on five distinct claims, and were all levied at the same time upon a certain stock of' goods. Held, that the controversy as to the ownership of the stock of goods was a single controversy between the plaintiffs on one side, and all the attachment creditors ut.on the other side.</p>

<p>1'. Sendincf Letters Through Mail — Intent to Defaud — Rev. St. § 5480. — Section 5480 of the Revised Statutes provides that “if any person having devised, or intending to devise, any scheme or artifice to defraud or be effected by either opening, or intending to open, correspondence or communication with any other person, whether resident within or outside of the United States, by means of the post-office establishment of the United States, or by inciting such other person to open communication with the person so desiring or intending, shall, in and for executing such scheme or artifice, or attempting so to do, plqce any letter or packet in any post-office of the United States, or take or receive any therefrom, such person so misusing the post-office establishment shall be punishable by a fine of not more than-$500, and by imprisonment for not more than 18 months or by both such punishments.” Held,, that the word “or,” in the expression “or be effected,” is a clerical mistake for the word “to,” and that the expression should be, “to be effected.”</p> <p>2. Circuit Court — Writ of Error — Act of March 3, 1879, (20 U. S. St. ■ at Large, 354.) — The only questions that can be reviewed in i the circuit court upon a writ of error, under the act of March 3, 1879, (20 U. S. St. at Large, 354,) relating to “criminal cases tried before the district court,” are those which appear by the record to have been decided and duly excepted to in the court below.</p> <p>3. Request — Indictment—Sufficiency.—A request to instruct the jury that there was no evidence in the case upon which there could be a legal conviction under the indictment, does not raise any question as to the sufficiency of such indictment.</p> <p>4. Same — Evidence—Sufficiency.'—-The circuit court cannot, on writ of error, pass upon the sufficiency of the evidence in the court below, where the bill of exceptions does not clearly set forth all such evidence.</p> <p>5. Sending Letters Through Maid — Intent to Defraud — Evidence.— The fact that defendant received letters in answer to an advertisement, and the fact that the letter inclosing the advertisement to the newspaper in which it was published was in the defendant’s handwriting, warranted the’court in charging, under the circumstances of this case, ' that such facts were evidence that defendant mailed such letter and advertisement.</p> <p>United States v. JYoelke, 1 Red. Rep. 426-442.</p>

<p>1. Contract — Consideration—Extension—Debt.—A written promise to pay the debt of another, in consideration of an extension of time, will constitute a valid contract.</p> <p>2. Same — Assignor.—In such case the assignor of the debt is not a necessary party to such contract.</p> <p>3. Composition — Discharge.—The acceptance of a composition from the principal debtor does not discharge any party collaterally liable for the same debt.</p> <p>4. Bankruptcy — Provable Claim. — Burchell owed Bigler & Co. $5,2!57.79 for the construction of an Ice-house. Bigler & Co. owed Turck & Burhaus about $1,600 for work and materials furnished in the contion of the same. Bigler & Co. assigned their claim to a creditor named Ward, and subsequently became bankrupts. June 9,1878, Bigler & Co. entered into a composition of 30 per cent, with their creditors. June 12, 1878, Ward, Turck & Burhaus, and Burchell entered into an agreement under which Burchell promised to pay Turck & Burhaus $1,200, and give his notes to Ward for $3,457, payable in one and two months each. Burchell thereafter became bankrupt, without having paid Turck & Burhaus or the notes held by Ward. Ward thereupon proved against the estate of Burchell for the whole debt, i. e., §5,257.70, and in March, 1878, Turck & Burhaus received §400 from Bigier & Oo. in lieu of the sum due them under the composition, and gave a receipt “in full of all claims that we have against him (Bigler) or them (Bigler & Co.) on account of the building, ice house,” etc. Held, that Turck & Burhaus still had a provable claim against the estate of Burchell for §1,200.</p>

<p>1. IiK-Tssroo — Identity of Invention.-Re-issued letters patent for an improved boltle stopper, granted December 23, 1879, to Henry W. Putnam, assignee of Joel J5. Miller, held void, because it appeared on its face to be for a different invention from that which, was embraced in the original patent.</p>

This was an action at law to recover damages for the infringement of letters patent No. 21,026, for an improvement in pole coupling for railroad cars. The patent was issued in 1858 to Blaney E. Sampson, was re-issued in 1860, and was, in 1872, extended for seven years. It contained two claims — First, an open jaw for coupling a street-car pole to the car; and, second, a method of supporting a street-car pole so as to take the weight of the pole off the horses’ necks.

<p>1. Patent — Invention.—Tie-issued letters patent, dated August 3, 1875, for an improvement in clock dials, held void, upon tlie ground that the supposed invention was not a part oi the thing patented.</p>

<p>1. Patent — Assignm ent — Notice.—Held, under the circumstances of this case, that there was enough in the terms “ right, title, and interest,” in the assignment of a patent, to put any purchaser from the assignors, immediate or subsequent, on inquiry, and to charge him with notice of what such inquiry, if made of the grantor of the assignors, would have disclosed.</p> <p>2. Same — Notice—Estoppel.—Held, further, that such grantor was not hound by any suppression of the truth by the said assignors, or any failure upon their part to disclose the exact condition of their title, so long as they assumed to convey only their “right, title, and interest.”</p>

<p>1. Patent No. 150,921, for an improvement in coal-scuttles, held, not infringed.</p>

<p>In Equity. Decision on final hearing.</p>

<p>1. Inebikobmeiít — Part oe Combinamos:. — The appropriation of part of a patented combination constitutes an infringement pro tanto, if such part, separate from the rest, was new and patentable to the inventor.</p> <p>Liste/r v. Leather, 8 Ell. & B. 1004.</p> <p>Sellers v. Ltiehinson, 5 Exch. 312.</p>

<p>1. Patent No. 132,111, issued October 8,1872, for “ improvements in hydraulic elevators,” held, under the circumstances of this case, not infringed by an apparatus constructed according to patent No. 172,896, issued February 1,1876, or patent No. 181,113, issued August 15,1876, for “ improvements in hydraulic elevators.”</p> <p>2. Patent No. 132,112, issued October 8, 1872, for “ improvements in safety devices for hydraulic elevators,” held infringed.</p> <p>3. Patents Nos. 172,896 and 181,113, held, not improvements in or of, or in aid of, any of the inventions or improvements patented by patents Nos. 132,111 and 132,112.</p>

<p>1. InfRingemekt — Employe — Commissions — Injunction.—Held, under the circumstances of this case, that an employe is liable to account for the commissions derived hy him from the sale of infringing goods, and that he could be enjoined from making any further sales.</p> <p>t Same — Employer and Employe — Plea in Káh. — H/M, further, that a suit against the employer in another district, for such sales, could not he pleaded in bar to a suit against such employe for an account and Injunction.</p>

<p>1. Admirat/i’Y Jurisdiction — Suit in Rem. — In a suit in rem in admiralty, against a vessel, an actual seizure is necessary to confer upon the court jurisdiction over the vessel.</p> <p>2. Suit in Rem — Process—Return op Marsiiat,. — To process issued in a suit in rem in admiralty, tlie marshal made return: “ November 3, 1873, attached the steam-tug Anna P. Dorr, her tackle, etc., by serving a copy of this wit, personally, on .John Carse, part owner of same, and by serving November 5, 1875, a copy of this writ at residence of Capt. E. P. Christian on wife.” Held, that tiie return dio. not import a seizure of the tug.</p>

<p>1. Salvage— Towage. — Service rendered by a steamer, in the course of its regular pursuit, in towing and relieving a vessel, under circumstances of no unusual danger to life or property, and without the exercise of unusual activity, enterprise, or heroism, should not be regarded as meriting a reward out of all relation and proportion to what would have! been accepted upon a contract contingent upon success.</p> <p>The Birdie, 7 Blatchf. 243.</p> <p>The II. B. 'Foster, 1 Abb. Adm. 235.</p> <p>2. Same — Svme.—In such case the allowance should be sufficiently liberal to make every one concerned eager to perform the service with promptness and energy, and also to encourage the maintenance of steam-vessels sufficiently powerful to make the assistance effective; hut it should not he so large and so out of proportion to the services actually-rendered as to cause vessels, in situations in which it was expedient that they should quickly accept such assistance, to hesitate or decline to receive it because of its ruinous cost.</p> <p>Note. See P. P. M. & W. Co. v. The Steam-boat H. C. Yeager, 1 Fed. Rep. 285; Mayo v. Clark, Id. 735; Corwin v. The Barge Jonathan Chase, 2 Fed. Rep. 268.</p>

<p>1. Salvase — Meastxiqe oe Compensation. — It is the policy of tlio law to give a proper salvage remuneration to powerful and well-equipped steamers which render service in saving property Unit is in peril at sea; font the fane character of the individual service must foe looked at under the circumstances of each particular case. Held, under the circumstances of this case, that the salvage compensation awarded was adequate and liberal.</p>

<p>1. Admerai/ty Jurisdiction — Motion.—A court of admiralty will ordinarily refuse to decide a jurisdictional question upon a mere motion.</p> <p>Gushing v. Lavrd, 4 Ben. 88.</p> <p>Bennistoun v. Braper, 5 Blatchf. 336.</p> <p>The Othello, 1 Ben. 43.</p> <p>2. Monition — Insufficient Description. — An objection that the monition did not sufficiently describe the property to be attached, is insufficient, where the marshal has not been thereby misled, and attached the wrong property.</p> <p>S. Admiralty Jurisdiction — Maritime Contracts. — Courts of admiralty have jurisdiction of all maritime contracts.</p> <p>Sleam-boat v. Phoebus, 11 Pot. 175.</p> <p>4. Maritime Contract — Contract of Affreightment. — A contract for the transportation of freight or merchandise upon navigable waters is maritime in its character.</p> <p>Oanal-boat Walsh, 5 Ben. 73.</p> <p>5. Navigable Waters — Judicial Notice. — The court will take judicial notice in such case that the waters on which the contract was performed were navigable, without any allegation of the fact in the libel.</p> <p>The Apollon, 9 Wheat:. 374.</p> <p>The Steam^boat Jefferson, 10 Wheat. 428.</p> <p>Pcyroiue v. Howard, ,7 Pet. 342.</p>

<p>1. Baíu'roai>s-~Bxpres8 Business. — A railroad cannot discriminate in its own favor in the conduct oí the express business.</p> <p>2. Same — ItrvAi. Company — Supervision.—A railroad cannot exercise a supervision over a rival company in the conduct oí the express business.</p> <p>3. Same-Bxpbbss Company — Bates—Notice.—An express company is entitled to some notice from a competing railroad of an intended change in rates and privileges in the-conduct of the express business.</p>

<p>1. Equity Practice — New Parties — Revivor.—A bill having become defective by the dissolution of a defendant corporation, it is proper practice for the plaintiff to bring in the statutory assignee by a supplemental bill in the nature of a bill of revivor.</p> <p>2. Same — Petition to Become a Defewdaht. — The assignee of an insolvent and dissolved defendant corporation cannot, upon his own petition, become a defendant against the consent of the plaintiff, where his only interest is to effect a dissolution of an injunction.</p> <p>3. INJUNCTION — "WHERE THE DEPENDANT CORPORATION BECOMES EXTINCT— How Dissolved. — When a defendant corporation becomes dissolved, its assignee may, upon motion or petition, obtain a rule to have an injunction against it dissolved, unless the plaintiff shall, within' a specified time, revive the suit against the assignee; but he cannot by petition become a defendant, and proceed to hearing on the record, without the plaintiff's consent. He has no such interest as authorizes him to revive and continue the suit, where a dissolution of the injunction is the only object of the proposed revivor by him.</p> <p>4. Equity Practice — Hew Parties — Application to Become — Rule and Exceptions. — The general rule, that no one will be admitted as a party against the consent of the plaintiff, has certain exceptions, which are stated, and their application to the case in judgment denied.</p>

<p>Motion to set aside verdict, and for new trial.</p>

This action was upon a contract for the manufacture and delivery of certain machinery. Plaintiff is a corporation, organized under the laws of Ohio. The statute of Colorado provides that “foreign corporations” shall, before they are authorized to do any business in this state, file in the office of the secretary a certain certificate.

<p>1. Revenue — Law—Constktjotion.'—l'he denomination of articles enumerated in a revenue law is construed according to the commercial understanding of the terms used, and not with reference to the materials of which such articles may be made, or the use to which they may be applied.</p> <p>Curtis y. Martin, 3 How. 109.</p> <p>Elliot v. BwarPwout, 10 Pet. 137.</p> <p>2. Same — “Tur Pjuates Rev. St. § 2503. — “Tin platea” are not included in section 2503 of the Revised Statutes, under the terms “ metals not herein otherwise provided for,” or “ manufactures of metals.” Dodge v. Arthur, 22 Int. Rev. Rec. 402, criticised.</p> <p>S. Same — Same—Rev. St. § 2504, Sched. B. — “ Tin in plates or sheets ” is subject to a duty of .15 per cent, ad valorem, in accordance with the provisions of section 2504’of the Revised Statutes, schedule E.</p>

<p>1. Deshktion — Statute on Limitations — Rev. St. § 1342. — The one hundred and third article oí war (itev. St. § 1342) provides that “no person shall he liable to bo tried and punished by a general court-martial for any ollence which appears to have been committed more than two years before the issuing of the order lor such trial, unless, by reason oí having absented himself, or ol some other manifest impediment, he shall not have been amenable to justice within that period. Held, that this article is applicable to the oil'ence oi desertion.</p> <p>2. Same — “Absence ” — Rev. St. § 1342. — Held, further, that the word “ absence ” in such article means absence from the jurisdiction of the military courts.</p> <p>3. Same— “Other Manifest Impediments” — Ret. St. $ 1342.— Held fwrther, that the words “ other manifest impediments,” referred to in said article, means only such, impediments as operate to prevent the military court from exercising its jurisdiction.</p>

<p>1. ASSIGNEE m BANKRUPTCY — Judgment Oreditoh. — An assignee in bankruptcy has a prior equity to a judgment creditor, where, under adverse proceedings, and through superior diligence, he has acquired land from the bona fide purchaser of the bankrupt’s voluntary grantee.</p>

<p>In Bankruptcy. On petition to expunge claim of the State Bank of New Brunswick.</p>

<p>1. BANKRUPT Act — “ Principal Debtor” — Collateral Bond — Surety. — A bankrupt is not liable as “ principal debtor,” 'within the meaning oí the bankrupt act, upon a collateral bond, where it is apparent upon the face of the instrument that the obligation was incurred by the bankrupt as a surety.</p> <p>In re Lodm', 4 N. B. B. 190.</p> <p>2. Same — “ Merchant or Tradesman’ ’ — Theatrical Manager. —A theatrical manager who buys costumes, machinery, etc., for use in his business, and who on a few occasions has sold some such property, is not a merchant or tradesman within the meaning of the bankrupt act.</p> <p>In re Odell, 17 1ST. B. B. 73, distinguished.</p> <p>S. Same — Bev. St. § 5110, Stjbd. 9 — Fraudulent Transfer. — A transfer by an insolvent debtor, for the purpose of concealing his property from his creditors, is an act done “in contemplation of becoming bankrupt,” within the meaning of the ninth subdivision of section 6110 of the Bevised Statutes, although the debtor did not then intend or expect to go into bankruptcy.</p> <p>A transfer of certain personal property held fraudulent, under the circumstances of this case.</p>

<p>In Bankruptcy.</p>

<p>In Bankruptcy.</p>

<p>1. TRADE-MAM! — WRAPPERS AND LABELS — bTOVB POLISH.</p>

<p>1. Rb-Issub No. 4,240, for an improvement in fare boxes, held void for want of invention.</p> <p>2. Invention — Combination—Fabe Box. — Tiie mere addition of a window to a well-known stjle of street-car fare box, so arranged that a passenger by looking through it can see the fare deposited by Mm, does not constitute an invention within the meaning of the patent laws, where such box previously had a window so arranged that the driver could see the fare when deposited by the passenger.</p> <p>Railes v. Warmer, 20 Wall. 354.</p> <p>3. Patent So. 121,190, for an improvement in fare boxes, held void, for want of invention.</p> <p>4. Invention — Combination—Fabe Box. — The combination of a streetcar fare hox with the head-lamp of a car and a reflector, in such a manner that the light from the lamp will be thrown into the fare box, does not constitute invention.</p>

In Equity. Patent No. 132,909 was granted David C. Hull, November 12, 1872, on an application said to have been filed March 9, 1871, for an improvement in modes of constructing whip-stocks.

<p>1. Patent No. 45,344, granled to D. M. Moore in December, 1864,for an improvement in wrencli.es, held valid.</p>

<p>1. Patents jSTos. 90,902 and 164,839, for improved cut slioe nails, held valid, and infringed by tbe “ cub ” nail.</p> <p>2. Invention — Patentability.—The addition of corrugations to aspociflc kind of shoe nails is patentable, although, shoe nails had been previously corrugated.</p>

<p>1. Patents Nob. 90,902 and 164,889, for improved cut shoe nails, held valid, and infringed by the “ cub ” nail.</p>

In Admiralty. Appeal from decree of district court. This was a libel by Henry Schmidt, against the steam-ship Pennsylvania, for damages for refusal of the master to deliver 67 bales of goat skins shipped on board of said steamship from Liverpool to Philadelphia.

<p>1. Admiralty Jurisdiction — Possessory LraN — “ Common-Law Remedy” —Rey. St.§ 563. — A statutory proceeding of an equitable nature, for the enforcement and foreclosure of a possessory lien, founded upon a maritime contract, is not “a common-law remedy” within the meaning of section 563 of the Revised Statutes, relating to the admiralty jurisdiction of the United States district courts.</p>

<p>1. CHARTER-PARTY — NEW AGREEMENT — CARGO—FREIGHT.</p>

<p>1 ‘Estoppel — Possession—Sale.—An authorized but long-continued possession does not estop the owner of a boat from claiming title against a bona fide purchaser under an unauthorized sale.</p> <p>2. Same — Inaction.—Such estoppel cannot be based upon mere inaction, not amounting to an actual or intended abandonment oí the boat.</p>

<p>Exception to Report of Commissioner.</p>

<p>X. Ybndotí’s Lien. — Upon the sale of real property on credit, without collateral security, tlic vendor has a lien upon, the same for the unpaid purchase money, unless it was waived by the express agreement of the parties ; and such lien exists and may be enforced against all persons claiming under the vendee with notice that the purchase money is unpaid.</p> <p>2. Assignment. — The assignment and acceptance of a contract for the sale of real property does not make the assignee personally liable for the purchase money due thereon; and, as against him, the vendor’s remedy is confined to the enforcement of his lien on 1he property.</p> <p>3. Contract — Entibe ob Sjsvebabl®.--Whether a contract is entire or severable, depends upon the intention of the parties, to be gathered from the circumstances of the case.</p> <p>4. Same. — A contract to sell 96,000 acres of wild land, of different grades a.nd values, lying substantially in a body, at an average price of one, dollar per acre, to he conveyed and paid for as and when the same is surveyed and patented to the grantee by the United States, is not as many distinct contracts as there may be conveyances and payments in pursuance thereof, hut only one entire contract, and therefore the vendor’s lien for any portion of the purchase money thereof remaining unpaid extends to and may be enforced against the whole tract.</p>

In Equity. The defendant Daniel, in January, 1878, leased from one Mitchell and from one Lea, for a period of six years, two parcels of land in Memphis, on Washington and High streets, upon which he erected a Morse Improved Tyler cotton compress, with necessary engines, boilers, machinery sheds, and buildings, to be used in compressing cotton bales.

<p>1. Attachment — Ohio Eev. St. j S521 — “Debt or Demand Arising! upon Contract.” — Section. 5521 of the Ohio Revised Statutes, prescribing the cases in which an attachment may issue, provides that “ an attachment shall not be granted on the ground that the defendant is a foreign corporation, or a non-resident of this state, for any claim other than a debt or demand arising upon contract, judgment, or decree, or for causing death by a negligent or wrongful act.” Meld, that an action against a foreign corporation to recover damages for instituting suit in violation of a contract for the extension of the time of payment upon a note, and wantonly and maliciously attaching plaintiff’s property therein, whereby plaintiff’s credit was greatly injured, was not an action for “ a debt or demand arising upon contract,” within the meaning of said statute, and that an attachment could not issue therein.</p> <p>2. Same — National Banking Associations — U. S. Rev. St. § 52-12.— Whether section 5242, U. S. Rev. St., providing that no attachment shall be issued against a national banking association by a state court before final judgment is general, and applies to all national hanking associations, quaere.</p> <p>Cenbral Nat. BanJc v. Richland Nat. BanJc of Mansfield, 52 How. Pr. (N. T.) 136.</p> <p>3. Pleading — Wrongeul Prosecution oe Civil Action — Malice.—In an action to recover damages for the wrongful bringing of a civil action, the petition must allege that such action was brought maliciously.</p> <p>Stewart v. Sonneborn, 98 U. S. 187.</p> <p>4. Same — Malicious Prosecution oe Civil Action — Termination oe Action. — The petition in such action must also allege that the action, the bringing of which is complained of, has been terminated.</p> <p>Stewa/rt v. Sonneborn, 98 U. S. 187.</p> <p>5. Same — Same—Same—Attachment.— And this rule is not changed by the fact that the petition alleges, as the cause of action, the malicious issuing of an attachment, if the action in which it is issued and the attachment proceedings rest upon the same grounds, and must be determined together.</p> <p>6. Jurisdiction — Actions aoainst National Banks. — Whether an action against a national banking association can be brought only in the federal court within the district, or in a state court within the county or city in which it is located, qurne.</p> <p>CadleY. Tracy, 11 Blatchf. 101.</p> <p>Crocker v. Marine Wat. Bank, 101 Mass. 240.</p> <p>7. Practice — Amendment.-—Under what circumstances leave to amend will be refused.</p>

<p>On demurrer to the first defence in the answer.</p>

<p>1. Contract — Construction—Action at Law — Subrogation.—The stockholders of the Boone Mining & Manufacturing Company entered into the following agreement: “We * * hereby mutually agree with each other that they will each be responsible in mutual degree for all' paper negotiated by the agent of the company for the use and benefit of the company; and should any paper so negotiated by the agent with the individual indorsement of one member be unprotected by the official agent by reason of want of funds, then, in such case, the parties to this agreement be each and severally bound for the .payment of such paper in mutual proportions; and this agreement shall continue in force until the payment of all such claims have been made.” In an action upon this contract by the holder of the paper of such company, indorsed by one of the parties to said agreement, against another one of the parties to said agreement, (both the corporation and the indorser being insolvent,) held, that this agreement was a contract between the shareholders, and that a holder of the paper of the company could not maintain an action at law against the parties thereto. His remedy was by a suit in equity to be substituted to the rights of the indorser.</p> <p>2. Pleading — Bill in Chancery — Action at Law. — What allegations and circumstances show the petition to be for an action at law, and not a bill in chancery, decided.</p>

<p>Motion to Set Aside Summons.</p>

<p>1. Administration — Power to Site — Law of Foreign State. — An administrator in one state cannot recover damages for the benefit of the widow and next of kin in the courts and under the authority of a statute of another state.</p> <p>Iliehardson v. N. Y. Central II. Co. 98 Mass. 85.</p> <p>Woodward v. Michigan Southern, etc., It. Co. 10 Ohio St. 121.</p>

<p>1, Writ of Error — Supersedeas.—The fact that a citation was not presented to and signed by a judge within 60 days after the entry of judgment, will not necessarily prevent a writ of error from operating as a supersedeas.</p>

<p>In Bankruptcy.</p>

<p>1. Bankrupt — DISCHARGE.—The discharge oí an assignee in bankruptcy will not necessarily deprive the bankrupt oí the right to a subsequent discharge.</p> <p>In re Oanady, 2 Biss. 75.</p>

<p>1. Bankruptcy — Set-Ow.—Y. and B. were copartners in tbe live-stock business. V. was adjudged a bankrupt. At tbe time of bis adjudication be was indebted to B. upon transactions not connected with tbe partnership. Upon a settlement of tbe partnership accounts there was a balance thereon due from B. to V. Held, that B. had the right to set off against the amount due from him to the bankrupt on the partnership transactions the independent debts due from the bankrupt to himself.</p>

<p>1. Re-Issue No. 2,386, granted October 30, 1866, for an improvement in bottle stoppers, held, not infringed,.</p> <p>2. Patent No. 44,684, granted October 11, 1164, for an improved method of stopping bottles, held, not infringed.</p> <p>3. CnAi — OoNSTituoTrosr.—Every claim of a patent is to be construed as though it in terms in referred to the descriptive part of tlio specification.</p> <p>4. Same — Same.—A claim for inserting a stopper through the mouth of a bottle, and then passing it upwards till it is closed tight against a seat inside, must bo limited to the mechanism described, having the mode of o] (oration described.</p> <p>5. Same — Hams.—A claim to a function of mechanism, aside from the sirue lure of such mechanism, is not valid.</p>

<p>1. Cease Line. — Tlie primary purpose of a crane line is to steady the backstays, and in blustery weather it is very apt to chafe and wear out where it is fastened to the stays; and, therefore, it ought not to he used as a fogt-rope without caution, and the aid of the stays.</p> <p>2. Same.- — The weather being wot and the night dark, and the wind strong, the libellant was ordered to go aloft and cast oil the stop on the foretop-gallant halliards, which he did by going up the rigging and out on the crane line to the space between the topmast and top-gallant stay, and there untying the stop with both hands while he sat upon the crane line, without any other hold or security, and, just as the stop was cast off, the line parted' near the top-gallant stay, and the libellant was precipitated to the deck and seriously injured.</p> <p>Held, that the injury was caused by the negligence of the libellant in going on the crane line without an opportunity of examining its condition, and without holding to the stays by his arms or legs, or both, while casting off the stop; and that if, by reason of the negligence or misconduct of the mate, the crane line was insufficient, still the libellant could not recover damages for the injury, because even then his own negligence substantially contributed to the result.</p> <p>8. Bellow Servant. — Semite that the mate is not the fellow servant of a sailor so as to exempt the master from liability for an injury caused to the latter by the negligence of the former.</p> <p>4. Deviation. — A departure from the due course of a voyage to save property merely, is a deviation, and will forfeit the insurance; but a departure to save life is not. But, although the law will, as between the insurer and insured, excuse a departure from motives of humanity, a master is not correspondingly bound to make such departure even to save the life of one of the crew; but the time and risk likely to be consumed and incurred in such departure, as compared with that incident to the direct voyage, are to be considered, and have a controlling influence in the matter.</p> <p>5. Same. — On June 10th, in latitude 38 south, and longitude 91 west, the ship Ohandos was on her way to Portland, Oregon, with a cargo of railway iron, without a surgeon or any surgical appliances on board, when the libellant fell from aloft and broke his thigh bone. Held, that if the ship could have made a port — as, for instance, Yalparaiso, distant about 1,080 miles — in five or six days, it would have been the duty of the master to have gone there, and obtained surgical aid for the libel-lant; but if it could not have been done in less than two weeks, he was not bound to make the departure.</p> <p>6. Sick or Injured Seamen. — The hospital service of the Unite,d States is not intended to supersede the marine law, which imposes an obligation on a vessel to take care of a seaman falling sick, or becoming injured in its services, but only auxiliary thereto.</p> <p>7. Same. — A seaman injured in the service of a vessel, without his fault, is. entitled to be taken care of at the expense of the vessel until the end of the voyage, and longer, if necessary to efEect a cure, so far as the same can be done by the use of the ordinary medical means; and the fault which will exempt a vessel from such liability o is not mere ordinary negligence consistent with good faith, but some positively vicious conduct, such as gross negligence, or wilful disobedience of orders.</p> <p>8. Neglect to Send Seaman to Hospital. — Damages allowed for neglecting to send libellant to the marine hospital at Portland, at the expense of the ghip, for 12 days after her arrival in the Columbia river.</p>

In Admiralty. This was a libel for supplies and materials furnished at Cleveland, the home port of the vessel, in 1876, for which a lien was claimed under the law of the state of Ohio.

<p>1. Seamen — Wages—Right in RnisiGirT — Lien on Ship — Moetgagee— Pbioiuty. — The rights of a, lender upon the security of freight, made payable to the lender by a bill of lading, are subject to the seaman’s right in the freight to the extent of his wages. Seamen may proceed for their wages against both ship and freight. When they do so proceed, and either fund is sufficient to pay them in full, the court can direct as to the mode of satisfying their decrees. The equity in the freight, created by an advance upon the credit of the freight, is no greater than the equity in the ship created by a mortgage of the ship. As between two such creditors, the equitable method is to charge the wages upon both funds, pro rata.</p>

In Admiralty. Hearing on libel, answer and testimony. The libel alleged that on December 13, 1879, the master engaged tbe libellant as fireman on the Springer for the trip from Cincinnati to New Orleans and return, at the wages of $85 per month; that he entered upon his duties as such fireman, and that on December 17, 3879, while in the performance of the same, he was directed by said master to disengage a tree that had caught in one of the wheels of said steam-boat, and…

In Chancery. Samuel Marx, of Richmond, Virginia, died in the fall of 1860, leaving a large estate, consisting in part of real estate, but chiefly of valuable stocks and bonds.

<p>1. Injunction — Bond op Indemnity. — Courts of equity will sometimes substitute a bond of indemnity for an injunction,’ if tlie ends of justice will thereby be promoted, and especially if any public interest may suffer by continuing the injunction in force pending the litigation.</p> <p>2. Same — Same.—It is within the ordinary powers of a court of chancery to accept such a bond when proceeding according to the general principles of equity.</p> <p>3. Bedehal Courts — Equity.—Such general principles are administered by the federal courts of equity in all cases, and in every state, irrespective of local laws and state practice.</p> <p>4. Injunction — Bond of Indemnity. — Held, therefore, in this case, where a prompt assessment of damages could not, in all probability, be had, and where the right of the complainant to any damage was a matter of dispute, depending for its solution upon doubtful questions of law and fact, that a court of chancery might, instead of stopping the progress of a great work of internal improvement, of general and public as well as of private importance, require a bond’to be given, and allow the construction to go on.</p> <p>Note. See Northern Pacific Railroad Co. v. St. Paul, Minneapolis & Manitoba Railway Co. 3 Fed. Rep. 702, and Northern Pacific Railroad Co. v. B. & M. R. Co., ante, 298.</p>

<p>1. Deposition— Commission — Rule op Court — DobmadDefect.—Acorn-mission for the taking of a deposition will not be set aside, where it appears to have been properly executed, although the form of instructions to the commissioner, annexed to the deposition, was not signed by the clerk or the defendant’s counsel, as required by a rule of the court which issued the commission.</p> <p>2. Same — Practice—Rev. St. § 8C6. — The mode of executing such commission, when issued by a federal court, is not governed by a state statute, but by section 866 of the Revised Statutes.</p> <p>3. Same — Rev. St. § 866 — “According to Common Usage.” — A deposition is not taken “ according to common usage,” within the meaning of section 866 of the Revised Statutes, if one of the parties to the action writes down the answers for the commissioner, at the request of the latter, in the absence of the other party to the suit, although it does not appear that any injury was thereby sustained.</p>

<p>1. Banioujptot — Attachment. — An attachment levied witliin four •months before the commencement of proceedings in bankruptcy is dissolved, ipsofaeto, by operation of such proceedings.</p> <p>In re Scraffoi‘d, 15 N. B. R. 104.</p> <p>2. Same — Same.—A bill in the nature of a creditor’s bill, praying that certain conveyances of real estate may be declared void, will therefore be dismissed with costs, when tiled by a purchaser of the property under such writ of attachment.</p>

<p>1. Re-Isstje — Rev. St. § 4916. — Section 4916 of the Revised Statutes only authorizes a re-issue when, from an unintentional error in the desription of the invention, the patent is invalid or inoperative, or when the claim of the patentee exceeds his invention.</p> <p>2. Same — Commissioner of Patents — Jurisdiction.—The power to accept a surrender and issue new letters is vested exclusively in the commissioner of patents, and his decision in such cases is not open to collateral attack in a suit for the infringement of re-issued letters.</p> <p>3. Same— Same — Same.—The commissioner of patents, however, is an officer of limited authority, whose jurisdiction is restricted to (he particular cases mentioned in the statute, and, therefore, whenever it is apparent upon inspection of the patents that he has acted without authority, or has exceeded it, his judgment must necessarily he regarded as invalid.</p> <p>4. Same — Same—Samis.—Held, therefore,,where an original patent covered a compound of nitro-glycerine with inexplosive, porous, absorbent substances, and the re-issued patent covered a compound of nitro-glycerine with all porous absorbents, whether explosive or in-explosive, that there was no case presented upon which the powers of the commissioner of patents could be invoked, and that the reissue was therefore void.</p> <p>Jiussdl v. Dodge, 93 U. S. 4G3.</p> <p>5. Patent---Teems — Civnbtjruotiost.—Although the court cannot look outside of a patent for the explanation of terms in it which are not technical and are free from ambiguity, yet it can examine into the history of the invention patented so as to be able to read the specifications in the light of the inventor’s knowledge.</p> <p>6. Same — Same—Same.—Reid, therefore, in view of the history of this case, and reading the specifications of the patont in that light, that it is clear that the inventor used the term “ inexplosive ” in its natural and ordinary sense, and that the attempt to limit that meaning is an aft erthought of the assignees, desiring to bring- within the reach of the patent compounds in no respect within the inventor’s contemplation.</p> <p>Note. See Atlantic Giant Powder Co. v. Dittmar Powder Co. 1 Fed. Rep. 328, and Dittmar v. Rix, Id. 342.</p>

<p>1. Admikalty — COLLISION—Sixteenth Rule oe Navigation — Negligence — Innocent Totud Patity. — Where the brig F., with a cargo insured by the libellant, collided at night with the bark A., being struck by the A. on her starboard side amidships, and the F. claimed to be heading southeast, close hauled on the port tack, with the wind east north-east, and to have sighted the green light of the A. a little on the port bow, and to have kept her course, and that the green light crossed to the starboard bow, and then the A. showed both lights, and ran into the starboard side of the F., and that the collision was caused by the A.’s porting after crossing the F.’s bow.</p> <p>And the A. claimed to be heading north-west less than one point free on the starboard tack, with the wind north-east by north, when the red light of the F. was sighted half a point on her port bow, and thereafter, till the collision, kept her course by the wind three-quarters of a point; and that then the A. ported, and that the red light drew ahead ; and that then the F. starboarded and luffed across the A.’s bow, when the vessels were very near each other, thus causing the collision.</p> <p>j Held, that on the evidence the vessels were meeting end on, or nearly end on, and both were hound to port, under the sixteenth rule of navigation; that the claim made by the A. was incredible as a whole, and that the testimony of her lookout and mate that they made the red light, when first seen, on the port bow, must be rejected as a mistake.</p> <p>Held, that upon the evidence the wind was about north-east by north, and that after making the red light nearly ahead the A. ported till she came up as close to the wind as she could get with full sails, and kept by the wind till the collision.</p> <p>That the F. was in fault in not porting; that the A., having ported till she came as close to the wind as she could got, had complied with the rule as far as she was hound to do.</p> <p>Held, that on the evidence the F. did not keepjher course, but star-boarded when dangerously near the A., and that this contributed to cause the collision.</p> <p>That while the officer of the deck on the A. was clearly negligent in not keeping his attention constantly fixed on the approaching vessel after the light was reported, still this fault did not contribute to cause the collision.</p> <p>That even an innocent third party — -the owner of cargo — injured by a collision, cannot recover against either vessel without alleging and proving that she was guilty of a fault which contributed to bring about the collision.</p> <p>Simply showing a case of doubt as to which vessel was in fault is not enough to justify a recovery.</p> <p>The Jamas Bowen and TheJl. L. Dayton, Dist. Ct. S. I). JST. Y,</p>

<p>1. PART Qwsbr — Executors.—Tlie executors of the deceased part owner of a vessel are not chargeable for necessaries supplied or money advanced the vessel after their testator’s death, where they have done nothing to take the benefit of the employment of the vessel, nor given any authority to the master or ship’s husband to act for them.</p> <p>2. Same — Same.—It would bo a breach of trust for executors to authorize tlio master or ship’s husband, in the absence of an express power under the will, to act in such a matter for them, and no presumption can therefore arise that they have done so.</p> <p>Stedmcm v. Fiedler, 20 ÍT. Y. 446.</p>

<p>1. Appeal — Bill oe Exceptions. — A bill of exceptions, to present for review, upon appeal to tbe supreme court, the rulings of the circuit court, must be based on exceptions taken to such rulings at the time the rulings were made.</p> <p>Z. Same — Same—Practice.—Where no exceptions are taken during the trial, the only paper which the judge can sign upon appeal is a record showing the proceedings which took place in court in the case at the trial prior to the decision of it by the court, embodying the requests to find on both sides, and also the findings made and the written opinion of the court, and the exceptions filed, showing the dates of the several proceedings.</p>

<p>1. Mariners — Wages—Rates.—Where mariners are not engaged at a fixed rate, the courts will allow them the highest rates existing at the time at the port of departure.</p>

<p>1. Seaman — Wages—Discharge.—Where the officers of a vessel are entitled to discharge a seaman at pleasure, they are bound to be ready to pay his wages at the time of his discharge.</p> <p>The Schooner David Faust, 1 Ben. 187.</p> <p>2. Same — Same — Demand.—In such case a demand of the officer who employed and discharged the seaman is sufficient.</p>

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

<p>1. Scihe Facias — Jtjdsment—Recital.—A writ of scire facias, in reciting a judgment on a prior scire facias, need not recite the amount for which such judgment was obtained.</p> <p>2. Same — Same—Same.—Such recital is in no respect uncertain, informal, or insufficient, when the writ recites the judgment on the prior scire facias, as it would be set out in full and formal record of that judgment.</p> <p>3. Same — Administrator—Maryland.—A writ of scire facias issued by order of an administrator upon the death of a plaintiff will not be questioned under the practice of the state of Maryland, although such administrator has been properly made a party to the cause, and could have at once issued execution on the judgment.</p>

<p>1. .Ttjbiciad Sale — Nationat, Bank — Rev. St. § 5284. — A sale by a receiver of tbe property of a national bank, under an order of court, in accordance with the provisions of section 5284 of the Revised Statutes, constitutes a judicial sale.</p> <p>2. Same — Purchases.—Although the rights of a purchaser at a judicial sale are subject to the action of the court, yet such action must depend upon the general principles and usages of law.</p> <p>3. Same — Inadequate Prtoe — Confirmation.—Held, therefore, where a receiver had sold the property of a national bank, under an order of court, in accordance with section 5234 of the Revised Statutes, that such sale would not thereafter be set aside before confirmation upon a subsequent offer of an advance bid of some §5,000 or §6,000, where a former sale of the same property had been set aside for inadequacy of price.</p> <p>Note. See Blackburn v. The Selma B. üo. S Fed. Rep. 689.</p>

<p>1. U. S. Commissioner — Writ or’ PRouibition. — A United States commissioner, when acting as an examining magistrate, is a mere officer oí the court, as to whom the writ of prohibition is never employed.</p> <p>2. Same — Contkoi. or the Court.— Such commissioner, however, is subject to the control of the court when acting as an examining magistrate, and the court can assume control of the proceedings whenever justice may require that, it should he done.</p> <p>3. Ute Treaty — Colorado—Unabling Act — 18 St. 474. — The treaty between the United States and the several bands of Ute Indians, proclaimed March 2, 1868, is not repealed by the provisions of the act entitled “An act to enable the people of Colorado to form a constitution and state government,” etc., approved March 3, 1875, (18 St. 474.)</p> <p>4. Ute Reservation — Pede rat, Jurisdiction. — //«Zd, therefore, that the Ute reservation still remains within the sole and exclusivo jurisdiction of the United States.</p>

Trespass. This was an action of trespass to try title, and was submitted to the court upon an agreed statement of facts. The plaintiffs and the defendant both claimed title to the-lands in controversy under one Enoch Jones, deceased; the plaintiffs as his heirs at law, and the defendant as purchaser at a sale made by the order of the district court for the western district of Texas, sitting in bankruptcy.

<p>In Bankruptcy. On petition to vacate discharge.</p>

<p>Note. See Britton v. Brewster, 2 Fed. Rep. 160.</p>

<p>Note. See In the matter, of William S. Corwin, 1 Fed. Rep. 847.</p>

<p>1. Patent --Infkingemknt — QuroiisriWER Furnaces. — A patent issued to tlio complainants, June, 1870, for improvements in furnaces for roasting ores, and more particularly for extracting the volatile portions of ores, from which it is only desired to save the fumes, such as cinnabar or quicksilver-yielding ores, and also for improvements in till! condensers, whereby the metallic or other sulphurous vapors are rapidly and effectually refrigerated without actual contact with water, held not infringed.</p> <p>2. Same — Same—Same.—A patent issued to the complainants, July, 1871, for an improvement in such furnaces, by substituting for the pigeonhole partitions a series of vertical arches, each lower arch receding from the one above, so that the angle would be greater than the slope at which the ore would lie, thus nreventinir the fillina- un of the passages, held not infringed.</p> <p>3. Same— Claim — Specifications.—A claim 1'or an automatically-! ceding furnace for roasting ores will not be, sustained where the l'nrnace described in the specifications is fed by hand at the top of the ore chamber, and no contrivance is shown for feeding it in any other way.</p> <p>4. Same--Continuously- Wohiuhc! Quicksiuveb Fubnaces. — The application to quicksilver furnaces of a mode of operation well known and used in other furnaces, by which ore is constantly subjected to heat, is not the proper subject of a patent.</p>

<p>1. Patent No. 100,354 — Patent No. 114,711 — Interiul.ance.—The first claim of patent Nc>. 100,354, granted March 1,1870, to one Baumann, ü invalid, upon the ground of interference with the claims of patent No. 114,711, granted May 9, 1871, to the plaintiff, upon the invention of one Iiiley.</p> <p>2. INTERFERENCE — Former Suit-Judgment. — Where the question of such interference was tire subject of dispute in two distinct suits in two separate districts, and the defendant in the second suit defended the first suit, it was held that the issues were the same in the two suits; that the record in the former suit was proper evidence in the latter suit, and that the judgment in the first suit concluded the defendant in the second suit.</p>

<p>1. Gahnisitment — Wages—Seamen.—Tlie wages earned by a seaman, in the coastwise trade of the United States, are not subject to garnishment at the instance of the creditor of the seaman in an action at law brought in a state court.</p> <p>2. Same — Same—Same—Jurisdiction.—The judgment of a state court, in such case, directing the garnishee to pay such wages to a creditor, is void for want of jurisdiction.</p> <p>S. Same — Plea in Bar. — A garnishee cannot plead such judgment inbar, where it does not appear that execution has been awarded against him, or that he has been called on or compelled to pay the same.</p>

<p>1. Collision — Negligence—Buhden oe Pboof. — A libel for collision alleged negligence on tlie part of the tugs Dayton and Bowen and the scow Number Four. The answer of the Dayton alleged that the collision was wholly caused by the fault of those on board and in charge of the Bowen and the scow, “ as alleged in the libel.” The answers of the Bowen and the scow alleged that the collision was due wholly to the fault of those managing the Dayton and the boats- in her tow. Held, that these admissions by the Dayton upon the one hand, and the Bowen and the scow on the other, would not throw on either of the libelled vessels, as between such vessel and the libellant, the burden of showing fault in the other.</p> <p>2. Same — Same—Same.—Held, further, that there must be prima facie evidence of negligence, in such case, in order to throw the burden of proof upon either of the libelled vessels.</p> <p>3. Same — Same—Same.—Held, further, that the mere fact that the injured boat was lashed to the side of the Dayton, without motive or steering power, and the absence of any allegation of fault against her in the answers filed, did not prima facie establish any fault in any particular one of the vessels libelled.</p> <p>4. Same — Same—Same.—Held, further, tlial, although it might lie the proper conclusion, from tlie pleadings in sucli case that some one or two, or all of the three vessels sued, must have been in fault, it is for the libellant to show which one, and not for any one of the three to exculpate itself, or prove fault in either or both of the other two.</p> <p>6. Same — Same—Same.—The answer of the Dayton alleged that the Dayton and Bowen were approaching in such a way that the proper course was for each to pass on the starboard side of the other; that the Dayton took the proper measures to pass in that manner, and the proper signals were blown, but that the Bowen failed to give heed to said signals, and to take measures to pass on the starboard hand of the Dayton and the boats in her tow. Held, that this did not show any negligence in the Dayton, in the absence of any allegation to the contrary in the libeL</p> <p>6. Same — Same—Same.—The answers of the Bowen and the scow each alleged that at the time the Dayton and her tow were discovered coming down the river, by the pilot of the Bowen, the green light of the Dayton was visible, and she appeared to bo going between the Bowen and the New Y ork shore, which was then about 300 yards distant; that at a proper distance the Bowen blew two blasts, to which the Dayton responded by two blasts, and the Bowen thereupon starboarded, heading as far to the westward as she could safely do without danger of colliding with another tug and tow on her port side, heading in the same direction; that the Dayton, instead of keeping her course, or starboarding so as to pass on the starboard side of the Bowen, so changed her course as to shut out her green light and show her red light to the Bowen ; that thereupon, it being evident that the Dayton could not cross the bow of the Bowen and of the scow without imminent danger of collision, the Bowen slowed, stopped, and backed, and that at the time of tlie collision the headway of the Bowen and the scow was about slopped. Held, that there was nothing in any of these averments which made out a prima facie case of negligence against the Bowen or tlie scow.</p>

In Admiralty. Order to show cause. On September 29, 1880, a libel was filed with prayer for process in personam and clause of foreign attachment. The process was accordingly issued, and on October 5th was returned with the marshal’s indorsement that he had been unahle to find the respondent, but had attached the credits and effects of the respondent in the hands of a garnishee. An interlocutory, decree and order of reference were then entered on their default.

<p>X. "Wages — Intoxication—Evidence,</p>

<p>1. Admiralty — Estoppel—Maritime Lien. Where the claimant (owner) oi the vessel, who personally contracted with the libellant for repairs made at Ills dock in Brooklyn, New York, resided at the time, and had long before resided, in New York city, and the vessel at the time was registered at New London, Connecticut, and had “.New London ” painted on the stern, and the owner informed libellants that she was registered there, was rnortgaged, and that he could ascertain about her from the collector there :</p> <p>Held, that these facts did not import a representation that the claimant lived in New London.</p> <p>That while the owner, if he has misled the libellant by representations as to the vessel being foreign or domestic, may be estopped to deny such representations,</p> <p>(TJieB. A. Barnard, 2 Khd. Rep. 712, 716,)</p> <p>Still the libellant does not appear to have been misled by them.</p> <p>The libellant, knowing that the claimant had bought the vessel, was bound to inquire as to his place of residence.</p> <p>That the vessel, being' in the port where her owner resided when the repairs were made, was a domestic vessel, and no lien attached by the maritime law.</p> <p>The Albany, 4 Dill. 439.</p> <p>That no lien therefor attached under the laws of New York, the necessary specifications not having been filed.</p>

<p>1. Jurisdiction of Federal Court — Bien Filiad in State Court — ■ Suit Rot at Xshck. — On November 30, 1880, tlie defendant corporation, an insolvent life, insurance company, doing business at Richmond, Va., and having policies distribuí (id in many states of the union, by order of its board of directors, but without any previous authority from its stockholders, conveyed all its property to its vice-president in trust, for the benefit of creditors, subject to certain conditions and preferences, duly set forth in the deed creating said trust.</p> <p>On December 3, 1880, the trustee set on foot a suit in the chancery court- of Richmond, asking the aid of that court in the administration of his trust.</p> <p>On the same day a resident creditor filed a bill in his own name, in the same court, against the defendant company and 1ho said trustee, and asked leave therein to subsequently make ail the directors and stockholders parlies to the suit, when their names should lie thereafter ascertained. This hill also asked for all proper accounts and a receiver, and that all the creditors might be ascertained, the fund collected and distributed, and the trust deed set aside,; and further asked for a personal decree for the amount paid the company by the complainant, on the ground that the company had forfeited its contract by refusing to give tbe complainant a paid-up policy in exchange for his original policy.</p> <p>On December 11, 1880, the complainants, non-resident creditors, exhibited their bill in Ibis suit, to which they made the company, the trustee, and the stockholders all parlies defendant, and asked, in the name of themselves and of all creditors who might come in, that the trust deed should -be set aside, the funds collected and distributed, a receiver appointed, and for all the general and special relief usually asked for in creditors’ bills.</p> <p>A rule was thereupon made by this court, calling upon these defendants to show cause, December 20th, why a receiver should not be appointed. Lt further appeared, upon the return-day to this rule, that the bill of the trustee had never been filed in the state court; that the cause had not proceeded to issue in either of the suits in that court; and that such court had not appointed a receiver, or taken custody of the effects of Rio defendant company, or made any order by which it took cognizance or assumed jurisdiction of the controversy between the parties to the respective suits. Held, under these circumstances, that, the institution of the mere incipient steps of the two suits in the state court would not defeat the jurisdiction of this court.</p> <p>2. Receiver — Insolvent Life Insurance Compart —Held, further, that the insolvency and assignment of the defendant company, and the action of the trustee in applying to the state court for aid in the administration of his trust, exhibited all the conditions requisite to authorize this court to immediately appoint a receiver, in accordance with the application of the complainants. ></p> <p>3. Same — Trustee of Insolvent Company. — Held, further, that this court would not appoint such trustee and former vice president the receiver of the insolvent company.</p> <p>4. Fraud — Insolvent Life Insurance Company — Proof.—The mere fact of the failure of a life insurance company would seem to be prima facie proof that its operations have been conducted in a fraudulent manner; and, if the failure is not explained by some great casualty, such as a wide-spread pestilence, or sudden financial convulsion, or physical calamity, it would seem to be per se proof of fraud.</p> <p>6. Constructive Fraud — Managers of Company. — Such failure does not necessarily create a presumption of moral turpitude in the managers of the company, but it certainly does create a presumption of financial imbecility, or recklessness, or extravagance, or that gross negligence, which is equivalent in its consequences to fraud, and which a court is bound to regard as constructive fraud.</p>

In Equity. The purpose of this suit is to foreclose a mortgage executed by the defendant to one Henry Irby, now deceased, dated May 7, 1877, on certain lots of land in Hall county, Georgia, known as the “Glade Mines,” and containing 2,000 acres, to secure a note dated the said May 7, 1877, made by said Jennings, and payable to said Irby, for $10,000, and falling due January 1, 1879.

<p>1. Practice in Equity — Reference.—A case should not be referred to a master until the issues made by the pleadings have been settled by a decree. It is not proper to try those issues upon exceptions to the master’s report.</p> <p>2. Touts — Damage to Chops by Animals of the Owner — When Adjoining Proprietor Liable. — If crops be damaged by the animals of the owner, an adjoining proprietor can only be liable when, by some prescription, contract, or statutory duty, such liability is imposed on him.</p> <p>3. Railroads — Pence Law — Cattle-Shards.—The ordinary fence laws of Tennessee do not apply to railroad companies, and there is neither a common-law nor statutory obligation on them to construct or maintain cattle-guards for the protection of crops growing on the cultivated lands through which their roads pass. Neither was the act of 1875, e. 64, intended to apply to railroad companies, although the land on which the track is built is within “ one general enclosure,” made by joining- the fences of the farmer to the cattle-guards of the railroad. These laws were intended for adjoining land owners engaged in agriculture, who are mutually benefited as well as bound by them.</p> <p>4. Same — Implied Contract. — In the absence of a contract, or charter obligation, or some statutory duty to maintain cattle-guards, none will be implied from the fact that the company has constructed them along the line of road where it enters and leaves cultivated fields, unless the lapse of time has raised the presumption of a grant or covenant:-</p> <p>5. Contributory Negligence — Straying Animals — Duty of the Owner of the Crop. — The owner of crops, having knowledge that straying animals may pass over defective cattle-guards and destroy the ■ crops, cannot recover for their destruction without using every means an ordinarily prudent person would-use to protect them. It is contributory negligence not to do this.</p>

<p>1. RECEIVER — CLAIM FOR DAMAGES AGAINST A RAILROAD COMPANY — Company’in Default fob. Interest. — The net earnings of a railroad, while in the possession of a receiver appointed by the court, pending the foreclosure of certain mortgages upon the property, cannot bo applied to the payment of claims for damages which accrued during- the operation of the road by the company, although such company was then in default fqr the non-payment of interest upon the mortgage bonds.</p>

<p>1. Removal — Act oe 1875, § 2. — f.uit was brought by the Merchants’ National Bank of Boston to foreclose the equity of redemption of the defendant, Edward Thompson, of Charlestown, New Hampshire, in five shares of trust properly held by the plaintifí as collateral security for the payment of 1.1 e defendant’s bond. The defendant averred in his answer that he had sold one of the shares to Henry M. Clarke, of Boston. The plaintifí thereupon amended its bill, and made Clarke a party defendant, who subsequently entered an appearance. Held, that such cause could not be removed under the second clause of section 2 of the act of 1875.</p> <p>2. Same — Jtjbisdiction—Pboov.—ileld, further, that it would be presumed that Clarke was a citizen of Massachusetts, in the absence of any proof to the contrary.</p>

<p>Trover.</p> <p>Tort, in the nature of trover, for the conversion of certain logs, valued at about $14,000. In November, 1875, the plaintiff, a citizen of New Jersey, owning a large tract of land on, or near, the Connecticut river, in New Hampshire, made a contract with Boss & Leavitt, of Bangor, Maine, called a conditional license, by which he granted them permission to enter upon his land and cut logs of certain kinds during the then next logging season, which were to be scaled — that is, measured — by a scaler appointed by the plaintiff, and the agreed stumpage was to be paid for by satisfactory paper, on a certain credit, and the plaintiff was to make advances when tlio logs should arrive at the boom, in Hartford. The grantees agreed to conduct the cutting and driving of the logs in a certain way, and with a certain diligence, and to pay damages in case of any default. The contract contained this clause: “And said grantor reserves and maintains full control and ownership of all logs and lumber which shall be cut under this permit, wherever and however situated, until all matters and things appertaining to or connected with this license shall be settled and adjusted, and the sum or sums due, or to become due, for stumpage or otherwise, shall bo fully paid;” and, if any default should bo made, ho should have full power and authority to take all or any part of said lumber, and to sell and dispose of the same at public or private sale, and, after deducting reasonable expenses, commissions, and all sums which were then due, or might become due, for any cause “herein expressed,” should pay the balance to the grantees.</p> <p>Eoss & Leavitt were interested as stockholders in a corporation called the Hartford Lumber Company, which owned a mill at Hartford, of which the boom is mentioned in the contract. They cut the timber as agreed, and floated it down, the Connecticut river; the first lot arrived at Hartford in August, 1876. In September, 1876, an account was settled between- Homans and Eoss & Leavitt, showing a debt of $11,24-8.52 for stumpage, and $10,250 for advances. At the foot, Homans acknowledged the receipt of drafts for the sum of the account drawn by Eoss & Leavitt upon, and accepted by, the Hartford Lumber Company, running from tbreo to eight months, “which, when paid, will be in full for tho above.” These drafts were dishonored, and have not been paid.</p> <p>The Hartford Lumber Company bought all the logs which reached Hartford, and manufactured-and sold a part of them, worth about 012,000, with the knowledge of the plaintiff, before the first acceptance was dishonored. November 22, 1876, the plaintiff took possession of the lumber remaining at the mill, and the company worked it up and sold it for him under a contract by which they were to have 80 per cent, of the proceeds for sawing, handling, and commissions. They afterwards became bankrupt, and the plaintiff sold one-half the lumber remaining on hand for $4,000, and worked up the other half, for which he received $5,750. They received some other payments from Boss & Leavitt.</p> <p>The defendants, living in the western part of Massachusetts, bought of Boss & Leavitt certain lots of logs that were being driven down the river in September, October, and November, 1876, and which, of course, never arrived at Hartford. They bought in good faith, without notice of the plaintiff’s title, and had made payment of the full price of about $14,000, before he made a demand upon them, March 1, 1877. The plaintiff had no knowledge of the defendants’ purchase until November 26, 1876. Between that day and the day of the demand, the defendants had built a mill for sawing the logs, at a cost of about $3,000, and had paid to Boss & Leavitt $621.20. Boss & Leavitt had made sales of other logs in like manner to persons not before the court.</p> <p>The case was referred.</p> <p>The referee found the foregoing facts, and submitted the points of law, with his rulings upon them, to the court. He found that the plaintiff retained the property in the logs; that he had not waived his rights; that he was entitled to recover in this action the balance due him from. Boss & Leavitt, $3,084.51, and interest at 7 per cent, from the date of the writ, but not the full value of the logs at the time of the conversion; that no deduction was to be made for the cost of the mill, because it appeared to be still worth its cost; nor for the payment of $621.20, unless the whole value of the logs should be the measure of damages, in which case this payment, which was made after the plaintiff knew of the sale to the defendants, should be deducted.</p> <p>cited, (of cases not referred to in the opinion of the court:)</p> <p>On question of property: Ha/rt v. Carpenter, 24 Conn. 427; Fifield v. Elmer, 25 Mich. 48; De Wolf v. Babbett, 4 Mason, 289.</p> <p>That no demand was necessary: McGombie v. Davies, 6 East, 540; Bucklin v. Beals, 38 Yt. 653; Stanley v. Gaylorcl, I Cush. 536.</p> <p>There was no waiver or estoppel: Sargent v. Metcalf, 5 Gray, 306; Plumer v. Lord, 9 Allen, 455; Andreivs v. Lyons, II Allen, 349; 'Burner v. Coffin, 12 Allen, 401; Zuchtman v. Roberts, 109 Mass. 55; Dezell v. Odell, 3 Hill, 219: Booty. Lord, 23 Yt. 568.</p> <p>The vendor cannot claim against an innocent purchaser: Wait v. Green, 36 N. Y. 556; Hall v. Ilinks, 21 Md. 406; Vaughn v. Hopson, 10 Bush, 337; Murch *v. Wright, 46 Ill. 48'7; Mich. Cent. R. Go. v. Phillips, 60 Ill. 190; 1 Parsons, Cent. 538; 1 Smith, L. 0. (7th Am. Ed.) part 2, p. 1203.</p> <p>By taking the acceptances the plaintiff waived his lion, while they were running, and should be held to have lost it, so far as the defendants are concerned, who stand somewhat like sureties: Belshaiu v. Bush, 11 G. B. 206; Valpy v. Oake-ley, 16 Q. B. 949; Okie v. Spencer, 2 Whart. 253; Myers v. Welles, 5 Hill, 463; Fellows v. Prentiss, 3 Denio, 512; Appleton v. Parker, 15 Gray. 173 ; Green v. Fox, 7 Allen, 85.</p> <p>1 A seller on condition must exact performance promptly, or he will be deemed to have waived the condition: Lees v. Richardson, 2 Hilton, 174; Bowen v. Burk, 13 Pa. St. 146; Hennequin v. Sands, 25 Wend. 640; 2 Schouler, Per. Prop. 302; Upton v. Sturbrulge Cotton Mills, 111 Mass. 446;, Haskins v. Warren, 115 Mass. 533; Freeman v. Nichols, 116 Mass. 309; Clough v. Loud., etc., By. Co. L. B. 7 Ex. 35; Morrison v. Universal Ins. Co. L. B. 8 Ex. 40.</p> <p>The measure of damages is not the value of the logs, but the amount of the plaintiff’s claim properly reduced by credits, etc.: Chamberlain v. Shaw, 18 Pick. 278; Squire v. Hol-lenbeck, 9 Pick. 551; Kaley v. Shed, 10 Met. 317; Perry v. Chandler, 2 Cush. 237; Briggs v. B. & L. R. Co. .6 Allen, 246; King v. Bangs, 120 Mass. 514; Chinery v. Vial, 5 II. & N. 288; Parish v. Wheeler, 22 N Y. 494; Johnson y.Stear, 15 C. B. (N. S.) 330.</p>

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

<p>1. Iítdictment — Peejury.—A bill in equity was filed to restrain the defendant from infringing letters patent for improved methods of exploding torpedoes in oil wells, to increase the production thereof, etc.; and, to sustain an intended motion for a preliminary injunction against him, the plaintiffs took the testimony of the defendant and other witnesses. Prom the defendant’s plain admissions, in his own testimony, it clearly appeared that the plaintiff's were entitled to a preliminary injunction against him, and he never made any resistance to the granting thereof. In the course of his said examination the defendant was interrogated, and testified as to the ownership of certain oil wells he was engaged in operating. His testimony touching the ownership of the wells was alleged to be false, and he was indicted for perjury. Held, that the defendant’s alleged false statements in respect to the ownership of the wells did not tend to prevent the granting of a preliminary injunction, or defeat the due administration of justice, and were immaterial.</p>

<p>1. Assignment of Patent — Reservation op Territory. — An assignment of all right, title, and interest in certain letters patent, “ excepting 32 or 33 counties heretofore sold and assigned,” is not void for ambiguity.</p> <p>2. Same — Same—Pleading-.—Such objection cannot be considered, where a bill for an injunction designated the counties upon which the exception operated, and the defendant neither traversed such allegation ‘ in his answer, nor introduced proof tending to show that the territory in controversy was included within such exception.</p> <p>3. Same — Re-Issue—Presumption.—A re-issue of such patent to the as-signee raises a presumption of title in such assignee.</p> <p>4. Patents — Prior Use — Proof.—Prior use must be established by a preponderance of evidence in order to defeat a patent, and every reasonable doubt should be resolved in favor of the patentee.</p> <p>Coffin v. Ogden, 18 Wall. 120.</p> <p>Webster Loom Co. v. Higgins, 16 O. G. 675.</p> <p>Howe v. Underwood, 1 Fisher, 175.</p> <p>Hayden v. Suffolk Manuf’g Co. 4 Fisher, 103.</p> <p>Coodyea/r v. Bay, 2 Wall. Jr. 283.</p> <p>6. Invention — Degree.—If any invention is required in the production of a device, the law will not attempt to measure its extent or degree.</p> <p>6. Same — Barbed Wire Fence. — It required such invention to devise and produce a barbed wire which could be practically used for fencing purposes. •</p> <p>7. Same — Evidence—Use of Device. — The general acceptance and extensive use of a new device is evidence that it was the product of invention.</p> <p>Smith v. Goodyear Bental Vulcanite Co..93 U. S. 486.</p> <p>Bppinger.v. Bichey, 14 Blatchf. 307.</p> <p>Isaacs v. Abrams, 14 O. G. 862.</p> <p>Stanley Works v. Sargeant, 8 Blatchf. 346.</p> <p>8. Same — Re-Issue—The specifications of a re-issue may be made more full and accurate, but must not be substantially changed so as to describe another device, or cover anything not in the original patent.</p> <p>9. Patent No. 67,117 was issued July 23, 1867, to William D. Hunt, for his method of “ providing the wires of a wire fence with a series of spur-wheels;” and re-issued, (No. 6,976,) March 7,1876, to Charles Kennedy, assignee of William’ D. Hunt, for “ a fence wire provided with spurs for the purpose specified.” Held, that such re-issue was nalid.</p> <p>10. Patent No. 66,182, dated Juno 25, 1867, issued to Lucicn B. Smith, embodied the idea of fixing the barbs bj bends in the wire, so as to prevent them from moving lengthwise on the wire. This patent was re-issued, (No. 7,130,) May 23,1876, and contained a claim for the bent wires, as a means of preventing the movement of the barb lengthwise thereon. Held, that no objection to the re-issue had been well taken.</p> <p>11. Patent No. 74,369 was issued to Michael Kelly, February 11, 1868, for thorns or barbs, fixed rigidly to the wires, so that they could neither slide lengthwise nor revolve upon the wires, (1) by stringing them upon the wires by holes through the center, and then compressing them upon the wire by blows or pressure, or (2) by “laying another wire of the same or different size along-side the thorn wire and twisting the two together.’’ The latter method was first claimed in the re-issue, No. 6,902, dated February 9, 1876. Held, that such re-issue was valid.</p> <p>12. Patent No. 84,062, dated November 17,1868, issued to Michael Kelly, and re-issued, (No. 7,035,) April 4, 1876, was for a flat wire, pierced with holes, through which spurs made of pieces of wire, with the ends cut diagonally so as to leave them pointed without further manipulation, were thrust, and for compressing the wire so as to clamp the hath thus inserted in each hole. Held, that this patent and reissue did not show invention, in so far as it claimed for the first time a wire barb made sharp or pointed at both ends by being cut off diagonally.</p> <p>13. Patent No. 150,683, issued May 12, 1874, to Joseph P. Glidden, showed a device for keeping the wires of a fence stretched, or spread apart, by means of a slotted tube. It also showed, as part of the mechanism, a barb, made by coiling a short piece of wire between its ends around the fence wire. This feature was first claimed in the re-issue, No. 6,913, dated February 8,1876. Held, that such re-issue was valid.</p> <p>14. Patent No. 157,124, dated November 24,1874, issued to J. P. Glidden, was for a “ twisted fence wire, having the transverse spur wire, I), bent at its middle portion about one of the wire strands of said fence wire, and clamped in its position and place by the other wire strand twisted upon its fellow, substantially as specified.” Held, that there was nothing left in the line of invention to justify the issue of this patent.</p> <p>15. Ineeingement. — Defendant manufactured a twisted fence wire, armed with a wire barb, out diagonally, so as to leave the points sharp, and which was bent in the form of an “ S,” so as to clasp both wires and extend the sharp points in opposite directions from the • wire. HeU, that such fence wire infringed 1 lunt’s claim for “ a fence wire provided with spurs” or barbs; Kelly’s idea of a rigid or fixed barb, held in place by the twisting of two wires together; and Glid-den’s barb, made by bending a short piece of wire around the fence wire so as to leave the two sharp ends projecting to form the spurs or barbs.</p>

<p>1. Licensee — Plea in Bar. — A licensee cannot, by plea in bar, raise such issues as are usually made in answer to a suit for the infringement of the patent.</p>

<p>1. Salvage — Value of Vessel — Method of Computation.</p>

<p>1. Damages — RefebeNCK—Phactice.</p> <p>In the opinion under which a final decree in admiralty is entered, determining the question of liability, and directing a reference to a United States Commissioner to ascertain the amount of damages, a a statement by the court as to a fact affecting the amount of damages, ami not material to a determination of the question of liability, is not binding, and does not preclude either party from introducing any competent evidence before the commissioner touching the extent of the damage.</p>

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