Volume 41 — Federal Reporter

In Equity. This was a bill of interpleader to settle the title to a certain benefit certificate issued by the plaintiff to Leo F. Kratzsch, a member of Carpenter Conclave, No. 17, Royal Adelphia, located at Milwaukee, and payable on its face to defendant Cappella, the aunt of the insured.

<p>1. Railroad Companies — Mortgage Foreclosure — Receivers—Extension op Powers.</p> <p>Where a railroad is in. the hands of receivers pending suits of foreclosure and settlement of the priority of liens, it is proper, on the application of a lienholder claiming priority, to extend the receivership, as to such claim, over the portion of the road on which the priority is claimed.</p> <p>2. Same — Motion to Consolidate Suits.</p> <p>A motion to consolidate three foreclosure suits, where all are not ripe for decree, and where nothing can be gained for the purpose of a hearing, will J>e denied.</p> <p>3. Same — Leave to File Cross-Bill.</p> <p>Leave to file a cross-bill in a suit of foreclosure, where it appears that the purpose is to secure, between an alleged debtor and the mortgagor, an accounting not necessary to the determination of the suit, will be denied.</p> <p>4. Same — Allowance to Mortgagee por Expenses.</p> <p>An order may be made on the receivers for the payment of expenses incurred by a mortgagee in a suit of foreclosure, where the mortgage makes provision for such expenses.</p> <p>5. Same — Attorney’s Fees op Mortgagor.</p> <p>The mortgaged property being insufficient to pay the mortgages, an order cannot be made for allowance of counsel fees of the mortgagor, to be paid out of money in the hands of the receivers.</p> <p>6. Same — Lease op Another Road — Notice to Mortgagees.</p> <p>The court has power, on consulting the receivers, and without notice to the mortgagees, to order the lease of another road which is found necessary to the profitable management of the mortgaged property.</p> <p>7. Same — Parties.</p> <p>In a foreclosure suit against a corporation, the legal title being in the mortgagor, an application to bring in its grantor as a defendant will be denied.</p>

<p>1. Kaieroad Companies — Taxation—Bridges.</p> <p>A railroad bridge, not constructed as a part of tbe road, and used for general purposes of travel, is subject to local taxation, and the return of the bridge to the railroad assessors of the state as a part of the road’s mileage does not exempt it from such taxation as an independent structure.</p> <p>3. States — Boundary Line between Kansas and Missouri.</p> <p>The act of congress approved June 7, 1836, ceding to the state of Missouri the strip of land known as the “Platte Purchase,’’provided that “when the Indian title to afi the lands lying between the state of Missouri and the Missouri river shall be extinguished, the jurisdiction over said lands shall be hereby ceded to the state of , Missouri, and the western boundary of said state shall be then extended to the Missouri river, ” etc. Held, that by this act the western boundary of the state of Missouri was not fixed at the east bank of the river, but in the center of the channel of said river.</p> <p>3. Same — Act oe Congress. ■</p> <p>That act is to be regarded not only as a grant, but as an act of a competent authority establishing the boundary line of a state.</p>

<p>1. Tkusts — Right to Foixow Trust Funds.</p> <p>Defend ant’s father held the title to lands upon a secret trust for the complainant. He conveyed this land to the defendant without consideration, and upon a secret trust for himself. Defendant, by direction of his father, exchanged this land for the equity of redemption in other land, which was subject to several mortgages, taking the title in his own name upon a secret trust for his father. This exchange was made for the benefit of the complainant, and pursuant to a secret agreement between the complainant and the defendant’s father. The defendant had no notice of the equities of the complainant in eithor parcel of land. Subsequently the defendant, at the direction of his father, conveyed the equity of redemption to satisfy the incumbrances. He had no notice at that time of the equities of the complainant. Held, that he incurred no liability to complainant as a trustee.</p> <p>2. Same — Ratification of Conveyance.</p> <p>Also held, upon the evidence, that the complainant Uad ratified the conveyance of the equity of redemption to satisfy tho incumbrances.</p>

At Law. This is an action to recover damages for an alleged breach of contract, dated May 19,1885. By this contract the plaintiffs were to furnish two high-service pumping-engines for the city of Boston for the sum of $106,-575.

<p>At Law. Action to recover penalty.</p> <p>The defendant employed-in France a woman to come to New York and work for him as a trimmer of hats, and paid her passage to this country. This action was to recover the penalty, $1,000, given by the act of congress (23 St. 333) against any one who should solicit or aid tho immigration of any alien under contract to perform labor or service of any kind. The defendant claimed that the person was within the proviso of the fifth section of the act, which excepts, among others, “professional artists;” and, second, that the business of trimmer of hats was a new industry in the United States, and that he was exempt from liability by the proviso of the same section, which excepts from the act “skilled workmen * * * in or upon any new industry not at present established in the United States.”</p>

<p>Sheriffs — Wrongful Delivery of Attached Property — Limitation of Actions.</p> <p>Under Code Civil Proo. N. Y. § 385, wbicb provides that actions must be brought ■within one year after the cause of action accrues against a sheriff or coroner, upon a liability incurred by him by doing an act in his official capacity, or by the omission of an official duty, except the non-payment of money collected upon an execution, an action against a sheriff for wrongfully delivering plaintiff’s property to a third person, after the attachment suit in which the sheriff had seized the property had been dismissed, must be brought within one year.</p>

<p>Customs Duties — Classification—Pkopbietaby Medicines.</p> <p>Arp’s Pepsin Bitters, which are prepared under the direction of a sworn chemist, and protected hy a trade-mark, and are used, not as a beverage, but as a tonic, mixed with water or wine, in case of certain diseases, their chief medical ingredient being pepsin prepared chemically from the stomachs of animals, are dutiable as “proprietary preparations, ’’under clause 99 of Heyl’s Arrangement of the Customs Act of March 3, 1883, and not as “bitters containing spirits, ” under clause 313 of said Arrangement.</p>

<p>Customs Duties — Classification—Oaki> Clothing.</p> <p>Card clothing which is attached by means of rivets to iron flats, for the purpose of being attached to machines for carding cotton, does not come within the provisions of tariff act of 1883, (22 St. IT. S. 511. Schedule IN’.) relating to the duty on card clothing, hut is assessable under 32 St. IT. S. 501, Schedule C, relating tot he duty upon manufactures composed wholly or in part of iron, steel, etc.</p>

<p>1. Trade-Marks — What will be Protected.</p> <p>Where hay-knives have been advertised and sold for years as “Lightning Hay-Knives, ” and the word “lightning” has been registered as a trade-mark by the manufacturers of these knives, they may enjoin the sale of “Lightning Pattern Hay-Knives, ” the word “lightning” not being merely descriptive of the quality or characteristics of the knives.</p> <p>2. Same.</p> <p>Letters patent No. 112,400, issued to George F. Weymouth March 7,1871, having expired, the owners of such patent have no exclusive right to use the words “Weymouth’s Patent” as a trade-mark, because it was the descriptive name by which the hay-knives became .known to the public.</p>

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

<p>1. Patents foe Inventions — Anticipations—Lanterns.</p> <p>Claim 1 of patent No. 244,944 to Joseph B. Stetson, dated July 26, 1881, for assembled devices adapted to “tubular lanterns, ” for detaching the glass globe of a lantern from the frame, with those whereby the globe is raised and lowered integrally with the deflecting plate and perforated plate, and steadied laterally, has a vertically adjustable deflecting plate above the globe, carrying a spring attached to it, adapted to hold or release the globe; connecting rods, which extend from the deflecting plate to the perforated plate beneath the globe, and unite them rigidly, for the purpose of holding the two plates and the globe integrally together when the globe is raised from the lamp; and guides, which are rigidly attached to the perforated plate, and embrace the sides of the frame, for the purpose of steadying the plates and globe when raised and lowered. Irwin’s patent, dated May 23, 1871, allows the globe to be detached by a spring attached to the deflecting plate, but not to be raised above the lamp, and, when detached, the plates become separated. Ford’s patent, dated July 23, 1871, allows the globe to be raised integrally with the plates above the lamp, by means of rigidly attached connecting rods, but the globe cannot be removed from the frame. Betts’ patent, dated August 26, 1879, has similar guides for lateral support. Colony’s patent, dated February 12, 1878, allows the globe to be raised integrally with the plates by wires carried by the perforated plate and hooking into the deflecting plate; and, by unhooking the wires, the globe can be removed from the frame, but the two plates become detached from each other. Held, that the claim of Stetson was not anticipated by any of these patents, and that the improvements involved invention.</p> <p>2. Same.</p> <p>The second claim of Stetson’s patent has all the parts of the first, except that there is no spring in the deflecting plate to release the globe. Held, that it was an- - ticipated by the Ford and Betts patents.</p> <p>3. Same — Infjmngement.</p> <p>Defendant’s lantern differs from that of Stetson’s first claim only in that the vertical rods connecting the two plates are made in two parts, so that they can be disconnected at a point midway between the two plates. Held an infringement.</p>

<p>1. Patents por Inventions — Infringement—Method por Supplying Street-Lamps with Oil.</p> <p>The first claim of letters patent No. 222,856, issued December 38, 1879, to Henry S. Belden, for a method of supplying' street-lamps with oil, consisting in providing the lamps with removable reservoirs of a number greater than the lamps, and providing a conveyance for transporting filled reservoirs, and substituting them for the emptied ones, is not infringed by a device for transporting filled reservoirs, and substituting them for the emptied ones, which does not use the case or rack for conveying the reservoirs described in the Belden patent.</p> <p>2. Same — Oil Reservoir.</p> <p>The second claim of letters patent No. 286.211, issued October 9, 1883, to Alfred L. Mack, for an oil reservoir having its bottom set in to form a flange to fit over and upon a suitable tank adapted for permanent connection to the service pipe of a lamp, said bottom having an opening provided with a scrow-cap, and air and feed pipes connected thereto, is not infringed by a device which does not combine a screw-cap with the feed and air pipes, and which does not use a second pipe as a feed-pipe, the patent being limited to the entire combination, none of its elements being new.</p>

<p>In Equity. Bill lor injunction.</p>

<p>Patents fob Inventions — Infringement—Impi.ied License.</p> <p>In a suit for the infringement of letters patent No. 278,839, issued June 5,1883, to George B. Waring, Jr., for improvements in sewering and draining towns, it appeared that defendant had paid a royalty on the flush tanks used, and that, before it put in its system of sewers, plaintiff had notified defendant, in response to a question, that he claimed a royalty of 10 cents per foot. Meld that, defendant having acted under an implied license, a hill for injunction and accounting would not lie;the proper remedy being an action at law for recovery of the royalty.</p>

<p>At Law.'</p> <p>, Action .by the. National Rubber Company to recover royalties on certain inventions-under a license to the Boston Rubber-Shoe Company.</p>

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

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

Ill Equity. Petition by defendants, in a suit for infringement of a patent, to restrain complainant from bringing further suits against purchasers of the patented article.

<p>Patents eob Inventions — Inebingesient—Button Sewing Machines.</p> <p>Letters patent No. 236,350, for a machine for sewing shank-buttons on fabrics, issued January 4, 1881, to James H. Morley and others, are infringed by a machine manufactured under letters patent No. 268,369, issued November 28,1882, to Joseph Mathison and others. Following Morley Sewing-Machine Co. v. Lancaster, 9 Bun. Ct. Rep. 299. ] *</p>

In Equity. Bills for infringement of letters patent. The third claim of reissued letters patent No. 9,307 is as follows: “(3) The guide, G, arranged above the junction of the lifting arm and upright rod, in combination with the prolonged rod, 7i, the guide, G, and arm, A, substantially as and for the purpose specified. ” The first and second claims of No. 191,088 are as follows: “(1) The sliding block, O, carrying the spring locking bolt, g, in combination with the fixed…

<p>Collision — Tow and Deedge at Anchoe — Change of Course.</p> <p>The ship C. A., while being towed by the tug V. up the Delaware river, on a clear night, brought up on the hawser of a dredge at anchor in the middle of the river, and was thereby sheered suddenly into the dredge, and sustained damage, to recover which she brought this suit against the tug. The evidence indicated that the accident was caused by an attempt on the part of the tug to pass from the east to the west side of the dredge, when so near the latter that the ship, in following the tug, brought up as above stated. Meld, that the tug was liable for the damage.</p>

<p>In Admiralty. Libel for damages. On appeal from district court.</p> <p>FINDINGS OF FACT.</p> <p>(1) The British steam-ship Rover was chartered by her owner, Peter Denniston, (under his firm name of Peter Denniston & Co.,) under a charter of affreightment, on June 16, 1885, to the Merritt Fruit Company, and by that company subchartered to the libelants on September 21, 1885. Under these charters, she had made several trips previous to the voyage hereinafter referred to. (2) Both charters contained the following written clause, “Steamer not responsible for delivery of cargo in</p> <p>bad condition,” and exempted her owner from liability for the act of God, and all other dangers and accidents by the sea, rivers, and navigation. They further provided that the captain, although appointed by the owners, shall be under the orders and direction of the charterers, as regards employment, agency, or other arrangements; and the charterers agree to indemnify the owners from all consequences or liabilities that may arise from the captain’s signing bills of lading, or in any other wise complying with the same. (3) The libelants, on or about December 7, 1885, loaded the steamer at Puerto Cortez, Honduras, with a cargo of 10,092 bunches of bananas and 42,159 coeoanuts, to be transported to Charleston, S. C., and thereupon the master issued a bill of lading, such as had also been used on previous trips, which contained the following exceptions:</p> <p>“Loss or damages resulting from * * * any of the following perils excepted, whether arising from the negligence * * * of the master or mariners, or others of the crew, or otherwise however, viz.: Kisk of craft, explosion or lire at sea, in craft or on shore, boilers, steam, or machinery, or from the consequences of any damage or injury thereto, however such damage or injury may be caused; collision, stranding, or other perils of the seas, ” etc.</p> <p>(4) On December 10, 1885, while in the Florida straits, the steamer experienced very tempestuous weather, with a violent gale and heavy sea, causing her to take much water on board. While thus exposed, and between much pitching, her crank-shaft, operating the propeller, broke. (5) Owing to the fracture of the crank-shaft, the vessel lay in the trough of the sea for nearly 36 hours, while the engineer strapped together the broken parts of the shaft. During this time she rolled heavily. The bins which kept the bunches of bananas in place between decks and in the hold were broken down; and the bananas became more or less bruised and mashed, so as to be greatly damaged on arrival. By reason, also, of the laboring and straining of the steamer while lying in the trough of the sea, and thus taking much water aboard, sea water also penetrated to the cargo, and damaged the same. (6) The engineer having strapped together the broken parts of the shaft, the aft engine was set in motion, and the vessel again-proceeded on her voyage, reaching Charleston on December 15th, where she delivered the cargo, damaged as aforesaid, to the libelants. (7) The Rover was built at Dumbarton, Scotland, in 1874. Her tonnage was 431 gross and 270 net. Her engines and machinery were supplied by a firm that stood high in the trade. The subcontractor who forged the shaft had the highest reputation for turning out good work of that kind. (8) The shaft which broke was made of the best scrap-iron, which is considered the best material for the purpose, and was forged in the manner then and now generally in use for the forging of such shafts, namely, by building out the ingot metal in the form of a parallelogram, and then slotting the form out of the solid, so as to avoid a weld at or near the junction,of the cylindrical part of the shaft with the web of the crank. The mode of manufacture known as “jumping on,” by which the end of a shaft is</p> <p>welded into the concave surface of its arm, was not followed in the forging of this shaft. (9) The shaft was 25 per cent, larger than required by the board of trade rules for vessels of her size. It had been in use in the Rover ever since her construction, in 1874. Frequent examinations were made and surveys held upon the machinery and shaft by private surveyors, by the board of trade surveyors, by the surveyors to Lloyds, and by the engineers; but no material or substantial defect in the shaft was ever discovered. (10) The broken parts disclosed no substantial defect which in any way conduced to the fracture, or determined its direction or extent. (11) There was no negligence on the part of the owners of said steam-ship, or any of their employes, which contributed to or caused the fracture of the crank-shaft, or the damage to her cargo in consequence thereof. (12) At the dates of the charters, and at the commencement of the voyage upon which her crank-shaft broke, the steamship Rover was in all respects seaworthy, and reasonably fit for the service upon which she was about to embark.</p> <p>CONCLUSIONS OF LAW.</p> <p>(1) The Rover is not, nor are her owners, responsible for the damage to the fruit; it not appearing that the same was caused by her unseaworthiness, or by the negligence of her owners, or of any of their employes. (2) There should be a decree for the respondent, with costs of both courts.</p>

<p>Shipping — Inability op Ownek — Limited Liability Aot.</p> <p>In a libel in personam by a material-man for repairs on a vessel, it appeared that the repairs wore made and the supplies furnished on the authority of both respondents, each being a half owner in the vessel, and that they were furnished on the order of one of them, with the previous knowledge and consent of the other. Held that, under Act Cong. June 26,1884, providing that the liability of a ship-owner shall be limited to the proportion of any and all liabilities that his share of the vessel boars to the whole, but that this provision shall not apply to wagos due to persons employed by such ship-owner, both the respondents were liable for the whole amount duo for such repairs, they being made on the personal contract of each of them.</p>

<p>Í. Shipping — Cabeiage oe Goods — Loss—Bubden oe Prooe.</p> <p>If goods shipped on a vessel are lost before delivery at destination, the presumption is that the loss occurred by default of the carrier, and the burden is on him to show it due to a peril of the sea, from liability for which he is exempted by the bill of lading.</p> <p>2. Same — Exemption erom Liabilitst.</p> <p>If the claimant shows that the ship encountered such bad weather as warrants the conclusion that the loss was due to the motion caused by the sea, this is a peril of the sea, within the meaning of the exception in the bill of lading, and exempts the carrier from liability, unless the libelant shows that the loss would have been prevented by proper.stowage.</p>

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

<p>1. Federal Courts — Jurisdiction—Demurrer.</p> <p>Where the citizenship of the parties appears in the petition, defect of jurisdiction on that ground may he raised, by demurrer, in tho absence of a general appearance.</p> <p>2. Same — Suits a&ainst Aliens.</p> <p>Under Act Cong. Aug. 18,1888, (25 St. at Large, 484,) which confers on the federal courts jurisdiction of suits between citizens of different states, or between citizens of a state and foreign states, citizens, or subjects, hut provides that no suit against any person shall he brought “in any other district than that whereof he is an inhabitant; but, where the jurisdiction is founded only on tho fact that the action is between citizens of different states, suit shall be brought only in the district of tho residence of the plaintiff or the defendant, ’’ — the circuit court has no jurisdiction of an action by citizens of the district against an alien temporarily in tho district.</p>

<p>In- Equity-. Action for -account.</p>

<p>1. Federal Courts — Federal Question — Eminent Domain — Title op Occupant.</p> <p>Under Act Cqng. 1875, giving circuit courts jurisdiction in all cases “arising under the constitution or laws of the United States, ” such courts have jurisdiction of a hill for an injunction to restrain a railroad company from extending its road across land belonging to the United States, and to which the complainant claims to . have an equitable title as a pre-emptor, where the question in dispute is whether complainant has a right to the land under the land laws of the United States.</p> <p>2. Same — Remedies—Injunction.</p> <p>Where the complainant’s title is under consideration in the land-office, the railroad company will be enjoined from entering upon the land until it has taken proceedings to condemn the land, and has given security for the payment of the appraised damages as soon as complainant’s title shall have been determined in the land-office.</p>

<p>In Equity. On motion for a commission to take a deposition.</p>

<p>In Equity. On motion for a subpoena duces tecum.</p>

<p>Bill in Equity by Hannah M. Hamblin against James It. Bishop, to Compel Reconveyance.</p>

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

<p>At Law. Action of debt.</p>

<p>1. Master and Servant — Fellow-Servants—Railroad Employes.</p> <p>A bridge watchman on a railroad and the engineer and conductor of a train on the road, being engaged in different departments of the company’s, service, and working under the immediate direction of different foremen, are not fellow-servants, so as to exempt the company from liability to the former for the trainmen’s negligence. 0</p> <p>¡S, New Trial — Weisht oe Evidence.</p> <p>In an action by a watchman of a railroad bridge for injuries received by a passing train, the only theory on which a verdict could be sustained was that plaintiff was caught on the trestle. The only evidence in support of this theory was the testimony of three witnesses who yisited the scene of the accident 8 or 10 hours after it happened, and who stated that they found a spot of blood at the foot of the east abutment, from 80 to 50 feet in a direct line from the top of the trestle. The plaintiff was rendered unconscious for several weeks by Ms wound, which was on the head, and after he regained consciousness had no recollection of the details. The testimony of the trainmen and two passengers tended to show that he was struck at the end of the bridg-e, probably while sitting near the track. There were no wounds, except the one on his head, which could have been made by the locomotive bumpers. Held, that a verdict for plaintiff would be set aside.</p>

<p>Promissory Notes — Time oí Payment.</p> <p>A note reciting: “Por value received I promise to pay to S. F. Smithers $2,043.25, payable at my convenience, and upon this express condition, that I am to be the soie judge oí such convenience and time of payment, ” — does not contemplate that the money shall become due only at the pleasure of the maker, without regard to lapse oí time or the rights oí the payee, but that maker is to have a reasonable time, to be determined by himself, in which to pay the note.</p>

<p>1. Customs Duties — Free-List—Horn Strips.</p> <p>Polished horn strips, ready and completed íor use as hones or stays for ladies’ corsets or dresses, are free of duty, under paragraph 513 of section 3503, Rev. St. U. S., (Free-List.)</p> <p>3. Same — Construction of Act — Commercial Designation.</p> <p>The commercial designation is the first and most important designation to he ascertained in settling the meaning and application of the tarifi laws.</p>

<p>1. Salvage — Service—Definition.</p> <p>Salvage, as au act, is the relief of property from an impending peril of the sea by the voluntary exertions of those under no legal obligation to assist; and its merit varies with the peril of the property and difficulty of relief.</p> <p>2. Same — Compensation.</p> <p>Salvage, as a compensation, is a reward for meritorious service in saving property in peril on navigable waters, and is allowed as an encouragement to such endeavors.</p> <p>3. Same — Basis of Award.</p> <p>Salvage compensation should be liberal, but not extravagant; and, where the circumstances show the service to be of a low degree, it may be diminished to mere wages.</p> <p>4. Same — Request of Master for Assistance.</p> <p>If the peril is not in fact imminent, but is thought to be so by the master, and he requests assistance, the ship cannot refuse to pay for the services then rendered, on the ground that the vessel would have been saved without them.</p> <p>5. Same — Vessel and Cargo.</p> <p>The vessel is not liable for the proportion of salvage due by the cargo; and, on a libel against the vessel alone, no award can be made against the cargo for its proportion.</p>

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

<p>1. Admiralty — Jurisdiction—1Territorial Limits — Civil Process.</p> <p>As the territorial limits of a federal court’s jurisdiction in civil causes in admiralty are confined to the territorial limits of the judicial district, its civil process does not run to that frontier or belt of water recognised by the law of nations asunder the control of the littoral owner, for purposes of revenue and defense.</p> <p>2. Same — Libel in Rem — Constructive Jurisdiction.</p> <p>For the purposes of a libel in rem, a vessel cannot bo considered to be constructively in port, within the court’s jurisdiction, though it did not clear when it left port.</p> <p>3. Same — Jurisdiction by Consent — Power or Master.</p> <p>When a vessel is outside the territorial limits of a court’s civil process, the court cannot obtain jurisdiction of it, for the purposes of a libel in rem, by the consent or stipulation of the master.</p>

<p>Fede»ax Courts — •Jurisdiction—Assignees.</p> <p>Defendant city, having voted bonds for the erection of water-works, contracted for the same withF. & Co. Plaintiffs furnished the pipes for the works, and an agreement was made between, plaintiffs, defendant, and the contractors by which plaintiffs were to be paid for the material furnished soon after the works were completed. Upon the completion of the works, the contractors drew an order on the city in favor cf plaintiffs for the amount due, which order was duly accepted by defendant. FTeld, that the order and acceptance constituted a direct agreement between plaintiffs and defendant, and was not an assignment of the contractors’ claim, within the meaning of Act Cong. Aug. 18, 1888, providing that an assignee cannot bring suit in the circuit court unless the assignor might have done so had no assignment been made.</p>

<p>1. Husband and Wipe — Wipe’s Equitable Estate — Bona Five Puechaseks.</p> <p>Where legal title by deed and official record is in tbe husband, the equitable interest of the wife will not prevail against a mortgage made by the husband, in the absence of notice to the mortgagee.</p> <p>2. Taxation^-Tax-Sales.</p> <p>Where an execution has -been issued against a tax collector and the sureties on his bond, and an affidavit of illegality filed by the tax collector under the statutes of Georgia, (Code, §§ 525,3606,) has been accepted by the levying officer, a subsequent sale of the property of the surety, before judgment on the illegality, is invalid, and conveys no title.</p> <p> (Syllabus by the Court.) </p>

<p>.Mechanics’ Liens — Pkiokity—Injunction—Pleading.</p> <p>A bill to enjoin the enforcement of a judgment which became a lien on land a few days after the making of the contract under which complainant erected a building, filed a lien, and purchased the property on a suit to enforce the same, is demurrable, where it does not specify the dates of commencing work under such contract, and of furnishing the labor and materials.</p>

<p>At Law. Demurrer to narr.</p> <p>Action by Carl A. Nybladh against C. J. E. Herterius et al. for malicious prosecution and'false imprisonment.</p>

<p>1. Depositions — Indoksehent on Envelope — 'Waives of Ibbegulabities by Stipulation.</p> <p>The envelope containing a deposition was sealed with seals bearing the notary’s stamp, but not his signature, was not indorsed with the name oí the cause, and the only indication that it was mailed by the notary was a request to return to him if not called ior. It was directed to the justice of the circuit court, and was ojjened on its receipt. Held, that any irregularities were waived hy a consent to the publication and opening, “without prejudice to any objections to the inclosed deposition other than relating to publication and opening, which is hereby waived. ”</p> <p>3. Same — Cebtipicate—Intbbest of Notaby.</p> <p>Where the notary cei-tifies that he is not attorney for either party, omission 1o certify that he is not interested in the event of suit is not sufficient cause to suppress the deposition, especially where it appears that, by consent, the testimony was taken in short-hand by a disinterested porson.</p> <p>3. Same — Pailube to Attach Notice.</p> <p>Where a deposition is taken after full notice of time, place, and person, it is not necessary to attach the notice under which it was taken.</p> <p>4. Same — Retention by Notaby until Mailed.</p> <p>It is not necessary that the certificate of the notary should state that he retained the deposition until it was mailed.</p> <p>5. Continuance — Absence of Witnesses.</p> <p>In an action for ice sold, continuance will not be granted for absence of tho masters of the vessels which brought it, who are said to be material witnesses as to its quantity and quality, where the affidavit shows search in several ports, but does not indicate when and where they will he heard from again, especially as the mate, and not the master, usually inspects the cargo.</p> <p>6. Pleading — Amendment.</p> <p>Leave to_ amend by striki ng out an admission of partnership between plaintiffs, and inserting that defendant has no information on which to form a belief on that point, will not be granted where defendant has been required to answer under terms.</p>

At Law. Action to recover damages for an injury alleged to have been caused on the 22d of May, 1887, at Bay View station, in Baltimore county, Md., by negligence of defendant’s servants.

<p>1. Customs Duties — Fbee-List—Acids.</p> <p>The meaning oí the provision for “all acids used for medicinal, chemical, or manufacturing purposes, not specially enumerated or provided for, ” contained in the free-list of the tariff act of March 3,1883, (22 U. S. St. at Large, 488; Tariff Index, new, 594,) seems to be that acids which are used for the reason that, by their chemical combination with other articles, they produce substances medicinal, substances chemical, or substances which are regarded as the fruits of manufacture, are to be admitted free of duty.</p> <p>2. Same — Saccharine.</p> <p>Saccharine, which is a chemical compound consisting of a dry white powder, sweeter by from 280 to 300 times than cane sugar; which is chiefly used in soda . and mineral waters, liquors, wines, preserves, chewing tobacco, chewing gums, medicines, and other things, but for the sole purpose of sweetening them; and which, though chemically an acid, is always bought and sold under the name of “saccharine, ” and never under that of “acid, ” — is notfree of dutyunder the above-mentioned provision for acids, but is dutiable, as a “chemical compound, ” at the rate of 25 por cent, ad valorem, under tho provision for “all chemical compounds, * * * by whatever name known, and not specially enumerated or provided for, ” contained in Schedule A of the aforesaid tariff act of 1883, (Tariff Index, new, 92.)</p>

<p>Indictment for Robbing the Mails, under Rev. St. U. S. § 5469 R. W. Memminger, Jr., for the defendant.</p>

<p>1. Patents eor Inventions — Anticipation—Beer-Filtering Process.</p> <p>Patent Ño. 378,879, granted February 31, 1888, to Simon Uhlmann and Frederick Uhlmann, as assignees of Heinrich Stockheim, of Germany, for a filtering process for beer, was not anticipated by the devices known as the “Johnson Filter, ” the “Meller Filter, ” and “Enzinger’s 1878 Patent. ”</p> <p>3. Same.</p> <p>A rude pencil sketch of an apparatus, never made and carried into practical use, is not sufficient to defeat a patent on the ground of anticipation.</p>

■ In Equity. Final hearing in a suit to restrain infringement of the second claim of letters patent 171,866, for improvement in paper boxes, granted January 4, 1876, to Reuben Ritter. The claims reads as follows: “ (2) A box top consisting of the parts, /, f1, f2, fs, connected together by notched extensions, /4, passed through slots, f5, in the manner and for the purpose described.” (1) As to invention: Palmer v. Johnston, 34 Fed. Rep. 337; Stegner v. Blake, 36 Fed.

In Equity. Suit on three letters patent for improvements in gang-edgers granted to J. A. Kobb, and assigned to complainants, numbered respectively 227,936, 258,946, and 290,358, and dated respectively May 25, 1880, June 6, 1882, and December 18, 1883. In order to show the state of the art, a witness for respondents produced a sketch, marked “Exhibit 19,” which he stated represented a machine seen by him at Bangor, Me., over 15 years before, in the shop of a manufacturer.

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

<p>At Law.</p> <p>Action by Otto Chils against Gustave Gronlund et al. for infringement of copyright and damages.</p>

<p>1. Uxitkd States Marshal — Custody Pees.</p> <p>A marshal may receive more than 82.50 per day for custody fees on proof to the court of the existence of extraordinary circumstances, requiring extraordinary expenditure in order to maintain his custody.</p> <p>2. Same.</p> <p>A small steamer was libeled by the government and attached by the marshal, who placed extra keepers on her, and, on taxation of his bill, sought to charge $2.50 for each of three keepers during the day, and $3.30 for each of two keepers by night. A reference being ordered to take proofs as to the items in the marshal’s bill, it appeared that /hen the steamer was attached she was lying at a dock without crew, engineer, or provisions, and no evidence was given from which an intention on the part of the claimants to remove her from the marshal’s custody could be inferred. The marshal showed that the proceeding against the vessel had been characterized by the treasury department as an important one, and that he had informed the district attorney of his employment of extra keepers, which had been approved by the latter. JH>7d, that the testimony did not show a state of facts requiring an extraordinary expenditure, and that the marshal was entitled to $3.50 per day for custody fees, but no more.</p> <p>3. Same.</p> <p>A marshal cannot charge $3.50 custody fees for the day and $3.50 for night. The Perseverance, 33 Fed. ¡Rep. 463.</p> <p>4. Same — -Reference to Ascertain Amount of Fees — Costs of Reference.</p> <p>In a proceeding by the government to obtain a decree of forfeiture against a vessel,-when the forfeiture is remitted on condition that claimants of the vessel pay all costs' and expenses, the costs of a reference to ascertain the amount of the marshal’s fees must be borne by claimants, even though, on such reference, the sum claimed by the marshal has been reduced by the court to a sum less than what the claimants were’at all times willing to pay.</p> <p>5. Same — Commissions—Rev. St. § 839 — Settlement of Forfeiture Proceeding.</p> <p>On settlement of a proceeding by the government to obtain forfeiture of a vessel, the marshal is entitled, under Rev. St. § 839, to commissions on tne value of the vessel proceeded against.</p>

<p>In Admiralty. Libel for damages. On appeal from district court.</p>

<p>1. Shames — Employment of Assistant by Engineer.</p> <p>On libel for wrongful discharge of an engineer by the master, it is immaterial that the chief engineer was to employ his assistants, as libelant must be regarded as employed with the consent of the master and owners, and as one of the crew.</p> <p>3. Same — Discharge—Neglect of Duty.</p> <p>Neglect of duty in not attending to his engine, and keeping up a high pressure of steam, in an emergency, is not shown, where it appears that the fault was in the fuel, and the exhaustive demands on the engine.</p>

<p>Collision — Limitation of Liability — Apportionment of Loss — Cargo.</p> <p>Where several vessels are all in fault for collision, the damages should be divided between them pro rata, subject to the limitation of liability prescribed by section 4283 of the Revised Statutes. If the amount recoverable from either vessel is less than her share of the loss of the cargo, such amount should be first applied on account of the cargo; and the other vessels or their owners are chargeable pro rata, up to their limit of liability, for the balance of the whole-loss of cargo belonging to third persons not in fault, and for their proportion of the loss of any other vessel; but the latter, to make good the loss of cargo, must apply thereto any moneys coming to her for her own loss, so far as necessary to make good her share of the cargo loss. Either vessel thus paying more than her share of the whole loss is entitled to the benefit of the judgment against any other party, up to the limit of his liability, for any excess paid in the first instance on his account.</p>

In Admiralty. Action for damages occasioned by collision between the schooner Early Bird and a tow in charge of the steam-tug Howard Carroll.

<p>Equity — Setting Aside Deed — Considekation.</p> <p>In consideration of a deed of certain land, defendant assigned to complainant what pui’ported to be a voucher of a claim against the United States. Tho conditions prescribed by Rev. St. ü. S. § M77, for transferring such, a claim, had not been complied with. The voucher tx-ansforred to complainant was not the one issued to the ox’iginal claimants, but had been surc-eptiUously taken from the flies of the congressional committee on claims, which defendant probably knew, as also the fact that the claim it x-epi-esented had been disallowed by the federal supreme court. Held, that the transfer to complainant did not give him even an equitable right to the payment of the voucher by special act of congress or otherwise, and that the deed was without consideration.</p>

<p>1. Contract — Mode of Payment — Modification.</p> <p>On a bill lor specific performance of a contract granting complainant the exclusive agency for the sale of certain patented, articles and apparatus to be furnished by defendant, the complainant's book-keeper testified that he was officially informed by defendant’s president that defendant had agreed to waif for its pay for apparatus furnished until complainant’s customers had paid therefor. It appeared that business was conducted in that way thereafter, and that shortly before, the contract granling complainant the territory, and agreeing to supply it with apparatus, had been continued, though it was known to be virtually insolvent. Held sufficient to show a modification of the contract as to mode of payment, though some correspondence between the parties seemed contradictory.</p> <p>2. Same — Effect of Modification — Waiver of Condition.</p> <p>By making, after the known virtual insolvency of complainant, an agreement recognizing and continuing the original contract, a provision of the original authorizing abrogation of the contract, after an arbitration showing that complainant’s financial responsibility has become so impaired that defendant cannot safely do business through it, is waived, unless complainant’s credit becomes further impaired.</p> <p>3. Same — Arbitration and Award — Contractor’s Financial Responsibility.</p> <p>As the contract gave no right to security, refusal to furnish it was no ground for demand of arbitration as to complainant’s financial responsibility.</p> <p>4. Same — Termination—Grounds.</p> <p>Defendant, having terminated the contract, and demanded arbitration as to complainant’s financial responsibility because of its refusal to furnish security, cannot justify its breach on the ground that other causes existed which might have been made grounds for terminating the contract.</p> <p>5. Same — Extending Time of Payment — Validity.</p> <p>A promise by the patentee to extend the time of payment by a licensee for the articles to be furnished according to contract until the licensee’s customers shall have paid therefor, which is made when the licensee is financially embai-rassed, is valid.</p> <p>6. Patents for Invention — License— Speoifio Performance — Injunction and Ac-</p> <p>counting.</p> <p>Where specific performance of an agreement giving a license and exclusive agency within certain territory for sale of a patented article cannot be enforced, the bill may be retained, and an injunction and accounting ordered; the defendant being by the contract prohibited from selling in the spepified territory.</p>

<p>1. Reeekence — Pismires or Masteb.</p> <p>A master’s report that there was an established license fee for the use of a patented article is sufficient to sustain a finding of damages to the amount of such fee, though the evidence was oral, and no license was introduced.</p> <p>2. Evidence — Heaksat.</p> <p>Parol evidence as to the existence of an established license for a patent is not hearsay.</p> <p>3. Patents for Invention — Infringement—Damages.</p> <p>Where defendants infringe on complainant’s rights, it is immaterial whether they were acting in good faith, or under the supposed protection of letters patent, where actual damages only are allowed. i. Same — Manufacture by Complainant’s Licensees.</p> <p>It is no defense that the infringing article made under defendants’ patent was 'manufactured by complainant’s licensees, where the latter did not account for them to complainant, nor consider them within their license.</p> <p>5. Reference — Findings.</p> <p>An exception that the master’s report returned profits made by defendants, though profits were waived, is groundless, where the master makes his finding on the measure of the license fee alone.</p> <p>C. Patents for Invention — Infringement—Apportionment of Damages.</p> <p>On suit for infringement of patents of different dates, damages need not he apportioned for infringement of each.</p> <p>7. Same — Measure of Damages.</p> <p>The license fee is the proper measure of damages, and it is immaterial whether or not the patent is a foundation patent.</p>

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

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

<p>1. Factors and Brokers — Unauthorized Acts — Ratieioation.</p> <p>Where grain brokers, employed by a dealer to buy and sell wheat on future delivery, write the dealer that a contract which he has for May can be changed to June delivery, to which letter the dealer makes no reply, and the brokers so change the contract, sending a statement to the dealer showing such change to have been made, the receipt and retention of the statement by the” dealer without objection amounts to a ratification of the brokers’ act in making the change.</p> <p>2. Same — Gambling Contracts — Grain Futures.</p> <p>If, in contracts for the sale of wheat, to be delivered in the future, the parties have no intention to make an actual sale and delivery, but intend to settle at'the time fixed for delivery merely by paying the difference between the contract and the' market price, the contract is a wager, and is illegal, and advances made under it cannot be recovered.</p> <p>3. Same — Right oe Broker to Recover Advances.</p> <p>In an action against a dealer by brokers employed by him to buy and sell wheat for future delivery, to recover advances made by them on his account, where the contracts on their face are for actual sale and delivery, the burden is on defendant, if he attacks their legality on the ground that there was no intention of actual delivery.</p> <p>4. Same.</p> <p>If such brokers, acting for the dealer, enter into bona fide contracts for actual sale and delivery, and afterwards, at his request, instead of delivery, settle the losses, and pay the difference between the contract and the market price, they are entitled to recover from the dealer the amounts so paid, though the dealer himself may have had no intention to deliver, the wheat. ;</p> <p>5. Same.</p> <p>The contracts themselves ai’é not conclusive evidence of the intention of the parties, but their intention may be gathered from all the circumstances.attendihg the making of the contracts, and the conduct of the parties with reference to them.</p>

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

<p>1. Railroad Companies — Accidents at Crossings — Private Crossings.</p> <p>Tt is the duty of those operating a train, when approaching a place whore persons engaged in business upon the road are called upon to pass from one side of the track to the other, to give warning of its approach, though such place is not a public crossing, and persons thus passing in the discharge of their duties cannot be regarded merely as trespassers.</p> <p>2. Same — Duty to Look and Listen.</p> <p>It is the duty of one about to cross a railroad track to select, if he can safely do so. such a point as will onablo him to see along the track, both ways; and the fact that cars are left in such a position as to obstruct the view of the track in one direction does not excuse him from looking in that direction.</p>

<p>Master and Servant — Railroad Employes — Construction oe Statute.</p> <p>Act Ohio, March 23, 1888, for the protection of railroad employes, requires every railroad in the state “to adjust, till, or block the frogs, switches, and guard-rails on its tracks, ” so as to prevent the feet of its employes from being caught therein. .Heidthat, where two railway companies receive cars from each other over a delivery track at a certain point, a person employed by one of them to take the number of its cars, and inspect their seals, as trains were made up at such place by the other, is an employe of the latter, within the meaning of this statute.</p>

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

<p>Repi/Evin — 'Wrongful Seizübe.</p> <p>Where, in replevin for goods fraudulently purchased, the marshal seizes goods to which plaintiff is not entitled, and hy order of court an issue is framed upon the question whether some of the goods seized were not purchased from the plaintiff, or if so purchased were duly paid for, judgment may he rendered for defendant for goods so wrongfully seized, though such goods were not described in the writ of •replevin, nor in the petition therefor.</p>

<p>1. Trade Names — “Singer Machines” — Use after Expiration of Patent.</p> <p>That the patentee, Singer, and his successors, have manufactured sewing-machines publicly known as “Singer Sewing-Machines,” and the name “Singer” has come to identify the special kinds of machines made by them, does not, after the expiration of the patent, give them exclusive right to the use of the term “ Singer, ” as applied to sewing-machines.</p> <p>2. Patents for Inventions — Expiration—Rights of Patentee.</p> <p>After the expiration of the patent, the public may manufacture machines having the same form of construction, and even ornamentation, used by the patentee.</p> <p>3. Trade-Marks — Infringement.</p> <p>A trade-mark consisting of an oval plate attached to the machine, stamped in the center with .a shuttle and two crossed needles, whose threads forman “S," and around the edge with the words “Singer Sewing-Machine Co.,” and a wreath of leaves, is not, in the absence of a right to the plate itself as atrade-mark, infringed by a similar plate, with the words “Improved Singer” in the border, and the monogram “ J. M. Co., ” in the center.</p>

<p>Tbade-Mabks — Dteringement.</p> <p>A manufacturerbas the right to buy old machines of another mate, and to repair, repaint, and sell them again, without removing the trade-mart put on them by their manufacturer.</p>

<p>1, Patents yob Invention — Patentability—Antioiyation.</p> <p>The improvement described in the seventh claim of letters patent No. 251,470, issued December 27, 1881, to James It. Russell, consisting, in a hat-felting machine, of a vertically adjustable roller combined with afoot lover and an adjustable buffer, consisting of an adjustable screw under the table of the machine, with a rubber end, raised or lowered by a hand wheel thereon so as to regulate the distance the foot lever can ascend, thereby regulating the adjustable roller, is not patentable, as machines had been previously used with two adjustable stops, and an English patent had been granted to William G-rimshaw, in 1872, for a hat-felting machine-which, though having no rollers, had a concave, adjustable surface, adjusted by a treadle and adjustable stop, as in the Russell patent.</p> <p>2. Same. ,</p> <p>The first and second claims of letters patent No. 244,106, issued June 22,1886, to Harvey M. Chittenden for the combination, in a hat-felting machine, of a central shaft, a wooden. roller made in sections, with grooved ends, and a metal- cap with flanges and projections taking into grooves or indentations in the wooden .roller, was'anticipated by the Hill roller and cap, having similar construction, thdugh the Chittenden cap has ribs lying in parallel straight grooves, while the Hill cap has radial ribs lying in radial grooves.</p> <p>3. Same.</p> <p>The fifth and sixth claims, in such letters patent, for an adjustable journal box, secured to the frame of a felting machine, and adjusting itself in alignment with the shaft, was anticipated by the journal box forming part of the felting machine made by Yule in 1879; the minor details of construction claimed not being patentable.</p> <p>4. Same — Impkovements.</p> <p>The seventh and eighth claims, in such letters patent, for an adjustable stop consisting of a vertical screw attached to the under side of the table, with its lower end received within a tube attached to the treadle, which tube, in rising, strikes the hand, wheel on the screw, is not a patentable improvement over a stop consisting of a similar adjustable screw, against the end of which strikes a treadle having no tube.</p>

<p>Patents eor Inventions — Anticipation—Sucker-Rods eor ’Welds.</p> <p>Letters patent No. 821,922, dated August 25,1885, issued to John M. Davidson for an improvement in sucker-rods for deep wells, describe tbe invention as being a section for deep-well sucker-rods, consisting of a spirally twisted metal rod, having at one end a threaded pin and at tbe opposite end a threaded box, both integral with the rod; the twist of the rod being in reverse direction from the thread of its connection. He Id, that the device is not anticipated by metal lightning rods of the same form; its use being in no wise similar to that for which the latter are adapted.</p>

<p>1. Seamen — Wages—Sickness.</p> <p>Libelant shipped on board a schooner for a voyage from Philadelphia to Charleston and back, not to exceed three months in duration. The schooner completed the voyage in a little over a month. A few days after leaving Philadelphia, libelant was taken sick, and was unable to do any work until the schooner reached Charleston, where he helped get the vessel to the wharf, and was then sent to the hospital, the vessel returning without him. Held, that he was entitled to recover wages for the whole voyage.</p> <p>2. Same — Breach op Contjract.</p> <p>The fact that he had a short time before shipping on the schooner been in hospital for treatment for a, disease different from that by which he was afterwards attacked, but had been discharged from hospital as cured, does not show such a breach of the condition that he was able-bodied as to avoid the contract for wages.</p> <p>8. Same — Damages.</p> <p>It appeared that, after the libelant left the schooner for the hospital, the master and mate, who had shown him all kindness, and for the purpose of further favoring him, collected his clothes and deposited them in the wharf office for him. Held, that the libelant could not maintain a claim for damages because some of his clothes were missing. •</p>

<p>Removal or Causes — Non-Residents—Fokeign Cobpobations.</p> <p>A foreign corporation doing business in Texas through local agents, and being, under Gen. Laws Tex. 1887, p. 132, subject to suit by service on the local agents, is not a non-resident, and entitled to remove a cause to the federal courts, under Act Cong. Aug. 13, 1888, § 2, providing for removal by non-resident defendants.</p>

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

<p>Banking — Application on Funds.</p> <p>A member of defendant firm selected cattle, which plaintiffs paid for and shipped to Chicago, where they were sold by defendants. Two of the plaintiffs, corroborated by a third witness, testified that they shipped the cattle as their own, while the defendant who selected them testified that they were not to be shipped as plaintiffs’ property, but they were to receive a specific sum. per car for their advancements and trouble. On sale of the cattle, tickets showing weight and price were given defendant bank for collection. The bank knew that defendant firm received and sold cattle for shippers, and, on the day a shipment from plaintiffs arrived, received a draft drawn by plaintiffs on defendant firm, but failod for oyer 2i hours ’to give notice of its dishonor, and appropriated the proceeds of this and two subsequent shipments to the payment of a note and the overdraft of defendant firm. HeW, that the ownership or control of the cattle was in plaintiffs, and the bank had sufficient notice to entitle them to the proceeds, as against the appropriation by the bank to the account of defendant firm.</p>

<p>In Equity. Suit to recover balance on account.</p>

<p>1. Associations — Articles—Construction—Powers of Trustees.</p> <p>Tbe trustees of au unincorporated “trust, ” organized for the purpose of acquiring, holding, and disposing of the capital stock of corporations engaged in a particular line of business, whose articles of association authorize them “to acquire, receive, hold, and dispose of the title to’’such stock, have power to sell any such stock to third persons.</p> <p>2. Corporations — Stock—Suit to Compel Transfer — Parties.</p> <p>In a suit to compel the officers of a corporation to register a transfer of corporate stock, the corporation is not a necessary party.</p> <p>3. Same — Defenses—Agreement not .to Transfer — Consideration1.</p> <p>In such a suit an agreement between the complainant’s vendor and the defendant, from whom he purchased the stock, that such vendor would not transfer it to any thii-d person, is not a good defense, where it appears that such agreement was made after the defendant had sold the stock to complainant’s vendor, and no con.sideration is alleged for the agreement.</p> <p>4. Same.</p> <p>In such a suit, an answer alleging that the complainant had acquired the stock without consideration, for the purpose of obtaining control of the corporation to the exclusion of defendant, and all other persons interested therein, states a good defense.</p>

In Equity. Oil demurrer to bill. This action was brought by 11, L. Summerlin and George F. Lupton against the Fronteriza Silver Mining &… Held: and what progress had been made, and what was the condition of the affairs of said corporation, to all of which inquiries no answer or information was given or obtained; and your orators further say that the said meetings of the said corporation were held at times and places unknown to them, and they are informed and believe, and so…

<p>1. Factors — Pledge—Bonded Warehouse.</p> <p>A receipt for whisky stored in a bonded warehouse is not a “document of title, ” within the meaning of Act Ky. May S, 1880, which provides that “every tactor or other agent intrusted with possession of a document of title to merchandise shall he deemed the owner, ” so as to validate a sale cr pledge of the property to an innocent third party, and which declares that any custom-house permit or warehouse receipt shall be deemed a document of title, since whisky in a bonded warehouse is subject to the regulations of congress, and isán charge of the officers of the government.</p> <p>2. Same.</p> <p>An agent to whom such a receipt had beqn given, for the purpose of borrowing money on it to pay the revenue lax, paid such tax himself, and, after attempting to export the whisky, stored it in a free warehouse, and then pledged the free warehouse receipt for his individual debt. The owner knew that the whisky had not been pledged to pay the tax, and that the agent had it “in store.” Held, that the agent held the whisky, not as factor, but as creditor, and had no right, under said act, to pledge it.</p> <p>3. Same — Wabehouse Receipts.</p> <p>An agent who receives ordinary warehouse receipts for the purpose of negotiating a certain loan for his principal on their seeurity, and who after obtaining such loan by pledge of the receipts pays the loan himself without the knowledge of his principal, and thus repossesses himself of the receipts, has no authority under said act to pledge them for another loan, since, after his first pledge of the receipts, he was not “intrusted with ” them again, within the meaning of the act.</p>

<p>1. Insurance — Insurable Interest — Warehousemen.</p> <p>Warehousemen who have insured, in their own name, cotton stored in their warehouse on a form of policy containing the special clause, “ cotton in bales, their own, or held by them in trust, or on commission, or on joint account with others, or sold but not delivered, ” have an insurable interest in the cotton entitling them to sue for the entire loss, though the cotton was owned by another person, and that fact was not disclosed to the insurance company.</p> <p>2. Same — The Contract — Risk—Release bt Insured oe Third Persons.</p> <p>Where the owner of property which is exposed to danger of fire from railway engines has released the. railway company from liability therefor, and when the insurance was effected did not mention the release, the question whether the omission to make known the existence of such release invalidates an insurance policy on such property depends upon whether such release was a material fact in the contract of insurance, which is a question for the jury.</p> <p>8. Same — Concealment oe Material Fact.</p> <p>It is proper in an action on the policy in such ease to charge the jury that, if the company in the territory in question made no difference in rate, with right of subrogation or without it, or if they find that thei-e was neither usage nor custom showing the materiality of the right of subrogation among companies in their acceptance or refusal of risks, they might find that the failure to mention the fact of the release of the railroad company, where the application was verbal, was not a ; concealment of a material fact, which would invalidate the policy. '</p> <p>4. Same — Action on Policy — Evidence.</p> <p>Where the complaint in an action on the policy alleges an offer of subrogation to the insurance company, and no motion is made" to strike it out as immaterial, but a general denial is filed, defendant cannot object to the admission of evidence to • prove the offer.</p>

<p>Public Lands — Grants to Colonizers — Construction—Conditions.</p> <p>Act Tex. March 24, 1835, provided for the sotting apart of tracts of land for color nization, and stated how much land should be given to the colonizers, and how much to each settler. A Mexican land grant issued under this law assigned to certain colonizers a large tract of land, but declared that the state retained the right of property over all the surplus land in the tract which should remain after laying off the land belonging to the colonizers and their settlers. The colonizers agreed to establish a certain number of settlers on the tract within a given time, but they failed to do so. Held, that no title passed to the colonizers, the grant not being a present conveyance subject- to defeasance, but a contract to convey on performance of a condition precedent, which was never fulfilled.</p>

<p>At Law. Ejectment by James Bennett against William Fenton and the city of St. Paul.</p>

<p>At Law.</p> <p>Action by John Kimball against the town of Lakeland, to recover interest on certain bonds.</p>

<p>1. Railroad Companies — Franchises—Eminent Domain.</p> <p>A railroad company incorporated under a statute making it a common carrier is not rendered a private enterprise, so as to deprive it of the right of eminent domain, by the fact that it is poorly constructed, and terminates at a coal-mine belonging to the corporation, when it appears that it carries the mails, passengers, and freight, runs regular trains, and has expended about 8280,000 in building its road, and acquiring its right of way.</p> <p>2. Same.</p> <p>Where land sought to he condemned by a railroad company lies on the direct line between the end of its road, as built, and the terminus at'which it aims, the fact that it could reach, such terminus, by a circuitous route, without crossing- such land, does not show that the land is not necessary for the construction of the road.</p> <p>3. Same.</p> <p>Iiand which is owned by a railroad company, and which it expects at some future time to use for railroad purposes, but which it has hold for five years without using it in any way, is subject to condemnation for the right of way of another company.</p> <p>4. Same — Termini.</p> <p>A railroad company whose charter gives it the right to build its road “ from ” a certain city is not barred from making the Union depot in such city its terminus bv the fact that it began to construct its road from a point in the outskirts of the 'city, and for some time ran trains from such point, when it appears tho coinpanv never made any permanent improvements at such point, and that from the first it made efforts to extend its line to the Union depot.</p>

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

<p>On Exceptions to the Master’s Report. Intervention of Owen Sullivan.</p>

<p>In Equity. On exceptions to the master’s report. Intervention of Constantine Andreola.</p>

<p>In Equity. On exceptions'to master’s report.</p>

<p>Set-Oee and Counter-Claim— Sale — Breach oe Warranty — Loss oe Trade.</p> <p>Where one receives goods under contract, and elects to dispose _oi them and pay for them, not the contract price, but their real' value, he cannot, in an action for the price, counter-claim for loss of trade occasioned by his selling the inferior quality of goods received from plaintiffs.</p>

<p>Elections — Majoeity Votes — Assessment of Special Tax.</p> <p>Under Comp. Laws Kan. 1885, | 8759, relating to the purchase of lands for a poor-farm, and providing that “to raise the sum necessary for the purchase of land * * * the board of county commissioners * * * shall have power to assess a tax * * not exceeding 8500, unless the amount of taxes to be assessed shall he submitted to a vote of the people at some general election, and a majority of all the votes cast, at a poll opened for that purpose, shall be in favor of such assessment. ” it is sufficient if the proposition receives a majority of all the votes cast on that particular proposition, and it is not necessary that it should receive a majority of all the votes cast at the election.</p>

<p>Pasties — Joindek—Conversion oe Teust Fund.</p> <p>Under Code Civil Proc. N. Y. § 446, providing that all persons having an interest in the subject of the action may he joined as plaintiffs, and section 1304, providing that judgment may be given for or against one or more plaintiffs, and for or against one or more defendants, and that such j udgment may determine the ultimate rights of the parties on the same side, as between themselves, persons having separate interests in a trust fund may join in an action against the trustee for its loss or conversion.</p>

<p>1. Customs Duties — Classification—Manufactures of Glass.</p> <p>Plate-glass, which has passed through the various processes of manufacture up to and including the process of grinding and smoothing on both sides, in which state it is an unfinished product in the manufacture of polished plate-glass, but was, according to some of the testimony, an article known to the trade and commerce of the United States at and prior to the date of the passage of the tariff act of March 3, 1883, as “ground-glass, ” and used, although to a very limited extent, as such, is dutiable under Schedule B o£ said act, (Tariff Index, new, 143,) “poi’celain and Bohemian glass, chemical glassware, painted glassware, stained glass, and all other manufactures of glass or of which glass shall be the component material of chief value, not specially enumerated or provided forinthis act, 45 per cent, ad valorem, ” and not under the same schedule (Id. 140) as “cast polished plate-glass, unsilvered. ”</p> <p>2. Same — EtjtoesbAtbd Articles — Similitude.</p> <p>The “similitude clause” (section 3499) of the statute has no application, inasmuch as the term “manufactures of glass” is an enumeration in the tariff act.</p>

<p>1. Customs Duties — Classification—India Rubber Bags</p> <p>India rubber bags or pouches, not inflated, and used chiefly for making rubber balloons, are dutiable at 25 per cent, ad valorem, under Schedule N of the tariff act of March 3,1883, (Tariff Index, 425,) as articles “composed of india rubber, not specially enumerated or provided for. ”</p> <p>2. Same — Dutiable Condition.</p> <p>Duty is to be assessed upon imported articles in the state or condition in which they are when imported.</p>

On Indictment for Violation of the Election Laws. Ed Carpenter, officer of election, and Joe Williams, John Catron, and Plummer Thompson, judges of election, were indicted for violation of the election laws. H. Shadinger, the witness referred to in the charge, was one of the federal supervisors.

In Equity. Bill for injunction. Final hearing of suit in equity to restrain infringement of a patent originally granted to defendant, and by him assigned to complainants.

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

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

In Equity. Bill to restrain infringement of patent. This is an action in equity, brought by James Sargent against Nicholas Barry and others, t'o restrain defendants from infringing letters patent No. 199,582, for an improvement in traps for water-closets.

In Equity. Bill to restrain infringement of patents. This is an action in equity, brought by the Eagle Manufacturing Company against W. L. Miller, L. W. Miller, and others, to restrain defendants from infringing certain patents owned by plaintiff.

In Equity. Bill to restrain infringement of patent. This action was brought by Napoleon W. Williames and Robert Coddington against George A. Barnard and the Ingersoll Rock-Drill Company to restrain the infringement of letters patent No. 256,089, issued to Williames April 4,1882, for an improvement in steam-heating apparatus.

<p>Navigable Watees- — Bridges—'Width oe Deaw.</p> <p>A bridge company was incorporated by the legislature of South Carolina with authority to build a bridge across Ashley river, “and there shall be a draw in said bridge in the channel of the river in such place as the same is deepest and most easily navigable, not less than 30 feet wide, for the passage of vessels through said bridge. ” Held, that if the bridge be not built directly across the current, perpendicular to it, then it must leave a clear width of 30 feet open across the channel, estimating with reference to its curve and the obliquity of the bridge.</p>

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

In Equity. Sur exceptions to answers. Bills in equity by Simon Uhlmann and Frederick Uhlmann against the Germania Brewing Company, the Arnholt & Schaeffer Brewiiig Company, John F. Betz, and John F. Betz, Jr., for discovery and relief. The complainants dispensed with the requirement of an oath to respondents’ answers. Respondents refused to answer, alleging the immateriality of the interrogatories, and the fact that complainant dispensed with the oath to the answer.

<p>Bill in equity by William M. Field and Hannah Riddle, surviving executors of the last will of James Riddle, deceased, against the Drew Theological Seminary of the Methodist Episcopal Church.</p>

In Equity. On May 1, 1868, Frederick Myers, as principal, with Henry Moore, Christian Metzyer, and Henry Leiberman, as sureties, executed a distiller’s bond to the United States in the penal sum of $3,000. On September 1,1869, an action of debt was brought on the bond in this court. Moore and Leiberman were the only parties served with summons, the other persons named not being found in the jurisdiction.

<p>1. Railroad Companies — Transportation Arrangement — Power op Receiver to Terminate.</p> <p>Where the receiver of a railroad company makes an arrangement for the transportation of the freight and passengers of another railroad company over the line of his road, and there is no provision making the arrangement obligatory on either party for any stated period of time, the receiver may terminate such arrangement at will, without previous notice to the other company.</p> <p>2. Same — Conveyance—Appurtenances. -</p> <p>A conveyance of a railroad from one given point to another, “including the two tracks composing what is termed the ‘"ST,”’ does not convey the right to use a third track, used, in connection with the Y, for turning locomotives on another road, since such third track is not an appurtenance of the line conveyed.</p>

Petition of .David Armstrong, as receiver of the Fidelity National Bank, for leave to settle controversies with the Seventh National Bank of Philadelphia. Rev. St. IT.

<p>Official Bonds — Clerk of Coubt — Liability of Sureties.</p> <p>The sureties on the bond of the clerk of a district court, conditioned that he shall “properly account for all money coming into his hands” as required bylaw, are liable for his misappropriation of money paid to him as clerk, under order of court, though such order is based upon the practice of the court, and not upon direct statutory authority.</p>

<p>1. Patents por Inventions- — Inkringement—Three-Wheel Plows.</p> <p>Claims 6 and 12 in letters patent No. 858,497, issued November 30,1886, to the David Bradley Manufacturing Company, coveriug, in a three-wheel plow, a brace extending from the axle near the land side to the rear end of the plow-beam, and two other braces extending from the arch in the axle to the same point, where the three are pivoted to the beam by a single bolt, are infringed by braces extending from the axle so as to pivot the frame and plow-beam together, and secure the same movement, though none of the braces extend from the arch.</p> <p>3. Same — Patentabilit y — Levers.</p> <p>The lever described in claims 9 and 10 in such letters patent, which is not attached to but extends under the forward end of the plow-beam, serving to regulate the depth to which the plow can run, and also to raise it out of the ground, and hold it in position for turning and traveling, is patentable, the levers in prior use having been applied to the rear end of the beam, and attached to it.</p> <p>8. Same — Combination op Wheels and Frame.</p> <p>Claim 14, for the combination, with a plow-beam and plow, of the carrying wheels, the caster wheel and frame, having a central pivotal or turning point, is not infringed by a plow whose point does not occupy such central or pivotal position.</p>

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

<p>In Equity.</p> <p>Bill in equity by the Williams Manufacturing Company against William J. Franklin and Omar Franklin, trading as Franklin Bros., to restrain infringement of patent.</p>

On June 29, 1888, congress passed an act entitled “An act to prevent obstructive and injurious deposits within the harbor and adjacent waters of New York city, by dumping or otherwise, and to punish and prevent such offenses. ” The first section thereof provides as follows: “The placing, discharging, or depositing, by any process or in any manner, of refuse, dirt, ashes, cinders, mud, sand, dredgings, sludge acid, or any other matter of any kind, other than that flowing from…

<p>At Law.</p> <p>Action by Lon V. Stephens, receiver of the Fifth National Bank of St. Louis, against Thekla M. Bernays, executrix of George J. Bernays, deceased. Act IT. S. July 12, 1882, § 4, provides that “the jurisdiction for suits hereafter brought by or against any association established under any law providing for national banking associations, except suits between them and the United States, or its officers and agents, shall be the same as * * * the jurisdiction for suits by or against banks not organized under any law of the United States.” Act U. S. Aug. 13, 1888, § 4, provides that “all national banking associations * * * shall, for the purposes of all actions by or against them, * '* * be deemed citizens of the states in which they are respectively located, and in such cases the circuit and district courts shall not have jurisdiction other than such as they would have in cases between individual citizens of the same state.”</p>

<p>In Equity. Bills for an injunction.</p>

In Equity. On demurrer to bill. The bill in this case avers, in substance, that complainant is the owner of certain barbed fence wire patents, and that on or about May 1, 1888, it granted a license to defendant to manufacture and sell certain styles of barbed fence wire to the amount of 6,000 tons per annum; that by the terms of the license defendant agreed to pay a royalty of 15 cents per hundred pounds on all fence wire so manufactured and sold, and to pay the same…

<p>1. Banks and Banking — Deposits—'Taxation—Chiscks and Drafts of City Banks.</p> <p>Bev. St. U. S. 13408, provides that state banks shall pay a tax of one twenty-fourth of one per cent, per month on the average deposits of money subject to payment by-check or draft, or represented by certificates of deposit or otherwise, whether pavable on demand or at some future day. Plaintiff, as such bank, received for deposit checks and drafts on other city hanks, which were sent by it to another bank to be put through the clearing-house, necessitating the. keeping of a large balance in such other bank to meet any balances that might be due from plaintiff to such bank on account of those clearances. Meld, that the checks and drafts upon other city banks constituted a part of plaintiff’s deposits subject to payment on check or draft, and should be included in determining the average daily deposits for the purpose of taxation.</p> <p>2. Same — Checks and Drafts of Country Banks.</p> <p>But. where a portion of plaintiff’s deposits consisted of checks of country hanks, which were not considered as subject to payment on check or draft until they had been sent to the respective country banks against whom they wore drawn, and returned as good, such deposits should not be included in the average daily deposits until such return had been made.</p>

<p>1. Judgment — Power to Stay Execution — Federal Courts.</p> <p>The federal circuit court has power to grant a temporary stay of execution of its judgments.</p> <p>2. Sami; — Railroad Companies — Mechanics’ Liens — Foreclosure.</p> <p>Under Rov. St. Mo. 1879, § 3215, an execution sale under a judgment foreclosing a mechanics’ or contractors’ lien against a railroad is for the benefit of all lienholders who have obtained judgment at the time of the sale.</p> <p>3. Same.</p> <p>Where judgment had been obtained by 2 lienholders, and 20 or more suits to enforce other liens against the same property wore pending, but judgment had not been reached, held that, to prevent a sacrifice of the judgment' debtors’ interest, and to avoid the expense of numerous sales, and complications of title resulting from same, the court would temporarily stay execution on the first judgment until other claims wore reduced to judgment.</p>

<p>Public Lands — Homestead Entry — Sale of Timber — Liability of Purchaser from Trespasser.</p> <p>In 1879, G. made application, affidavit, and paid fee required under homestead laws to enter public land. G. did not go upon the lands, or in any way after that comply with his obligations as a homesteader. In 1883 and ’84, G. sold to L. & N. the right to cut the lumber from the lands. The latter cut and sold to Norris 500 timber logs, worth $1.25 per thousand, lying cut'on the ground; worth $4.50 per 1,000 in the float at the mills. Norris purchased them in good faith at the mills. In 1889, G. was- allowed by the department to become a beneficiary under the act of 1880, by receiving from him $1.25 per acre, less the fee paid in 1877, for the land, and gave him a patent for the land. Plaintiff now sues Norris for the value of the timber at the place he bought it from L. & N. Held, thatG., having been shown to have made application, etc., in 1877, in bad faith, and for the purpose only of appropi’iating the timber on the lands, without in any further way complying with the du-ties imposed on a homesteader, was neither the legal nor equitable owner of the land or timber thereon when L. & N. cut and sold the timber to Norris, in 1883 and 1884; that, without passing upon G.’s title under his patent to the lands, there is nothing in the law forbidding the plaintiff to hold Norris liable for the timber cut by L. &N. as ti-espassers on public land, and sold to Norris; that Norris, having bought in good faith, should be held liable for the value of the timber logs at the time they became severed from the land, — that is, for $1.25 per 1,000.</p>

<p>At Law. On motion for now trial.</p> <p>Action by Linnie V. Atwator against Alonzo J. Whiteman. The jury returned a verdict for plaintiff.</p>

<p>Costs — Amount in CoNTitovuiisr.</p> <p>Under Kev. St. U. S. § 968, which provides that when a plaintiff, in a suit originally brought in the federal court, recovers less than $500, he shall not recover costs, but may be adjudged to pay costs, where a plaintiff suing on a bill of exchange exceeding $500 recovers only $400, because of the allowance oí a counter-claim for breach oí warranty, each party must pay his own costs.</p>

<p>Writs — Service—Corpoeatkmts—Judicial District.</p> <p>Code V». 1887, § 3335, provides that, in an action against a railroad corporation, process may be served on any agent of the corporation when certain officers cannot bo found in the county where the action is brought. In an action begun in the federal court, the sheriff’s return showed that the writ was served on defendant’s station agent, and did not state that none of the said officers could bo found in the judicial district. Held insufficient, since in the federal courts the statutory limitation applies to the district, instead of the county.</p>

The plaintiffs in May, 1888, imported certain merchandise into the port of New York, consisting of fancy papers, known as “velvet paper ” and “embossed paper,” upon which the defendant, collector of the port, assessed a duty of 25 per centum ad valorem, -under Schedule M of the tariff act of 1883, (Tariff Index, 392,) which reads as follows: “Paper hangings, and paper for screens or fire-boards, paper antiquarian, demy, drawing, elephant, foolscap, imperial, letter, note,…

<p>1. Patents foe Inventions — Infringement—Watch Regulators.</p> <p>The invention of letters patent No. 284,079, for improvement in watch regulators consisting of an arm pivoted to the bridge in combination with an index pivoted to ■ this arm, capable of an independent movement, and a screw and spring adapted to set the regulator more exactly after a rough setting by hand, where the screw and spring were placed on the arm bearing against the index, is infringed by a device similar in all respects except that the screw and spring were placed on the bridge bearing against the arm.</p> <p>2. Same — Issue of Letters — Specifications—Sufficiency.</p> <p>Where the method of attachment of the regulator to the bridge is not shown or described, but where the rim must necessarily be cut so as to be “ snapped ” over the projection of the bridge, and where such attachments are commonly, if not uniformly, made in this manner, the specification would be intelligible to an ordinary workman, and sufficient.</p>

<p>Patents for Inventions — Infringement—Ventilator Wheels.</p> <p>Under letters patent No. 261,128, dated July 18,1882, for improvements in ventilator wheels or fans, the first claim was for a hood-shaped piece at the end of each wing in the fan, for the purpose of holding the air from escaping. It appeared that the same device had long been used in the wings of propeller wheels for the purpose of holding the water. Meld that, as the device had been in prior use, the first claim of the patent cannot cover all applications of it, but must be limited strictly to the form of apparatus described in the patent.</p>

<p>1. Collision — Between Steamer and Sailing Vessel — Change oe Course.</p> <p>A schooner inside Cape Henry light-house, at midnight, was run into and sunk by the steamer N. The schooner’s witnesses testified that no change was made in the schooner’s course, and that they mistook the steamer for a pilot-boat intending to run across the schooner’s stern close enough to speak them. This testimony was corroborated by the fact that the respective courses of the vessels would have . brought them together about where the collision actually occurred. Held, that the schooner’s witnesses would be believed, though the officers of the steamer testified that the schooner had changed her course to port.</p> <p>2. Same — Lights.</p> <p>The schooner’s witnesses testified that her side lights were properly set, and burning brightly, and that her green light was seen by them and others from the steamer’s deck after the collision. The pilot and master of the steamer testified that they were on the lookout for a pilot-boat; that, on discovering her mast-he&d light, they burned a blue light as a signal; that soon after they saw a torch in that direction, which they took to be an answering signal from the pilot-boat; that they saw a small white light, which was moved up and down once or twice; and that, though they looked carefully, they could see no side lights on the vessel, which afterwards proved to be the schooner. It also appeared that the burning of the blue light on the steamer had a blinding effect, and would make it impossible for those whose eyes were affected by it to see the green light of the schooner for some time afterwards; that the attention of the master and pilot was concentrated on the mast-head light of the pilot-boat, watching for an answering signal; and that after the answering signal the schooner and steamer were so close that all that could be done was to reverse the steamer’s engines. The pilot admitted that he saw a small green light just before the collision, in the schooner’s rigging. Held, that the evidence fairly established that nhe schooner’s green light was burning.</p> <p>8. Same — Lookouts.</p> <p>Where it appears that the master of the schooner would not have been justified in changing her course even if he had closely observed the steamer’s lights, the fact that the schooner’s lookout, after reporting the steamer’s lights, was called away to help get up a sail, does not put the schooner in fault.</p> <p>4. Evidence — 'Weight and Suebtcienct.</p> <p>Alleged contradictory statements, made by some of the schooner’s, witnesses after the collision, will not be given much weight to discredit their sworn testi- ' mony on the trial, when the proof as to what they said was uncertain.</p>

<p>In Admiralty. Cross-actions for damages by collision.</p>

At Law. On application for writ of injunction. Rev. St. U. S. § 720, provides that “the writ of injunction shall not be granted by any court of the United States to stay proceedings in any court of a state, except in cases where such injunction may be authorized by any Law relating to proceedings in bankruptcy.”

On Motion to Remand to State Court. , Action by the Arkansas yalley Smelting Company against Margaret Cowenhoven, Elmer T. Butler, David M. Hyman, and the Compromise Mining Company, a corporation organized in New York, associated together and transacting business as mining partners, under the name and style of the “Aspen Mine.’’

<p>Trusts — Equity Jurisdiction — Pasties.</p> <p>* Where on dissolution of a corporation, owning a lai’ge number of town lots, such lots are given to a committee of stockholders, to be used for the benefit of the town, and the committee conveys the same to the mayor of the town, who conveys them to various persons, with the assent of the committee, a court of equity will not, after the lapse of 13 years, inquire into the execution of the trust by such committee, in a suit between the stockholders of the corporation, to which the mayor’s grantees are not parties.</p>

<p>In Equity. On complaint to sot aside deed.</p>

<p>In Equity. Bill by Helen S. Newberry, as administratrix of the estate of John S. Newberry, deceased, and James McMillan, against Nelson Robinson and others.</p>

<p>1. National Banks — Unlawful Dividends — Liability of Directors.</p> <p>The personal liability of directors of a national bank for violation of Rev. St. U. S. § 5204, by declaring dividends in excess of net profits, and of section 5200, for loaning to separate persons, firms, or corporations amounts exceeding one-tenth of the capital stock, cannot be enforced in an action at law.</p> <p>2. Same — Right of Comptroller to Authorize Suit.</p> <p>Under Rev. St. U. S. § 5239, providing that, if the directors of a national bank shall violate any of the provisions of the title relating to the organization and management of banks, the franchises of the bank shall be forfeited, such violation, however, to be determined by a proper court of the United States in a suit therefor by the comptroller, and that in cases of such violation every director participating-therein shall he personally liable for all damages which the hank, its shareholders, or any other person shall have sustained in consequence thereof, the comptroller cannot authorize the receiver to bring suit, under section 5234, to enforce such personal liability, until it has been adjudged by a proper court that such acts have been done as authorize a forfeiture of the charter.</p> <p>3. Same — Limitation oe Actions.</p> <p>The forfeiture of the rights, privileges, and franchises of a bank authorized by Rev. St. U. S. § 5289, for violation by its directors of the provisions of the banking act, comes within section 1047, limiting suits for any penalty or forfeiture, accruing under the laws of the United States, to five years.</p> <p>4. Same.</p> <p>If the personal liability imposed by Rev. St. U. S. § 5239, upon directors for violation of the provisions of the banking act, in favor of any one injured thereby, can be enforced without reference to whether the charter has been forfeited .or not, is is not a penalty, within the meaning of section 1047, limiting actions for penalties to five years.</p> <p>5. Same — State Statute. *</p> <p>The provisions of a state statute of limitations do not apply to a liability created by act of congress, unless so provided by congress.</p>

At Law. Action for false imprisonment. This is an action by M. J. Hynes against W. H. Briggs and J. H. Ferguson, for false imprisonment, and is submitted upon the following agreed statement of facts: “Defendant Briggs is, and was at the date hereinafter mentioned, the sheriff of Howard county, Ark., and defendant Ferguson a justice of the peace in and for said county.

Bill in equity by R. F. M. Chase against Lewis S. Cox, trading as I.ewis S. Cox & Co., for infringement of patent. Said hill alleged a license between the parties, terminated by default of licensee. Defendant filed a plea denying assent to the termination of the license, and denying the termination thereof, or that defendant had ceased to pay royalty, and to conform to the provisions of the license whereby the license was determined.

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

: In Admiralty. Appeal from district court. For former opinion, see 35 Fed. Rep. 551. Libel by the schooner Isaac H. Tillyer against the tug T. J. Schuyler, to recover damages sustained while being towed up the Schuylkill river. Flanders & Pugh, proctors for The Tillyer, appellee, cited, as to the responsibility of tugs, The Robert H. Burnett, 30 Fed. Rep. 214; Willey v. City of Allegheny, 12 Atl. Rep. 453; The Lady Pike, 21 Wall. 1; The Mohler, Id. 230; The Delaware, 20 Fed.

<p>Demurrage — Liability of Consignee — Bill of Lading — Stipulations.</p> <p>Whore the bill of lading docs not provide for lay-days, nor stipulate as to the time of unloading, the consignees are not liable for demurrage because a cargo was not unloaded until 1? days after arrival, where it appears that the delay was caused by the vessel waiting her turn at the consignees’ wharf according to the usage of the port, and that she was then unloaded with reasonable dispatch.</p>

In Equity. On application for writ of mandamus. The controversy in this case arises in the following manner: On the 15th of March, 1879, the county court of Knox county, Mo., caused two warrants to be drawn on the county treasurer, in favor of the relator, for the sum of $3,258.15 and $6,764.44, respectively.

<p>Railroad Companies — Bonds and Mortgages — Offer of Exchange — Laches.</p> <p>Where a corporation executes a mortgage providing that the holders of a certain “issue of bonds may exchange them for a new issue, “at any time after the execution and delivering thereof, ” a court of equity will not enforce an exchange after 14 years, in favor of purchasers of said bonds, not parties to the mortgage.</p>

<p>1. Circuit Courts — Jurisdiction—Administration or Estates.</p> <p>By virtue of their chancery jurisdiction, the federal circuit courts have jurisdiction over the administration of estates when the requisite citizenship and other conditions exist. This jurisdiction does not extend to the appointment of administrators, confirmation of executors, or the probate of wills; nor will it be exercised when the state courts of concurrent jurisdiction have taken possession of the subject-matter of the controversy.</p> <p>2. Same — State Courts — Jurisdiction.</p> <p>The possession of the state court which will exclude the exercise of power by the federal court, and vice versa, must be the possession of some thing, corporeal or incorporeal, which has been taken under the dominion of the court. A controversy or inquiry is not such thing, and the pendency of a suit or proceeding in one court, involving a question, controversy, or inquiry, is no bar to the exercise of jurisdiction in the determination of the same question, etc., in the other.</p> <p>8. Same — Disagreement among Executors — Appointment or Receivers.</p> <p>Testator, a resident in Michigan, devised certain real estate in trust to his execu- . tors, one of whom was his widow, to collect the rents and profits until January 1, 1890, and to pay therefrom the taxes, insurance, repairs, and interest on incumbrances, and the remainder, in equal shares, to his widow and children, annually or oftener. They were also directed to file annual accounts of receipts and disbursements in the office of the judge of probate of the county in which the property was situated. At the expiration of the trust period the realty was to go to the widow and children in equal shares. His personalty and other realty were charged with the payment of his debts. The will was probated in the state court, and the executors qualified. By the law then in force, executors and administrators had no right to the possession of real estate. Held, that the executors had possession of the trust property as trustees, and that the possession of the state probate court was not such as to exclude the federal court from assuming jurisdiction, upon a disagreement among the executors about the management of the trust, and appointing a receiver.</p> <p>i. Same — Expiration or Trust — Continuing Receiver.</p> <p>Upon the expiration of the trust period, it appearing that the tenants in common disagree, and that they cannot act harmoniously in the management of the property, the federal court will permit a supplemental bill to be filed, praying for partition, or sale if necessary, and continue the receivership.</p>

This is a bill in equity, filed by the attorney general of the United States, in pursuance of the act of congress of March 2, 1889, (25 St. 850,) to procure a decree of forfeiture of all lands granted by the act of congress of.February 25, 1867, to the state of Oregon, to aid in the construction of a military wagon road from Dalles City, on the Columbia, to Fort Boise, on the Snake river, found in 14 St. 409, on the ground that the terms of the grant had not been complied…

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

<p>At Law. On motion to modify remittitur. For opinion on motion to sot aside verdict, see ante, 145.</p>

<p>1. Insurance — Accident Policy — Railway Employes.</p> <p>An accident policy contained, the following condition: “This insurance does not cover entering, or trying to enter or leave, a moving conveyance using steam as a motive power; * * * railroad employes excepted.” Assured was baggage</p> <p>checker of a transfer company. His business required him to meet and hoard incoming trains, and check baggage to other railroad lines, and to residences in Vicksburg. Meld, assured was a railroad employe, within the meaning of the foregoing exception.</p> <p>2. Same — Voluntary Exposure.</p> <p>Whether such an agent is guilty of “voluntary exposure to unnecessary danger, ” in attempting to board a moving train, is a question of fact for the jury.</p> <p>8. Same — Application—Warranty—Bodily Infirmity.</p> <p>The application for an accident policy contained a warranty that the applicant was not possessed of, nor subject to, any bodily infirmity. The evidence showed that assured was near-sighted. ■ Held, not a bodily infirmity, within the meaning of the warranty.</p> <p>4. Same — Conditions—Constructions.</p> <p>The conditions of an insurance policy, providing for forfeitures of the same, are to he construed strictly against the company, and liberally in favor of the assured. The burden of proof is on the company to establish the breach of the conditions relied on for such forfeiture.</p> <p>5. Same — Non-Payment of Premium — Estoppel.</p> <p>The policy of insurance contained a stipulation that “all claims for injuries effected during any period for which its respective premium has not been actually paid shall be forfeited to the company. ” Assured gave an order on his employei* for the premium when the policy was issued, payable in four installments, which was accepted by the agent; and forwarded to the company. The company failed to present the order for payment prior to the death of assured, although several months intervened. Held, the company is estopped to set up the non-payment of the premium.</p> <p>6. Same — Waives of Defenses.</p> <p>Alter the death of the assured, and with knowledge of facts which might have been pleaded by the company in avoidance of the policy, the agent of the company who issued the policy demanded and received from the 'beneficiary in the policy the unpaid premium. Held a waiver of such defenses.</p> <p>7. Same — Pleading—Amendment.</p> <p>Amended pleas may be filed at any time before verdict, to bring the merits of the controversy between the parties fairly to trial; but where the facts set up in such pleas were known, or ought to have been known, to defendant, leave ■will not be granted to file them after all the evidence has been introduced by both sides.</p>

<p>1. Counties — Indebtedness—Constitutional Limit — Pleading.</p> <p>In an action against a county on warrants given in satisfaction of a judgment, an answer which alleges that at the time the judgment was rendered the county debt exceeded the constitutional limit, without stating that such debt exceeded the limit at the time of making the contract on which the judgment was rendered, is demurrable.</p> <p>2. Same — Judgment—Effect,</p> <p>A judgment' against a county is not conclusive as to the legality of the debt on which- it was rendered, where it does not appear that the question of the legality of the debt was put in issue by the pleadings.</p>

<p>1. School-Districjts — Bonds—Estoppel.</p> <p>Tbe payment of interest on school bonds does not estop the school-district from denying their validity, where it is not shown that the officers and people of the district had full knowledge of the facts connected with the issuance and sale of the bonds.</p> <p>2. Same — Popular Vote. •</p> <p>Where the law does not authorize the people of a school-district to vote that bonds be issued for a specific purpose, such a vote does not make the bonds valid, even in the hands of an innocent purchaser.</p>

At Law. Motion for a direction of verdict. This action was brought by Louis A. Salomon and Charles Salomon against William II.

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

<p>Patents fob Inventions — Actions fob Infbingejient — Equity—Jubtsdiction.</p> <p>Equity will not entertain a bill for infringement of letters patent which expired between the date of service and the return-day; there being no special facts alleged entitling complainant to an injunction.</p>

<p>In Admiralty. On libel for salvage.</p>

<p>1. Collision — Tug and Tow at Anchor in Fog — Want of Proper Signals.</p> <p>The tug N., with a fleet of canal-boats in tow, extending from 400 to 800 feet astern, came to anchor in a dense fog in the Hudson river. The N. was assisted by a helper, the, 35., which was under the N.’s orders, and had proper means for signaling in a fog. The canal-boats had not. Held, that it was the duty of the N. to have ordered the 32. along-side the tow, to give fog signals, and because of her failure to do so she was liable for the sinking of a boat in her tow by collision with a moving vessel.</p> <p>2. Same — Fog—Faulty Navigation — Excessive Speed.</p> <p>It is faulty navigation for a vessel to continue her course at a speed of over flve miles an hour, unnecessarily in the Hudson river, in a very dense fog, on a course where other vessels are liable to be encountered.</p> <p>3. Same — Libel for Personal Injuries — Damages.</p> <p>Where libelant was nearly drowned by reason of a collision between two vessels, and sustained serious and permanent injuries, held, that he should recover $5,000.</p>

<p>1. Removal op Causes — Motion to Remand — Filing Record.</p> <p>Though the law of congress relating to the removal of causes provides that the removing party shall file a bond to enter the case in the circuit court on the first day of the next session, and that, the record being so entered, the cause shall proceed as if begun in the circuit court, the other party may file a transcript of the record at an earlier day, and have the case remanded, if it appears upon the face of the record that it was not one authorized, to be removed.</p> <p>2. Same — Right to Remove- — Resident Dependant.</p> <p>Tho removal act of 1888 does not provide for the removal of a cause to the federal courts by a defendant sued in the courts' of the state of which he is* a resident.</p>

<p>1. Cokfobations — Action against Stookholdebs — Res Judicata.</p> <p>Where, in an action against a corporation for the price of machinery, a counterclaim for damages by breach of warranty is disallowed, it is res judicata as to the stockholders, and such counter-claim cannot be pleaded in a suit, on the same cause of action, to recover the amount unpaid on their subscriptions of stock.</p> <p>2. Same — Incubase op Stock — Validity—Estoppel.</p> <p>Where all the stockholders of a corporation assent to the action of a stockholders’ meeting in increasing the capital stock, or ratify such action, they cannot after-wards object to such increase that no formal notice of the meeting was given, or that it was held in another state than that in which the corporation was chartered, there being nothing in the charter to prohibit its being so held.</p> <p>8. Same.</p> <p>Where a corporation organized under Gen. St. Ky. c. 50, has by its charter the power to increase its capital stock, its stockholders, who have acquiesced in such an increase and received the stock issued thereupon, when sued by a creditor of the corporation for the amount unpaid qn such stock, are estopped to say that the increase was invalid because it was not published and recorded as required by sections 5 and 6 of the above chapter.</p> <p>4. Same — Stookholdebs’ .Liability bob Unpaid Stock.</p> <p>After such increase was made in the capital stock, a portion of the new shares was distributed among the stockholders, upon the understanding that they were the owners of the new stock in proportion to the amounts they respectively held of the old, and the certificates issued to them recited that the stock was paid up. The corporation then became indebted to complainants, who had notice of the increase of the capital stock, but not of the disposition made of it, and afterwards the corporation became insolvent. Held, that the stockholders are liable to complainants for the full amount of the new stock so issued to them, and not paid for; the capital stock being a trust fund for the benefit of creditors.</p> <p>5. Same.</p> <p>This liability for the full amount represented by the unpaid stock, on the insolvency of the corporation, extends to persons to whom a portion of the new stock was issued as an inducement to purchase bonds of the corporation, though they, too, received certificates reciting that the stock was paid up, since their acceptance and holding of the stock is, in legal effect, a subscription therefor which imports a promise to pay.</p>

<p>1. Corporation- — Consolidation—Railroad Companies.</p> <p>An Arkansas corporation, owning a line of railroad in Arkansas, consolidated with a Missouri corporation, owning a line of railroad in Missouri. By the consolidation, the consolidated company became the owner of the road in both states, but in Arkansas it is to bo regarded as an Arkansas corporation, and in Missouri as a Missouri corporation.</p> <p>2. .Receivers — Teems—Mortgage—Railroad Companies.</p> <p>When a receiver is appointed for a railroad, the better practice is, for the judge or court making the appointment, to stipulate at the time, and as a condition of the appointment of a receiver, what debts and liabilities of the railway company shall be made a charge on the property and paid by the receivers. If the mortgagee is unwilling to take a receiver on the terms imposed, the foreclosure can proceed without a receivership. If no order is made when the receiver is appointed, it may be made afterwards.</p> <p>3. Same — Actions—Jurisdiction op State Courts.</p> <p>When a slate court has jurisdiction of the parties and the subject-matter, its judgment against the receiver of a United States court is as final and conclusive as it is against any other suitor.</p> <p>4. Federal Courts — Jurisdiction.</p> <p>The United States circuit courts are not invested with appellate or supervisory jurisdiction over the state courts, and cannot annul, vacate, or modify their judgments. This rule is not affected by the last clause of the third section of the act approved August 13, 1888, (25 U. S. St. 436.)</p> <p>5. Appeal — Bond—Receivers.</p> <p>Receivers appealing in good faith from the judgments of the state courts should not be required to give supersedeas bonds.</p> <p> {Syllabus by the Court.) </p>

<p>In Equity. On bill for an injunction against the operation of a street railroad with steam motors.</p>

In Equity. The material allegations in the plaintiff’s hill are that — ■ “The Little Rock & Memphis Railroad Company Is engaged in operating the railroad between the cities of Memphis, in the state of Tennessee, and Little Rock, in the state of Arkansas.

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

<p>Judgment — Equitable Relief — Pleading.</p> <p>A bill in equity showing that a railroad liable over for damages recovered against • a town had settled with the injured person, and that the judgment had been as- ' signed to a third person, and asking to have it canceled if found to have been as-' signed for the benefit of the company, otherwise for judgment for damages against the railroad, is not demurrable on the ground that the relief asked will in one event be purely legal, as the relief granted can only be determined on final hearing.</p>

<p>Sale — Fraudulent Vendee — Bona Fide Purchasers — Evidence.</p> <p>The evidence may be very conclusive that one purchased a stock of goods with the formed intent to sell it immediately, and to hold the proceeds in fraud of the parties from whom he purchased; butmere suspicion, however grave it be, willnot be sufficient to convict his vendee of fraudulent collusion, if his participation in the fraud is not made out by clear preponderance of testimony.</p> <p> (Syllabus by the Court.) </p>

<p>1. Clerk op Court — Fees—Filing Papers in Criminal Cases.</p> <p>Under the statute oí the United States giving a fee of 10 cents for filing and entering every declaration, plea, or other paper, the clerk is entitled to that fee for every material paper properly sent up by a commissioner in a criminal case, and is not required to bundle together, and file as one, all tho papers except the final recognizance.</p> <p>2. Same — Filing Appointments op Deputy-Marshals and Recording Oaths.</p> <p>It being the clerk’s duty to file the appointments of deputy-marshals, and record their oaths of office, he is entitled to receive the fee therefor from the government, whether or not tho government can reimburse itself from tho officers.</p> <p>8. Same — Copies op Lndictments in Other than Capital Cases.</p> <p>Under Const. U. S. amend. 6, entitling the accused “to bo informed of the nature and cause of the accusation, ” he is entitled to a copy of tho indictment, though Rev. St. IT. S. § 1083, provides for furnishing such copy only in capital cases; and the clerk is accordingly entitled to pay for preparing the copy.</p> <p>4. Sami: — Entries on Jackets.</p> <p>Fees for entries on the jackets in which the papers are inclosed, showing the date of disposition of the cases, and the pages of tho record where the proceedings will be found, are covered by the general charges for indexing.</p> <p>5. Same — Entry op Return op Grand Jury.</p> <p>For entry of the'return of a grand jury, the clerk is entitled only to the statutory folio fees.</p> <p>6. Sami: — Docket Fees — Cases Ignored by Commissioner.</p> <p>The clerk is entitled to the fee “for making dockets, indexes, taxing costs, and other services in a^cause which is dismissed or discontinued, ”in cases brought before a commissioner where the defendant was held to appear, though the grand jury ignored the case, and it was therefore dismissed.</p> <p>7. Same — Authenticating Order por Payment op Jurors’ and Witnesses’ Fees.</p> <p>Orders for the payment of witnesses and jurors by the marshal should be authenticated by tho signature of the clerk, with the seal attached, and the clerk is therefore entitled to charges for affixing the seal.</p> <p>8. Same — Entering Order por Trial — Recording Verdict.</p> <p>Tho fee allowed “for making dockets, indexes, issuing veni/res, taxing costs, and all other services on the trial or argument of a cause,” does not include entering the order Cor trial, and recording the verdict.</p> <p>9. Same — Filing Prmscipes for Bench-Warrants.</p> <p>The clerk is entitled to fee for filing prascipes for bench-warrants by the district attorney, as by the settled practice these warrants do not issue immediately on the order of the court, but only when required by the attorney; and the same rule applies to pnccipes for commitment on sentences to pay a fino, and he committed until its payment.</p> <p>10. Sami: — Final Record in Criminal Cases.</p> <p>Under a rule of court providing, in the absence of statutory provisions, that in criminal cases the final record shall include the order made by tho commissioner binding the defendant to appear before the grand jury, tho clerk is entitled to pay for entering the return of the commissioner in the final record; and it cannot be contended that there is no case in court until indictment found.</p> <p>11. Same — Fee por Discontinuance — Removal to Other Division.</p> <p>Villero a case is removed from one division of the district to another, the clerk cannot recover the fee allowed for “services in a cause which is dismissed or discontinued. ”</p> <p>12. Same — Copies op Subpoenas.</p> <p>Though Rev. St. U. S. § 829, fixing the marshal’s foe for service of subpoenas, forbids him to make a further charge for copy, the clerk being required by rule of court to make copies to be left with the witnesses, is entitled to recover pay therefor.</p>

<p>At Law. Motion to vacate attachment.</p> <p>Gumbel v. Pitkin, 124 U. S. 151, 8 Sup. Ct. Rep. 379; Krippendorf v, Hyde, 110 U. S. 276, 4 Sup. Ct. Rep. 27; Bates v. Days, 17 Fed. Rep. 167; Guillon v. Fontaine, 2 Amer. Law T. (N. S.) 502; Lamaster v. Keeler, 123 U. S. 389, 8 Sup. Ct. Rep. 197; McCracken v. Hayward, 2 How. 608; Ex parte Railroad Co., 103 U. S. 794; Society v. Ford, 114 U. S. 635, 5 Sup. Ct. Rep. 1104; Erstein v. Rothschild, 22 Fed. Rep. 61; Tilton v. Cofleld, 93 U. S. 163; Fitzpatrick v. Flannagan, 106 U. S. 648, 1 Sup. Ct. Rep. 369; Matthews v. Densmore, 109 U. S. 216, 3 Sup. Ct. Rep. 126.</p> <p>Spear, Fed. Jud. 661; 2 Abb. U. S. Pr. 166; Binns v. Williams, 4 McLean, 580; Picquet v. Swan, 5 Mason, 35; Toland v. Sprague, 12 Pet. 327; Ex parte Graham, 3 Wash. C. C. 456; Day v. Manufacturing Co., 1 Blatchf. 630; U. S. v. Williams, 4 Craneli, C. C. 372; Refrigerator Co. v. Southard, 12 Blatchf. 405.</p>

<p>At Law. Action for money had and received.</p>

At Law. This is an action of replevin tried before the court on the following agreed statement of facts: “(1) That the Louisville, New Orleans & Texas Railway Company is a railway corporation of Louisiana doing interstate business, and has a line of railway Tunning from New Orleans, La., to Huntington, Miss.

<p>1. Patents — Oorn-Shet.t.krs—Infringement.</p> <p>Letters patent issued October 15,1873, to Henry A. Adams, for an improvement in corn-shollers, consisting of tbe combination with the eorn-shellcr of a series of wings, wheels, ór projections, so arranged on a shaft as to revolve in the direction in which the corn is running, and to force into the sheller all misplaced ears, are infringed by a device which substitutes for the round shaft with its projections a square shaft, so grooved as to make the four projecting corners do the same work as the projections on the other shaft.</p> <p>2. Same — Accounting—Evidence.</p> <p>In taking an account of profits made by the infringers of a patent, where the complainant shows what profits were made by manufacturers of the patented article, which is substantially the same as the infringing device, and the defendant offers no proof as to his actual profits, a finding that defendant’s profit on each machine was the same as that of the other manufacturers is proper.'</p>

<p>Maritime Liess- — Supplies—Liability oe Chabtebebs — Notice to Ltbelaítts.</p> <p>The charter oí the British steam-ship S. provided that the charterer was to provide and pay for all coal, oil, etc. Libelants received by telephone an order for coal for the vessel, which order they understood to come from the former agents of the ship, though in tact it did not come from them, nor from the master. The master was not previously known to the libelants, nor had they previously furnished coal to the vessel. They had previously done business for the charterer, and they knew at this time that he “had something to do with the S. ” The charterer introduced the master to the libelants, and gave directions about the vessel. The master also testified that he informed libelants’ agent that the charterer was to be responsible for charges, though this notice was denied. No evidence was given to show that the charterer intended to charge the ship. JJeld, on libel against the vessel for the value of the supplies, that libelants had sufficient notice that the charterer was to pay the bills, and, as nothing showed any implied assent of the owners to the binding of the ship, the libel should, be dismissed.</p>

<p>Seamen — Sickness—Freighting Vessel — Liability to Furnish Physician. The failure of a freighting vessel to provide a physician or nurse for a sick sailor during a voyage is no neglect of the duty owed to the seaman by the ship-owner.</p>

<p>In Admiralty. Action for damage by collision.</p>

<p>In Admiralty. Action for damage by collision.</p>

<p>In Admiralty. Cross-actions for damages by collision.</p>

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

<p>I,.. Circuit Courts — Jurisdictional Amount — Bill to Restrain Patino Out Assets bt Directors or Corporation.</p> <p>Under 34 St. U. S. e. 373, limiting the jurisdiction ol circuit courts to suits in which the matter in dispute exceeds 83,000, the circuit court has jurisdiction of a bill brought by a stockholder for the benefit of the corporation and any other stockholders who may choose to come in, to restrain the directors from paying out assets of the corporation to the amount of 8100,000, though the complainant holds less than 81,000 worth of stock, the matter in dispute in such case being the wrong done the corporation.</p> <p>3. Constitutional Law — Amendment or Charters — Rights or Stockholders.</p> <p>, Under Gen. St. Ky. c. 68, § 8, which reserves to the legislature power to amend or repeal any corporate charter granted by it, “provided that no amendment or repeal shall impair other rights previously vested, ” the legislature has no power to amend the charter of a railroad corporation so as to direct that the proceeds arising from the lease or s.ale of thé road shall, after paying the corporate debts, be applied in payment of municipal bonds given in exchange for corporate stock issued to the municipality, since such application of the corporate fundswould.be unconstitutional, as interfering with the vested rights of the other stockholders,</p> <p>3. Same — Indorsement or Bonds bt Corporation.</p> <p>Such application of the corporate funds is not validated by the fact that the corporation has indorsed the bonds, since such indorsement does not make the corporation the principal debtor.</p> <p>4. Corporations — Stockholders—Misapplication or Corporate Funds.</p> <p>A stockholder may enjoin' the misapplication of corporate funds under an agreement entered into before his stock was issued, where he had a vested right to receive such stock before the agreement was made.</p>

In Equity. On motion for injunction. Itev. St. U.S. § 737, is as follows: “When there are several defendants in any suit at law or in equity, and one or more of them are neither inhabitants of nor found within the district in which the suit is brought, and do not voluntarily appear, the court may entertain jurisdiction, and proceed to the trial and adjudication of the suit between the parties who are properly before it; but the judgment or decree rendered therein shall not…

<p>Railroad Bonds — Serial Numbers — Alteration and Sale bt Thief.</p> <p>Certain negotiable bonds, part of a large issue made by a railroad corporation, and numbered consecutively, owned by the plaintiff, were stolen, the numbers altered, and afterwards bought in good faith before maturity and for value by a purchaser. In a suit against the corporation to recover the amount of the bonds by the original owner, held: (1) That the original owner could not recover if the bonds were outstanding in the hands of a purchaser who acquired good title to them. (3) That the obligation represented by the bonds was not annulled by the alteration of the serial numbers made by a wrong-doer without the privity of the purchaser, as the numbers were a matter extrinsic to the contract, and not a material part thereof.</p>

<p>In Equity. Bill by Hiller against Levy and others to prevent infringement of patent.</p>

<p>1. Collision — Steam-Boat at Whare — Duty to Protect Coal-Flat ebom Dbiet.</p> <p>A steam-boat, while moored at a wharf, with no steam up, and engaged in receiving freight, ordered a supply of coal from coal dealers. The dealers sent their tug with a coal-ilat, which latter was lashed to the steamer’s side, for the purpose of enabling the coal to be carried on board the boat. It was the duty of the dealers to furnish the lines necessary for the lashing; but, not having enough, the boat allowed them to use one of hers. After the flat was fastened to the boat, the tug left it, leaving on hoard two of the dealers’ employes, whose duty it was to take oare of the flat, to ascertain and report the quantity of coal taken, and, if anything happened to the flat, or it should he in danger, to signal the tug. It was shown, to have been the general understanding that the dealers were liable for the care and safety of their flats while thus engaged. Meld, that it was not the duty of the steam-boat to protect the flat from floating drift.</p> <p>8. Same — Right to Cut Loose Coal-Flat to Protect Hersele.</p> <p>While the flat was thus lashod to the side of the steam-boat, it was struck by a large tree, which was being carried down by the current, and a hole was made in its bo w. The flat began rapidly to fill, and in a few minutes was' in a sinking condition. The dealers’ employes had left the flat, and gone off to other vessels; and the boat’s mate and the men employed in unloading the flat were compelled to quit hurriedly. The mate, believing that the flat would sink in a few minutes, and being apprehensive that when it did so it would dump its load, and would come up, by the force of the current, under the boat’s hull and cause her to sink, cast it loose and allowed it to drift. It would have required some SO minutes to have dropped the flat down stream, astern of the boat, even if the requisite lines had been at hand, which they were not. After the flat was cut loose, it righted itself, and floated down stream some 300 yards, and struck libelants’ barge, sinking it. Meld, that the boat had the right to protect herself by cutting the flat loose, and, having done so in the exercise of her best judgment, was not liable to libelants.</p> <p>3. Same.</p> <p>The test as to whether the course taken by the boat’s officers was negligent or unauthorized and reckless is that of good seamanship under the impending peril.</p> <p>4. Same.</p> <p>The rule that a person may not save his own property by destroying another’s has no application, as there was no design to shift the danger to the libelants’ barge, nor was it contemplated that the flat would keep afloat after being cut loose.</p> <p>5. Same — Burden oe Prooe.</p> <p>As the flat was not the boat’s vessel either when moored or adrift, it was error to apply the rule to her that the burden is on the vessel adrift to excuse herself.</p>

<p>Collision — Between Sailing Vessels — Inevitable Accident — Snow-Stokm.</p> <p>Where two sailing vessels came in collision outside oí New York harbor, and the evidence indicated that the vessel bound by rule to avoid the other was under shortened sail, and that a blinding snow-storm prevailed at the time which rendered it impossible for either vessel to be seen by the other in timo to avoid the accident, it was held, that the collision was an inevitable occurrence, for which neither vessel was responsible to the other.</p>

<p>At Law. On motion to remand to state court.</p> <p>This was an action at law, to recover a sum of more than $2,000, brought November 7, 1887, by citizens of the state of New York against a citizen of the state of Massachusetts, in the supremo court of the state of Rhode Island, and removed into this court upon the petition of the defendant, March 22, 1888. The plaintiffs moved to remand the case to the state court, on the ground that neither the plaintiffs nor the defendant were citizens of the state of Rhode Island, and consequently this court could not have original jurisdiction of the action, and therefore the case could not lawfully be removed into this court, under the act of March 3, 1887, c. 373, the material provisions of which, as amended by the act of Aug. 13, 1888, c. 866, in respect to clerical errors in its enrollment, are as follows:</p> <p>“Section 1. The circuit courts of the United States shall have original cognizance, concurrent with the courts of the several states, of all suits of a civil nature, at common law or in equity, where the matter in dispute exceeds, exclusive of interest and costs, the sum or value of two thousand dollars, and arising under the constitution or laws of the United States, or treaties made, or which shall be made, under their authority; or in which controversy the United States are plaintiffs or petitioners; or in which there shall be a controversy between citizens of different states, in which the matter in dispute, exceeds, exclusive of interest and costs, the sum or value aforesaid; or a controversy between citizens of the same state claiming lands under grants of different states; or a controversy between citizens of a state and foreign states, citizens or subjects, in which the matter in dispute exceeds, exclusive of interest and costs, the sum or value aforesaid. * * * But no person shall be arrested in one district, for trial in another, in any civil action before a circuit or district court; and no civil suit shall be, brought before either of said courts, against any person, by any original process or proceeding in any other district than that whereof he is an inhabitant; but, where the jurisdiction is founded only on the fact that the action is between citizens of different states, suit shall be brought only in the district of the residence of either the plaintiff or the defendant. See. 2. Any suit of a civil nature, at law or in equity, arising under the constitution or laws of the United States, or treaties made, or which shall tie made, under their authority, of which the circuit courts of the United States are given original jurisdiction by the preceding section, which may now be pending, or which may hereafter be brought, in any state court, may be removed by the defendant or defendants thereinto the circuit court of the United States for the proper district. Any other suit of a civil nature, at law or in equity, of which the circuit courts of the United States are given jurisdietion by the preceding section, and which are now pending,-or which may hereafter be brought, in any state court, may be removed into the circuit court of the United States for the proper district by the defendant or defendants therein, being non-residents of that state. And when, in any suit mentioned in this section, there shall- be a controversy -which is wholly between citizens of different states, and which can be fully determined as between them, then either one or more of the defendants actually interested in such controversy-may remove said suit into the circuit court of the United States for the proper district. And, where a suit is now pending, or may be hereafter brought, in any state court, in which there i-s a controversy between a citizen of the state in which the suit is brought and a citizen of another state, any defendant, being such citizen of another state, may remove such suit into the circuit court of the United States for the proper district, at any time before the trial thereof, when it shall be made to appear to said circuit court that, from prejudice or local influence, he will not be able to obtain justice in such state court, or in any other state court to which the said defendant may, under the laws of the states have the right, on account of such prejudice or local influence, to remove said cause.” 24 St. 552, 553; 25 St. 433-435.</p>

At Law. Action for damages. This suit was brought to recover the value of certain cotton destroyed by fire in the city of Little Rook on the 14th day of November, 1887.

<p>1. Eminent Domain — Damage to Adjoining Property — Diversion of Business.</p> <p>The owner of land abutting on a street over which a railroad has been built, with the consent of the municipality, cannot recover from the railroad company for loss of trade occasioned by the diversion of travel to another street on account of the presence of the railroad, since such damage is not peculiar to himself.</p> <p>2. Same — Grading Street.</p> <p>A railroad company which has raised the grade of a street on which its road is built to a point within a few inches of the sidewalk, but not quite as high as the grade of its t-r&ck, is not liable therefor to the owner of property fronting on such street, where it appears that the raising of the grade is an improvement to the street, and that the- grade of the track is not high enough to obstruct the access to such property.</p> <p>8. Railroad Companies — Drainage—City Streets.</p> <p>Rev. St. Mo. 1879, § 810, which provides that railroad companies, constructing any railroad in .any county of the state, shall construct and maintain suitable ditches to 'carry off water whose flow has been obstructed by the construction of their railroads, does not apply to railroads constructed along a city street, and a railroad company constructing a ditch in such street, without municipal permission, is liable to the owners of adjoining property for damage to the rental value thereof caused by such, ditch.</p>

<p>At Law. Action for breach of contract.</p>

<p>Master and Servant — Negligence op Vice-Principal.</p> <p>The foreman of railroad repair-shops, to whom is intrusted the task of restoring wrecked trains, with the assistance of a crew of men selected from the workmen in the shops and the section hands, and who has charge of all the men engaged in restoring tho train, is, when in charge of a wreck, a vice-principal, for whose negligence tho railroad company is liable to a workman injured while under his orders.</p>

<p>1. Elections — Chief Supervisor — Fees—Applications for Appointment.</p> <p>Rev. St. U. S. § 2026, which makes it the duty of the chief supervisor of elections to receive applications for appointment as supervisors, and to lay them before the court, and to furnish information to the court with respect to the applicants, does not contemplate that the chief supervisor shall prepare the applicants’ petitions, and no fees are payable for such services.</p> <p>2. Same — Instructions to Supervisors.</p> <p>Under section 2026, making it the duty of the chief supervisor to “prepare and furnish * * * instructions for the use and direction of the supervisors, ” and section 2031, allowing him 20 cents for affixing his seal to anjr document, he is entitled to fees for furnishing instructions authenticated under his seal; the fee being the same per folio as that allowed for drafting papers, examinations, etc.</p> <p>3. Same — Notices to Supervisors. •</p> <p>No fee is allowable “for drafting notices to supervisors to appear to verify registration lists.”</p> <p>4. Same — Filing Supervisors’ Receipts.</p> <p>As no provision o£ law makes it the duty of tho chief supervisor to take receipts from supervisors for books, papers, and blanks 'furnished them, such receipts are not documents which the law contemplated should be filed as a part of the records of the office, within tho meaning of sections 2026, 2031, allowing a fee for filing such documents.</p> <p>5. Same — Drafting Supervisors’ Accounts.</p> <p>No lee can be allowed the chief supervisor for “ drafting accounts of supervisors. ”</p> <p>6. Same — Oath to Supervisors’ Vouchers.</p> <p>He is entitled to fees for administering oaths to the supervisors’ accounts, and “attaching the certificate or jurat, ” but not for affixing his seal to the certificate or jurat.</p> <p>7. Same — Oaths to Special Report.</p> <p>As section 2020 requires the supervisors’ reports to the chief supervisor to b.e under oath, he is also entitled to fees for administering oaths to special reports required by him, and affixing his certificate thereto.</p> <p>8. Same — Ihsts for Marshal.</p> <p>No fee is allowable to tho chief supervisor “for making out a list of supervisors for the use of the United States marshal in making a requisition for funds, ” and “ certifying 1 o correctness of same, ” nor “ for drafting notices to supervisors to report arid receive vouchers for service. ”</p> <p>9. Same — Certifying Duplicate Vouchers.</p> <p>There is no provision of law requiring duplicate vouchers to be made out and attached to the pay-roll, hence no fee is allowable for certifying such duplicates.</p> <p>10. Same — Expenses for Printing Blanks.</p> <p>Under section 2026, requiring the chief supervisor to “prepare and furnish all necessary books, forms, blanks,” etc., he is entitled to be reimbursed for expenses “for printing blank forms of application for appointment as supervisors, and for printing blank forms of oaths to bo taken by supervisors. ”</p>

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

<p>1. Patents top. Inventions — Identity—Sec ondary Batteries.</p> <p>Letters patent No. 337,298 and No. 837,299. both issued March 2,1886, to Charles If. Brush, lor improvements in secondary electric batteries, are for the same invention, each consisting' of a plate or support provided with a mechanically applied coating, the only difference between the specifications being that in the one case the coating is composed of ‘‘active material, ” and in the other of “absorptive substance, adapted to be transformed into an activo coating” upon immersion in the electrolyte.</p> <p>2. Same.</p> <p>A secondary battery, as referred to in said patents, is a battery which has no original power of developing a current of electricity, and becomes active only when a cui'rent, elsewhere generated, is sent through it. Following JSlechrical A.eei>mulator Co. v. Julien Blectric Co., 38 Fed. Rep. 131.</p> <p>8. Same — Anticipation.</p> <p>Said patents were not anticipated by letters patent No. 53,668, issued April 8, 1886, to George G. Peroival, for an improvement in secondary batteries formed by electrodes consisting of colls filled with coarse conducting powder, and divided by a porous partition.</p> <p>4. Same — Abandonment.</p> <p>The invention described in said Brush patent No. 837,298 was not abandoned by by the descriptions in loiters patent Nos. 261,512 and 261,995, which wore issued to Brush, July 18,1882, and August 1,1882, it appearing that the application for the patent No. 337,298 was sworn to two days before the applications for said patents Nos. 261,512 and 261,995 were filed, and that it was filed six days after it was sworn to.</p> <p>5. Same — Chance in Application.</p> <p>Said patent No. 337,298 is not invalidated by the fact that, after the original application was filed, the expression, “ mechanically applied porous, granular, spongy, or equivalent lead, ” was changed to “ mechanically applied absorptive substance, ” since such change of language did not change the invention.</p> <p>6. Same.</p> <p>Said patent is not unlawfully expanded by the addition of the word “perforations ” to the description of the plates, which were originally described as ribbed or honey-combed, since the word “perforations, ” as so used, will be held to mean cavities in the plate, and not openings extending through it.</p> <p>7. Same — Infringement.</p> <p>• Said patent is infringed by a device consisting of electrodes formed by a castrnoial support plate, with receptacles, and an exterior spongy or porous coating of mechanically applied active material.</p> <p>8. Same.</p> <p>The tenth claim of said patent No. 337,398, for “combining by means of pressure an absorptive substance and suitable material to form a support therefor, ” in the process of making a secondary battery plate, and the claim of patent No. 260.654, issued July 4,1882, to said Brush, for “forming the plates of a secondary battery consisting in forming receptacles in its surface, then applying oxide of lead to the plate, and within such recentados, and afterwards subjecting the oxide of lead to pressure, ” is not infringed by a device in which the coating is put, on by the pressure of a trowel or spatula, without the use of hydraulic or other similar pressure.</p> <p>9. Same.</p> <p>Claims 1 to 6 of patent No. 266,090, issued October 17,1882, to said Brush, relating to the form of the plates for secondary batteries as having “ribs, ” are not infringed by a device consisting of platos perforated by uniform square holes, since the walls between these holes are not “ribs. ”</p> <p>10. Same.</p> <p>Claim 7 of said patent No. 266,090, which describes the plates as having “ceils or cavities, ” and claim 14, which describes it as having “slots, perforations, or openings, ” are infringed by said device.</p> <p>11. Same — Novelty.</p> <p>Claims 9 and 12 of said patent No. 206,090, which describe the material of the plates as cast lead, are void for want of patentable novelty.</p> <p>12. Same — Date oe Invention.</p> <p>The invention described in letters patent Wo. 253,002, issued January 3,1882, to O. A. Faure, for improvements in secondary batteries, having been conceived by the patentee in France while a citizen of that country, he cannot claim the invention here earlier than December 7, 1880, the date of the delivery of his French patent. Following Electrical Accumulator Co. v. Jalien Electric Co., 38 Fed. Kep. 117.</p>

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

In Equity. Billoby George B. Smythe against R. M. Henry and others, to enjoin the defendants from prosecuting a certain action of ejectment, and to have certain deeds canceled as clouds on complainant’s title to the laud sued for in the action of ejectment.

<p>In Equity. Bill to remove cloud from title.</p>

<p>Railroad Companies — Mortgages—Construction.</p> <p>The mortgage of a railroad provided that certain bonds secured by it remaining in the hands of the trustee should not be issued unless with the -assent of a majority in amount of the outstanding preferred stock; and that, in the event any part of such bonds should be used for the purpose of constructing branches or extensions, the same should only be countersigned and deliyered, by the trustee at a rate not exceeding $20,000 per mile of new construction, and upon the certificate of the engineer of tbe mortgagor that sections of not less than 10 miles had been completed, ready for operation. In a suit to compel the trustee to countersign and deliver the bonds, held, that the mortgage did not authorize the trustee to refuse to issue them except for continuous sections of 10 miles each, but that the company was entitled to them for every 10 miles of new construction completed and ready for operation, whether in branches, each shorter than 10 miles, or in the excess ovdr 10-mile sections.</p>

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

In Equity. On demurrer to supplemental bill. The bill in this case recites, in substance, that Charles A. Seeor et al., in a suit heretofore instituted by them in this court as stockholders ol' the Missouri, Iowa & Nebraska Railway Company, obtained a final order of injunction restraining the railway company from paying taxes on its property located in Scotland, Schuyler, and Clark counties, Mo., and restraining the several counties anti certain county officials from levying…

<p>Public Lands — Donation to Railkoad.</p> <p>14 St. IT. S. 292, granted to the Southern Pacific Railroad Company certain land, and provided that, in case any of said land should have been previously disposed of, the company should select other land in certain sections in lieu thereof. The secretary of the interior withdrew such sections, but afterwards allowed a homesteader to enter and obtain patent to a part of one of them. After the patent had issued, the company attempted to select this land, hut was not allowed to do so. Held, that the company had no right to said land under the grant.</p>

<p>At Law. Motion' to dismiss for want of jurisdiction.</p>

<p>1. Corporations-Sai.es by Directors to Corporation.</p> <p>T. and A., having, for a small sum, purchased a road-bed, the construction of which cost only $3,000, caused a railroad company to be organized, and, with others, became directors thereof, and while in this relation contracted with the directors to sell the road-bed to the company for $200,000 cash or bonds, and $8,600,000 of the capital stock. The sale was formally ratified at a meeting of the directors, and entered on the records of the company; and afterwards the stockholders unaminously approved the purchase. • At the time of the sale there were no stockholders, and the stock thus issued was all that had been subscribed. The company had no prop- , . erty except its charter and the road-bed, and the value of the notes and stock issued to T. and A. had no marketable value. Held, that the sale'was not fraudulent.</p> <p>2. Same — Compensation op Oppioers.</p> <p>Where it is understood by the directors of a corporation that its officers are to be paid for their services, though no salary is fixed a note given at the end of the year for a reasonable sum then agreed upon is valid.</p>

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

<p>At Law. On motion for a new trial.</p> <p>For decision on demurrer, see 2 Fed. Rep.. 658.</p>

<p>1. Pleading — Amendment—Substitution—Limitation.</p> <p>In an action against a railroad company for overflowing plaintiff’s land, the original petition alleged solely that the overflow was due to the building of an embankment across a certain stream; a subsequent amended petition alleged that by reason of the embankment the stream was diverted from its course, and was then turned back into the channel at a point where defendant built a bridge in such a manner as to obstruct the flow of the stream and to collect drift, so that plaintiff’s land was overflowed thereby. Held, that, as to the new issue presented, the amendment does not relate back to the original petition so as to stop the running of the statute of limitations when that was filed, but the statute runs till the filing of the amended petition.</p> <p>3. Limitation op Actions — Accrual op Action — Obstruction op Stream.</p> <p>Where such amended petition was filed more than 11 years after the first overflow occurred and demonstrated the negligent construction of the bridge as to plaintiff’s land, the cause of action stated therein was barred by limitation.</p>

<p>Pleading — Declaration—Importation oe Contract Labor.</p> <p>A declaration in debt for the penalty imposed by Act IT. S. Feb. 26,1885, forbidding the importation of foreigners under contract for labor, which fails to allege that the foreign laborer did actually immigrate to this country, and that the defendant when he assisted him to migrate knew that he was under contract, is fatally defective. Following U. S. v. Craig, 28 Fed. Rep. 795.</p>

<p>Contempt — Interference with Execution Sale — Attorney.</p> <p>An attorney who resists the enforcement of a lawful writ of execution by representing to bidders at-the execution sale that the writ is invalid, and that any one purchasing at such sale would be sued by him, is guilty of contempt.</p>

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

At Law. Action to recover duties. In 1885 plaintiff imported a variety-of cotton lace, made-up articles, comprising collars, cuffs, tidies, borders, parasol covers, etc. The collector assessed upon these goods a duty of 40 per cent, ad valorem under the provision in Schedule I of the tariff act of March 3, 1883, for “cotton laces.” The importer protested, claiming that these articles were dutiable at 35 per cent, only, under the provision in the same act" and schedule for…

<p>On Writ of Error from District Court.</p>

<p>At Law.</p> <p>This was an action brought against a collector of the port of New York to recover the sum of 70 cents, exacted for expenses attendant upon the examination of goods imported by plaintiffs. In April, 1888, there arrived at the port of New York, per steamer Ohio, two packages of guide-books. No one appearing within 24 hours to claim the same, they were sent by the collector of the port to a bonded warehouse in Jersey Oily. On October 3d plaintiffs applied to the collector for permission to enter said packages without invoice, on the ground that their value was less than $1.00. An order was thereupon issued for the transfer of said goods to the public stores for examination by the appraisers. Plaintiffs having paid the charges of the owner of the warehouse in Jersey City, the goods were taken on the public truck to the building at 402 Washington street, New York city, occupied by the appraisers. On examination, the goods were found to be “printed matter” of the value of $15, dutiable at 25 per cent. On October 17th plaintiffs received their goods on payment of $3.75 for duties, and 70 cents for charges and expenses, as follows: Cartage to appraisers’ stores, 15 cents on each package; labor at stores, 10 cents on each package; storage one month, 10 cents on each package. The suit was brought to recover these charges, and it was shown that cartage and storage were never exacted by the government on goods which were entered on invoice. At the close of the case, defendant’s counsel moved to direct a verdict in his favor, on the ground that the charges were justified by section 2926 of the Revised Statutes, which provides that “all merchandise, of which incomplete entry has been made, or an entry without the specification of particulars, either for want of the original invoice, or for any other cause, or which has received damage during the voyage, shall be conveyed to some warehouse or store-house, to he designated by the collector, in the parcels or packages containing the same, there to remain, with due and reasonable care, at the expense and risk of the owner or consignee, under the care of some proper officer, until the particulars, cost, or value, as the case may require, shall have been ascertained either by the exhibition of the original invoice thereof or by appraisement, at the option of the owner, importer, or consignee, and until the duties thereon shall have been paid, or secured to be paid, and a permit granted by the collector for the delivery thereof.”</p>

<p>1. Customs Duties — Property Subject to Duty — Antiquities.</p> <p>The provision in the free-list of the tariff act of March 3, 1883, for “cabinets of coins, medals, arid ail other collections of antiquities, ” does not cover ¡antiquities which do not form a collection.</p> <p>3. Same — Antique Laces and Rues — Classification.</p> <p>Curtains made of lace, the product of the sixteenth and seventeenth centuries, and rugs, the product of the sixteenth century, imported at different times' as articles of merchandise, are not exempt from duty by virtue of the provision in the free-list for “collection of antiquities, ” but are properly dutiable, under the provisions in the schedules for laces and rugs.</p>

<p>Obstructing Justice — .Execution of Oral Order.</p> <p>Under Rev. St. U. S. § 5898, which makes it a criminal offense to resist the execution of “ any mesne process or warrant or any rule or order of any court of the United States, ” resisting a marshal In his execution of an oral order of the court to remove from ihe court-room a person who has disturbed the proceedings of the court is indictable.</p>

<p>CONSTITUTIONAL LAW — INTERSTATE COMMERCE — PbDDLBRB—LICENSE.</p> <p>Ordinance 116 o£ the city of Austin, Minn., requiring all persons engaged in going from house to house, and selling or taking orders for any merchandise not o f their own manufacture, to take out a license therefor, and providing penalty of lino or imprisonment for its violation, in so far as it applies to persons in the state making sales and taking orders for persons residing within another state, is repugnant to the constitution of the United States, giving congress the sole power to regulate interstate commerce.</p>

<p>1. Patents for Inventions — Ornaments—Duplicity—Sewing-Machine Covers.</p> <p>Rev. St. IT. S. § 4929, provides that any person. * * * who has invented and produced “any new and original * * * ornament or pattern, * * * placed on, or Worked into, any article of manufacture, ’’may obtain a patent therefor as provided in the case of inventions or discoveries. The claim of design patent No. 16,039, ■granted April 14,1885, to Nicholas A. Hull, is for “a design for a sewing-machine case, consisting of. the raised panel, A, divided into a series of smaller panels, a, the main panel, B, and fluted or beaded corners, o; ” the panels described being on the front of the case, and the beaded corners at right angles to the base of the case. Held, that the claim covers two distinct and separate ornaments, — the panels and the cornel's, — and the patent is therefore void.</p> <p>3¿ Same.</p> <p>The first claim of design patent No. 16,040, granted April 14,1885, to Nicholas A. Hull, is for “the design for the ornamentation of sewing-machine cases, * * * consisting of the Gothic top, D. hayings series of beads, f, and fringed rail, o. ” The third claim is for the same elements together with “the panel, e, surrounded by the beaded border, a, ” on the front of the case. Held, that the first claim is for two separate and distinct ornaments, the Gothic top and the fringed rail, and the third includes both of these, and also the panels', and therefore the patent is void.</p> <p>8. Same — Novelty—Design for Sewing-Machine Oases.</p> <p>Both of the foregoing claims of patent No. 16,040, as well as the claims for the central raised panel and border of that patent ana of No. 16,039, are void for want of novelty.</p>

<p>Patents for Inventions — Infringement—Design for Sewing-Machine Covers.</p> <p>Letters patent No. 16,040, granted April14, 1885, to Nicholas A. Hull, for “a design for the ornamentation of sewing-machine cases, consisting of the main panel, B, comprising the center panel, o, surrounded by the border, a, formed of a series of beads, ” are not infringed by a case whose front is a single piece extending from corner to corner, with a raised piece in the center surrounded by a grooved and beaded bordpr, as there is no panel on the front of such ease.</p>

<p>Patents for Inventions — Extent of Claim — Prior State of Art — Dies for Forging Draw-Bars.</p> <p>In view of the prior state of the art, the fifth and sixth claims of letters patent No. 304,391. for an improvement in the manufacture of draw-bars for railway cars, granted to Dan St. Clair Wineland and Wickliffe C. Dyne on September 2,1884, if sustainable at all, must be held to be limited to the specific forms of dies shown in the patent.</p>

<p>1. Patents for Inventions — Prior State of the Art — Steam-Engines.</p> <p>Letters patent No. 280,943, for an improvement in steam-engines, granted to William J. Innis, August 10,1880, considered witb reference to the prior state of the art, and construed, and held not to be infringed by the defendant’s engine.</p> <p>2. Same — Extent of Claim — Exhaust Chamber for Steam-Engines.</p> <p>Where, in a patent for an improvement in steam-engines, each of the claims specifies as one of the elements an “ exhaust chamber, ” the designation is a term of limitation, importing a compartment for holding spent steam, and a construction of the claims which would take in a live steam passage-way is inadmissible.</p>

<p>1. Patents eos Inventions — Stereoscopes—Patentability.</p> <p>Letters patent No. 151,576, issued June 2,1874, to Henry Dorr, for an improvement in lens frames of stereoscopes, consisting in mating the lens-holder itself as large as the separate fronts formerly used, and rabbetting out its inner edge into a groove, to receive the end of the hood, is not invalid for want of invention.</p> <p>2. Same — Preliminary Injunction.</p> <p>Where, in a suit to restrain the infringement of a patent, it appears that the defendant is using the precise thing described in the patent, and that the patent has been acquiesced in by every one except the. defendant, and even by him for a long time, a preliminary injunction may issue, though there has been no prior adjudication of-the validity of the patent.</p>

<p>In Equity.' On motion for preliminary injunction.</p> <p>Suit by John W. Rapp against Max Kelling for infringement of letters patent No. 416,265, issued to defendant, Kelling, December 3, 1889, for improvement in fire-proof doors. Defendant had granted to plaintiff the exclusive right to make, use, and sell doors embodying such improvement for the full term of the patent.</p>

<p>In Admiralty. On appeal from district court. 37 Fed. Bep. 220.</p>

<p>Shipping — Charter-Party—Cancellation—Readiness to Load.</p> <p>A charter-party provided that the vessel chartered should, “ with all convenient speed, sail and proceed” to certain ports, and there load a certain cargo, “and, having so loaded, proceed direct, under steam, to Liverpool. * * * The entire carrying capacity, including cross-bunkers, space under bridge deck, lazarette, deck-houses, and other spaces where steamer has usually carried cargo, or would carry cargo if loaded on rates, shall be placed at the disposal of charterers, exclusive of any space which may be needed for the crew, cabin stores, and coal for the voyage. * * * If no heavy cargo be shipped, and additional ballast bo required, the same to be provided by the steamer. ” It also provided that the charter should not commence “until the morning after the steamer is ready to receive cargo at the place of loading, all of her holds being cleared and passed for grain, and customary notice thereof given to the charterers or their agent; and such notice mustbe given before 12 o’clock of the day that the steamer is ready. * * * Should' the steamer not be ready in all respects for cargo, at her first loading port for entering on this charter, by December 25,1888, the charterers may cancel the charter. ” Under this charter the vessel arrived at one of the loading ports, and gave notice of readiness on Saturday, December 22d, after 12 o’clock, which the charterers declined to receive. The notice was repeated on Monday, the 24th, before 12. At the time of this last notice, she had not cleared, and passed to the disposal of the charterers, a space of 4,268 cubic feet, called the “main ’tween-decks, ” or cross-bunkers, claiming it was necessary for coal, which the charterers denied. She had no ballast either aboard or accessible, and could get none by her cancellation date. She had not been passed for grain, and one of her holds was wet from a leakage, so that grain could not have been put there without additional preparation. She had not coaled for the voyage. Seld, that the charterers were justified in canceling the charter on the ground that her notice of readiness was untrue at the time it was given.</p>

<p>In Admiralty. On settlement of final decree.</p>

<p>1. Harbors — Depositing Keetise — Prohibited Area.</p> <p>A statutory power to fix the limits oí a prohibited area should he executed with reasonable definiteness, and according to the statutory intention.</p> <p>2. Same — Construction op Act Cono. June 29,1888.</p> <p>The act ol June, 1888, prohibited the discharge of refuse, etc., “in the tidal waters of the harbor of New York, or its adjacent or tributary waters, or in those! of Long Island sound, within the limits which should he prescribed by the supervisor. ” The supervisor directed that deposits of refuse, etc., must take place east of the meridian 73° 55' 56", and south of parallel 40° 81' N. Held: (1) That the supervisor’s direction was not a compliance with the statute, for lack of definiteness and certainty, and for excluding by implication all the “tributary waters, ” and all the waters of Long Island sound, both of which were to the northward of the designated parallel; that this was in excess of his power, and contrary to the plain intent of the statute. (2) That the words “the tidal waters” in the first section of the act were not to he construed as limiting the subsequent words, “its adjacent or tributary waters, ” there being no such limitation of the same words in the second and fourth sections, and that the northern limit of the prohibited area, within the tributary waters, was to be fixed by the supervisor, and until that was done by him no suit for penalties would lie for deposits within the Hudson river.</p>

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

<p>In Admiralty.</p> <p>Act by the New York quarantine commissioners to recover the hospital expenses of a sick seaman.</p>

<p>1. Maritime Liens — Freight and Demurrage — Lost by Unconditional Delivery.</p> <p>Unconditional delivery of cargo destroys the carrier’s lien for freight and demur-rage.</p> <p>2. Same.</p> <p>A cargo of lath, sold by the consignee to the claimant before arrival, was discharged without notice to claimant of any lien or claim for freight and demurrage, it being customary in the port of New York to discharge cargoes from canal-boats before demanding freight and demurrage, and the laths, as fast as they were discharged, were received by the vendee, and transported from the wharf to his lumber-yard, a half mile distant. Libelant’s claim for freight and demurrage against the consignee and shipper being afterwards disputed as to amount, this libel was filed five days after the discharge was completed to establish a lien. Meld, that as the delivery was unconditional the lien had been lost.</p>

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

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

<p>1. PARTStEKSHIB — DISSOLUTION—GeOUNDS EOB.</p> <p>Where a person has been induced to enter into a partnership through the deceit of his partner, or where, after entering into the agreement of partnership, he finds that the business cannot be conducted at a profit, he may sue at once, in equity, to dissolve the partnership and wind up its affairs.</p> <p>2. Same — Pleaeixo.</p> <p>A bill in equity, for dissolution and winding up of the affairs of a partnership, which alleges that the defendant partner willfully neglects to comply with the partnership agreement, that the business is being conducted at a loss, and that complainants were induced to enter into the agreement through defendant’s misrepresentations, is not multifarious.</p>

At Law. This is a suit to recover the value of timber cut in 1886 upon the N. W. i- of section 17, township 18, range 4 W. of the Willamette meridian, alleged to be public lands. The defense, is, that the said land was not public land, but was owned in fee-simple by one Aaron Kinney, and that the timber ivas cut by the authority of said Kinney. The ownership of the land is the main issue in the case.

At Law. On motion for new trial. These are actions by Estill & Elliott and by Leonard Bros, against the New York, Lake Erie & Western Railroad Company for injuries to stock. There was a verdict for plaintiffs in each case, and defendant moves for a new trial.

<p>1. Guaranty — Humase of Guarantor.</p> <p>Plaintiff bought slock in a land and cattle company from S. Bros., with the option of reselling to them within a certain time, and defendant guarantied performance of the contract by S. Bros. Afterwards this company sold out to another, and transferred to it all its property; but plaintiff had been asked to consent to the sato and to take stock in the new company in exchange for his, and had refused, saying ho relied on defendant’s guaranty. Plaintiff’s stock had never been transferred to him on the books of the company, and remained in the name of S. Bros., who voted on it in voting for the sale, but there was stock enough besides this to authorize the sale. Defendant also owned stock and voted on it. Held, that defendant was not released from his guaranty.</p> <p>2. Same — Gambling- Contracts — Option to Buy or Set.i, Stock.</p> <p>A contract by which stock is sold at a certain price with the option to the purchaser to resell it at a future time for an increased price, which increase is only the amount of interest which, by the time for exercising the option, would accrue on the amount paid for the stock, is not a gambling contract within Rev. St. 111. c. 88, § ISO, which makes it a penal offense to give an option to buy or sell, at a future time, stock in any railroad or other company, and declares such contracts to bo gambling contracts.</p> <p>3. Same — Execution in Another State.</p> <p>Where a contract is executed in a state in which it is valid, and a person there agrees to guaranty its performance, the guaranty is valid, though it is actually affixed in a state in which the contract is void.</p>

<p>1. Boundaries — Artificial—Lines Divergent prom Description in Deed.</p> <p>Where the grantor in a deed conveying land to the United States is to fence the same, the placing of a wall upon a line diverging from that called for by the deed cannot be taken to designate the true line, in the absence of evidence of assent thereto by the United States.</p> <p>2. Same — Monuments and Courses — Measurements.</p> <p>Known and visible monuments and compass courses must prevail over measurements in establishing boundaries.</p> <p>CSyllabus by the Court)</p>

<p>1. Nuisance — 1Telegraph Wires — Master and Servant — Personal Injuries.</p> <p>Where employes of a telegraph company negligently allow its wires to fall on the wires of an electric light company, and to remain there hanging down, the telegraph company is liable for injuries sustained by a passenger on the street who accidentally comes in contact therewith.</p> <p>2. Same — Exemplary Damages.</p> <p>A person so inj ured is entitled to exemplary damages, if the employes acted in a spirit of mischief or criminal indifference, and it was known to the company’s managers, or if the managers did not exercise proper care in selecting the employes, or if they knew or had means of knowing that they were not skillful, prudent, or careful.</p> <p>3. Í3 orE — Contributory Negligence.</p> <p>If, however, the passenger, though warned by a companion, took hold of the wire, and played with it, and was thus injured, he cannot recover, even though the com pany’s employes were negligent.</p> <p>4. New Tbial — Motion—Rules oe Court.</p> <p>Where a rule of court requiring notice of motion for a now trial with the grounds thereof to he “filed with the clerk, and served on the opposite party within two days after the rendition of the verdict, unless the time be enlarged by the court, ” is not complied with because of counsel’s belief that the practice of the court conforms to that of the state courts, the timefor filing such motion will be enlarged, even after the expiration of such two days, when the same can he done at the term at which the verdict was rendered.</p>

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

<p>Army — Privates—Enlistment of Minors — Desertion—Habeas Corpus.</p> <p>A minor who enlists in the United States army upon his representation that he is of age, and receives pay and clothing, and afterwards deserts, and is arrested as a deserter, and at the time of his petition is held by the United States awaiting trial by a court-martial for the. crime of desertion, will not be released, under a writ of habeas corpus, upon the ground that, being a minor, his enlistment was unlawful, and contrary to the Revised Statutes of the United States.</p> <p> (Syllabus by the Court.) </p>

At Law. This was an action brought by Richard Muser and others, composing the firm of Muser Bros., against the collector of the port of New York, to recover duties alleged to have been unlawfully exacted of them on certain cotton embroideries imported into the port of New York. Upon the trial it appeared that the cotton embroideries were manufactured at St. .Gall, Switzerland. Plaintiffs maintained a branch house at that place.

<p>Customs Duties — Classification—Calf-Haib and Cotton.Cloakings.</p> <p>Cloakings made oí calí hair and cotton, imported in 1881, were dutiable at 80 per cent., under the provision of Schedule M, § 2504, Rev. St., for “all other manufactures of hair not otherwise provided ior; ” and, being thus enumerated, could not be held dutiable under the provision of section 2499, Rev. St., that “on all articles manufactured from two or more materials the duty shall he assessed at the highest rates at which any of its component parts may be chargeable. ”</p> <p> (Syllabus by the Court.) </p>

At Law. Action to recover duties.. Plaintiff imported into the port of New York certain plates and mugs decorated with the letters of the alphabet, and with pictures, of sizes fit for use at the table, and designed for use by children. They were known in trade as A B C plates and mugs. There was conflicting testimony on the point whether they were classed among merchants and dealers as toys.

In Equity. Bill for the infringement of two letters patent, one numbered 319,125, granted to J udson Rice, Andrew Steiger, and Isaac L. Thurber, on June 2, 1885, entitled “Process of Working and Using Asphaltum;” and the other, numbered 342,852, granted to Austin Walrath, on June 1, 1886, entitled “Paving, Roofing, and Building Compound.” The material portions of the specification of the first patent are as follows: “There are large bituminous deposits in California known as…

<p>1. Wharves — Duties of Wharfinger — Floating Coal-Yard.</p> <p>Libelant had long been in the exclusive occupancy of a certain portion of the public wharf of Allegheny city, paying a stipulated monthly sum for wharfage, and he kept fastened to shore two floats on which he carried on the business of a retail vender of coal, having thereon an office and scales; andone of the floats having aprons to shore, over which wagons were driven. His practice was to buy cargoes of coal, and have the loaded barges brought to the floats and there kept until he had retailed the coal. Held, that the city did not owe to him the high measure of care due from a wharfinger to navigators invited to a public wharf for safe mooring, and using the same in the ordinary way.</p> <p>2. Same — Mookixg Ports — DESTKirOTiox—Notice.</p> <p>The city granted a right of way along its public wharf to a railroad company, which, in the exercise of the privilege, cut away several check-posts convenient to libelant’s floats and available to him, and the city did not replace them, nor provide substitutes. There remained, however, a check-post and ring-bolt which libelant used, and he did not complain of the removal of the posts, nor give notice to the city to replace them, and did nothing himself to add to his appliances for tying. This state of things continuing for several months, the libelant’s floats and cargoes of coal in boats were swept away by a flood in the river, the check-post and ring-bolt standing firm, and the break being in the fastenings. Held, that the city was not liable for the libelant’s loss.</p>

In Admiralty. Action by the master of the brig George E. Dale against a cargo lately on board that vessel, to recover demurrage. The bill of lading under which the lumber was transported contained no provision as to time of discharge, or for “dispatch.”

<p>1. Collision — -Failure to Show Lights — Mutual Fault.</p> <p>Though, in a caso of collision by night, the vessel failing to show the statutory lights must beheld in fault, that does not relieve th” other vessel, if, under the same circumstances, she would have been held Habla before the introduction of the laws requiring lights.</p> <p>2. Same — Flash-Light—Overtaking Vessel — Negligent Lookout.</p> <p>The schooner L. was coming up the Atlantic coast, near the port of New York, heading nearly for the Scotland light-ship. The night was overcast and dark, but the atmosphere was clear. A steamer’s lights were seen astern of them by those on the sailing vessel several minutes bofore the collision which ensued between the two vessels. No torch was shown by the sailing vessel, and she was not seen by the steamer until the latter was within a few feet of her. Held, that both vessels were in fault for the collision. — the schooner, for not exhibiting a torch; the steamer, for not sooner observing the sailing vessel.</p>

<p>1. Collision — Vessels at Anchos — Foul Bekth.</p> <p>The barge W. went inside the Delaware break water in a storm, and anchored near the barge P. After some hours the W. began to drag her anchor, and fetched up very near the P., and in, such a position that it was certain that she would collide with the P., when the tide changed. It was in her power to have changed her position. She did not do so, and on the turn of the tide collided with the P. Meld, that the W. was liable.</p> <p>2. Salvage — Holding Bakge in Gale — Amount.</p> <p>After the collision, a tug held the W. while the anchors of the latter were being raised, and then towed her further up the breakwater. The service occupied five or six hours. The sea was rough, and there was danger of the W.’s going ashore. Meld, that the service was a salvage service, and $250 a proper compensation therefor.</p>

<p>Seamen — Personal Injuries — Uncovered Hatch — Contributory Negligence.</p> <p>Libelant, a night-watchman on a steamer, undertook to sit down upon a bunker hatch without looking to see whether the cover was on. The proof showed that the' hatch was covered, or not, as the necessity of the ship required. On this occasion it was uncovered, and libelant fell through to the hold. Meld, that the accident was due to libelant’s negligence, and a libel for his injuries against the vessel should be dismissed.</p>

<p>Federal Courts — Jurisdiction—Patent or Land — Cancellation.</p> <p>This court lias no jurisdiction o£ a suit brought by citizens of the state of Oregon, against a citizen of the District of Columbia, to cancel a United States patent to land to which plaintiffs claim they are entitled to have a patent, where the ground for canceling is fraud alleged to have been committed by the defendant in pi-oouring the issuance of the patent to one of the plaintiffs, and where the defendant is claiming the land under conveyances purporting to have been executed by the plaintiffs. Such a suit involves no federal question, and the parties are not citizens of different states. Moreover, there is no equity in the bill.</p> <p> (Syllabus by the Court..) </p>

Action for Damages. This suit was brought by T. H. B. Miller against the Chicago, Milwaukee & St. Paul Railway Company for maliciously causing his arrest and imprisonment upon a charge of arson in burning its depot at Niantic, Livingston county, Mo. Plaintiff was tried before a committing magistrate, and held to answer to the grand jury. The grand jury ignored the bill, whereupon this suit was instituted.

<p>In Equity. On exceptions to the master’s report. Intervention of H. G. Williams.</p>

<p>1. Railboad Pibes — Negiugence—Pbopeb Appliances.</p> <p>When damage has been caused by sparks from a locomotive, in order to rebut the presumption of negligence on the part of the railroad company it must be shown not only that the locomotive was equipped with the most approved appliances in the way of a spark-arrester, but also that it was operated by a skillful engineer, in a careful manner.</p> <p>2. Same — Evidence.</p> <p>A locomotive which throws sparks to the height of 50 feet, and to a distance of 100 to 150 feet, is not equipped with a proper spark-arrester.</p>

<p>1. Master and Servant — Negligence—Dangerous Employment.</p> <p>In an action by an employe for injuries received.from machinery, the petition alleged that his hand was crushed by cog-wheels while he was brushing them oil', and. that he was inexperienced in handling machinery, and did not know and had not been told of the danger. Held, that he could not recover, as tho danger was apparent, and incidental to the employment.</p> <p>3. Same — Exposed Machinery.</p> <p>In such an action, the failure of the employer to provide coverings for the cogwheels is not negligence per se.</p>

At Law. Action to recover back duties alleged to have been illegally exacted by the defendant, collector of the port of New York.

<p>Libel for Collision.</p>