Volume 43 — Federal Reporter

In Equity. Bill for cancellation of certain conveyances by the secretary of the interior, the governor of Iowa, and for the quieting of the title of the United States to certain realty in Iowa. Submitted on behalf of the Des Moines River Navigation & Railroad Company on demurrer, and as to the other defendants on the pleadings and proofs.

<p>1. Attachment — Subsequent Suit bt Pukchasek — Res Adjudicata.</p> <p>Where the purchaser of land under an attachment afterwards sues in a court of competent jurisdiction to set aside a former deed of the land from the debtor in the attachment suit, as fraudulent, a judgment setting the deed aside is an adjudication of the validity of the writ of attachment, since, if the attachment proceedings had been invalid, the purchaser would have had no right to question the validity of the deed.</p> <p>3. Same — Laches—Estoppel.</p> <p>In a suit to quiet title it appeared that one G., under whom complainant claimed title, purchased the land in dispute at a sale under an attachment against one W., hnd afterwards sued to set aside a former deed from W. to defendant as fraudulent; that both defendant and W. had notice of the suit, but failed to defend, and the deed was set aside. The evidence showed that, at the time the deed was made, W. was insolvent, and defendant had no means. The taxes were paid by G. and his grantees, including complainant, and valuable improvements were made on the land. Defendant, having full knowledge of the facts, waited 35 years before setting 'up any claim to the land, when he brought ejectment. Held, that defendant was estopped to assert title as against complainant, and should be enjoined.</p>

<p>1. Customs Dities — Construction' or Daws — Tonnage Tax.</p> <p>Act Cong. Juno 26, 1884, § 14, which levies a duty of 3 cents per ton on all vessels “ from ally foreign port or place in North America, Central America, the West India, islands, the Bahama Islands, the Bermuda islands, or the Sandwich Islands, or Newfoundland, ” and a duty of 6 cents per ton on vessels from other foreign ports, does not entitle German vessels sailing from European ports to enter our ports on payment of a duty of 3 cents per ton, under the treaties of December 20, 1827', and May 1, 1828, which stipulate that the United States shall not grant any particular favor regarding commerce or navigation to any other foreign nation which shall not immediately become common to Germany, since the discrimination contained in said act is merely geographical, and the 3-oent rate applies to vessels of all nations coming from the privileged ports.</p> <p>2. Treaties — Eitf.ct op Inconsistent Act op Congress.</p> <p>Where an act of congress is in conflict- with a prior treaty the act must control, since it is of equal force with the treaty and of later date.</p> <p>3. Constitutional Law — Commissioner op Navigation.</p> <p>Act Cong. July 5,1884, § 3, which makes final the decision of the commissioner of navigation on all questions “relating to tho collection of tonnage tax, and to the refunding of such tax, when collected erroneously or illegally, ” is constitutional.</p>

<p>1. Carriers — Interstate Commerce — Rebates.</p> <p>Where a railroad company which has fixed a rate of 20 cents per hundred for freight from Chicago to New York, and 22 cents per hundred for freight from points west of Chicago to New York, of which latter rate said company receives 18 cents, makes an arrangement with a Chicago,firm to ship its freight from Chicago to New York at 22 cents' under bills of lading purporting to come from western points, and to return to them 4 cents undey pretense of paying it to the road bringing the freight into Chicago, it is guilty of a violation of the provision of the interstate commerce act of February 4,1887, which makes it a misdemeanor for a common carrier to charge different rates from those fixed in its schedule.</p> <p>2. Same — Criminal Liability oe Oeeicers.</p> <p>Where such arrangement was made by the assistant general freight agent, the fact that the local freight agent, and the agent who made out the bills of lading, knew that there was something unusual and out of the ordinary course of business in such shipments, is not sufficient notice to them that the company was violating said act to make them criminally liable therefor.</p>

<p>At L'aw. Ejectment.</p>

<p>At Law. On motion to amend answer and for commission.</p> <p>Hollander having in July, 1889, sued Baiz, as consul general of Guatemala in New York, for an alleged libel, the latter, in September, 1889, answered that he was a public minister, and as such, exempt from suit, and afterwards moved for a commission to take testimony in (Jua7 tómala. The motion for a commission having been denied unless the government of Guatemala should furnish plaintiff, whom it had expelled from Guatemala, with a safe conduct, to enable him to be present at the execution of the commission, (40 Fed. Rep. 659,) which safe conduct the government refused to give, and a motion to dismiss the complaint on the ground that defendant was a public minister having also been denied, (41 Fed. Rep. 733; approved, In re Baiz, 135 U. S. 403, 10 Sup. Ct. Rep. 854,) the defendant, in May, 1890, moved to amend his answer by setting up the truth of the alleged libelous publication, and renewed his motion for a commission to take testimony in Guatemala.</p>

<p>1. CAKKIETtS — INTEKSTATE COMMEltOE ACT — 1’AKTY-RaTE TICKETS.</p> <p>The issuance of “party-rate tickets,” each good for a party of ten persons, at the rate of two cents per mile per capita, while single passengers are charged throe cents per mile, is neither an unjust discrimination nor an unduo or unreasonable preference or advantage, within the purview of the interstate commerce act, where such party-rate tickets are offered to the public generally, and where it appears that the rate charged single passengers is not unreasonable.</p> <p>2. Same — Bukden os Pboof.</p> <p>Where a railroad company is charged with violating the interstate commerce act, by the issuance of “party-rate tickets” at less than the rates-charged single passengers, the burden of proving that such lower charge constitutes an undue preference is upon the person making the charge.</p> <p>3. Same — Oonstkuction oe English Acts.</p> <p>The interstate commerce act having adopted substantially some of the provisions of the English railway traffic acts of 1845 and 1854, the construction given to such provisions by the English courts must bo received as incorporated into the act. Following McDonald v. Hovey, 110 U. S. 619, 4 Sup. Ct. Rep. 143.</p>

<p>1. Habeas Corpus — Review oe Facts.</p> <p>This court, on habeas corpus proceedings, is not authorized to take evidence as to facts, which another tribunal, of a quasi judicial character, is constituted by law for the purpose of inquiring into and determining.</p> <p>2. Same — Contract Labor Law — Act Feb. 23,1887 — State Oeeioers.</p> <p>Where immigrants have been prevented from entering the country on the ground that they have come contrary to the provisions of the contract labor law, the finding as to the facts by the superintendent of immigration, when confirmed by the collector, acting pursuant to the regulations of the secretary of the treasury, is a finding of a tribunal duly constituted by law, and is not subject to review by this court. Under the act of February 23,1887, the secretary of the treasury has the right to appoint a superintendent of immigration, in lieu of state oflioers.</p>

<p>1. Public Lands — Cutting Timbee — Criminal Law.</p> <p>Rev. St. U. S. | 2461, which forbids the eutting of timber growing on land of the United States which has been reserved or purchased for supplying timber for the navy, and the cutting or removal of timber from any other land, of the United States with intent to export or dispose of the same otherwise than for the use of the navy, does not apply to Indian reservations in Wisconsin, since its object is to protect timber suitable for the use of the navy.</p> <p>3. Same.</p> <p>Rev. St. U. S. | 5388, as amended June 4,1888, which forbids the cutting or wanton destruction of timber upon military or Indian reservations, does not apply to one who removes and uses for building purposes timber which has been cut on an Indian reservation by another person without his aid or encouragement.</p>

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

<p>Indictment — Name—Initials.</p> <p>An indictment against a man by the initials of his Christian name only is subject to plea in abatement, unless the grand jury add that his name is unknown to them otherwise than is set out.</p>

<p>Cbimijtai, Law — New Trial— Continuance of Motion.</p> <p>A motion for a new trial in a criminal case may properly bo postponed to a later term on defendant’s application, because of the absence of Ms principal counsel, where the defendant is in custody, and waives his right to apply to lie released on bail.</p>

<p>1. Patents foe Inventions — Ixfbinsement—Oeeka-Glass Holdeb.</p> <p>Letters patent No. 208,112, issued November 28,1882, to William Mack, lor an improved opera-glass holder, consisting of a detachable handle made in telescopic sections, the end section being provided with a fastening device consisting of a piston . hook and a notch on the end of the cylinder, brought together by a spring, are infringed by an opera-glass handle made in telescopic sections with a fastening device like the one in the patent operated by means of a screw.</p> <p>2. Same.</p> <p>Letters patent No. 899,513, issued March 12, 1889, to William Mack, for an improved opera-glass holdor, having its upper end longitudinally forked so as to spring apart slightly, and thus fit tightly into a socket in the bar of the opera-glass, is not infringed by a holder which does not have this longitudinally forked end, though it is otherwise similar to the patented device. .</p>

<p>Patents toe Inventions — Novelty—Anticipation.</p> <p>Tho claim ol letters patent No. 241,044, granted May 3,1881, to S. R. Matthcwson for cable tramway for carrying cars around curves, consisting of a serios oí vertical rollers with intervening vertical plates, as a means for supporting and guiding the cable around tho curve, is void for want of novelty, having been anticipated by an English patent of September 6, 1872, in which vertical rollers ar® placed in recesses at the sides of the curve; the intervening parts of the sides taking the place of the vertical plates in tho M'atthewson patent.</p>

<p>1. Patents eok Inventions — I’ itentability — Invention.</p> <p>Letters patent No. 205.816, granted July 9,1878, to Henry Tibbe for a pipe made of corn-cob, the interstices of which are filled from the outside with cement, is not invalid for want of invention.</p> <p>2. Same — Anticipation.</p> <p>The Jackson pipe, which was a corn-cob pipe having the inside of the bowi lined with cement, was not an anticipation of said patent.</p>

<p>Patents eor Inventions — Action eob Infringement — Pbactioe.</p> <p>The defendant may be compelled to state whether he has in his possession the machine which is alleged to be an infringement of plaintiffs patent, though the plain tiff has not previously made out a prima facie case of infringement.</p>

<p>1. Collision — Vessel at Anchoe.</p> <p>A schooner at anchor hoisted her sails in order to assist in loosening the anchor. When the anchor broke from the bottom, the schooner started with the master alone on deck, the entire crew being- engaged at the windlass, and collided with another vessel lving at anchor a third oí a mile to leeward. The evidence showed that the master oí the schooner could have avoided the collision, by putting his wheel hard to port. Held, that the schooner was responsible ior the collision.</p> <p>2. Same — Mi5A.suhe oí Dama oes.</p> <p>Where a schooner’s jib-boom is broken off by a collision, the vessel responsible therefor is also liable for demurrage caused by going into a port of repair, "where there is any increase oí risk in continuing the voyage without a jib-boom; though it is possible that the schooner might have made the voyage, successfully, but it is not liable for additional delay caused by want oí skill in making the repairs.</p>

In Admiralty. Action against the master of the sieam-ship Newport to recover damages for the sinking of the schooner John K. Shaw, alleged to have been caused by collision with the Newport.

<p>In Admiralty.</p> <p>Action by the Western Union Telegraph Company to recover for damages to its submarine cablea. Cross-action by the owner of the City of Richmond to recover for injury to the propeller of that steam-ship, damaged by contact with the submarine cables of the telegraph company.</p>

<p>Admiralty — Interrogatories—Production oe Letters.</p> <p>Under rule 23 in admiralty, interrogatories annexed to the libel are confined to issuable matter, and only the defendant’s oath is required in response thereto. Inspection or copies of letters or documents not in issue cannot be obtained by that means. Held, therefore, in a libel for damage to cargo, that interrogatories calling for the production of letters between the defendants and their agents for the purpose of proving the fact of damage, and how it occurred, should be stricken ■ out.</p> <p> (Syllabus by the Court.) </p>

<p>Admiralty — Seamen—Liability or Ship to Support and Cure Injured.</p> <p>The obligation of a vessel navigating the lakes to support and cure seamen taken sick or receiving injuries in thecservice of the ship does not extend beyond the termination of the seaman’s contract, and his return to his home or to a marine hospital.</p> <p> (Syllabus by the Court. </p>

In Admiralty. Libel for supplies on open account. A decree pro confesso was rendered against the schooner, whereupon the libelant’s proctor moved tho court for a final decree for the sum sued for as set up in the libel, without further proof in support of the claim.

<p>In Admiralty. On appeal from district court. 34 Fed. Rep. 546.</p>

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

<p>1. Assignment for Benefit of Creditors — Preferences—Special Partnerships.</p> <p>Under Code Va. § 2874, providing that no assignment made by an insolvent special partnership for the purpose of giving preferences shall be valid, creditors who have tiled bills against a special partnership which has made such an assignment, under Code Va. § 2)60, providing that suits may be brought by creditors to avoid assignments with inlent to delay, hinder, and defraud creditors, prohibited by section 2158, and that the creditors filing such bills shall have a lien on the property of the part nership from the date the bills are filed, are not entitled to have their full claim paid out of the assets of the linn according to the dates of filing their bills, to the exclusion of other creditors. All creditors are entitled to share in the assets pro rata.</p> <p>2. Special Partnership — Payment of Capital in Cash.</p> <p>A check given by a special partner, as his capital in the firm, which is received, by a bank, and without, verification placed as cash to the credit of the firm, and Which on presentation Is paid by the bank on which it is drawn, is a sufficient compliance with a statute requiring the capital of a special partner to be paid in cash.</p> <p>8. Same — Retrospective Laws.</p> <p>•Act Va. Fob. 29, 1888, (Acts Va. 1887-88, c. 268,) amending Code Va. 1887, § 2871, and requiring the names of special partners to be posted, together with the names of the general partners, conspicuously on the front of the firm’s place of business, does not apply to special partnerships entered into before the act took effect.</p>

<p>1. Deed — Validity—Indian Title.</p> <p>The treaty with the Kickapoo Indians (13 U. S. St. 634) provided that the land allotted to the Indians could not be sold to white men without permission of the president, which permission should be signified by his causing the land to be patented to the Indians “with power of alienation, ” and that before receiving patent the Indians must appear before the district court, make proof of their intelligence and ability, and take the oath of allegiance. An Indian conveyed his land by warranty deed on the day he made such proof, and after he had obtained his patent convoyed the land to another grantee. Held, that the second grantee took the land, since the first deed, being made before patent, was inefiectual to convey the land, either directly or by estoppel.</p> <p>3. Same — Recording—Notice.</p> <p>The recording of the first deed before the patent was granted constituted no notice to the second grantee.</p>

<p>1. Judgment — Ees-bot—Pabties.</p> <p>Where a bill for foreclosure makes a certain person defendant as executor and as guardian, and the return to the process shows that he was served as executor and guardian, and the bill states that he has an individual interest in the mortgaged land, a decree of foreclosure binds him as well in his individual as in Ms representative capacity.</p> <p>2. Eoutty Pt.eamng — Dhmurhek.</p> <p>' Where a bill to redeem from a mortgage which has been foreclosed alleges that tho complainant was not a party to the foreclosure suit, and makes the pleadings and record in that suit a part of tho bill, from which record it appears that said complainant was a party defendant, to tho foreclosure suit, the allegation that he was not a, party, being an averment of a mere legal conclusion, is not admitted by a demurrer-.</p>

In Equity. This is an application for the writ of injunction, and grows out of the following state of facts in substance: The Kansas City Suburban Belt Railroad Company heretofore began proceedings in the circuit court of Jackson county, Mo., for the condemnation of the right of way over the Missouri Pacific Railway Company tracks within the corporate limits of Kansas City, in said county.

At Law. Petition for habeas corpus. Domenico di Florio, an alien “immigrant, being barred from landing at New York by the collector of the port, applied for his release from the collector’s custody.

<p>1. Pleading — Sham Answer — Motion to Strike Out — Action on Judgment.</p> <p>In an action on a judgment, in which it appears by the answer that the defendant entered his appearance by attorney, a paragraph of the answer, denying knowledge or information regarding the judgment sufficient to form a belief, should be-stricken out as sham.</p> <p>2. Same.</p> <p>A paragraph of the answer, which merely denies indebtedness, should also be stricken out.</p> <p>S. Same — Equitable Defense.</p> <p>A paragraph of the answer, seeking to impeach the judgment sued on for fraud, should be stricken out, since it attempts to set up an equitable defense to a legal action.</p>

<p>In Admiralty. On appeal from district court.</p> <p>findings of fact.</p> <p>(1) The libelant Stafford was the owner of the bark Quickstep before and at the time of her loss on the 24th day of May, 1887. The libelant the F. O. Matthiessen & Wiechers Sugar Refining Company is a corporation, and was the owner of a cargo of sugar laden on board said bark.</p> <p>(2) On the afternoon of the 24th day of May, 1887, the bark Quickstep, laden with a cargo of sugar, was being towed from sea into the port of New York by the tug-boat Leonard Richards, on a hawser 80 fathoms long. While proceeding up about in the middle of the main ship channel, and when a little to the southward and eastward of buoy No. 11, at about 4:26 p. m., she was run into by the steam-ship Ludvig Holberg; the latter vessel striking the bark on her port quarter, about the mizzen topmast backstay, cutting into .her after companion door a distance of about nine feet, cutting her open so that the cargo rolled out. Immediately after the collision said bark began to sink, and, while sinking, was towed by the tug on to the west bank, where she grounded in 25 feet of water, about a quarter of a mile below buoy No. 11, and became a total loss, and her cargo was nearly all lost.</p> <p>(8) The bark was 170 feet long, 37 feet beam, 23 feet depth of hold, and was laden with 1,024 tons of sugar, and drew 20 feet of water.</p> <p>(4) The Ludvig Holberg, which hails from Bergen, Norway, was an iron screw steam-ship of 687 tons register, 200 feet long. The claimants Christopher Kahrs and others were her owners. She was in ballast, drawing 13 feet aft and 9 feet forward, bound for Barracoa for fruit. She was tight, staunch, and strong, properly manned and officered, having a competent master and officers, and a full complement of men. At and prior to the time of collision her master and pilot were on the bridge. She steers by hand, and there was at her wheel one ordinary seaman steering the vessel as directed by the pilot. The first officer and second ■ officer were on lookout, on the port and starboard sides', respectively, of the forestay, which is fastened to the stem. Back of them, by the windlass, was the carpenter, also on lookout.</p> <p>X5) The steam-ship started from pier 15 E. B., some time between 3:05 and 3:15 p. m. She ran slow out of the East river, but soon increased to full speed, and continued to run at that rate until, fog having set in, she reduced to half speed, and later to dead slow. Her motion through the water, was, while at full speed, about 9 to 9J knots; while at half speed about 6£ to 7 knots; while at dead slow about 3£ knots an hour. She had been running at the latter rate for a few minutes only, probably not more than four or five, before the collision. The pitch of her screw was 14 feet 2 inches, and at full speed she made from 69 to 71 revolutions per minute; at half speed from 40 to 45 to 50 revolutions per minute, and at slow speed from 20 to 25 to 26 revolutions per minute.</p> <p>(6) She was off Bedloe’s island between 3:27 and 3:32, and it was nearly 4 o’clock when she reached Fort Lafayette. The distance from that point to 'the place of collision is a little over knots. She carried the ebb tide with her from Bedloe’s island to a little below the forts. After a brief period of slack water, and until the collision, there was a flood tide. Its set was about S. W., which helped a vessel coming in about one knot an hour, and a vessel going out about half a knot an hour. The wind was southerly, blowing a stiff breeze.</p> <p>(7) At the time and place of collision there was so much fog as to prevent vessels from being visible to each other for more than a short distance, (estimated by the witnesses from the Holberg at between 200 and 300 feet,) and such as to require the sounding of fog-signals under the rules. Such signals were sounded by the Ludvig Holberg. This fog had prevailed between the Narrows and buoy No. 11 during a period of at least 15 minutes before the collision.</p> <p>(8) The Ludvig Holberg ran into this fog about the time she passed the forts, and at that time began sounding fog-signals, but did not reduce her speed until she had run some distance below the forts. Then she reduced to half speed only, and did not further reduce her speed until about buoy No. 13.</p> <p>(9) By the time she reached a point a little below buoy’No. 13, she had slowed down to about four knots over the ground. From that point to the place of collision, á distance of about 4,500 feet, she did not increase her speed, proceeding down the channel, keeping upon the starboard side, as near the channel buoys as she could safely go, and sounding fog-signals from time to time.</p> <p>(10) While she was thus proceeding she heard one blast right ahead, then another a little more on the starboard bow. Both these were blown by the tug, which was not at that time visible through the fog to those on board the Holberg.</p> <p>(11) Almost immediately thereafter the tug came in sight, only a few hundred feet off, and a little on the steamer’s starboard bow', and gave a signal of two blasts.</p> <p>(12) Neither the bark nor the hawser were then visible, and no signals indicated to the Ludvig Holberg that the tug had a tow nearly 500 feet behind her.</p> <p>(13) Upon receiving the whistle of two signals from the tug, the steamer starboarded, and passed the tug starboard to starboard clearing her about 30 feet.</p> <p>(14) Then for the first time the Ludvig Holberg became aware of the presence of the Quickstep, which was not following directly after the tug, hut to starboard of her, and whose pilot at that time, by putting her wheel hard a-port, threw her head somewhat more to starboard.</p> <p>(15) Thereupon the steam-ship ported in order to go between the tug and the bark, at the same hailing the tug to cast off the hawser.</p> <p>(16) If the hawser had been east off' promptly the steamer would probably have gone safely between the tug and the hark.</p> <p>(17) The hawser was not cast off, and, the steamer, running against it with her starboard bow, parted it, and at the same time her bow' was swung to port, resulting in collision with the bark’s port quarter.</p> <p>(18) The steamer stopped and reversed as soon as she saw that the tug had a vessel in tow, but not before, and was nearly stopped at the time of collision.</p> <p>(19) Had the steamer been aware when she starboarded to pass the tug that the latter vessel had the Quickstep in tow on a hawser of 80 fathoms she could, and in all probability would, have avoided the collision.</p> <p>CONCLUSIONS OE LAW.</p> <p>(1) Said collision was not due to any fault or negligence of those in charge of the Ludvig Holberg.</p> <p>(2) The libels herein should be dismissed, as already decreed by the district court, with costs to the claimants in both courts.</p>

<p>Trial — Findings.</p> <p>It is not necessary to set forth as a conclusion of law or finding of fact that the circumstance that some of the witnesses were examined before the district judge influenced the circuit court in deciding to affirm the judgment of the district court rendered upon conflicting evidence.</p>

<p>1. Diiceit — Mistake of Law.</p> <p>Plaintiff, being about to enter into a contract with a corporation for loans and advances to it to a large amount, pi-ovided its debts had been accurately stated, for the purpose of verifying said statement, asked the defendant bank how much the corporation owed it. Defendant told him a certain amount, which did not include notes given to it by a third person for money actually loaned for the benefit of and received by said corporation, liability for which was denied by said corporation, and not understood, at the time, by the officer who gave the reply. The bank acted in good faith. Plaintiff, relying upon the correctness of tho answer, entered into the contract. The bank afterwards claimed that tho corporation was Hable upon said notes, sued it thereon, the corporation went into insolvency, and great loss was suffered by plaintiff. In an action of deceit, held, that defendant was not liable, its representation having been made in good faith, the mistake which caused the misrepresentation being a mistake of law upon a state of facts which were imperfectly understood.</p> <p>2. Judgment — Privies—Assignment for Benefit of Creditors.</p> <p>Though, under the insolvent laws of Connecticut, the trustees of an insolvent estate arc the representatives of the creditors for the appropriation of the prop-pert,y of the insolvent towards the payment of their debts, they are not their privies in law so that a creditor is bound by all the findings of tho court in a suit between the trustees and another creditor as to the validity of the latter’s claim against the estate.</p>

<p>Telegbaph Companies — Negligence—Evidence.</p> <p>In an action against a telegraph company for an accident caused by a hanging wire, one witness testified that six or eight days before the accident four or five men cut down a telegraph pole near the place whore the accident occurred, and left the wire hanging. There was no competent evidence that these men were in defendant’s service. Another witness testified that two men employed by defendant cut down a pole in the same neighborhood 15 days before the accident, but left no wires hanging. There was no proof that the witnesses referred to the same transaction. Held, that the evidence did not connect defendant with the accident so as to justify a verdict for plaintiff.</p>

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

This is a bill in equity to recover damages for the infringement of lot-tors patent No. 369,979, issued September 13, 1887, to the plaintiff Lewis S. Bortree for a bustle.

<p>Patents tor Inventions — Anticipation—Saw-Mills.</p> <p>Letters patent No. 377,630, issued February 7, 1888, to Henry McEvilla, for im provement in reciprocating' saw-mills, consisting in the combination with the feed mechanism and dividing shaft, of upper and lower slides carrying the saw-gate, such lower slides having the pins on which they oscillate located below the top of the slides, were anticipated by letters patent No. 156,193, issued October 20,1874, for an invention exactly the same except as to the location of said pins.</p>

In Equity. Bill for injunction and account against the Yaryan Manufacturing Company, Homer T. Yaryan, and Frederick B. Dodge. The apparatus descrilied in complainant’s patent 341,669, consisted essentially of a chamber, E, in which were a number of parallel tubes, b, b, b, called a “battery,” along the interiors of which the liquid to be evaporated was made to pass in thin ñlms. The exterior of the tubes were exposed to the action of hot steam.

<p>1. Goi/lision — Steam and Sait, — Fog—Excessive Speed--Duty to Reverse.</p> <p>Collision occurred towards midnight oí May 28, 1889, from five to eight miles east by south of Sandy Hook light-ship, in a dense fog, between the steam-ship Normandie and the pilot-boat Charlotte Webb, by reason of which the pilot-boat was sunk. The steam-ship, having left New York on one of her regular trips, had been put upon a course of east by south, on which course she continued until within a few moments of collision. Tho pilot-boat was cruising for vessels. Shewassailing slowly on a course of about E. N. 15., and crossing the steamer’s course. When the steamer's whistles were first heard, which was from 15 to HO minutos before the collision, the pilot-boat continued to sound her fog-horn, which was blown by mechanical moans, at regular intervals, and as the Normandie’s whistles continued to approach, bearing in the samo direction, two bombs were fired by the pilot-boat, and a flash light was twice shown over tho port side. She did not alter her course at any time. She was struck by tho steamer on her port side, half cut through, carried along with the steamer for a short period, until she dropped off and sank. The steamer’s speed had been from J1 to 13 knots, her maximum speed being 10 knots. Soon after hoai ing the pilot-boat’s horn ahead her engines wore slowed. She continued on at this speed for about a minute, when the light of the sailing vessel came in sight, only a short distances ahead. By reversal before the collision her , speed was reduced to four or five knots. The above facts being found on very conflicting evidence, held, that there was no fault, in tho pilot-boat, either in her signals or maneuvers; that the speed of tho steam-ship was in excess of the moderate ■ speed required in a fog by article 13 of the collision rules; that she was also to blame for not reversing, instead of slowing, when the horn was heard ahead and near; and that she alone was responsible for the collision.</p> <p>2. Same —Tv o Suits — Costs—Maneuvering and Stopping Power.</p> <p>Upon two suits in personam and in rem, successively brought for tho same demand, no security being obtained in the former, held, decree should be given in the suit in rem with one bill of costs only, but not until after the lookout, a co-libelant and an available witness, had been produced and called therein.</p>

<p>S M.VA.OE — STegligexcis.</p> <p>A yacht was lying at anchor, when a galo arose, and the yacht became in danger oC going ashore. To render her a salvage service, a tug took hold oí the yacht to tow her oil shore. The anchor oí the yacht remained down, which fact was known to the master of the tug, but no effort was made to have the line taken in, the anchor being allowed to drag, until it caught in the anchor oí libelant’s yacht,'which was thereby torn from her moorings, and subsequently went ashore. Held, that it was the fault of the tug.</p>

<p>In Admiralty. On exception to libel.</p>

<p>Admiralty — Libel for Possession.</p> <p>The yacht S., belonging to one Blunt, and then lying at Brunswick, Ga., was purchased by Leonard for $1,000, of which $150 was in cash, and $850 in notes. A bill of sale was delivered to Leonard, which contained no copy of the certificate of enrollment, and also an order on the person in charge of the boat to deliver her to Leonard or order. Leonard, the same day, sold the yacht to Lynch, this libelant, for $T00, of which $110 was paid on the spot. Instead of a bill of sale, the order for delivery of the yacht was given to libelant, which he turned over to a person whom he employed to bring the yacht to New York. Leonard after-wards obtained this order from the employe without the knowledge of libelant, and delivered it to one Farnham, who started with the yacht for New York. Libelant thereafter demanded of Leonard the bill of sale, which was'refused. After the vessel arrived in New York, Leonard delivered a bill of sale to Water-house, his brother-in-law, for an expressed consideration of certain moneys claimed to have been advanced on her. On libel for possession, the various parties above named appearing in tbe action, it was held that the title to the boat was in Lynch, and possession of her would be awarded to him on his payment into court of the balance of the purchase money, $590, less his taxed costs, which sum should be paid over to Waterhouse.</p>

<p>In Admiralty. Action for damage to a tow in being cast adrift by her tug.</p>

<p>Tug and Tow — Faulty Loading — Negligence ,oe Tug — Remote Cause.</p> <p>A tug took in tow libelant’s barge, which was loaded with a deck-load of rails, and with burlaps below. The tug left the barge at a stake-boat, where, during the night, she rolled so heavily as to lose her deck-load overboard, and received damage herself. For the loss she sued the tug. Held, that the immediate cause of the loss was the top-heavy condition of the barge, and the act of the tug in leaving the barge at the stake-boat was but a remote cause of the damage, and did not render the tug liable.</p>

<p>Gotj/tston — Steam and Sail — Fog-Horn.</p> <p>When collision occurred in a dense fog between a steamer and a schooner, and the proof showed that the steamer was navigating cautiously; that the schooner was seen as soon as it was possible that she could be seen, when it was too late to avoid collision, and her signals were not heard before she was seen; and that the schooner was using an ordinary fog-horn, not the mechanical horn provided for by statute, — it was?) old, that the schooner’s failure to comply with the statute was the cause of the collision, and her libel against the steamer was therefore dismissed.</p>

<p>Admiralty — Damage by Steamer’s Swells — Evidence.</p> <p>Suit was brought against a steam-boat to recover damages alleged to have been caused to a canal-boat, while loading at a dock, by the swell of the steamer. It appeared that while the canal-boat was loading she sprung a leak and sank, and that the leak was discovered about the time the steamer passed. The captain of the canal-boat and his wife testified that they felt a jar on the boat which the captain attributed to the swell of the steamer. The men engaged in loading the canal-boat did not notice any swell. Held, that it was not proved that the damage sued for was caused by the swell of the steamer, and the libel should be dismissed.</p>

<p>Admiralty — Salvage.</p> <p>The bark J. had passed through a storm, had lost some of her spars, and was leaking. When off Barnegat, under sail, and undoubtedly able to sail to New York without assistance, she was taken in tow by a tug and brought to New York over a smooth sea, the service occupying from 9)^ A. sr. to 6 p. M., and involving no risk or extra labor to the tug. The bark and her cargo was worth §20,500; the tug, §25,000., Held, that §400 was sufficient salvage.</p>

<p>1. Removal oe Causes — Feeekai. Question — Receivers.</p> <p>A suit against a receiver appointed by a federal court, brought in .a state court without leave of the federal court, is removable, since it involves a federal question.</p> <p>2. Samh — Aitlicatiox—Time.</p> <p>Where an amended petition is filed, which makes a substantially different suit from that stated in the original petition, the time for removing the c-ause is to be calculated with reference to the amended petition.</p>

In Equity. Code Miss. 1880, § 1038, provides that the franchise of a railroad corporation may be sold to satisfy a judgment. Section 1039 allows six months for redemption. Section 1041 provides that all corporations, after their charters have expired or been annulled, shall nevertheless be continued bodies corporate for three years thereafter for the purpose of suing and being sued and closing up their business.

<p>1. Suit against State — Injunction—Sale by Commissioners.</p> <p>A suit by a citizen of California to enjoin, tbe persons constituting the board of land commissioners of the state of Oregon from selling certain swamp lands, claimed by the plaintiff, as forfeited to the state for non-compliance with a condition of a former sale of the same lands by the state to the plaintiff’s grantor, is not a suit against the state of Oregon; it appearing that the legislation under which the defendants claim the right to act is unconstitutional and void, because it impairs the obligation of the contraet.of the state with such grantor.</p> <p>3. Swamp Lands — Application to Purchase — Contract.</p> <p>An application for the purchase of swamp lands under section 3 of the act of October 26,1870, for “the selection and sale” of swamp lands, from the date of its receipt and filing by the land commissioner constitutes a contract between the state and the applicant for the sale to the latter of the tract or tracts therein mentioned, with the right to the immediate possession thereof; and, on the performance of the co. ditions subsequent, of payment and reclamation, within the terms and requirements of said section, the applicant, or his assigns, is entitled to a patent therefor. 3. Same — Obligation op Contracts — Acts October 18, 1878, and February 16,18S7.</p> <p>Section 9 of the act of 1878 does not, when fairly construed, include an application for the purchase of swamp land under the act of 1870, where there is no default in the payment of the 20 per centum of the purchase price, as provided in said act of 1870; but. if it does include such a case, then it is unconstitutional and void, as impairing the obligation of the contract of the state with the applicant, which gave him until 90 days after the publication of the notice of the filing of the map of such lands in the office of the clerk of the county in which they lie, to make such payment; and section 1 of the act of 1887, which declares all certificates of sale of swamp lands void on which the 20 per centum of the purchase price was not paid prior to January 17,1879, is, in the case where the 20 per centum was paid when due, according to the contract of sale, whether before or after said d^r in 1879, unconstitutional and void for the same reason.</p> <p> (Syllabus by the Court.) </p>

<p>Appointment op Receiver.</p> <p>Where a manufacturing corporation has debts exceeding its capital stock, and it is unable to meet its paper as it matures, and its assets are in such condition that they are not available either as security or collateral for the purpose of borrowing or for the purpose of conversion, and. it is apparent that enough would not be realized from a forced sale of its plant and accounts to meet its obligations, which will soon become due, and where its credit is gone, and its directors have of their own accord executed a deed of trust of all the corporate property for the benefit of certain creditors to secure paper indorsed by the directors, and where the trustee has taken possession, an application by the non-preferred creditors to enjoin further proceedings under the deed of trust and for the appointment of a receiver will be granted.</p>

<p>Contract — Validity—Restraint or Trade.</p> <p>A contract between a manufacturing corporation, whose business extends throughout the United States and Canada, and one of its traveling salesmen, who has been in its employ for several years, whereby he agrees not to enter the service oí any business competitor of the corporation for three years after leaving its service, is valid.</p>

In Equity. Suit by W. W. Whitney, as administrator of the succession of Myra Clark Gaines, against the city of New Orleans. For a full statement of the facts in the case, see 9 Sup. Ot. Rep. 745.

<p>Mines — Adverse Burr — -Equity.</p> <p>A suit brought pursuant to Rev. St. IT. S. § 0326, which provides that one who has filed in the land-office an adverse claim to an application for patent shall “commence proceedings in a court of competent jurisdiction to determine the question oí the right o.C possession, ” is cognizable in equity.</p>

<p>In Equity. On petition for intervention.</p>

<p>Sí-ecimo Ueefokmaxce — In solves <;y as Deeexse.</p> <p>The insolvency oí the party seeking the specific enforcement of a contract is no bar to the suit when tho contract was renewed by tho other party with knowledge of such insolvency.</p>

<p>1. Corporations — Trustees—Liability eor Corporate Debts.</p> <p>3 JRev. St. N. Y. (8th Ed.) p. 1957, § 12, provides that, for failure to file the annual report of the capital and indebtedness of any corporation, as therein prescribed, the trustees shall be liable for all debts of the corporation then existing, or contracted before such report shall be filed. Held, that the trustees cannot be subjected for an alleged liability of the corporation accruing on an accommodation indorsement, which, under its charter, it had no authority to make, and which consequently did not bind it</p> <p>2. Negotiable Instruments — Accommodation Indorsement — Notice.</p> <p>The fact that a note is presented for discount by the maker is notice to the discounter that the indorsement thereon is an accommodation indorsement.</p>

<p>Intoxicating Liquob — Illegal *Sale — Okiginal Package.</p> <p>A box containing whisky in bottles was shipped from Illinois to Iowa, and while in the latter state the box was opened by a resident of Iowa, who sold one of the bottles of whisky, contrary to the Iowa statute. For this he ivas convicted by a justice, and he applied to be released on habeas corpus, because his sale was protected under the interstate commerce clause of the national constitution. Meld, that he should not be released, since the question whether the bottle or the box was the original package was sufficiently doubtful to make the proper remedy an appeal, rather than an application for habeas corpus.</p>

<p>1. Usury — What Constitutes — Banks.</p> <p>Whore drafts are from time to time deposited in a bank, some of thorn being payable on demand and some on time, an agreement between the bank and the depositor that credit shall be given for such drafts on the day after their deposit, the deposit or being charged the full legal rate for any overdraft, does not constitute usury when such agreement is made in good faith in order to save involved calculations.</p> <p>2. Same — Compound Interest.</p> <p>Charging a depositor, by agreement, at the end of each month, with interest at the full legal rate on his overdraft, and adding such charge to the overdraft, does not constitute usury.</p> <p>8. Same — Discount—National Bank.</p> <p>Under Code Miss. 1880, which only allows interest on the amount of money actually lent, a national bank in that state cannot deduct interest in advance.</p> <p>4. Same — Action to B.ecov er Back — Pleading.</p> <p>in an action for the recovery of interest alleged to have been charged in excess of the legal rate for oral contracts, a plea sotting up a written agreement to pay the interest charged, without denying that the charges alleged in the declaration were made before the written agreement was entered into, and without stating the dato of the written contract, is bad.</p> <p>5. Saxe — Parties—National Bank.</p> <p>Under Rev. St. U. 'S. § 5198, which empowers one paying illegal interest to a national bank to recover double the amount paid, one of the joint makers of a note on which illegal interest is charged cannot recover the penalty from the bank where the illegal interest was paid by the other maker.</p>

At Law. . This is the same case, the decision in which — on demurrer — is reported in 40- Fed. Rep. 618, where the facts alleged in the complaint are stated.

<p>'MUNICIPAL CORPORATIONS — ORDINANCES—CONSTITUTIONAL XiAW.</p> <p>A municipal ordinance, requiring all retail liquor dealers to procure a license, and mating it an offense to retail liquor without such, license, and at the samo time forbidding anv such license to be issued unless upon the arbitrary, uncontrolled, written consent of a certain designated number of persons, there being no other qualifications or conditions prescribed, violates the constitution of the United Btat.es, and is void.</p> <p> (Syllabus by the Court.) </p>

<p>Witness — Competency—Criminal Law.</p> <p>20 U. S. St. at Large, SO, which provides that a defendant charged with crime shall, at Ms own request, out not otherwise, he a competent witness, does not render competent a defendant who, by previous conviction of an infamous crime, has lost the privilege of testifying.</p>

in Equity. This was a bill in equity for the infringement of letters patent No. 325,-425, issued to Robert A. McCarty, September, 1885, for a cash and parcel carrier; and patent No. 825,618, issued to McCarty upon the same date, for a new and useful improvement in store-service apparatus.

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

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

<p>1. Deed — Recording—Priorities.</p> <p>In 1870 U. conveyed certain land to B., and before the deed was recorded convoyed the same land to JtL, who paid tho price in reliance on li.’s representations that GL had attempted to make him a deed which had been destroyed because it did not convey- the land in question. JJekI, that under Rev. St. Mo.' 1889, § 2120, declaring that an unrecorded deed of realty shall not. be valid, except as between the parties and such as have actual notice thereof, the conveyance to H. was entitled to priority over that to B., though not iirst recorded.</p> <p>2. Vendor and Vendee — Bona Ride Purchaser!</p> <p>Tho premises in question having been purchased by one II. at a sale under a trust-deed executed by B., H. applied to CL to protect his title,, and the latter thereupon procured E. to execute a quitclaim deed of the property to II. Subsequently H. mortgaged the property to his mother, who became the purchaser at a sale under the mortgage, and afterwards sol<l the premises to M. Held that, assuming that H. had notice that II. held the title forB., that fact afforded no proof that his mother had notice, and that, in the absence of proof that M. had such knowledge, it was immaterial whether H.’s mother had notice or not.</p>

<p>Deed — Description.</p> <p>A deed described the land conveyed as beginning at a certain rock, and running thence one mile east, one mile north, one mile west, and one mile south, to place oí beginning; and also stated that it was the land set off to a certain Indian under' a treaty with the government. The Indian had previously selected his land as “a tract one mile square, the exact boundaries of which may be defined when the surveys are made. ” After the deed was given, the Indian’s land was located and patented so as to include 640 acres not in the form of a square, no part of which lay within the boundaries named in said deed. Held, that the deed, being for a specific tract of land, could not be construed to convey the grantor’s interest in the land actually patented to the Indian.</p>

<p>•Circuit Courts — Jurisdictional Amount — Interest.</p> <p>In an action on county bonds and tbe interest coupons thereto attached, the coupons constitute “interest” within Act Cong. March 3, 1887, as amended August 13, 1888, providing that the United States circuit courts shall have jurisdiction in certain cases where the amount in dispute exceeds 83,000 exclusive oí “interest” and costs.</p>

<p>At Law’.</p> <p>From the agreed statement of facts, it appears that the plaintiff is a corporation engaged in the business of refining sugar at Boston, and that the defendants are merchants carrying on business at Cienfuegos, in the island of Cuba, under the name of Castaño & Intriago. On March 28, 1889, a contract was made at Boston, on behalf of the defendants, by their agent, duly authorized, for the sale to the plaintiff of a cargo of sugar, a copy of which contract here follows:</p> <p>“Boston, March 28, 1889.</p> <p>“Sold for account of Messrs. Castaño & Intriago, to Standard Sugar Refinery, cargo 700-800 tons of Centrifugal sugar, April clearance by sail from Cienfuegos for Boston, at 4§ cts. per lb., cost and freight basis, 96 test, adding l-3j2 ct. per lb. per degree for each degree above, or deducting 1-20 ct. per lb. per degree for each degree below 96 test, fractions in proportion. Invoice weight, marine insurance, to be provided by purchasers. Payment by three-days sight drafts against documents, to be sampled on landing, as usual, by buyer’s and seller’s samples, and ‘the average of two Boston chemists ’ tests, these samples to be the basis of settlement. Shipment by first-class vessel.</p> <p>“James H. Shapleigh & Co., Brokers, 32 Central Street.”</p> <p>The defendants, upon being advised at Cienfuegos of the making of this contract, proceeded to make inquiry for a vessel suitable for the shipment of the sugars sold. There was at the time no disengaged vessel in port, and he was informed that vessels were very difficult to obtain at the Windward islands, and, not finding upon this inquiry a suitable vessel of a capacity of between 700 and 800 tons of sugar, he, on April. 2, 1889, rechartered from one Fred de Mazarudo, of Cienfuegos, the brigantine Motley, which was of a capacity greater than 800 tons. Soon after the making of the contract, the price of sugar began to rise. The defendant put on board of the Motley 5,979 bags of sugar, weighing 1,884,121 pounds net, or over 841 tons of 2,240 pounds, the gross weight of which exceeded 849 tons of 2,240 pounds; and on the 26th day of April, 1889, took from the master a bill of lading, in which Messrs. Perkins & Welsh,'a firm of commission merchants doing business in New York, his agents in the United States, were named as consignees, at Boston, of said sugar. In the letter of May 7, 1889, from Perkins & Welsh to the plaintiff, they say that, owing to the scarcity of tonnage, it was found impossible to secure a vessel conveying between 700 and'800 tons, and they tender 700 tons at the contract price in fulfillment of the contract. This offer was declined by the plaintiff, and considerable correspondence passed between the parties. Subsequently Mr. Perkins came to Boston, and there received the cargo of the Motley. Interviews took place between him and the representatives of the plaintiff, but no settlement of the matter was reached between them; Mr. Perkins, in accordance with the defendants’ instructions, insisting upon his tender of 700 tons of the sugar at the contract price, in full settlement of the defendants’ liability under the contract of March 28th, and the plaintiff declining so to receive it. It was finally arranged between them that the plaintiff should accept the 700 tons offered, without prejudice to its right, if any, to demand the delivery of the remainder of the cargo, or any part of it, at the price named in said contract, and said 700 tons were so received and paid for by the plaintiff; and thereupon the plaintiff brought this action. The remainder of the cargo, amounting to 316,122 pounds, was sold by Perkins & Welsh, acting for the defendants, to a third party, at 5 cents per pound, which was the market price of the sugar in Boston at the time the plaintiff claims it was entitled to receive the same.</p>

<p>1. Interfax, Revenue — Ristirt.ed Spirits — Excessive Tax — Recovery.</p> <p>Spirits wore manu f aetured and placed in bond prior to July 20,1808. Upon withdrawal, on July 20, 1889, plaintiff was required to pay taxes on 13.80 gallons more Shan the number of proof gallons, through the reckoning by the collector of each fraction of a gallon left over in each package, after the number of whole gallons therein had been counted, as a whole gallon. Held, in view of Act July 20, 1808, (15 St. 125,) plaintiff could not recover the amount of the taxes collected on these extra gallons.</p> <p>E Same — Aiaowance ny Act oe Conoress — Interest.</p> <p>An amount awarded by act of congress to reimburse a claimant for excess of taxes paid does not, unless especially so stated, give cLaimant a right to recover innerest- from the time of the illegal exaction.</p> <p>3. Same — Limitations.</p> <p>A suit was brought more than 18 years afterwards to recover excess of tax paid through the collector’s rating certain fractional parts of gallons of spirits as whole gallons. Prior to suit brought, plaintiff had made a claim for fax charged on spirits lost by evaporation while in the warehouse, but not for this alleged excess. Held, plaintiff had. not complied with provisions of Rev. St. 3220-3228, and Ms claim was barred.</p> <p>4. Same — Effect of Payment ondee Act of Congeess.</p> <p>Amounts paid through Act Cong. July 26,1886,were not payments on account, hut were in satisfaction of the claims presented.</p>

At I jaw. This is a suit brought by Francisco R. D’Estrinoz to recover the sum of $525.35, alleged to have been illegally exacted by the defendant as a tax upon 6,565? pounds of tobacco, at eight cents a pound, during the year 1886. It was shown that the plaintiff was not a manufacturer of tobacco, and did not have a license therefor, but was a manufacturer of cigars.

At Law. This was a suit brought by the Jessup & Moore Paper Company to recover certain customs duties alleged to have been unlawfully exacted in- an importation of old India-rubber shoes, entered by the importers as scrap rubber.

At Law. This suit arose with reference to Schedule A, par. 70, Tariff Index, (New',) of the tariff act of 1883, whereby a duty of 20 per cent, ad valorem is imposed upon sulphate of potash, while, in the free-list, guano, manure, and all substances expressly used for manure, are free from duty under paragraph 505, Id., and was brought by Henry R. Schultz to recover certain customs duties alleged to have been unlaw'fully exacted upon an importation of so-called “manure salt”…

<p>Customs Duties — Classification—Tkade-Name—Bombay Hemp.</p> <p>An article known in the trade as “East India Bombay hemp, ” invoiced and entered as such in the custom-house, will he held dutiable as hemp; and testimony that it is in effect a species of Sisal-grass will not cause it to be dutiable at the rate of that article.</p>

<p>At Law. On demurrer to the second amended complaint.</p>

<p>1. Patents for Inventions — No veétt.</p> <p>Letters patent No. 233,425, issued October 19, 1880, to John A. McCall, for a “flam-beau ” consisting of an oil-pot with a wick tube extending up from it, and beneath the oil-pot a chamber containing powder to be blown into the flame through a tube with a valve at its upper end, are void for want of novelty.</p> <p>2. Same — Infringement.</p> <p>Said patent is not infringed by a flambeau containing a valve in the powder tube, instead of in the tube through which the operator blows.</p>

In Equity. This suit is brought by the Marks Adjustable Folding Chair Company,. Limited, foi an alleged infringement by John M. Wilson and Andrew M.. Wilson of the first and second claims of United States letters patent No. 173,071, granted February 1, 1876, to Cevedra B. Sheldon, for an improvement in invalid chairs and lounges.

<p>Patents For Inventions — Action for Infringement — Injunction. Where the answer denies the charge of infringement, and shows that the novelty ■of plaintiff's invention is doubtful, a preliminary injunction should not be granted.</p>

<p>Patents eor Inventions— Novelty— Chemical Fire-Extinguishers.</p> <p>The fourth claim of patent No. 172,442, February 10,1874, to John H. Steiner, for improvement in chemical fire-extinguishers, held- valid, the defendant having admitted the infringement, and all the testimony adduced tending to support the novelty and patentability of the combination.</p>

<p>Patents roe Inventions — Prior State or the Art — Infringement.</p> <p>The first claim of letters patent No. 170,997, to Peter K. Dederick, dated December 14,1875, reading as follows: “In a bailing-press, the combination of the beater or feeder, E, with the lever, L, and the rod, e-2, for the purposes herein set forth, ” —is not invalid in view of the prior state of the art.</p>

In Admiralty. On appeal from district court. See 40 Fed. Rep. 538. Action by Leary, owner of a raft known as the “Joggins Raft,” against the steamer Miranda for negligence in towage, resulting in the loss of the raft. Cross-action by the owner of the'Miranda for towage money. ( On appeal to the circuit court in the case of Leary v. The Miranda, the findings of the circuit justice were as follows: “In this case I find the following facts: ' “First.

<p>Shipping: — Liability op Owner — Injury to Employe.</p> <p>The libelant, a deck-hand, while at work on a steam-boat, accidentally fell and injured his leg. The steward examined the limb, and thought the hurt was not serious, and applied simple remedies. All the officers of the boat supposed it was a sprain. Two days afterwards the boat reached Cincinnati. The libelant did not ask to be sent to the marine hospital there, nor for a surgeon. On the up-trip, by orders, he did some light work, but without compulsion. Eleven days after the accident he entered the marine hospital at Pittsburgh, and it turned out that he had sustained a partial lateral dislocation of the knee-joint, and he is likely to be permanently disabled. There was evidence that he did not receive proper attention at the hospital. Held, that he had no cause of action against the owners of the boat.</p>

<p>In Admiralty.</p> <p>Suit for wages, etc. Libelants, deck-hands on a tow-boat on the Ohio river, when ordered by the mate to draw ashes from the furnace refused, alleging it was a fireman’s work. After warning, they were put ashore at the next port. Thére was evidence that on that boat it was work to be done by deck-hands, but when hired nothing was said to the libelants on the subject. There was evidence also that this was not the customary work of deck-hands on tow-boats generally.</p>

<p>Removal op Causes — Local Piiejudice.</p> <p>Under Act Cong. Aug. 13,1883, amending Act March 3,1887, § 3, cl. i, providing that in actions “in which there is a controversy between a citizen of the state in wiuch the suit is brought and a citizen oí another state, any defendant, being such citizen of another state, ” may remove the action on the ground oí local prejudice, the right of removal does not exist where the controversy is between a citizen of the state wherein the suit is pending on the one side, and a citizen oí the same state and a citizen of another state on the other side.</p>

<p>Writs — Service by Publication.</p> <p>In « suit to establish a trust in real estate, service may be had on a non-resident, though the bill also prays for an accounting and lor other relief.</p>

<p>Febebaii Cobeis — JirarsniCTiox—Patents—Ownebship.</p> <p>Whore a suit is brought to determine the ownership of patents assigned to defendants, but which plaintiff claims under a contract by the patentee that all patented improvements on former patents granted him, as those in suit arc alleged to be, shall belong to the corporation under whom plaintiff claims, and both parties are citizens of the same state, the United States circuit court has no jurisdiction.</p>

<p>1, JilQFiTi' — Pleading—Cross-Bill.</p> <p>An original bill was i'or the infringement ol letters patent relating to electric signals granted to Frederick Cheoswright, assignee of William It. Sykes. In a cross-bill the plaintiff therein sot up, among- other things, an exclusive right to the term “The Sykes System” as a trade mark or name designating a system of electric signals, and songhtprotectionforthat right. Held, that this was new and distinct matter not within the scope of the original bill, and must be stricken out.</p> <p>2. Same. — Service of Cross-Bill — Non-Resident Plaintiff.</p> <p>When the plaintiff in the original bill is a corporation of another state, and has no agent or representative in the judicial district where the suit is pending other thaji its solicitor in the suit, an order will bo made for substituted service, as respects the cross-bill, upon such solicitor.</p>

This is a bill in equity seeking a decree declaring void and annulling a patent of the United States to a quarter section of land claimed by the complainant, as a part of the land granted to it to aid in the construction of its railroad under the act of congress of July 27, 1866, found in Id St. 292.

<p>1. Cloud on Title.</p> <p>A resale and conveyance of a tract of swamp land under the act of 1878, before sold by the state, under the act of 1870, on the ground that it had reverted to the state for the failure to pay the 10 per centum of the purchase price within the tima required by law, would cast a cloud on the title of the purchaser or his assignee, under the act of 1870.</p> <p>2. Multiplicitt on Suits.</p> <p>The prevention of a multiplicity of suits is an acknowledged head of equity jurisdiction, and this suit is clearly maintainable on that ground.</p> <p>8. Action against State.</p> <p>This is not a suit against the state of Oregon or its authorized agents or representatives, but against the defendants, claiming to act as such, but without authority of law. The cases of In Re Ayers, 123 U. S. 443, 8 Sup. Ct. Rep. 164, and Hans v. Louisiana, 134 ü. S. 1,10 Sup. Ct. Rep. 604, considered and distinguished from this.</p> <p> (Syllabus by the Court.) </p>

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

<p>Limitation or Actions — Running of Statute.</p> <p>The statute of limitations begins to run against a suit to quiet title from the time the defendant takes possession of the land.</p>

<p>Equity — Parties.</p> <p>In an action against a corporation and its officers, in which relief is sought against the corporation and discovery from the officers, the latter are not merely nominal parties.</p>

<p>1. Counties — Action on Drain Warrants — Jurisdiction.</p> <p>An action lies in the federal court upon drain orders drawn by a county drain commissioner upon a county treasurer, though the orders themselves create no debt against the county, and the sole duty of the county officers is to assess and collect the cost of constructing the drain from the owners of property benefited by it. In such case the judgment is special, and is enforceable only by mandamus to compel the collection of the tax.</p> <p>3. Same — Action by Assignee.</p> <p>Such orders are so far negotiable that suit may be brought upon them by the holder, though the court would have no jurisdiction of an action brought by the assignor of such holder.</p> <p>3. Same — Evidence.</p> <p>Such orders are prima facie valid, and plaintiff is not bound to prove the regularity of the proceedings for the assessment and collection of the tax.</p> <p>4. Judgment — Res Adjudicata.</p> <p>A decision of the supreme court of the state denying relief to a prior holder of such orders is not res adjudicata.</p> <p> (Syllabus by the Cowrt.) </p>

<p>At Law.</p> <p>Action by John P. Peck and others, copartners, doing business as “ Farmers’ Bank of Coshocton,” against the First National Bank of New York to recover the proceeds of a bill of exchange, which was sent to the Fidelity National Bank of Cincinnati, with the following indorsement thereon: “ Pay to the order of Aimni Baldwin, cashier, for collection, ac-</p> <p>count of Farmers’ Bank of Coshocton, Ohio. Samuel Irvine, Cashier.” Said Samuel Irvine was cashier for plaintiffs. The Fidelity Bank indorsed the bill of exchange to the defendant bank, and, after the failure of the Fidelity Bank, the defendant hank collected it, and kept the proceeds, crediting the Fidelity National Bank, which was indebted to defendant, with the amount thereof.</p>

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

<p>At Law.</p> <p>The ordinance under which the arrest was made is as follows:</p> <p>“Order Ho. 2190 designating the location and the district in which Chinese shall reside and carry on business in this city and county.</p> <p>“The people of the city and county of San Francisco do hereby ordain as follows:</p> <p>“Section 1. It is hereby declared to be unlawful for any Chinese to locate, reside, or carry on business within the limits of the city and county of San Francispo, except in that district of said city and county hereinafter prescribed for their location.</p> <p>“Sec. 2. The following portions of the city and county of San Francisco are hereby set apart for the location of all Chinese who may desire to reside, locate, or carry on business within the limits of said city and county of San Francisco, to-wit: Within that tract of land described as follows: Com-</p> <p>mencing at the intersection of the easterly line of Kentucky street; witli the south-westerly line of First avenue; thonce south-easterly along the southwesterly line of First avenue to the north-westerly line of I street; thence south-westerly along the north-westerly line of 1 street to the south-westerly line of Seventh avenue; thence north-westerly along the south-westerly line of Seventh avenue to the south-easterly line of Eailroarl avenue; thence north-easterly along the south-easterly line of llailroad avenuo to Kentucky street; thence northerly along the easterly line of Kentucky street to the south-westerly line of First avenue and place of commencement.</p> <p>“See. 3. Within sixty days after the passage of this ordinance all Chinese now located, residing in or carrying on business within the limits of said city and county of San Francisco shall either remove without the limits of said city and county of San Francisco or remove and locate within the district of said city and county of San Francisco herein provided for their location.</p> <p>“Sec. 4. Any Chinese residing, locating, or carrying on business within the limits of the city and county of San Francisco contrary to the provisions of this order shall be deemed guilty of a misdemeanor, and upon conviction thereof shall he punished by imprisonment in the county jail for a term not exceeding six months.</p> <p>“Sec. 5. It is hereby made the duty of the chief of police and of every member of the police department of said city and county of San Francisco to strictly enforce the provisions of this order.</p> <p>“And the clerk is hereby directed to advertise this order as required by law.</p> <p>“In hoard of supervisors, San Francisco, February 17, 1890.</p> <p>“Passed for printing by the following vote: Ayes — Supervisors Bingham, Wright, Boyd, Pescia, Bush, Ellert, Wheelan, Becker, Pilster, Kingwell, Barry, Noble.”</p>

<p>Towns — Bonds—Execution.</p> <p>Gen. St. Kan. § 414, requires bonds issued by a township to be “signed by the township trustee, and attested by the town clerk. ” Held, that township bonds were not invalidated by the fact that the name of the township trustee was signed for him by a third person, in his presence, and at his request, the bonds being subsequently duly delivered and certified, and the interest paid thereon by the township for 10 years.</p>

At Law. On .demurrer to petition. Action by John Robson against the Mississippi River Logging Company to recover damages for breach of written contract regarding driving and delivery of logs.

<p>At Law. Petition for habeas corpus.</p>

<p>Indictment — Recoveby oe Fines and Penalties.</p> <p>Fines, forfeitures, and penalties incurred under the laws of the United States may, under section 3313, Rev. St. U. S., be recovered by indictment.</p>

Defendant was indicted for the crime of extortion, under section 5481, Rev. St., which is as follows: “Every officer of the United States who is guilty of extortion under color of his office shall be punished by a fine of not more than $500, or by imprisonment for not more than one year, except those officers or agents of the United States otherwise differently and specially provided for in subsequent sections of this chapter.” Upon the trial, after all the evidence for the…

<p>1. Patents eob Inventions — Inebingement—Dbedging Machines.</p> <p>A claim in letters patent for “the combination of a dredging apparatus for dredging and elevating the material, a screen for separating the material, and a device for elevating and discharging the water into the screen, substantially as specified, ” held to be be infringed by the use of a water-jet pipe placed directly over the screen, and lengthwise of the same, from which water raised from the river by means of a pulsometer was discharged directly on the top and exterior of the revolving screen.</p> <p>0. Same — Damages.</p> <p>In assessing damages for a brief infringement of a patent, an established license fee is not to be adopted as the arbitrary standard, but should be used as affording proper guidance, in connection with the qualifying circumstances of the particular case, in the ascertainment of the plaintiffs actual damages.</p>

<p>Dill by the American Split-Feather Duster Company against S. Levy to Enjoin Infringement of Patent.</p>

Bill in Equity by Harry C. McCarty and John P. Bic-kel to enjoin the infringement of patents ,339,913 and 314,459, against the Lehigh Valley Railroad Company. No. 339,913, which was first applied for, contained truss-rods as an element of the combination, which were not contained in the other.

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

<p>1. .Equity Pleading — Exceptions to Answeb.</p> <p>New matter set up in an answer as a substantive defense is not subject to exceptions.</p> <p>3. Same.</p> <p>Exceptions which fail to state the charges in the bill to which the answer is addressed, and the exact terms of the answer, are too general to bo considered.</p>

<p>1. ADmibalty — Damages on Dismissal oe Libel — Malicious Pbosecution.</p> <p>One wbo libels a ship in good faith and without malice, and fails in the suit, is not liable therefor in an action ex delicto.</p> <p>3, Same — Pbactice—Ckoss-Libel.</p> <p>On dismissal of a libel, a cross-libel which is not so connected with the subject-matter of the libel as to be maintainable must also be dismissed.</p>

In Admiralty. On petition of James M. McCormick for surrender of steam-pump and other wrecking outfit.

<p>1. Collision — Fog—Negligence.</p> <p>A steamer running at the rate of more than seven knots in a fog so dense that a ship can hardly he seen at the distance of a ship’s length is guilty of negligence.</p> <p>2. Same — Fog-Horn.</p> <p>A sailing vessel which uses a fog-horn sounded by the breath instead of one sounded by a bellows, as required by article 12 of the sailing regulations, is guilty of negligence.</p>

In Admiralty. Libel by the schooner Charles E. Schmidt against the steamer Reading, arid cross-libel by the Reading against the Schmidt, for damages for collision. On the night of September 23, 1889, the libelant, a.coasting schooner,-with a cargo of ice from Gardiner, Me., to Philadelphia, when near the Cross Rip light-ship, eastward of Vinyard Etaven, sighted the respondent, running on a course converging to her own at a distance of H to 3 miles away.

<p>Removal of Causes — Remanding—Decision of Ff.di.iral Question.</p> <p>Alter overruling a motion to remand a cause, which had been removed from a state to a federal court on the ground that a federal question was Involved, the federal court, sustained a demurrer to the special plea interposed by defendant, and thereby disposed of the only federal question presented for decision. Held, that a subsequent motion by plaintiff to remand the cause to the state court would bo sustained'under the act of congress of March 3,1875, (section 5,) providing that if, in any suit commenced in or removed to a circuit court of the United States, it shall appear to the satisfaction of the court, ‘‘at any time” after such suit has been brought or removed thereto, that such cause does not involve a dispute within its jurisdiction, said court shall dismiss such suit, or remand it to the court from which it was removed.</p>

<p>In Equity. Motion for a rehearing. For former report, see 23 Fed. Rep. 695.</p>

<p>Attorney’s Pees — Receiver—Railroav Mortgage.</p> <p>Where the holder of second-mortgage railroad bonds brings suit for the appointment of a receiver, and a receiver is therefore appointed with the consent of all interested parties, and to the advantage of all, the services rendered by the complainant’s attorneys, being for the common benefit, should be paid for from the assets of the company.</p>

<p>1. "National Banks — Personae Liability of Directors — Excessive Loans.</p> <p>Where the directors oí a national bank assent to a loan, in excess of the limit prescribed by Rev. St. U. S. § 5200, and subsequently retire paper representing a part oí this loan, by charging it against an illegal dividend, declared when the bad paper reckoned to make up an apparent surplus more than exceeds the capital stock, the transaction is invalid, and, for the amount of the paper thus retired, the directors are personally liable, as provided by section 5239, lor damages sustained in consequence of excessive loans. f,. Equity — Report of Master — Correction.</p> <p>Whore the report of a master can be corrected from tho facts that appear in the case, aside from the evidence taken before him, it should be dono, and a re-reference is unnecessary.</p>

<p>In Equity. On exceptions to master’s report.</p> <p>Bill by Herman Duden against Michael F. Maloy for an accounting of the partnership affairs of the firm of Duden & Co. For motion to make the Associated Lace-Makers’ Company a party to the suit, see 37 Fed. Rep. 98. .</p>

<p>Malicious Prosecution — Advice oe Counsel.</p> <p>Where one states fully to his counsel his claim, and is advised that ho has a case, and under such advice commences suit, ho is not liable for malicious prosecution.</p>

<p>On Demurrer to Amended Complaint.</p>

At Law.. . This is an action of debt founded on the nineth and tenth sections of the appropriation act of August 11, 1888, (25 St. at Large, 424, 425.) The declaration shows that on February 23, 1889, notice was served on the St. Louis, Arkansas & Texas Railroad Company by the honorable secretary of war requiring it to alter its bridge over the St. Francis river by September 1, 1889, so that it would not be an obstruction to navigation; that on June 24, 1889, the defendants…

<p>Teade-Mabks — False Reeeesentations — Injunction.</p> <p>The fact that complainant, the manufacturer of a cordial made according to a recipe obtained from the Benedictine monks, attaches to the bottles labels and advertisements bearing Latin and French phrases, which translated are, “ Genuine Benedictine Liquor of the Benedictine Monks of the Abbey of Fecamp, ” does not preclude relief against one who manufactures and puts upon the market a cordial in such form and guise as to clearly indicate that it is the identical article sold by complainant; such phrases not being representations that the Benedictine monte are still engaged in its manufacture at Fecamp, but that it originated with them, especially where one of the advertisments shows that the cordial is manufactured by complainant, a corporation.</p>

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

<p>Railroad Companies — Accidents at Crossings.</p> <p>Plaintiff attempted to drive over defendant’s track at a street crossing, without stopping to look or listen, and was struck by a passing train, which he could easily have seen before he went on the track. The train was two hours behind the schedule time. Plaintiff’s witnesses testified that they heard the whistle either at a crossing 500 yards distant, or at one 500 yards further; while defendant’s witnesses, passengers on the train, testified the whistle was sounded at all the crossings, and the engineer testified to the same effect. Held, that a verdict in plaintiff’s favor would be set aside.</p>

<p>Ejectment.</p> <p>In pursuance of a written stipulation this case was tried by the court without the intervention of a jury. The following facts, therefore, are found by the court:</p> <p>(!) The title to the piece of land described in the writ in this case being in Isaac iieeson, George Meason, and Charles Peach, these persons, by their deed dated March 27,1851, for the staled consideration of $2,200 therein acknowledged as having been paid by Joseph Pennock, Isaac M. Pennock, and Archibald Pauli, conveyed said piece of land to said Joseph Pennock in trust as follows, namely: “To have and to bold the same, with the appurtenances thereunto belonging, unto him, the said Joseph Pennock, his heirs and assigns, in trust, as well for the said Isaac M. Pennock and Archibald Pauli as for himself, in the proportions the amount paid by each bears to the whole purchase money.” The said deed, after reciting the chain of title from the commonwealth of Pennsylvania down to said Poach to several tracts ol’ land of which the piece here in question is a part, contains this recital just before the conveying clause, namely: “ And whereas, the said Peach has sold fifty acres of the same to Joseph Pennock, of the city of Pittsburgh, in trust, as hereinafter stated; and whereas, the said land is intended to he for a residence for William Murphy and his family, and the said Joseph Pennock pays towards the purchase money twelve hundred dollars, and .Isaac M. Pennock, of the city of Pittsburgh, pays five hundred dollars, and Archibald Pauli, of the city of Wheeling, Ya., pays five hundred dollars.” (2) The said Joseph Pennock and Archibald Pauli had each married a sister of said William Murphy. The latter, at the date of said deed, was in ill health, and he continued an invalid until his death. (3) In the year 1851, soon after the date of said deed, said Joseph and Isaac M. Pennock and Archibald Pauli put said William Murphy into possession of said piece of land, and he resided thereon with his wife, Sarah Murphy, the present defendant, and their children, until his death, in 1860, holding the land during his occupancy in subserviency to the title of said Pennocks and Pauli. (4) After the death of her husband, the said William Murphy, the defendant remained in the possession of said piece of land, residing thereon with her children, and her possession thereof has been continuous from her husband’s death down to this time. (5).On July 2, 1866, said Joseph and Isaac M. Pennock executed a written lease, whereby they let and demised to the defendant said piece of land for the term of 15 years from April 1, 1866, for the use,of herself and the children of William Murphy and herself, at a nominal rent, and on July 6, 1866, she executed and delivered to the agent of said Pennocks an instrument of writing of which the following is a copy:</p> <p>“I, Sarah Mur|)hy, widow of William Murphy, deceased, for myself and the children of the said William, hereby acknowledge and declare that as to 12-22 and 5-22 parts of the tract of land on the Connellsville road, in 1ST. Union township, Payette county, Pennsylvania, containing about fifty acres, on which we now reside, and have resided since April 1st, 1851, we hold and have held the same under and as tenants at will of Joseph Pennock and Isaac M. Pennock. in connection with Archibald Pauli, and according to his last will; we now accepting a lease of said interest from said Joseph and Isaac, for the term of fifteen years', from April 1,1866, dated July 2nd, 1866, upon the rent and terms therein stated. Witness my hand and seal this sixth day of July,</p> <p>A. D. 1866.</p> <p>Sarah B. Murphy. [Seal.]</p> <p>“Test: John Collins.”</p> <p>(6) The said Archibald Pauli died in the year 1854, and all the right, title, and interest in and to said piece of land which he acquired under the aforesaid deed of March 27,1851, by virtue of his last will and otherwise, became vested in the plaintiffs before the date of this suit, viz., the 6th day of September,' 1888. (7)' When the writ in this case was served on the defendant she was residing on said piece of land with one daughter, a child of William Murphy and herself, and a granddaughter, the minor child of a deceased daughter, and this child and grandchild still live with her on the land. (8) The taxes on said piece of land were paid by William Murphy, or by the defendant, during his life-time and occupancy, and since his death by the defendant. The land was assessed in the name of Joseph Pennock from 1851 down to 1867, and since then has been assessed in the defendant’s name.</p>

<p>Criminal Libel — Action eor Damages — Sending Letter.</p> <p>The Tennessee Code (Mill & V. § 5552) has not changed the common law that while the sending of a sealed letter which is lihelous to the plaintiff, without any other act on the part of the defendant towards making its contents known to a third person, is punishable criminally, it is not a publication sufficient to support a civil action for defamation.</p>

<p>Pause Pretense — 'What Constitutes.</p> <p>In order to convict a defendant, indicted under Act Cong. April 18,1884, for obtaining money or other valuable thing by falsely assuming to be an officer or agent of the United States, it is necessary for the -jury to find that he assumed to be the officer mentioned in the indictment; that such assumption was false; that he made such false assumption with intent to defraud; and that he carried out such intent.</p>

<p>Patents eoe Inventions — What Constitutes Inekingement.</p> <p>Claims 1 to 4 of patent No. 325,506 to Charles P. Corliss for “a stem winding and setting watch” are for a device which prevents a watch movement when taken out of the case from falling into the hands-setting engagement, and keeps it in the winding engagement. The shifting engagements are obtained through a rising and falling pinion, and the hands-setting engagement is rendered inoperative while the movement is in the case by a short lug pressing against the case and on the spring which tends to throw the watch into the hands-setting engagement. When the movement is taken from the case, this pressure on the spring is released, and it becomes wholly inoperative to hold the watch in the hands-setting engagement, while the winding engagement remains operative. Meld, that this claim was not infringed by a device which accomplishes the same result as to the hands-setting engagement, but in which the shifting mechanism consists of a vibrating yoke carrying the pinions at either end, for the purpose of the winding and setting engagements, with its parts so arranged by means of adjusted springs that when the movement is taken out of the ease the winding and setting pinions are both thrown out of engagement, so that neither the hands-setting nor winding engagement is operative.</p>

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

<p>Collision — Mutual Fault — Supposed Pilot-Boat — Not Slowing — Lights Mistaken and Defective.</p> <p>The steam-ship La Champagne, while on one of her regular voyages from Havre to New York, and when about 25 miles south of Shinnecock light, on the Long island coast, at about'5 o’clock A. M., collided with the schooner Belle Higgins, bound from a southern port to Bath, Me. The evidence for the schooner was to the effect that she first made the steamer’s white light on her starboard bow, then the red light nearly on the starboard beam. Thereupon she showed a torch-light to the steamer, and then another, and afterwards fired a gun, notwithstanding which the collision ensued. The steamer’s testimony was that, when the schooner’s torch was seen ¡.Lead, or a little on the steamer’s port bow, they supposed it to be the signal-light, of a pilot-boat; and, wishing a pilot, the steamer exhibited a torch in reply, and altered her course a pointeto starboard, but without slackening speed oí 13% knots. At tlie time when the schooner’s gun was heard, a faint green light became visible 5 or the first time, whereupon the engine was reversed, and the helm put hard a-port, but too late to avoid collision; and a low intermittent white light was said to have boon also seen a little above the torch-light, /{eld. that the steamer was not justified in mistaking the schooner for a pilot-boat; but, if so, it was still her duty to check her headway nearly to a stop, and that her continued high speed of about 18>.< knots was a fault; and that, as to the schooner, the supposed angle of collision in the night-time is uncertain evidence, and that the weight of evidence was that the steamer was coming up within the range of the schooner’s green light, and not astern of that range; but that the green light was so dim as not to be visible to the steamer within the distance necessary to avoid her; and for this fault the schooner was liable. The damages were therefore divided, including towage services supplied by the steamer.</p>

<p>Jurisdiction — Auciírtanoe of Service.</p> <p>Acceptance of service, being merely equivalent to personal service in the district.. does not prevent a. defendant from moving to dismiss the suit because brought in a district in which lie does not reside.</p>

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

<p>1. Injunction — Judgment—Appearance by Attornet.</p> <p>A judgment against a defendant who was never served with process, and whose appearance in the action was entered by an attorney without his knowledge or consent, may be enjoined, though such defendant does not show that he has any defense to the claim sued on.</p> <p>2. Same — Equity Pleading — Amendment.</p> <p>Where a bill to enjoin such judgment alleges that said defendant was not legally served with process, and that he never appeared in the action, either in person or by attorney, an amendment thereto alleging that said defendant never acknowledged service of process in said action, either in person or by attorney, and that the-acknowledgment of service which had been made by an attorney was made without his authority, does not change the character of the bill.</p> <p>3. Same — Presumption.</p> <p>Where such amendment is proposed and allowed at the hearing in open court, in the presence of both parties, it will be presumed that it was made upon sufficient evidence, and not for the purpose of vexation or delay.</p> <p>4. Trusts — Validity as against Creditors.</p> <p>Where a trustee, who has in his possession money belonging to the trust fund, buys land, and takes title in his own name, but declares at the time that he buys the land with the trust funds, and afterwards records a written declaration of trust before the levy of any execution on such land, such declaration of trust is valid as against the trustee’s creditors.</p>

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

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

<p>At Law. On demurrer to the declaration.</p>

<p>At Law. On demurrer to petition.</p> <p>Action by Lon Y. Stephens, receiver of the Fifth National Bank of St. Louis, against Phillipine Overstolz, executrix of Henry Overstolz, deceased.</p>

<p>1. Executors and Administrators — Sale of Land — Publication of 'Notice.</p> <p>The regularity of the publication of notice to a non-resident heir, in proceedings in the probate court by an administrator to sell real estate to pay debts, cannot be questioned in ejectment against the purchaser at the sale.</p> <p>2. Federal Courts — State Statute.</p> <p>Tiio decision of the supreme court of a state, construing a state statute, is binding on the federal courts.</p>

At Law. This was an action of contract, brought May 16, 1887, by McCormick, a citizen of Illinois, against Eliot, a citizen of Massachusetts, to recover the balance of an account stated August 8,1863, by Eliot and one Eiske with McCormick, amounting to the sum of $2,058.16, and interest.

At Law. Action to recover back duties. The plaintiff, between January 1, and June 23, 1864, imported from England into the port of New York certain dry goods which were clasr sified for duty as similar to delaines, and not exceeding in value 40 cents per square yard, under the provision for “all delaines, cashmere delaines, muslin delaines, barege delaines, composed wholly or in part of worsted, wool, mohair, or goat’s hair, and all goods of similar description not Exceeding…

<p>Patents for Inventions — Action for Infringement — Measure of Damages.</p> <p>A sum paid in settlement of a claim for infringement of a patent cannot be taken as a standard to measure the value of the patented article, in determining the damages caused by another case of infringement. Following Rude v. Westcott, 130 IT. S. 152, 9 Sup. Ct. Rep. 463.</p>

In Admiralty. Appeal from district court. Libel by Prank Egan against a cargo of spruce lath for freight and demurrage. The libel was dismissed, and libelant appeals.

<p>Federal CousTb — Jurisdiction—Assignment ov Chose in Action.</p> <p>By Act Cong. March 3, 1887, providing' that no circuit or district court of the United States shall have cognizance of any suit except upon foreign bills of exchange, to recover the contents of any promissory note or other chose in action in favor of any assignee, or of any subsequent holder, if such instrument bo payable to bearer and be not made by any corporation, unless such suit might have been prosecuted in such court to recover the said contents if no assignment or transfer had been mode, it was intended to prohibit suits in the federal court by assignees of choses hi actions, unless the original assignor was entitled to maintain the suit, in all cases except suits on foreign bills of exchange, and except suits on promissory notes made payable to bearer, and executed by a corporation.</p>

In Equity. Morris K. Jesup, plaintiff in the original suit, and a citizen of New York, is the surviving trustee in a mortgage made September 22, 1866, by the Cedar Falls & Minnesota Railroad Company, covering its road and the net earnings thereof, its franchises, privileges, right of way, depot grounds, and all material designed to be used in construction; also “the rents and moneys payable by any person or company” to that corporation “for the use of said road and…

<p>I*re Emfmon Claims — Entries—Land-Oeítoe Rulings.</p> <p>The tenant of a pro-omptor cannot himself pre-empt the same land upon hearing that his landlord’s entry has been canceled and vacated by the land-office, when it afterwards turns out that such cancellation was void, and was vacated by the commissioner of the general land-offico.</p>

<p>1. United States Commissioner — Disobedience of Subfcena — Contempt.</p> <p>A commissioner of the circuit court of the United States has no power in a criminal proceeding be fore him to arrest a witness who refuses to obey a subpoena, and compel him to answer then and there for a contempt.</p> <p>3. Same.</p> <p>The power to punish for contempt is the highest exercise of judicial power, and is not an incident to the mere exercise of judicial functions; and such power cannot be upheld upon inferences and implications, but must be expressly conferred by law.</p>

<p>Immigration — Convicts—Who Abb.</p> <p>An immigrant who has been convicted in the country from which he came of an assault with a deadly weapon, and lias served the term of imprisonment imposed, is a convict, within the meaning of the act regulating immigration.</p>

<p>1. Extradition — Objection to Trial — When to be Taken.</p> <p>Whore an indicted person, who has escaped to Canada, and against whom an extradition warrant has been issued, returns to this country voluntarily, under an agreement that he shall only be tried for the offense for which he has been indicted, and he is thereupon tried and convicted, the objection that the crime for which he was tried was not an extraditable offense must be raised at the trial in order to he available.</p> <p>2. Same — Habeas Corpus — Jurisdiction op Federal. Court.</p> <p>An application for the release of such person on habeas corpus, because not tried for an extraditable offense, does not raise any question under the constitution, treaties, or laws of the United States.</p> <p>8. Same — Forgery.</p> <p>The treaty of 1842, between the United States and Great Britain, which provided for the extradition of persons charged with forgery, allows the extradition from Canada of a fugitive who is chargod with an act which was forgery by the laws of Great Britain in 1843.</p>

<p>1. Inmungemext or Patents — Extent of Claim.</p> <p>The first, third, fourth, tilth, and sixth claims of reissued letters patent No. 10,631 for a “stem-winding watch,” are for a device the distinctive characteristic ol which is that the winding and hand-setting engagements are not effected by the direct force ol the push and pull upon the stem-arbor, but are brought about by longitudinal movement of the stem-arbor, which brings into action certain light springs arranged to swing the yoke which carries the winding and setting train that lias no positive connection with the stem-arbor. Held, that these claims were infringed by a device accomplishing the same result by moans of an oscillating yoke carrying a winding and hands-sotting train, adapted to be placed in winding and setting- engagement*by the endwise movement of the stem-arbor acting' on springs hi such a manner that the engagement is not forced by the direct push or pull upon the stem-arbor.</p> <p>2. Same — "What Constitutes Inerixgemkxt.</p> <p>Patent No. 287,001 for a “watch pendant” covers a device in the stem to lock the arbor in either the winding or setting position. Held, that the manufacturer of watch movements only did not infringe this patent, though his movements were adapted to be used in any case filled with the device covered by the patent.</p> <p>3. ¡Same -Noteltt.</p> <p>The claim in reissued letters patent No. 10,031 for a “stem-winding' watch, ” for a device whereby the shifts from the winding and hands-setting engagements to each other are not effected by the direct force of the push and pull upon the stem-arbor, but are brought about by longitudinal movements of the stem-arbor, which bring into action light springs arranged to swing the yoke which carries the winding and setting trains, is novel, though there are several prior patents which effect these shifts by means of the direct force of the push anu pull upon the stem-arbor.</p> <p>4. Sime — Construction oe Claims.</p> <p>The claims of a patent must be so construed, if possible, as to uphold the patent, and though they may be broad enough to include results as well as devices, yet, where the specific devices are set out in the drawings and specifications, the claims should be construed as for the devices there shown.</p>

<p>1. Patents for Invention — Anticipation—Mechanical Equivalents.</p> <p>Patent No. 323,895, granted December 28, 1879, to William D. Gray, for “an improvement in roller grinding-machines, ” and patent No. 288,077, granted March 8, 1SS1, to said Gray, for a “roller-mill for grinding grain, ” are anticipated by the Nemelka Austrian and French patents of 1875, and the Nemelka Lake English patent of 1877; the adjustments of the rolls provided for by by the Gray patents being accomplished by substantially the same instrumentality' adopted by the Nemelka patents, though somewhat differently placed or modified.</p> <p>3. Same — Patentability1--Invention.</p> <p>Reissued patent No. 10,189, granted to W. H. Odell, for a “roller-mill,” (original granted December 18, 1»81,) is void for want of invention, the device being but the connection of the two shafts in a double roller mill, so as to obtain a simultaneous operation of the two.</p> <p>8. Same.Patent No. 269,623, granted December 26, 1882, to Hans Birkholz, for a “roller grinding-mill, ” is but a modified form of the first Gray patent, there being no patentable difference in the devices.</p>

In Equity-. . 'This was a bill in equity to recover damages for the infringement of letters patent No. 219,208, issued 'September 2, 1879, to Charles F.Brush for an electric lamp.

<p>Collision — Tug and Steam-Ship.</p> <p>A tug, with a bark in tow, and a steam-ship were approaching nearly head on when first discovered. The tug signaled that she proposed to pass on the starboard side. The steam-ship signaled in reply to port helm, and pass each other on the port side. The tug accepted this signal, but the steam-ship, when so near as to render a collision almost inevitable, changed her signals, and the tug, to avoid being run down, turned quickly to the left, and escaped by a distance of about a dozen feet. The bark was unable to get out of the way, and was struck by the steam-ship. At the place where the collision occurred there was no material obstruction to the view. Held, that the tug was not in fault.</p>

<p>Collision — Between Steamers — Failure to Answer Signal — Duty to Stop — Crossing Course.</p> <p>The steam-lighter I., going up the Bast river near the New York shore, came in collision, near Eighth-Street dock, with the ferry-boat R., bound from Hunter’s point to the Seventh-Street slip, and having the right of way. The R. three times gave a signal of one whistle, when off Thirteenth street, Twelfth street, and Eleventh ' street, when she received a signal of two whistles from the I., which attempted to gq near the shore; and the two collided port bow to port bow. Held, both in fault; the I. for crossing the R.’s course, and keeping to the left near the shore, without reason; the K. for not backing sooner, under inspector’s rule 3, or as soon as the I.’s intent was made known. Alifirming 38 Bed. Rep. S56.</p>

<p>1. Courts — Jurisdictional Amount — Quieting Title.</p> <p>For the purpose of determining the jurisdictional amount in a bill to quiet title, the whole value of the property, the possession or enjoyment of which is threatened by defendant, is the measure of the value of the matters in controversy.</p> <p>2. Equity Pleading — Multifarious Bill.</p> <p>A bill alleged that complainant’s title to certain ores claimed by it had been so thoroughly adjudicated that further litigation would be vexatious, and prayed that defendant might be enjoined from taking any proceedings to take said ores, or from disturbing complainant’s title thereto. In another portion of the bill complainant claimed a statutory right to require the title or claim of defendant to the ores to be “ now ” set up, tried, and finally determined. Held, that the bill was multifarious.</p>

<p>1. Rehearing in Equity — Time oe Granting.</p> <p>Equity 'rule 88 declares that a rehearing shall not.be “ granted ” after the lapse of the term at which the final decree is entered, and provides that in non-appealable cases a petition for a rehearing may be “ admitted ” before the end of the next term after final decree. Held, that the word “ admitted, ” as used therein, is synonymous with the word “granted, ” and that the effect of the rule is to deprive the court of the power to grant a rehearing in any case after the lapse of the term next succeeding the entry of a final decree.</p> <p>2. Same — Aeter Term Succeeding Decree — Waiver.</p> <p>An order sustaining a petition for a rehearing after the lapse of the term next succeeding the entry of a final decree is utterly void, and cannot be validated by any action of defendant in taking leave to plead, etc.</p>

<p>1. Vendob’s Lien — Quitclaim Deed.</p> <p>Under Code Iowa, § 1940, which provides that no vendor’s lien shall be enforced after a conveyance by the vendee, unless such lien is reserved by written .instrument, acknowledged and recorded, or unless such conveyance is made pending suit to foreclose the lien, a quitclaim deed by the vendee is sufficient to bar a vendor’s lien not evidenced by writing.</p> <p>2. Mobtgagis — Fobeclosure.</p> <p>A mortgage for $25,000 on a large number of lots provided for the release of “any five or more lots at any time hereafter” upon payment of $32 per lot. Held, that purchasers from the mortgagor, after his default in paying the mortgage debt, but before foreclosure suit was begun, might have their lots released for S82 each; but that the mortgagor’s right to a release on those terms expired wheD such suit was begun. ></p>

This is ail application for the writ of habeas corpus. From the agreed statement of facts in this case it appears that the petitioner, Charles A. Rahrer, was the agent at Topeka,' Kan., of Maynard, Hopkins & Co., citizens of the state of Missouri, doing a general wholesale business at Kansas City, Mo., in the sale of intoxicating liquors.

<p>1. Claims against United States — Allowance—Comptroller’s Decision.</p> <p>Act Cong. March 3, 1887, c. 359, (24 St. 505,) § 2, gives the circuit and district courts concurrent jurisdiction, yvithin certain limits as to amount, of all matters which by section 1 “the court of claims shall have jurisdiction to hear and determine, ” including all claims founded on any law of congress, except for pensions, or on any contract with the government: “provided, however, that nothing in this section shall be construed as giving to either of the courts herein mentioned jurisdiction to hear and determine claims * * * which have heretofore been rejected or reported on adversely by any court’, department, or commission authorized to hear and determine the same. ” By Rev. St. U. S. § 269, it is made the duty of the first comptroller of the treasury “to superintend the adjustment and preservation of the public accounts, subject to his revision.” Section 191 provides that “the balances which may from time to time be stated by the auditor, and certified to the heads of departments by the commissioner of customs, or the comptrollers of the treasury, upon the settlement of public accounts, shall not be subject to be changed or modified by the heads of departments, but shall be conclusive upon the executive branch of the gevernment, and be subject to revision only by congress or the proper courts. ” Held, that the proviso must be limited to a rejection of a claim, or an adverse report thereon, by a court, department, or commission which determines the rights of parties, and that therefore the disallowance of a marshal’s account for fees by the first comptroller of the treasury was not within the proviso, as his decision was conclusive only within the executive department.</p> <p>2. United States Marshal — Expenses—Reimbursement.</p> <p>A marshal is entitled to be reimbursed for money paid, with the approval of the attorney general, to whom Rev. St. U. S. § 368, gives general supervisory power over the accounts of the court officers, on a requisition of the district attorney, for blanks for the necessary use of the district attorney.</p> <p>3. Same — Mileage—Attending Court.</p> <p>Under Rev. St. U. S. § 829, cl. 24, allowing a marshal “for traveling from his residence to the place of holding court, to attend a term thereof, 10 cents a mile for going only, ” the marshal is not restricted to a single travel at each term; but, where court adjourns over one or more days, he may return homo, and charge travel for going to attend the term at the day to which it is adjourned. He may also charge travel for going to each special term.</p> <p>4. Same — Serving Process.</p> <p>Rev. St. U. S. § 829, cl. 25, allowing a marshal “ for travel, in going only, to serve any process, warrant, attachment, or other writ, including writs of subpoena in civil or criminal cases, six cents a mile, to be computed from the place where the process is returned to the place of service, or, when more than one person is served therewith, to the place of service which is most remote, adding thereto the extra travel which is necessary to serve it on the others,’’and providing, “But, when more than two writs of any kind required to be served in behalf of the same party on the same person might be served at the same time, the marshal shall be entitled to compensation for travel on only two of such writs, ” where the marshal serves several precepts against different persons for different causes, he is entitled to full travel on each, though they are all served on the, same trip.</p> <p>5. Same — Transportation oe Prisoner.</p> <p>The clause of the fee-bill allowing for travel in going only as a compensation for actual travel in going and returning being independent of the clause allowing fees for transportation of officer and prisoner only while the officer has the prisoner in custody, he is entitled both to transportation for himself and prisoner and to travel in going to serve a warrant of removal or warrant to commit.</p> <p>6. Same — Serving Several Writs.</p> <p>Act Cong. Feb. 22,1875, c. 95, § 7, after making certain provisions for the allowance of the accounts of attorneys, marshals, and clerks, further provides that “no such officer or person shall become entitled to any allowance for mileage or travel not actually and necessarily performed under provisions of existing law. ” Held, that the act did not preclude a marshal from full mileage on each of two of more writs served at the same time and place on different persons, but applied only to cases in which there was no actual travel, as where a writ was sent through the mail to be served by a deputy near the place of service.</p> <p>1. Same — Fees—Serving Writs.</p> <p>'The marshal’s duty to serve, and right to compensation for tho service of, precepts which are agreed to have been “duly issued by the court or a commissioner, in accordance with esl ablished usage, ” cannot be affected by tho opinion oí tho comptroller that the issue of such precepts was unnecessary.</p> <p>8. Same — Teansfortation of Prisoners — Hack Hire.</p> <p>The hire oí hacks to transport prisoners to and from court being agreed to have been in accordance with the usual practice, and to have always before been allowed, it will bo presumed to have been required by the court for the prompt dispatch of business.</p> <p>9. Same — Attending Hearing before Commissioner.</p> <p>Under Rev. St. U. S. § 829, cl. 23, allowing a marshal for attending examinations before a commissioner, and bringing in, guarding, and returning prisoners charged with crime, and witnesses, two dollars a day, and for each deputy, not exceeding two. necessarily attending, two dollars a day, ” the number of officers necessary to preserve order, not exceeding tho marshal and two deputies, is a matter to bo decided by the commissioner in the honest exercise of his discretion.</p> <p>10. Criminad Law — Examination of Poor Convict.</p> <p>The examination by a commissioner of a poor convict, on his application for discharge from cusiody, under Rev. St. U. S. § 1043, is a proceeding in a criminal case.</p>

<p>At Law. Action to recover damages. Demurrer to petition.</p>

<p>At Law.</p> <p>On demurrer to information, theretofore filed by leave of court, for violation of election laws. Rev. St. U. S. §§ 5506, 5512.</p>

<p>Owenses against the Mails — Indecent Letters.</p> <p>Under Rev. St. U. S. § 3893, declaring that “every obscene, lewd, or lascivious book, pamphlet, picture, paper, letter, writing, print, or other publication of an indecent character, * * * are hereby declared to be non-mailable matter, ” and declaring that any person who knowingly mails any such matter shall be liable to punishment, the mailing of a letter of indecent character, but which is not obscene, lewd, or lascivious, is not an offense, for it is not a “publication” within the meaning of the statute;</p>

<p>1. Patents for Inventions — Patentability—Mechanical Skill.</p> <p>The first claim of letters patent No. 228,525, granted June 8,1880, to William D. Gray for improvements in roller grinding-mills, namely, “ (1) In a roller grinding-mill, the combination of the counter-shaft, provided with pulleys at both onds, and having said ends mounted in vertically and independently adjustable bearings, the rolls, Ó, B, having pulleys connected by belts with one end of the counter-shaft, and the rolls, D, P, independently connected by belts with the other end of the counter-shaft, as shown,” does not disclose any patentable subject-matter. The application of belting to drive l'oller grinding-mills did not originate with Gray, and his peculiar arrangement resulted at most in an improvement in degree merely, and said combination evinced only the exorcise of ordinary mechanical or engineering skill.</p> <p>2. Same — Pbiob State of Aet.</p> <p>In view of the terms of the specification and the prior state of the art, said claim could not be so construed as to cover a roller-mill manufactured in accordance with letters patent No. 334,460, granted January 19, 1886, to John T. Obenchain. '</p> <p>3. Same — Pokeion Patent.</p> <p>By the Austrian patent law, the fixed longost duration of a patent for an invention is Í 5 years, and every patentee whose privilege has been granted for a shorter period than the longest may claim its prolongation for one or more years within the fixed longest period, provided such prolongation be demanded before the privilege has become extinct. In the original grant of an Austrian patent, the allowance of the franchise was for one year, but on request it was four times extended, from year to year, and at the end of the fifth year the franchise was suffered to expire.</p> <p>A United States patent to the same patentee, and for the same invention, was issued after the Austrian patent was granted and during the first year it was in force. Held, that by the original grant of the Austrian patent the patentee was invested with the right, at his mere option, to have the patent prolonged for the full term of 15 years, and that, under section 4887 of the Revised Statutes, the United States patent ran for that term, notwithstanding the expiration of the Austrian patent at the end of its fifth year.</p> <p>4. Same — Decision oe Foreign Patent-Oeeioe.</p> <p>Under the Austrian patent law, the ministry of commerce, in deciding the question of the length of the term which appertains to every Austrian patent, exercises a judicial function, and its opinion on that subject will be followed here, agreeably to the established rule that the courts of the United States adopt the construction, of a statute of a foreign country made by the courts of that country.</p>

<p>1. Patents eob Inventions — Natueal Gas Lines — Want oe Novelty.</p> <p>Claims 1 and 2 of letters patent No. 345,463, dated July 13,18S6, granted to George Westingbouse, Jr., assignee of Morris S. Verner, relating to pipe joints and lines for conveying liquids and gases, and, more particularly, natural gas, namely: “ (1) The combination of a pipe-line composed of sections of pipe connected at the joints by couplings, with a separate gas-tight chamber surrounding a single joint thereof, adapted to receive any leakage therefrom, and a vent pipe leading from such chamber, substantially as and for the purpose set forth. (2) In combination with a main pipe-line composed of sections of pipes connected at the joints by couplings, independent gas-tight chambers inclosing, respectively, single joints thereof, and a vent pipe or pipes leading from such chambers, substantially as and for the purpose set forth, ” — were destitute of patentable novelty, and, moreover, do not, upon any allowable construction, cover the defendant’s device.</p> <p>2. Same — Invention—Evidence.</p> <p>In a suit for infringement, upon the issue whether the plaintiffs’ assignor was the original and first inventor of the thing alleged to be within the claims of the patent in suit, a prior and still pending application of a third person for letters patent is competent evidence.</p>

<p>Patents tor Inventions — Novelty—Fire-Extinguisher.</p> <p>Letters patent No. 218,827, issued October 25, 1881, to Frederick Grinnell, for a« improvement in automatic fire-extinguishers, is void for want of novelty, sine# the alleged improvement merely consists in applying to an automatic extinguishe. a deflector, which had formerly been in use on hand hose.</p>

<p>Patents root Inventions — Patentability—Anticipation.</p> <p>Claims 1 and 4 of patent No. 228,939, issued June 15,1880, to Lebbeus H. Rogers for a die of an appropriate configuration to do the work of ornamentation for perforating and scalloping paper, or of ornamentation and dividing the paper,— eithor or both, — were anticipated by George Franke by the use of a die of substantially the same pattern, and with similar configuration and perforations, and, except in the result of the embossing, accomplishing just what is done by the patented die.</p>

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

<p>1. Collisions in Fogs — Speed op Vessels.</p> <p>Respondent, a propeller laden with grain, while running in a fog at night at the rate of about nine miles an hour, nearly her full speed, collided with and sunk libelant, a coal-laden schooner, whose speed was four or live miles an hour. The regulation lights on respondent were burning brightly, the lookouts properly stationed, the captain and mate on watch, and her fog-whistle was being sounded once a minute. Held, that respondent was at fault in maintaining a dangerous and unreasonable rate of speed in the fog.</p> <p>2. Same--Touches — Contbibutouv Negligence.</p> <p>Libelant, the schooner, failed to show a toi’ch on first hearing respondent’s fog-whistle, and made no attempt to do so, as required by Rev. St. U. S. § 4234, in such cases, and it was in evidence that a torch could have been seen further than the schooner’s lights, and that the display of a torch would probably have kept the vessels apart. Held, that libelant was guilty of contributory negligonee in not displaying a torch and that the damages should be divided.</p>

<p>In Admiralty. Information for boarding arriving vessel.</p>

In Admiralty. This is a case of seizure of a vessel captured while engaged in bringing ■Chinese laborers into the United States contrary to law, and a forfeiture is claimed on the ground that the person who had actual possession and command of the vessel was guilty of knowingly violating the statutes of the United States which prohibit such immigration.

<p>CoXiMsiojr — -Sailing Vesset. and Tow — Crossing Courses — -Fault.</p> <p>The tug E. K. It., with two heavy mud-scows astern on a hawser, came down the North river, about 500 feet off the New York piers. A lighter, having her mainsail hoisted, but with the peak dropped and with her jib furled, came out from the piors in tow of a tug, ahead of the E. K. It., and crossing her course. The wind at the time was fresh from the south-west. When the lighter came ahead of the tow, she oast off her tug, the momentum carrying her past the course of the tow. She thereupon attempted to shape her course to Hoboken, but was carried by the wind against the foremost scow. Held, that the collision was the fault of the lighter.</p>

<p>1. Circuit Coubt — Jurisdiction—Amount in Controversy.</p> <p>In a suit to enjoin the enforcement of a state tax, claimed to be unconstitutional, the subject of controversy is not limited to 8500, the tax imposed for a single year-; nor can' it bo determined, on a motion to dissolve the temporary injunction, that the damages will bo less than 82,000, the sum required to give the court jurisdiction, where plaintiff asks to be relieved from threatened penalties and interference with its business, the damage to result from which it places at $10,000.</p> <p>2. Constitutional Law — Taxation—Duties on Imports --Inspection Laws.</p> <p>Code N. O. § 2190. as amended by Act March 7, 1877, § 8, declares that no commercihl fertilizers shall be sold or offered for sale until the manufacturer or importer obtain a license from the treasurer of Hie state, for which shall be paid a privilege tax of 8500 per annum for each separate brand. Sections 22 and 23 appropriate the revenues arising from the tax to an industrial association and other purposes. Held, that the statute is void, in that it violates Const. IT. S. art. 1, § 10, providing that “no state shall, without the consent of congress, la.y any imposts or duties on imports, * * * except what may be absolutely necessary for executing its inspection laws, ” and is also an interference with intersta! e commerce.</p> <p>3. Sami: — Privileges op Citizens.</p> <p>The act is not unconstitutional as abridging the privileges and immunities of the citizens of other states.</p>

<p>1. Removal or Causes — Application—Remand.</p> <p>Where a proper bond and petition have been filed in the state court,, the omission to ask that court to act on the petition is no ground for remanding the cause, especially where no term of the state court intervenes between the filing of the petition and the motion to remand, and the judge of that court has refused to. consider the petition until the court is in session.</p> <p>2. Same — Citizenship—Nominal Paeties.</p> <p>Where the controversy is between the complainant and the removing defendant, who are citizens of different states, the fact that there are other defendants, citizens of complainant’s state, does not prevent the case from being removable, where the interest of one of such co-defendants is identical with that of complainant, and the other co-defendants are merely nominal parties.</p>

<p>In Equity. Bill for adjustment of land grant.</p>

<p>1. Pleading — Failure to Reply — Kffeot.</p> <p>Where a complainant mates no reply to the pleas filed by defendant, but sets them down for argument, the truth of all the facts stated in them and well pleaded is admitted, and no objection can be made to their form or regularity.</p> <p>2. Same — Plea—Sufficiency.</p> <p>A bill to ascertain tho surrender value of a policy of insurance upon the life of complainant alleged that the principles and methods of the apportionment made by defendant of its surplus funds failed to award to complainant’s policy the amount equitably due to it. Held, that a plea alleging that complainant agreed to ratify any plans adopted by tile company lor tho equitable distribution of its surplus and profits was not an answer, fox’, if the methods adopted resulted in an inequitable division, as alleged, it was not the method complainant agreed to ratify.</p> <p>’3. Life Insurance — Conditions of Policy — Payment of Pbemiums.</p> <p>Whex-e a life insxxrance policy is conditioned that, if the premiums he not paid when due, tho consideration of the contract shall be deemed to have failed, and the company shall be released from all liability, a failure to perform the condition operates as a formal release to the company of all its liability under the policy, and prc7 eludes the policy-holder from any relief in equity by a bill for accounting.</p> <p>4. Same — Rescission.</p> <p>A claim that the non-payment of tho premiums was simply a rescission by the policy-holder of the contract, induced by the discovery of alleged frauds on the part of the company, cannot be sustained, where it appears that he has had the benefit of an insurance upon his life for 10 years at a rate of premium fixed upon the hypothesis that the premiums would he paid for a much longer period.</p>

<p>1. Public Lands — Cancellation oe Patent.</p> <p>When the government of the United States applies for equitable relief, it must, like an individual suitor, do qquity on its part. Ip a suit to cancel a patent for land on the ground of error in issuing it, when the patentee is not guilty of fraud, it is essential for the government to return the purchase money to the patentee.</p> <p>2. Same — Sale oe Timber-Land.</p> <p>Within the meaning of the act of June 3, 3878, providing for the s.ale of timber-lands in-California and other Pacific coast states, lands which had been offered at public sale, but not sold by the United States, and which were thereafter withdrawn from sale because situated within the limits of the land grant to the Northern Pacific Railroad Company, belong to the class of unoffered lands, and may be lawfully sold as timber-lands under said act.</p> <p>8. Same.</p> <p>The hilly, stony land, covered with fir and cedar forest trees, common in the western part of this state, are chiefly valuable for timber, and unfit for cultivation, within the meaning of said act, although the soil is not barren, and may be made to yield good crops after removal of th"e timber and stumps. The true interpretation of the act does not require the substitution of the word “solely” for the word “chiefly,” nor do the words “unfit for cultivation” mean “not capable of being made fit for cultivation. ”</p> <p>4. Same — Improvements.</p> <p>The word “improvements, ” as used in said act, means valuable improvements. An abandoned and dilapidated cabin and remnant of an abandoned fence, which are of no use, are not such improvements.</p> <p>5. Same — Fraud.</p> <p>The fact of a patentee of the United States having conveyed the land within one month after entering it in the land-office, and priór to the issuance of his patent to-a vendee, who at about the time of said transaction also purchased other lands from a number of persons, who within a recent period entered the lands so conveyed by them, respectively, under the laws of the United States, is not a circumstance from which an inference, much less a conclusion, can be fairly drawn that there was an agreement between said patentee and his vendee, made prior to the entry, whereby the title to be acquired should inure to the latter; and, there being no evidence tending to connect said patentee with any conspiracy, no inference unfavorable to him can be drawn from evidence tending to prove that his vendee had received conveyances of other lands from other persons, made pursuant to agreements antedating entry of the lands.</p> <p>6. Samé — Rights oe Patentee.</p> <p>A purchaser from the United States, under the act above referred to, is not required to retain the land. After perfecting his right to it in good faith, the jus disponendi immediately becomes vested in him, and, in a suitto cancel a patent on the ground of fraud, without evidence of fraud on the part of the patentee other than abové indicated, the prayer of the bill will be denied.</p> <p> CSyllabus by the Court.) </p>

<p>Pleading — Complaint—Description of Place.</p> <p>In an action for personal injuries received by a child while playing with a detonating cap used to explode dynamite, an allegation in the complaint that defendant deposited the caps on the premises of plaintiff’s father, at a designated number and street, sufficiently describes the place, without stating specifically on what part of the premises the caps were deposited.</p>

<p>1. Contracts — Validity—Public Policy — Intoxicating Liquor.</p> <p>Where liquor is sold to a pharmacist for the express purpose of enabling him to retail it as a beverage, in violation of law, the price of such liquor cannot be recovered by suit, even though the sale itself was not illogal.</p> <p>2. Intoxicating Liquor — Construction or Statute.</p> <p>Code Iowa, § 1550, which provides that payments made for intoxicating liquor sold in violation of the prohibitory law shall he deemed to have been made upon a promise of repayment, does not- apply to payments made by a registered pharmacist for liquor intended to be sold by him contrary to law, and which he purchases in the original packages from a resident of another state.</p>

<p>Master and Servant — Negligence.</p> <p>In an action against a railroad company for personal injuries, the evidence showed that plaintifE was employed by defendant to make up_ trains in its yard; that, while coupling cars in the yard at night, his foot caught in a pile of ashes left on the track, causing him to fall and be run over; and that it was the duty of the section foreman to keep the track clear. There was evidence that ashes were not usually dumped in the yard. Held, that the evidence justified a verdict for plaintifE.</p>

<p>1. Adverse Possession — Color oe Title.</p> <p>Land belonging to the estate of a testator was sold by the administrator by order of court in 1866, the widow becoming the purchaser, and thereafter holding the land under such sale until she sold the same to other parties. Beld, that though the order of sale may have been void, the deed in pursuance thereof, for which the widow paid a valuable consideration, is sufficient color of title to make her possession, and that of those claiming under her, adverse to the heirs.</p> <p>2. Limitations — Action eor Land.</p> <p>Where the heirs bring suit to recover such land in 1889, their recovery, under the taws of Alabama, is barred by the lapse of more than 20 years from the date of the sale by the administrator.</p>

<p>1. Constitutional Law — Interstate Commerce — Delegation op Power to Regulate.</p> <p>Act Cong. 1890, known as the “Wilson Bill, ” which declares that intoxicating liquors shall, on arrival in a state, he subject to the operation of the police powers of the state, simply defines the time when Imported intoxicating liquors shall become subject to state control, and is therefore not unconstitutional as being a delegation to the states of the power to regulate interstate commerce.</p> <p>2. Intoxicating Liquors — Sale in Original Packages apter Passage op Wilson Bill.</p> <p>Lcisy v. Hardin, 10 Sup. Ct. Rop. 681, did not declare the prohibitory liquor law of Iowa (Code, § 1523 et seq-) void under all circumstances, hut only that imported liquors remaining unsold in the original packages in the hands of the importer are not subject to the jurisdiction of the state by reason of the commerce clause of the federal constitution. Therefore, on the passage by congress of the Wilson bill, which subjects to state police laws all imported liquors as soon as they pass within the boundaries of the state, it became unlawful to sell such liquors in Iowa without a re-enactment of the prohibitory liquor law.</p> <p>3. Habeas Corpus- — When Issues — Debatable Federal Question.</p> <p>Where it is a debatable question whether a slate court deprived a person of his liberty contrary to the provisions of the federal constitution, and the point presented by such action of the state court has not been finally decided by the supreme court of the United States, the federal circuit court will not release the prisoner on writ of habeas corpus, but will leave him to present the federal question to the supreme court by writ of error.</p>

Habeas Corpus. On appeal from the district court. On the 13th day of June, 1890, there was presented to the district court of this district the petition of Oscar Ulrich, praying for a writ of habeas corpus. The petitioner alleged, in substance, that at the January term, 1890, of the criminal court of Jackson county, Mo., the petitioner was indicted by the grand jury for the crime of bigamy.

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

In Equity. Bill by William W. Lee against the Upson & Hart Company and •others, to restrain the defendants from infringing letters patent No. 865,-819, issued July 5, 1887, to Horatio Jordan, for improvement in the art of welding the ends of metal tubes.

<p>In Equity. Bill for infringement and accounting. On exceptionsoto master’s report.</p>

<p>1. Patents for Inventions — Infringement—Measure or Damages.</p> <p>Where the infringers of a patented loom l'or weaving carpets could, according to the patentee’s own evidence, have attained the same results if, instead of using the infringing looms, they had used twice that number of non-infringing looms, the patent ee’s measure of damages is the difference between the cost of weaving the carpets radio non-infringing looms and the cost- of weaving them on the infringing looms, and not the net profits which the infringers received per yard on the increased amount of carpets manufactured by means of the infringing looms. Disapproving lYchxtcr v. Carpet Co., 2 Ban. & A., 67.</p> <p>S. Same- -Action por Infringement — Master’s Report.</p> <p>Whore the master, to whom was re Corred the ascertainment of the damages sustained by complainant in consequence of defendants’ infringement of its patented loom, has not specifically found as to the alleged superiority of a non-infringing loom over the one infringed, the court will not assume that ho intended to so find from indefinite answers to defendants’ requests on that subject, but will recommit the case to him, so that he may clearly state his own conclusions from the evidence.</p> <p>3. Same — Newt,v- Discovered Evidence.</p> <p>Where defendants introduced evidence of the alleged superiority of the non-infringing loom at the close of a long hearing before the master, complainant, who was then unable to obtain rebutting evidence, and who did not then have a full opportunity to present that branch of its case, will bo permitted to do so on the recommitment of the case to the master, though complainant does not unquestionablv bring itself within the rules which ordinarily govern the reopening oí a hearing to admit newly discovered testimony.</p>

<p>Copyright — Filing Copies op Book — Infringement—Pleading.</p> <p>Rev. St. U. S. § 4956, allowing a person seeking a copyright to deliver at the office oí the librarian of congress the copy of the title of the book and the two copies of the book which the statute requires to be deposited, and also permitting the deposit of such copies in the mail, addressed to such librarian, does not prevent both the delivery and mailing of the copies; and, where a complaint for infringement avers that both these acts were done, complainant will not be required to elect which averment he will undertake to prove at the trial, and to abandon the other. Distinguishing Falk v. Howell, 37 Fed. Rep. 202.</p>

In Admiralty. On appeal from district court. FINDINGS OF FACT. This was a libel in admiralty, in a cause of contract, civil and maritime, by a shipper of cattle against the steam-ship Caledonia, to recover damages caused by the breaking of her shaft. The Caledonia was one of the Anchor Line of transatlantic steam-ships, owned and employed by the claimants, Henderson Bros., as common carriers. The plaintiff was a dealer in and exporter of cattle.

<p>In Admiralty. Suit for seaman’s wages.</p>

In Admiralty. Cross-suits for damages caused by collision between the steam-boats Rockaway and Seaboard. The steam-boat Rockaway was going through the Kill von Kull, bound for New York, some 500 feet from the New Jersey coast. The tug Seaboard, lying at a pier on the New Jersey shore, attempted to back out as the Rockaway approached, but gave no signals of such intention.

<p>Courts — Admission of Staves — Transfer of Qauses.</p> <p>The right to remove to tho federal courts causes pending in the territorial courts of Dakota when the two states were admitted to tho Union depends not upon Act Cong. Aug. 18, 1888, upon removal of causes in general, but upon the enabling act of Feb. 22, 1889, § 28, which provides that cases which would have been of federal jurisdiction when brought if such courts had existed shall be removed upon the request of either party, and hence a motion to remand cannot be sustained upon the ground that tho removal was made at the demand oí a defendant residing in the state.</p>

<p>1. Courts — Admission of States — Transfer of Causes.</p> <p>Act Cong. Feb. 22, 1889, under which the Dakotas were admitted as states of the Union, provides, in section 23, that, upon the written consent of a party, all cases pending in the territorial courts at the time of admission “whereof the circuit or district courts by this act established might have had jurisdictionunderthelawsof the United States had such courts existed at the time of the commencement of such cases, ” shall be transferred to the said federal circuit and district courts. Held, that the provision applies to a case in which the plaintiif was a citizen of Dakota territory, and the defendant a citizen of another state, at the commencement of the suit.</p> <p>2. Same — Constitutional Law — Diverse Citizenship.</p> <p>Said section 23 does not attempt to give the federal courts jurisdiction, on the ground of diverse citizenship, 'of cases between a citizen of a state and a citizen of a territory, and therefore does not extend such jurisdiction to cases not warranted by Const. U. S. art. 3, § 2, in the words, “to controversies * * * between citizens of different states. ”</p> <p>3. Same — State Courts — Construction of Statute.</p> <p>Section 23 provides that no action pending in the territorial courts shall abate by the admission of the state, “but the same shall be transferred and proceeded with in Uno proper United States circuit, district, or slate court, as the case may be: provided, however, that in all civil actions, causes, and proceedings in which the U nited Stales is not a party transfers shall not be made to the circuit and district courts of the United States except upon written request of one of the parties to such action; * * * and, in the absence of such request, such cases shall be proceeded with in the proper state court . ” Jleld that, upon such request, the state court is deprived of jurisdiction, and the federal court gains exclusive jurisdiction.</p>

<p>In Equity. Motion to remand.</p>

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

<p>Equity Practice — Cross-Bill.</p> <p>Whore a defendant asks leave to file a cross-bill, and for an injunction against the complainant, leave to file the cross bill may be given without determining the right to the injunction.</p>

<p>Í. Husband and Wife — Gift—Delivery.</p> <p>A statement by a husband to his wife that be has certain bonds which are to be hers, when not accompanied by delivery of the bonds or any change in his treatment of them, does not pass title to the bonds, or make him liable to her for their conversion.</p> <p>3. Same — Fraudulent Conveyance.</p> <p>Property purchased by a man in his wife’s name with money borrowed by him in her name, but on his credit, and that of the property, is liable for his debts.</p> <p>3. Homestead — Fraud—Husband and Wife.</p> <p>Property purchased by an insolvent husband in his wife’s name, and occupied by them as a homestead, is, as against his creditors, exempt as a homestead, in spite of the fraud</p>

<p>1» Equity-Laches — Action to Cancel Deed.</p> <p>The heirs of the grant or filed a bill against the widow, children, and executor of the grantee, to set aside a del'd of land on the alleged ground that it had been obtained without, consideration from the grantor, an aged and feeble woman, when men! ally incompetent, by an abuse of a fiduciary relation existing between her and the grantee, and also by an actual fraud practiced by the grantee and one of the subscribing' witnesses. The grantor died a lew weeks after the date of the deed, and it was then immediately recorded, and the plaintiffs had actual knowledge of its contents. Fit teen years had elapsed before the bill was filed, and in tile mean lime the subscribing witness whose integrity was assailed and the grantee, both of whom survived the grantor a number of years, had died. Meld, that the plain-riffs’ laches and these deaths wore, of themselves, sufficient to preclude equitable relief.</p> <p>3. Sime — Unih u Ixíluence.</p> <p>The case, however, considered on its merits, and the conclusion reached that the deed was executed when the grantor was in possession of her sound mental faculties, and was her free, voluntary, and deliberate act, procured by no improper influence, and untainted by any actual or constructive fraud.</p>

<p>1. Corporations — Contracts.</p> <p>' A manufacturing corporation sold its business to its principal stockholders, who thereupon sold it to a third person, with an agreement not to enter into the same business, directly or indii’ootly. This agreement was not signed by the corporation. Held, that the corporation was not bound by the agreement.</p> <p>2. Injunction — When Issued.</p> <p>An agreement not to enter into a certain business will not bo enforced by preliminary injunction, at suit of the assignee of the covenantee, where the defendants are abundantly solvent, and there is doubt whether the agreement, being general, is valid, whether it is supported by an adequate consideration, and whether it is assignable.</p>

<p>In Equity. Bill to foreclose mortgage.</p>

<p>1. Assignment for Benefit of Creditors — What Constitutes — Mortgage.</p> <p>Under Code (la. *> 1953, which provides that a debtor may prefer one creditor to another, where a mortgage is given by an insolvent debtor to one of his creditors on all his property, and is followed immediately by other mortgages which in effect constitute a general assignment for creditors, the first mortgage does not constitute part of the assignment. Distinguishing White v. Ootzhausen, 9 Sup. Ct. Rep. 809.</p> <p>2. Same.</p> <p>An assignment by an insolvent debtor to a creditor, who knows of his insolvency, of all his property, consisting of choses in fiction, in order to secure such creditor, is a general assignment for the benefit of creditors.</p> <p>3. Same.</p> <p>A mortgage which provides that the surplus, after paying the mortgage debt, shall lie paid to the mortgagor’s creditors, constitutes a general assignment for creditors. Following Coggi/ns v. Stephens, 73 (Jta. 414.</p> <p>4. Sami; — Requisites and Validity.</p> <p>An assignment for the benefit of creditors, which is not accompanied by a sworn schedule and statement of assets as required by Act (la. Sept. 28, 1881, is void.</p> <p>5. Fraudulent Conveyance — What Constitutes — Mortgage.</p> <p>The provision in a mortgage that the surplus after satisfaction of the debt shall bo returned t o the mortgagor does not render the mortgage fraudulent. Following Callmoau v. Bank, 54 Da. 441.</p> <p>6. Sami: — Recording.</p> <p>The fact that an agreement by a debtor to prefer a certain creditor in case of insolvency is not recorded does not render it fraudulent, since such an agreement is not required by law to be recorded, and its record would therefore not constitute notice. Distinguishing THcnnerhassctt v. Sherman, 105 XT. S. 100.</p> <p>7. Equity Practice — Costs.</p> <p>Where a subsequent creditor brings suit to set aside such agreement he will be entitled 1.o recover costs, oven though he fail In his suit, where it appears that his ignorance of the agreement caused him to give the debtor credit.</p> <p>8. Attorney and Client — Oomkensation—Mortgage—Uquity Praotice.</p> <p>Where the foreclosure of a mortgage, which provides for 10 per cent, attorneys’ fees, is enjoined in a suit in which a receiver is appointed to sell the property for the benefit of all interested parties, the mortgagor is entitled to recover such attorneys’ fees out of the proceeds.</p> <p>9. Same.</p> <p>Whore a creditor has by suit brought into the custody of the court property of his debtor which had been appropriated by certain credit ors to the exclusion of tho others, and which the court distributes for the benefit of all the creditors, the attorneys of such creditor are entitled to compensation for their servicer, out of the proceeds of such property. Following Bail/road Go. v. Bettus, 5 Sup. Ct. Rep. 387.</p>

<p>Negotiable Instruments — Railroad Bonds — Bona Fide Holder — Fraud.</p> <p>In a suit to enforce the collection of railroad bonds which had been declared fraudulent it appeared that the bonds were given to a firm of which plaintiff was a member in payment for work alleged to have been done for the railroad company, and that another member of said firm was an active participant in the fraud which rendered the bonds invalid. Held, that plaintiff was not an innocent holder.</p>

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

<p>Carriers — Discrimination in Charges — Receiver.</p> <p>The receiver of a railroad in Florida, where discrimination in freight rates is a criminal offense, (Act Fla. Jan. 6,1855, c. 1564,) has no right to make such discrimination. Following Missouri Pac. Ry. Co. v. Texas & P. Ry. Co., 31 Fed. Rap. 862.</p>

<p>1. Judgment — Validity—Parties.</p> <p>Whore a railroad has been mortgaged to secure bonds which have been guarantied by the state, a decree that a certain branch of the road is not subject to the mortgage lien is of no validity when made in a suit in which the bondholders are not represented, and of which the st ate has not been notified, and which is brought in a county in which no part of said branch road is situated.</p> <p>2. Mortgage Foreclosure — Notice.</p> <p>Notice, at a foreclosure sale, of an adverse claim under an invalid decree of court does not affect the purchaser's title.</p>

<p>At Law. Petition for habeas corpus.</p>

At Law. In this case it appears from the record that on November 18, 1887, plaintiff contracted with the city of St. Louis “to furnish and erect the iron and steel work’ of the superstructure of the main spans of the Grand Avenue bridge, on the present stone piers, and to connect the same with the iron-work of the anchorage,” in conformity with certain plans and specifications, and for the sum of $144,000.

<p>At Law.</p> <p>This was a suit by a receiver of a,n insolvent national bank, duly appointed under the provisions of section 5234 of the Revised Statutes of the United States, against the executrix of a,deceased president and director of the bank, to recover damages alleged to have been sustained by the bank in consequence of loans knowingly made by tho deceased, in his capacity as president and director, to four different customers of the bank, to each in excess of one-tenth of the amount of its capital stock actually paid in. The action was founded on sections 5200 and 5239 of the Revised Statutes of the United States. The declaration, or “ petition,” as it is termed under the Missouri Code, recited the organization of the insolvent bank, the fact that defendant’s testator was its president and one of its directors from its organization until it became insolvent, that plaintiff was duly appointed receiver of its affairs, etc., and then averred, in substance, that the testator in his life-time, and while acting In the capacity of president, anil director, “participated in and knowingly assented to the making of loans” of the funds of said bank to Nathan Goldsmith & Co., to the amount of $99,591, in excess of one-tenth of the capital stock of the bank, $54,591 whereof was thereby wholly lost, and that the bank was thereby damaged to that extent. Similar allegations, differing only in amounts and dates, were made in separate parar graphs with respect to excessive loans to the John Meyer Lumber Company, the St. Louis Planing Mill Company, and the Elliottville Mills. Tho petition showed the total amount of the excessive loans made to each of the four concerns above mentioned, and the amount of the loss thereby and in each instance sustained. Attached to the petition were four exhibits, showing the dealings between the hank and said companies for the period of several years, from which it appeared that the excessive loans in question were not made in one sum to either of the several debtors, but that each of them borrowed from time to time, and in different amounts, money in excess of the sum authorized by law to be loaned. The petition also showed that the insolvent bank was ousted of its charter before this suit was begun, in a proceeding brought by the comptroller of the currency under the provisions of section 5239, supra. and that in such proceeding the comptroller counted upon the excessive loans to Nathan Goldsmith & Co., to the John Meyer Lumber Company, and to the St. Louis Planing Mill Company as a violation of law, and that, in consequence of such loans and other violations of law, the court decreed a forfeiture of the bank’s charter.</p>

<p>Cabkiek op Goods — Liability bob Loss.</p> <p>Where a carrier, after informing the owner of goods delivered to it for transportation that they will be held at place of receipt till the freight charges are pre. paid, ships the goods without payment, and without notice to the owner, it is liable for damages resulting from such premature shipment.</p>

At Law. This was an action by A. Minis & Sons to recover for services as ship agents. The jury found for plaintiff in the sum of $4,316.78.

<p>Cbiminat. Law — Costs.</p> <p>A defendant who has been discharged by the commissioner on preliminary examination, and is afterwards indicted and convicted on the same charge, should not be taxed with the costs of the examination before the commissioner.</p>

<p>Patents for Inventions — Mud-Drums—Infringement.</p> <p>The second claim of letters patent No. 304,195, issued August 26,1884, to Adolphus Meier & Co., assignees of Herman Heine, for the combination, with the upper shell of a water-tube steam-generator, of a mud-drum, mounted below the normal waterline, with its feed and outlet passages at the same end of the drum, is not infringed by the device described in letters patent No. 349,187, which consists of a tubular vessel, divided from end to end into two separate compartments, with its feed and outlet passages at the same end; since, in view of the prior state of the art, the former patent must be restricted to a mud-drum having but one chamber, as shown in its drawings and specifications.</p>

<p>1. Patents nor Inventions — Window Screens — Invention.</p> <p>Letters patent No. 328,080, issued October 13,1885, to John E. Stuart for a window-frame screen consisting of a combination of four bars, each having a longitudinal tongue on one side, and a slot at one end to receive the tongue of the contiguous bar, so that the frame may be adjusted to fit windows of different sizes, is not void for want of invention, though the bars alone are not patentable.</p> <p>8. Same — Infringement.</p> <p>While the making of such bars is not in itself an infringement of the patent, making them with intent to combine them as in the patented device is an infringement.</p> <p>8. Same.</p> <p>Said patent is infringed by a device consisting of four bars, each having a tongue on the inside, and a groove at the end for the reception of the tongue of the contiguous bar, though the groove is made square, so that the tongue fits in it loosely, and the union of the bars is secured by corner pieces.</p> <p>4. Same — Patentability—Evidence.</p> <p>Where the inventive character of a patented device is questionable, the large and increasing sales of the device may be taken into consideration in determining its patentability.</p>

<p>Patents fob Inventions— Prior State of the Art — Infringement.</p> <p>Sash eord guides having been made prior to 1879 without side flanges, and with rounded end flanges, there is no patentable invention in tbe improvement described by letters patent No. 216,767, issued Juno 24,1879, to Sloan and Clarkson, consisting of a sasb cord guide having semi-circular end flanges and semi-cylindrical casing ends, all of uniform diameter with the casing, and sides that meet the face of the casing at right angles, and without a flange, whereby the device is adapted for insertion in a mortise formed by a latterally cutting bit.</p>

In Equity. Demurrer to complainant’s bill, which averred that the defendants had imitated their method of bronzing horseshoe nails with the intention of deceiving the public into buying their goods instead of the complainants’.

<p>Demurrage— Oargo Stored on Lighters — Evidence.</p> <p>The Ocean Steam-Ship Company brought cotton to New York under through bills oi lading, bv which the’company underrook to convey the cotton to New York, and deliver it along-side certain designated foreign steam-ship lines. At one time the docks of the company became clogged with cotton, and the company shipped it on lighters, to be ti-ansportod to the foreign lines, and held in the lighters until these steamers were ready-to receive it. The lighters being in consequence delayed, their owner brought this suit for demurrage, alleging a special agreement by the Ocean Steam-Ship Company to pay demurrage for the timo the cotton remained on the lighters. The answer alleged an agreement that the Ocean Steam-Ship Company was in no case to be responsible l'or the demurrage of the libelant’s lighters, but that the same was to bo collected from the foreign steam-ships. Held, that the steam-ship company' was liable for demurrage.</p>

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

<p>In Admiralty.</p> <p>This was a suit for a collision between the steam-ships Sheffield and North Star, which occurred about 5 o’clock in the afternoon of June 14, 1889, during a dense fog, to the northward and westward of Whitefish point, in Lake Superior, resulting in the sinking and total loss of the Sheffield. The libel of the Sheffield averred that, while upon a trip from Chicago to Two Harbors, Minnesota, and after passing Whitefish point, and being put upon a W. N. W. course, she encountered a fog, which gradually became denser and steadier. While upon this course, with a smooth sea and a light wind, and with her fog-signals regularly blowing, she heard the distant sound of a steamer’s whistle, nearly ahead. Her engines were át once checked, when the signal was heard again a little upon her starboard bow. She was again checked, and a signal of two blasts blown, to which no answer was received. The signal was repeated, and the Sheffield starboarded half a point. The approaching steamer, which proved to be the North Star, replied with one blast still a long distance away. To make certain whether this was blown as a fog-signal or a passing signal, the Sheffield blew a signal of two blasts two or three times, to each of which the Star answered with a signal of one blast. Thereupon the Sheffield, acquiescing in the demand of the Star to pass port to port, blew one blast and ported. The vessels were then from one and a half to two miles apart, the Star bearing less than a point upon the Sheffield’s starboard bow. The Sheffield was steadied under her port wheel N. W. by N. This threw the Star upon the port bow of the Sheffield. The steamers approached, exchanging signals of one blast, until the Star was apparently well off upon the port side of the Sheffield, and all risk of collision seemed to be past. While in this-situation, a signal of two blasts was heard from the Star, apparently four points off the Sheffield’s bow, ttíe vessels being now too close to change sides by starboarding. The Sheffield answered with one blast, and ported hard. Again the Star blew two blasts, which w'ere answered again by one, and the Star appeared through the fog heading for the Sheffield, two lengths or more distant, on the port side, and coming-at great speed. The master of the Sheffield at once signaled to the engine for- full speed, and ordered the wheel amid-ships, but too late to be of service. The North Star struck the Sheffield at about right angles, and near her port mizzen rigging, cutting into her six or eight feet and sinking her within five minutes.</p> <p>The answer averred that the North Star, being on a voyage from West Superior, Wis., to Buffalo, N. Y., upon a course S. E. by E. half E., and running under check, heard a signal-of two blasts of a steam-whistle about three-quarters of a point over her starboard bow. Knowing this to be a passing signal of a steamer bound up the lake, it was promptly answered by two blasts from the North Star. In less than a minute afterwards, a second signal of two blasts was heard, still upon the starboard bow, which was again answered by a similar signal from the Star. This was again repeated. After the last signal was given and answered, the approaching steamer, which proved to be the Sheffield, suddenly blew a signal of one blast, still off the Star’s starboard bow. As soon as this was blown, danger of collision was apprehended, and the Star promptly answered this signal by adhering to her own signal of two blasts, and</p> <p>her speed was still further checked down. Again the Sheffield blew a signal of one blast, still upon the starboard bow, but closer. The engine of the Star was then immediately stopped, and, while this order was being obeyed, the Sheffield hove in sight near to, and heading across the bow of the North Star from starboard to port. Notwithstanding that a collision seemed inevitable, the master of the Star immediately ordered her wheel to port, so that she might swing under the stern of the Sheffield, and possibly pass her, and ordered the engine to back, and immediately followed this order by an order to back strong, in response to which every available pound of steam was given the engine. The steamer was backing with full power. Notwithstanding these precautions, the collision occurred practically as stated in the libel.</p> <p>The case was argued before the district judge, assisted by Capts. Joseph Nicholson and James W. Milieu, nautical assessors.</p>

<p>Appeal from district court. See ante, 398, for the opinion there delivered, and the facts other than, as set out in the present opinion.</p>

<p>On Writ of Error from District Court.</p> <p>This case was submitted on the record and the following agreed statement of facts:</p> <p>“It is hereby stipulated by and between Lawrence Jlartnon, plaintiff in error, by Patterson and Thomas, his attorneys, and the United States oí America, by John D. Fleming, United States attorney for the district of Colorado, as follows in the above-entitled canse:</p> <p>“First. That a writ of error was duly sued out of the circuit court of the United States for the district of Colorado to the district court of the United States in and for said district in the above-entitled cause, and that upon the presentation of the record of said cause to the Honorable David J. Brewer, then judge of the circuit court of tho United States in and for the eighth judicial circuit, the said the Honorable David J. Brewer, as judge, did order that the said writ of error issued in said cause should be made to operate as a supersedeas therein.</p> <p>“Second. That the said cause was duly docketed in the said circuit court for the district of Colorado, and was entered upon the docket of said circuit court as case ‘ No. 2,493.’</p> <p>“Third. That thereafter the said, tho Honorable David J. Brewer, as judge of the circuit court, did make the following order and appointment, which was duly entered of record in the office of the clerk of the said circuit court for the district of Colorado, as follows:</p> <p>“ • United States Circuit Court, District ok Colorado.</p> <p>“ ‘In my judgment, the public interests so requiring, I do hereby designate and appoint Hon. John F. Phillips, United States district judge for the western district of Missouri, to hold the circuit court of the United States for the district of Colorado for the present term, in aid of the Hon. Moses Hallett, district judge of said district.</p> <p>“ ‘Witness my hand, this, the 6th day of December, A. D. 1889.</p> <p>“ ‘David J. Brewer, Circuit Judge.’</p> <p>“Fourth. That thereafter, and by virtue of said order and appointment, the said lion. John F. Phillips, district judge aforesaid, did hold this present term of the said circuit court at Denver, in the district of Colorado.</p> <p>“Fifth. That upon, to-wit, the 20th day of December, 1889, it being one of the judicial days of the term for which the said Hon. John F. Phillips was appointed to hold the said term of the circuit court, as aforesaid, on motion of the plaintiff in error, and with the consent of the United States of America, through John D. Fleming, United States attorney for said district, the said cause and the errors alleged were submitted to the said circuit court, presided over by the said Hon. John F. Phillips alone, under and by virtue of said appointment, for determination and decision, and the plaintiff in error, by his attorneys, and the United States of America, by the said John D. Fleming, United States attorney for the district of Colorado, did appear before the said circuit court, presided over by the said Hon. John F. Phillips, as aforesaid, and did fully present by argument the said cause and. errors alleged therein, both in behalf of the said plaintiff in error, and in behalf of the said defendant in error, and did then and there submit the same to the said court for its decision.</p> <p>“Sixth. That afterwards, and upon,.to-wit, the 5th day of March, A. D. 1890, the same being one of the judicial days of the term of the said circuit court over which the said Hon. John F. Phillips had been appointed, the said Hon. John F. Phillips, as said judge, and under and by virtue of his said appointment, did file in the clerk’s office of the said circuit court in and for said district his opinion in writing in said cause, in and by which said opinion the judgment of the said district court in said cause was reversed; and for the cause set forth in the said opinion the said defendant was ordered to be discharged without day from any further prosecution by reason of the facts alleged against him in the indictment, and reference is hereby made to the said opinion, and to the said order reversing the said judgment, and ordering the discharge of the said plaintiff in error, for greater particularity.”</p>

<p>Injunction — When (Hunted.</p> <p>A preliminary injunction will not be granted to compel the lessees of an opera-house to allow the complainants to use the house in accordance with a contract therefor, where such injunction would compel the lessees to break a similar contract marie by them with an innocent third party, and the complainants cannot use the house with profit to themselves.</p>

<p>Injunction — Multiplicity op Suits.</p> <p>The plaintiffs, respectively, are in the possession, and claim to be the owners, of tracts of land acquired by them under the homestead and pre-emption laws of the United States. These lands are all claimed by the Wisconsin Central Railroad Company as part of its place lands as defined by an act of congress passed in 1864. The company has heretofore brought separate actions of ejectment against three of the plaintiffs, and was unsuccessful. Nevertheless, it threatened to bring actions of ejectment against each of the other plaintiffs, as well as actions of trespass for injuries in cutting timber, unless they voluntarily surrendered possession of the lands respectively; held by them. The dispute between the railroad company and each of the plaintiffs depends upon precisely the same questions of law, and upon the same facts. The plaintiffs have a common source of title, and the claim of the company is good or bad against all, as it may be good or bad against any one, of the plaintiffs. Held tndt, in order to avoid multiplicity of actions, the issues may be determined in a single suit, in equity, in which the holders of the different tracts may unite as plaintiffs; the ease belonging to the class “where u number of persons have separate and individual claims and rights of action against the same party, but all arise from some common cause, are governed by the same legal rule, and involve similar facts, and the whole matter might be settled in a single suit brought by all these persons uniting as co-plaintiffs, or one of the persons suing on behalf of the others. ”</p>

<p>1. Reformation of Contracts — Parol Evidencie.</p> <p>In a suit to rescind or reform a contract of license for the use of “guides” for guiding rods in their passage through surface-polishing machines, it'appeared that, at the time the license was granted, plaintiff was the patentee of the guides, and that defendants were using them in a machine then in operation, and that plaintiff threatened suit to enjoin defendants from infringing his patent. This suit was compromised, and plaintiff granted defendants a license “to use my patent guides for disk-rolling machines, * * * the said license to become theirs, their heirs’ or assigns’, forever. ” Subsequently defendants erected another machine, and manufactured and used plaintiff’s guides on it. Held, that the terms of the license were plain, and unambiguous and did not restrict defendants to the privilege of using the guides only on the machine in operation when it was granted, but gave them the right to use them on any machines they might subsequently erect.</p> <p>3. Same — Evidence.</p> <p>The fact that the license was granted upon the compromise of a suit for the infringement of the patent, by the use of only one pair of guides on a single machino, should not restrict the obvious meaning of the terms used in the license, especially when the bill in the suit for infringement alleged “that defendants had made one machine, employing said invention, [plaintiff’s guides.] and that they were threatening to make and use the aforesaid machines in largo quantities. ”</p> <p>3. Same — Fraud and Mistake.</p> <p>Nor will such contract he rescinded on the ground of fraud or mistake, when it appears that plaintiff agreed to the terms of the license 34 hours before he executed it; that it was drawn in accordance with these terms by one of defendants, who-read it to plaintiff when he brought it to him for execution; and that plaintiff himself read it and executed it immediately, without expressing any dissatisfaction, and rejected the offer of his counsel to revise it.</p> <p>4. License — Construction oe Terms.</p> <p>The license to “use”includes the right to make for use, as without such right the license would be nugatory.</p>

<p>1. Assumption op Mortgage — Substitution of Third Person.</p> <p>Plaintiff agreed to sell to defendant property'subject to a mortgage which defendant was to assume. Afterwards defendant requested plaintiff to convey to defendant’s wife, which he did on defendant’s giving a bond guarantying payment of the mortgage by defendant’s wife. The mortgage was foreclosed, and the deficiency exceeded the amount of the guaranty bond executed by defendant. On a bill to enforce payment of the deficiency, defendant testified that the bond was given because he had agreed to assume the mortgage, and that, if the property was conveyed to his wife, he (defendant) would not be carrying out his contract. Plaintiff testified that he took a bond because he was “deeding to a straw grantee,” and that the amount of the bond was fixed “as a sort of balance between us in our liabilities. ” There was no evidence of any fraufi or false statements by defendant to induce plaintiff to convey to defendant’s wife, or of any statement that she would assume the mortgage, or that defendant was acting as agent for his wife. Held, that defendant’s wife was substituted as grantee by consent, and that defendant could not be held liable for the entire deficiency.</p> <p>S. Same — Bill to Enforce — Sufficiency.</p> <p>The bond was conditioned to indemnify plaintiff against any loss by reason of a failure of his grantee (defendant’s wife) to pay the mortgage on the property conveyed to her by plaintiff to an amount equal to the amount of the mortgage assumed by plaintiff. Plaintiff made default in the payment of the mortgage so assumed by him, and it was discharged by defendant. Held, that a bill by plaintiff and his mortgagee, to whom he had assigned the bond to enforce payment of a deficiency arising on foreclosure of the mortgage on the property conveyed to defendant’s wife, would be dismissed, since there was no proof that plaintiff had paid anything on the mortgage, and defendant’s liability on the bond was canceled by his payment of the mortgage assumed by plaintiff.</p> <p>3. Same — Payment—Stocks.</p> <p>The fact that plaintiff paid with stocks the mortgage which defendant had assumed will not prevent plaintiff from setting off against the bond the full amount of such mortgage, and defendant cannot, in such case, inquire into the actual value of such stocks.</p>

<p>Contitutional Law — Title of Act.</p> <p>The clause in section 3 oí the act oí 1885, purporting to grant the tide-land on Yaquina bay, in front oí lot 4, to the town oí Newport, is void, because the subject is not “expressed” in the title, as required by said section 20.</p> <p> (Syllabus by the Court.) </p>

At Law. This suit was tried by the court, a stipulation waiving a jury being filed. The action is brought to recover an assessment made by the comptroller of the currency on the stockholders of the Fifth National Bank of the city of St. Louis, which went into liquidation November 7, 1887, and of which the plaintiff was appointed receiver. The assessment was 100 per cent, of the par value of the shares.

At Law. Information for the forfeiture of certain real and personal property for alleged violation of the internal revenue laws.

At Law. Ejectment by Romeo Lewis and others, heirs of Romeo Lewis, deceased, against Abraham Barnhardt and Josephus Gish.

<p>3. Bt.t'Otions — Appointment op ¡supebvisors.</p> <p>The refusal of the managers oí one political party to co-operate in a petition for the appointment of supervisors of election is no 2'eason for denying the petition, where it appears that the petitioning party used due diligence to secure such cooperation.</p> <p>2. Same.</p> <p>In the absence of any showing, either in the petition or by evidence, that the persons named in the petition possess the statutory qualifications of supervisors, the petition should be denied.</p>

<p>1. Railroad Companies — Negligence—Injuries to Persons on Track.</p> <p>Where a trespasser, walking along a railroad track, is struck and injured by a train, the liability of the railroad company depends upon the question whether those in charge of the train, after discovering that he was not going to leave the track, used all the means in their power to stop the train before it struck him.</p> <p>3. Same — Crossings—Signals.</p> <p>Rev. St. Tex. art. 4333, which provides that locomotives shall whistle or ring before crossing a road, and that a railroad company, neglecting this precaution, shall “be liable for all damage which shall be sustained by any person by reason of such neglect, ” does not render a company violating such statute liable for injury to one who saw the approaching train in time to avoid it.</p> <p>3. Measure op Damages eor Torts.</p> <p>In an action for personal injuries the jury, in estimating the damages, may consider plaintiff’s physical and mental suffering, the probable effect of the injury upon his health and the use of his limbs, his ability to labor and attend to his affairs, and generally any reduction of his power and capacity to earn money and to pursue the course of life which he might otherwise have done.</p>

<p>Pi.BT.ro Lands — Reservations and Donations.</p> <p>Congress, by an act approved June 8, 1856, (11 St. 20,) granted to Wisconsin, to aid in the construction oí “ a railroad i'rom Madison or Columbus, byiho way of Portage City, to the St. Croix river or lake, between townships 25 and 81, and from thence to t he west end of Lake Superior, and to Bayfield, and also from Fond du Lac, on Lake Winnebago, northerly to the state line, every alternate section of land designated by odd numbers, for six sections in width on each side of said roads, respectively, ’’with indemnity limits of 15 miles from each road; the lands unsold to revert to tfio United States, unless the roads were completed within JO years. In anticipation of the passage of that act, the commissioner of the land-ofliee, May 29, 1806, directed the registers and receivers of the districts in which these lands were to suspend sales and locations until further orders. This grant was duly accepted by the state, and the benefit of it conferred upon a railroad company. The map of definite location of the Bayfield branch was filed July 17, 1858, and was approved. After the final location of that branch, the commissioner of the land-office made an order withdrawing and reserving from entry and location all the odd-numbered sections, outside the 6 and within the 15 mile indemnity limits of certain roads, described in the act of 1856, excluding the Bayfield branch. Prior to May 5, 1864, nothing had been done under the act of 1856, except to construct the road from Portage to Tomah, and to definitely locate the Bayfield branch. On that day congress passed another act, granting to the state, “for the purpose of aiding in the construction of a railroad from a point on the St. Croix river or lake, between townships 25 and 31, to the west end of Lake Superior, and from some point on the line of said railroad, to be selected by said state, to Bayfield, every alternate section of public land designated by odd numbers, for ten "sections in width on each side of said road, deducting any and all lands that may have been granted to the state of Wisconsin, for the same purpose, ” by the act of congress of June 3,1856, “upon the same terms and conditions” as are contained in the latter act, with indemnity limits of 20 miles. The second and third sections granted to the state a like amount of place limits, with like indemnity limits, to aid in the construction of railroads, respectively, from Tomah to the St. Croix river or lake, and from designated places in the eastern part of the state, in a north-westerly direction to Bay- . field, and thence to Superior, on Lake Sunerior. But its sixth section provided: “That any and all lands reserved to the United States by any act of congress for the purpose of aiding in any object of internal improvement, or in any manner, for any purpose whatsoever, and all mineral lands, be, and the same are hereby, reserved and excluded from the operation of this act, except so far as itmay be found necessary to locate the route of such railroads through such reserved lands; in which case the right of way only shall be granted, subject to the approval of the president of the United States. ” 13 St. 66. The road described in the third section of the act of 1864 was constructed by the Wisconsin Central Railroad Company, and that company became entitled to the benefit of the grant made by that section. Its road was definitely located November. 10, 1869. The road extending from a point north of St. Croix river or lake to Bayfield belongs to what is called the “Omaha Company.” The lines of that road and of the Central road approach each other as they, respectively, approach Lake. Superior, so that the place limits of the Central road overlapped the original 15-mile indemnity limits of the Bayfield branch of the Omaha Company. Those two companies entered into an agreement whereby the Cenffral Company was to have patents for all the lands in the overlap lying east of the easterly 10-mile limit of the Bayfield branch of the Omaha Company, and north and east of the westerly 10-mile' limit of the Central road, . while the Omaha Company was to have all the other lands within the overlap o C the grants. -The Central Company got patents from the state for all the lands situated on either side of, and coterminous with, said completed portions of its road. These patents covered the lands in dispute, which are outside and east of the enlarged place limits, (10 sections in width on each side of the Bayfield branch,) and within the 15-mile indemnity limits of that road. They are also'within the 10-mile place limits of the Central road, as defined by the act of 1864. The Central Company received from the Omaha Company a deed of release covering those lands and others similarly situated. In 1887 the Omaha Company had a final adjustment of its land grant, when Secretary Lamar ruled (6 Dec. Dep. Int. 190) that the lands within the original indemnity limits of the Bayfield branch, as defined in the act of 1856, were, by orders of the secretary, “reserved to the United States ” at the date of the passage of the act of 1864, and therefore were not included in the grant by that act. Upon a rehearing of that question before Secretary Noble (10 Dec. Dep. Int. 63) the same ruling was made. After these rulings, the lands here claimed by the Central Company were entered under the homestead and pre-emption laws of the United States, and patented to the defendant. Sold: (1) Thé purpose of the act of 1864 was to break the continuity of the original line from Tomah, via St. Croix river or lake, to the west end of Lake Superior and to Bayfield, and to devote to the con-, struction of separate and distinct portions of that line an increased quantity of lands beyond the amount granted by, or which could have been made available under, the act of 1856. (2) The act of 1864 did not wholly displace the act of 1856, and make an entirely new, independent grant as of its date of the place lands to the extent of 10 full sections in width on each side of the particular roads therein mentioned, with indemnity limits of 20 miles, but, in lo^al effect, granted 4 additional sections in width of place lands, with indemnity limits enlarged from 15 to 20 miles,. and confirmed the previous grant of 6 sections in width of place lands, with 15' miles indemnity limits; in other words, as to the Bayfield road, it converted 4 miles of the original indemnity limits, as defined in the act of 1S56, into place limits, and added 5 miles on each side of the place limits, thus enlarged, to the indemnity limits, leaving untouched in all other respects the original grant of lands for that road. (3) Except as to that part of the indemnity lands converted by the first section of the act of 1864 into place lands of the Bayfield road, the orders of tho secretary of the interior, made prior to that year, withdrawing irom sale and location for the benefit of that road its entire indemnity lands, was not abrogated or annulled by that act. congress not intending to deprive the Bayfield road of any part of the original indemnity lands, (i) The lands within the original indemnity limits of the Bayfield road, embraced in the withdrawals from sale and location by tho secretary of the interior, prior to the passage of the act of 1864, were not (.¡ranted by, but were excluded from the operation of, that act, because, within its meaning, and according to the decisions of the supreme court, they had been, and then were, by reason of such withdrawals, “reserved to the United States. ” (5) Although the objocb of such withdrawals, namely, to supply deficiencies in the place limits’of the Bayfield road, was fully satisfied by the adjustment made with the Omaha Company of the grant for tlie benefit of that road, tho iands so withdrawn, although falling within the outer lines of the place limits of the Central road, did not become the property' of t he Central Company, because, having been “ reserved to the United States” prior lo 1864, they wore excluded altogether from tho operation of that act, and could not be brought under it by reason of their not being finally needed for the Bayfield road. (6) The agreement between the Omaha and Central Companies, and the deed of release from tho former to the latter company, was of no avail, as against tho United States, because the Omaha Company acquired no legal interest in the lands in dispute which it could transfer to the other company, the lands never having been selected and set apart by the land department for the Bayfield road. Until indemnity lands are so specially selected and sot, apart, the title and right of property therein remains in the United States</p>

<p>Patents fob Inventions — Inebingement—Pleading.</p> <p>Defendants’ answerto a bill charging the infringement of complainant’s patent for making oil-cans alleged that the cans were made in accordance with a patent issued 20 days before that of complainant, and admitted that the first claim of complainant’s patent was similar to the first patent. The cause was heard on the bill, answer, and replication. Held, that the admission of infringement was complete, and must be taken as true, and the affirmative averments avoiding the effect of the admission are of no avail without proof.</p>

<p>1. Patents fob Inventions — Novelty.</p> <p>Letters patent No. 394,764, granted March 11,1884, to Matthew Corcoran, for a “machine for trussing tubs, ” ar.e not void for want of patentable novelty, as the combination, consisting of recessed standards, with truss-hoops, removable bottom, and driving weight, is new, though its constituent elements had long been in use.</p> <p>2. Same — Infringement—Equivalents.</p> <p>Claim 2 of letters patent No. 294,764, granted March 11,1884, to Matthew Corcoran, for a “machine for trussing tubs” covering a combination of recessed standards, with truss-hoops, removable bottom, and driving weight, is infringed by letterB patent No. 356,217, granted January 18,1887, to P. W. Ulrich, for the same kind of machine, wherein the device is a recessed iron pot, with removable bottom and truss-hoops placed in the recesses, as the latter device is simply an equivalent of the former.</p>

<p>In Equity. On motion to dissolve injunction.</p> <p>Bill by George Westinghouse against J. Fairchild Carpenter for the infringement of complainant’s patent.</p>

<p>In Admiralty. Suit for damages occasioned by collision between the steam-ships Gulf Stream and Knight.</p>

<p>Federad Courts — Jurisdiction—Ciiizenship—Residence.</p> <p>Act Cong. March 8, 1887, as amended by Act Aug. 18, 1888, provides that no civil suit shall bo brought against any person 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. ” Held- that, when the jurisdiction depends solely on the citizenship, plaintiff may bring the action in the district wherein he resides, without reference to the residence of defendant if he resides in a different state.</p>

In Equity. This case arose on a bill filed by the United States under the act of congress approved July 2, 1890, entitled “An act to protect trade and conimerce against unlawful restraints and monopolies.” All the coal companies doing business in the city of Nashville, as members of the coal-exchange, were made parties defendant. On the preliminary hearing a temporary injunction was refused.

<p>Bill tor Ikeeingemert — De mother fob Laches.</p> <p>In a bill lor infringement of letters patent, alleged to have been issued in 1879, and assigned to the complainant in 1880, an averment of an infringement of the latter’s rights “since the date of said patent” will be construed as meaning after or subsequent to the date of the patent, and not ever since that time, and the bill is not subject to demurrer for laches of complainant in asserting his rights.</p>

At Law. On motion for a new trial. This is an action brought to recover damages for deceit in the sale by the defendant to the plaintiff of 2,240 acres of land situate iirthe county of Wells in this district. The action was tried in the territorial district court in and for Stutsman county, in the sixth judicial district, and a verdict and.judgment were rendered for the plaintiff on the 26th day of November, 1888, for the sum-of $12,609.58.

At Law. In the matter of Clinton Depriest, supervisor of elections, and Robert Taylor, registrar of elections, in one of the voting precincts of thé city of Richmond, the court sitting specially under the requirements of .Rev. St. U. S. § 2012.

<p> Sur Habeas Corpus. </p>

<p>Criminal Law — Venue—Constitutional Requirement.</p> <p>Const. TJ. S. art. 3, § 2, declaring that “the trial oí all crimes, except in cases of • impeachment, shall be by jury, and snob trial shall be beld in the state where the said crimes shall have been committed; but, when not committed within any state, the trial shall be at such place or places as the eongress may by law have directed, ” —relates exclusively to trials in the federal courts.</p>

At Law. Application by Kate Friday for a discharge on a writ of habeas corpus. Sections 5541 and 5542 of the Revised Statutes of the United States are as follows.: “Sec. 5541. Held: the use of which jail or penitentiary is allowed by the legislature of the state for that purpose. “Sec. 5542.

<p>1. Patents eoe Inventions — Patentability—Anticipation.</p> <p>Reissued letters patent No. 10,867 issued September 13. 1887, to N. Grier Moore, administrator of Charles F. Stock, for a trap having a throwing arm, with a pivoted extension provided with means for automatically releasing a target, describes a useful and novel invention which had not been anticipated.</p> <p>2. Same — Reissue—Mistake in Ohioin.il Application.</p> <p>The drawings, specifications, and invention clearly set forth in the application for letters patent No. 295,302, issued March 18, 1881, to Charles F. Stock, clearly covered the pivoted carrier claimed in reissued letters patent No. 10,867. The mechanism described in the original application is the same as in the reissued application. The features of the construction and the illustrations are the same in both applications. When Stock’s application for the original patent was prepared he was sick, and the application contained no claim for the pivoted carrier, but as soon as the patent was issued he noticed the defect, and said he proposed to have the error eorrécted. He died, however, soon afterwards, without having it done. Held, that there was such a mistake as was properly corrected, by reissue to his administrator covering the pivoted carrier.</p> <p>3. Same — Assignment.</p> <p>The patentee assigned, a half interest in the original patent to the I. W. H. Co. After the patentee’s death his administrator, M., assigned the patent to W., after joining with the I. W. H. Co. in surrendering the patent and in filing application for the reissued patent, which was granted to M., as administrator. After the reissue off the patent the I. W. H. Co. and W. conveyed all their title to complainant. Held, that complainant’s title was good.</p>

<p>1. Maritime Liens — Seizure oe Vessel — Rights oe Masteb,</p> <p>Where the sheriff, by virtue of a writ of execution, seized a steam-boat, and, after taking actual possession, ran the boat a few days without the consent or knowledge of the owner, one who acted as master and pilot during that time must look to the sheriff for his compensation, and has no lien against the boat.</p> <p>2. Same — Liens by State Laws.</p> <p>The Pennsylvania act which gives liens against domestic vessols navigating the rivers Allegheny, Monongahela, and Ohio does not apply to a boat running exclusively on the Beaver river, a tributary of the Ohio.</p>

<p>Maritime Contracts — Care of Vessel at Pier — Liens by State Laws.</p> <p>The libelant, late master of a tow-boat, at the end of a trip vvas hired to take exr elusive custody and care of the boat while she remained moored at Pittsburgh, her home port, and to put and keep her in good order, and fit to proceed on an anticipated voyage, which he did. He necessarily remained on board the boat dayand night. It was necessary to move the boat into shore and out therefrom as the river rose and fell, and the chief perils to which the boat was exposed, and from which she was to be protected by the libelant, were perils of the river. Held, that the contract and -the. services actually rendered by the libelant were maritime, ’and that the lien for his wages against the boat, given by the state statute, was enforceable in rem, in admiralty.</p>

<p>Collision — Steam and Sailing Vessel.</p> <p>The-lighter Barbara was coming down the North river, her sails filled from the , starboard side, intending to. go as pear the Battery as was safe, and into the East river. A tng and sloop were discovered pointing up the river, and towards the New York shore. Just before the collision the sloop starboarded her helm to go about, and struck the tug, which, to avoid damage, went ahead at full speed, and struck the lighter in her starboard bow, sinking her. The lighter would have cleared the sloop. Belct that, as all the lighter had to do was to hold her course, the tug was liable for the. collision. Affirming 38 Fed. Rep. 624.</p>